United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Eatontown, NJ, Employer
__________________________________________

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Appearances:
Richard A. Daniels, for the appellant
Office of Solicitor, for the Director

Docket No. 14-0178
Issued: September 28, 2015

Case Submitted on the Record

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

JURISDICTION
On October 28, 20131 appellant, through her representative, filed a timely appeal of an
April 30, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
addressing her schedule award claim. Pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of
the case.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from April 30, 2013, the date of OWCP’s last decision was
October 28, 2013. Since using October 30, 2013, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is October 28, 2013, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met her burden of proof to establish permanent
impairment to a scheduled member.
On appeal, appellant’s representative argued that the report of the impartial medical
examiner comingled information and was not based on a proper application of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) or
The Guides Newsletter. He contended that additional development of the medical evidence was
necessary or, in the alternative, that the reports of the attending an orthopedic surgeon were
entitled to the weight of the evidence.
FACTUAL HISTORY
On March 9, 2008 appellant, then a 57-year-old clerk, picked up a tub and experienced
burning in her left side. She underwent a magnetic resonance imaging (MRI) scan of her lumbar
spine on April 15, 2008 which demonstrated mild degenerative changes, of the lumbar spine
including disc bulges and facet degenerative changes at L2-S1 with a small left herniated disc at
L3-4.
OWCP accepted appellant’s claim for inguinal hernia without obstruction on
May 16, 2008.
On May 23, 2008 it accepted lumbosacral spondylosis, lumbosacral
radiculopathy, and lumbar herniated disc.
Dr. John M. DeSio, a treating Board-certified anesthesiologist, examined appellant on
April 8, 2010. He noted her complaints of low back and occasional left leg pain. Dr. DeSio
found that lower extremity strength was normal on the left and right. Sensory examination
revealed no areas of diminished sensation in either lower extremity. Dr. DeSio also found
negative straight leg raising. He diagnosed preexisting lumbar spondylosis, lumbosacral
radiculopathy, degenerative disc disease L4-5, herniated disc, and sciatica. Appellant reported
increased pain on May 13, 2010.
Appellant requested a schedule award on June 23, 2010. In an April 9, 2010 report,
Dr. Arthur Becan, an orthopedic surgeon, noted a history of back injury and reported her
physical findings. He found that appellant had loss of muscle strength on manual muscle testing
in the quadriceps, 3/5 on the left, as well as hamstrings 4+/5 and gastrocnemius 4/5. Dr. Becan
also found decreased sensation in the left lower leg at the L4, L5 and S1 nerve root distribution.
He noted that appellant’s left quadriceps was 42 centimeters on the left compared to 43
centimeters on the right. Gastrocnemius circumference was 38 centimeters on the right and 36
centimeters on the left. Dr. Becan found decreased sensibility on the left through SemmesWeinstein monofilament testing and loss of ankle jerk reflexes bilaterally. He noted that
appellant demonstrated an antalgic gait and was unable to heel or toe walk. Dr. Becan found
bilateral midline tenderness extending from L2 to S1 with restricted range of motion in the
lumbar spine causing low back and left leg pain on forward flexion, backward extension, left
lateral flexion, right lateral flexion, left, and right rotation. He diagnosed chronic post-traumatic
lumbosacral strain and sprain, herniated discs at L2-3 and L3-4 confirmed on MRI scan and left
lumbosacral radiculopathy.

2

Dr. Becan used the A.M.A., Guides3 to find that appellant had a class 2 motor strength
deficit of the left extensor hallucis longus or 25 percent impairment in accordance with Table 1612 of the A.M.A., Guides.4 He found that her functional history grade modifier was 25 and that
her grade modifier for clinical studies was 2.6 Based on appellant’s MRI scan and in applying
the formula, Dr. Becan found a left lower extremity impairment of 25 percent. He also rated
appellant’s motor strength deficit for her left quadriceps as class 2 impairment or 14 percent of
the left lower extremity.7 Dr. Becan found that she had a class 1 severe sensory deficit of the left
L4 nerve root or two percent impairment after applying the grade modifiers.8 He also found a
class 1 severe sensory deficit of the left L5 and S1 nerve root for 14 percent impairment after
applying the grade modifiers. Dr. Becan concluded that appellant had 46 percent impairment of
her left lower extremity due to her accepted employment injuries. He found that she reached
maximum medical improvement on April 9, 2010.
OWCP referred the medical record to its medical adviser and on August 1, 2010
Dr. Andrew A. Merola, a Board-certified orthopedic surgeon, reviewed the reports from
Dr. DeSio dated April 8, 2010, Dr. Becan dated April 9, 2010, and noted that there were major
differences between the findings that he was unable to reconcile. Dr. Merola recommended that
Dr. Becan clarify his findings or send appellant for an independent medical examination.
In a report dated November 8, 2010, Dr. DeSio noted that appellant had obtained
excellent relief from her injection, but fractured both ankles falling down stairs. Appellant was
also diagnosed with a cardiac anomaly. She reported that her back and radiating left leg pain
increased in intensity while standing, bending, lifting, and performing household chores.
Appellant denied numbness, but reported a tingling sensation in the left lower extremity.
Dr. DeSio found normal lower extremity strength, no areas of diminished sensation and positive
straight leg raising on the left. He recommended additional epidural injections.
OWCP found a conflict of medical opinion between Drs. Becan and DeSio and referred
appellant to Dr. Ian Blair Fries, a Board-certified orthopedic surgeon, for an impartial medical
examination on November 10, 2010. In a report dated December 10, 2010, Dr. Fries provided an
accurate history of injury and review of her medical history. He noted appellant’s reports of pain
and found on examination that she was able to walk on her toes and on her heels. Dr. Fries
found mild percussion tenderness over the lower paralumbar area and left buttock. He found
limited range of motion of the lumbar spine and positive straight leg raising on the left. Dr. Fries
noted that appellant had decreased sensation in her left calf compared to the right and somewhat
3

For impairment ratings calculated on and after May 1, 2009, OWCP should advise any physician evaluating
permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule
Awards and Permanent Disability Claims, Chapter 2.808.6a (January 2010).
4

A.M.A., Guides 535, Table 16-12.

5

Id. at 516, Table 16-6.

6

Id. at 519, Table 16-8.

7

Id. at 535, Table 16-12.

8

Supra note 5.

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less involving the posterior distal left thigh. He noted that her sensory deficits gradually
expanded during the examination such that she could not appreciate either a light touch or sharp
pain anywhere in the left lower extremity including all toes, ankle, calf, knee, and thigh.
Dr. Fries examined appellant’s MRI scan and found a degenerated L5-S1 disc, nonphysiologic
sensory findings in the left lower extremity and discrepant left straight leg raising. He found that
she had normal strength in all left lower extremity muscle groups and symmetrical deep tendon
reflexes. Dr. Fries noted that appellant’s findings were inconsistent with radiculopathy. He
diagnosed spondylosis with a markedly degenerated lumbosacral disc. Dr. Fries noted the MRI
scan findings of a herniated disc were equivocal and not reliable as reflected in appellant’s left
lower extremity. He concluded that she did not have objective left lower extremity findings to
support a permanent impairment under the A.M.A., Guides. Dr. Fries found that appellant
reached maximum medical improvement on December 17, 2009.
Dr. Robert Y. Pick, a Board-certified orthopedic surgeon, and an OWCP medical adviser,
reviewed the record on January 6, 2011. He found that appellant did not have objective left
lower extremity findings to support permanent impairment to her leg. On February 8, 2011
Dr. DeSio found that she had normal lower extremity strength, normal sensory examination of
the lower extremities, and negative straight leg raising bilaterally.
By decision dated April 21, 2011, OWCP denied appellant’s claim for a schedule award.
It found that she did not establish permanent impairment to her lower extremities.
Appellant requested an oral hearing on April 25, 2011. Following the hearing on
August 10, 2011, she submitted an additional report from Dr. Becan, who contended that
Dr. Fries did not adequately evaluate her impairment.
In a decision dated October 25, 2011, a hearing representative set aside the April 21,
2011 decision and remanded the case for additional development of the medical evidence. He
found that there was no conflict of medical opinion at the time of Dr. Fries’ examination. The
hearing representative determined that neither Dr. Becan nor Dr. Fries applied the appropriate
provision of the A.M.A., Guides to determine appellant’s impairment of her lower extremity. He
found that the district medical adviser’s report should have been used as guidance for further
medical development, and Dr. Fries’ report would be considered an office-directed examination.
On November 22, 2011 OWCP referred appellant for an impartial medical examination
with Dr. Michael Gordon, a Board-certified orthopedic surgeon. In his December 12, 2011
report, Dr. Gordon described her history of injury. He noted appellant’s complaints of back pain
radiating down the posterior aspect of her left leg to her foot as well as cramping in the left leg.
Dr. Gordon found that her gait was normal and noted that she stated she was unable to heel walk,
toe walk, deep squat, or do tandem gait. He found no lumbar spasm, negative seated straight leg
raising, and positive supine leg raising on the left at 30 degrees. Appellant reported glove-like
hypoesthesia over the left lower extremity. Dr. Gordon noted that she had voluntary release of
the flexors and extensors of the left knee, but that motor strength was 5/5 bilaterally. He
reviewed appellant’s MRI scan and the accepted diagnoses of lumbar herniated disc, lumbosacral
radiculopathy, lumbar spondylosis, and inguinal hernia without obstruction. Dr. Gordon stated
that he reviewed the A.M.A., Guides and The Guides Newsletter July/August 2009 regarding
rating of spinal nerve extremity impairment.

4

Dr. Gordon found that there was no impairment of the left lower extremity. He stated
that appellant’s complaints of glove-like sensory loss of the left lower extremity would not fit a
typical peripheral nerve or radicular pattern and was a nonphysiologic finding. Dr. Gordon noted
that, under the A.M.A., Guides, sensory examination results should conform to the cutaneous
distribution of a peripheral nerve or branch of a peripheral nerve, which was not the case with
complaints of a glove-like sensory loss. Appellant’s motor deficits were based on the voluntary
release of both flexor and extensors of the knee, a finding of symptom magnification.
Dr. Gordon stated that if she had the extent of muscle weakness demonstrated she would have
great difficulty standing up unsupported or walking. He further found that the lack of atrophy in
the lower extremities was not compatible with significant muscle weakness in the left lower
extremity. Dr. Gordon opined that the findings of muscular weakness in appellant’slower
extremities were nonphysiologic. He concluded that there currently no objective evidence of
ongoing radiculopathy involving the lower extremity.
Dr. Henry J. Magliato, a Board-certified orthopedic surgeon and OWCP medical adviser,
reviewed this report on February 7, 2012. He agreed with Dr. Gordon’s conclusions based on
the findings of his examination.
By decision dated February 21, 2012, OWCP denied appellant’s claim for a schedule
award.
Appellant requested an oral hearing on March 7, 2012.
Dr. Charles Cresanti-Daknis, a Board-certified anesthesiologist, examined appellant on
February 1, March 7, and April 18, 2012. He noted that she fell in April 2011 and experienced
increasing left leg and low back pain. Dr. Cresanti-Daknis found decreased sensation to touch in
the L5-S1 dermatomal distribution, with spasm, and tenderness in the paravertebral muscles on
the left and recommended an MRI scan. Appellant underwent an MRI scan on February 28,
2012 which demonstrated mild disc bulge with bilateral facet arthropathy at L3-4 and L4-5 as
well as a mild disc-osteophyte complex at L5-S1 resulting in a diagnosis of multilevel mild
degenerative changes of the lumbosacral spine. Dr. Cresanti-Daknis also recommended an
electromyogram (EMG) and nerve conduction study (NCS). Dr. Bruce M. Coplin, a physician
Board-certified in physical medicine and rehabilitation, examined appellant on May 3, 2012
found slight decrease in sensation along the lateral aspect of the left leg with mild weakness in
plantar flexion at the left ankle. He noted that her straight leg raising examination was positive
at 73 degrees on the left with some tenderness in the lower lumbar paraspinal muscles.
Dr. Coplin diagnosed left S1 radiculopathy, underlying L5-S1 herniated disc and recommended
electrodiagnostic studies.
Appellant’s representative appeared at the oral hearing on
June 11, 2012.
Appellant’s June 7, 2012 EMG and NCS demonstrated a left S1 radiculopathy.
Dr. Cresanti-Daknis found on June 20 and May 3, 2012 that she had 4/5 weakness of the left
great toe and foot with plantar and dorsiflexion and spasm of the paravertebral muscles.
An OWCP hearing representative issued a decision on August 7, 2012 and vacated the
February 29, 2012 decision. He directed OWCP to refer the electrodiagnostic testing to
Dr. Gordon for review and further opinion regarding permanent impairment.

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OWCP requested a supplemental report from Dr. Gordon on August 13, 2012. In a report
dated September 7, 2012, Dr. Gordon reviewed the EMG of June 7, 2012 and noted that it
supported left S1 nerve root “irritation.” He stated that the information did not change his prior
opinion and that he reviewed the A.M.A., Guides and The Guides Newsletter. Dr. Gordon stated
that there was a lumbosacral radiculopathy, but that there was no objective sensory or motor
deficit supported by “objective” neurologic findings.
On September 25, 2012 Dr. Bruce R. Rosenblum, a Board-certified neurosurgeon, noted
appellant’s history of injury. He found positive straight leg raising and tenderness at the L5
spinous process. Dr. Rosenblum diagnosed post-traumatic lumbar radiculopathy.
Dr. Magliato reviewed Dr. Gordon’s supplemental report on October 17, 2012. He found
no objective neurological findings in the left lower extremity, with no radiculopathy.
Dr. Magliato agreed that appellant did not have a ratable impairment of the left lower extremity.
OWCP denied appellant’s claim for a schedule award in a November 19, 2012 decision.
Appellant requested an oral hearing on November 28, 2012. Her representative objected
to the application of The Guides Newsletter. He also contended that Dr. Gordon did not provide
any explanation for his finding that there was no objective sensory deficit considering the
positive NCS.
By decision dated April 30, 2013, the hearing representative affirmed the denial of a
schedule award. He found that the medical evidence did not establish that appellant sustained
permanent impairment of her lower extremities. The hearing representative found that the
weight of the medical opinion evidence rested with Dr. Gordon.
LEGAL PRECEDENT
The schedule award provision of FECA9 and its implementing regulations10 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.11

9

5 U.S.C. §§ 8101-8193, 8107.

10

20 C.F.R. § 10.404.

11

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); supra note 3; Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700, Exhibit 1 (January 2010).

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FECA does not authorize the payment of schedule awards for the permanent impairment
of the whole person.12 Payment is authorized only for the permanent impairment of specified
members, organs or functions of the body. No schedule award is payable for a member, function
or organ of the body not specified in FECA or in the regulations.13 Because neither FECA nor
the regulations provide for the payment of a schedule award for the permanent loss of use of the
back or spine,14 no claimant is entitled to such an award.15
Amendments to FECA, however, modified the schedule award provisions to provide for
an award for permanent impairment to a member of the body covered by the schedule regardless
of whether the cause of the impairment originated in a scheduled or nonscheduled member. As
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to a limb even though the cause of the impairment
originated in the spine.16
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. Recognizing that certain jurisdictions, such as
federal claims under FECA, mandate ratings for extremities and preclude ratings for the spine,
the A.M.A., Guides has offered an approach to rating spinal nerve impairments consistent with
sixth edition methodology.17 For peripheral nerve impairments to the upper or lower extremities
resulting from spinal injuries, OWCP’s procedures provide that The Guides Newsletter, Rating
Spinal Nerve Extremity Impairment using the sixth edition (July/August 2009) is to be applied as
provided in section 3.700 of its procedures.18 Specifically, OWCP will address lower extremity
impairments originating in the spine through Table 16-1119 and upper extremity impairment
originating in the spine through Table 15-14.20
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment Class of Diagnosis (CDX), which is then adjusted by grade modifiers based on
Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS). The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).21
12

W.D., Docket No. 10-274 (issued September 3, 2010); Ernest P. Govednick, 27 ECAB 77 (1975).

13

W.D., id. William Edwin Muir, 27 ECAB 579 (1976).

14

FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

15

W.D., supra note 12. Timothy J. McGuire, 34 ECAB 189 (1982).

16

W.D., id. Rozella L. Skinner, 37 ECAB 398 (1986).

17

FECA Transmittal No. 10-04 (issued January 9, 2010); supra note 11 at Chapter 3.700 Exhibit 4
(January 2010).
18

Supra note 11 at (Exhibits 1, 4).

19

A.M.A., Guides, 533, Table 16-11.

20

Id. at 425, Table 15-14.

21

Id. at 521, Table 15-14. J.B., Docket No. 09-2191 (issued May 14, 2010).

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ANALYSIS
Dr. DeSio, a treating Board-certified anesthesiologist, examined appellant on
April 8, 2010. He noted her complaints of low back and occasional left leg pain. OWCP
accepted that appellant sustained lumbosacral spondylosis, lumbosacral radiculopathy, and
lumbar herniated disc from her March 9, 2008 employment-related injury. Appellant submitted
medical evidence of permanent impairment of her left leg as a result of this injury from
Dr. Becan. OWCP originally referred her for an independent medical examination with
Dr. Fries, who found no permanent impairment under the A.M.A., Guides. Later, the hearing
representative found that no conflict was created between Drs. Becan and Fries and as such
relegated Dr. Fries’ opinion to that of an office-directed examination. As a result of the conflict
of medical opinion evidence between Dr. Becan and Dr. Fries, it referred appellant for an
impartial medical examination with Dr. Gordon.
In his initial report dated December 12, 2011, Dr. Gordon provided an accurate history of
injury and reviewed the medical records. He provided findings on physical examination noting
that appellant’s gait was normal although she stated that she was unable to heel walk, toe walk,
deep squat, or do tandem gait. Dr. Gordon found no lumbar spasm, negative seated straight leg
raising and positive supine leg raising on the left at 30 degrees. Appellant reported glove-like
hypoesthesia of the left lower extremity. Dr. Gordon noted that she had voluntary release of the
flexors and extensors of the left knee, but that motor strength was 5/5 bilaterally. He diagnosed
lumbar herniated disc, lumbosacral radiculopathy, lumbar spondylosis and inguinal hernia
without obstruction. Dr. Gordon stated that he reviewed the A.M.A., Guides and The Guides
Newsletter July/August 2009 regarding rating of spinal nerve extremity impairment and found no
impairment of the left lower extremity. He discussed appellant’s complaints of glove-like
sensory loss of the left lower extremity. Dr. Gordon noted that these would not fit a typical
peripheral nerve or radicular pattern and were a nonphysiologic finding which did not conform to
the cutaneous distribution of a peripheral nerve or branch of a peripheral nerve as required by the
A.M.A., Guides.
Dr. Gordon discussed appellant’s symptoms of muscle weakness and indicated that her
motor deficits were based on the voluntary release of both flexor and extensors of the knee, a
finding of symptom magnification. He opined that if she had the extent of muscle weakness
demonstrated, she would have great difficulty standing up unsupported or walking and would
demonstrate atrophy in the lower extremities. Dr. Gordon opined that the findings of muscular
weakness in appellant’s lower extremities were nonphysiologic. He concluded that there
currently was no objective evidence of ongoing radiculopathy involving the lower extremity.
In his supplemental report dated September 7, 2012, Dr. Gordon reviewed the EMG of
June 7, 2012 and noted that this report supported left S1 nerve root “irritation.” He stated that
this information did not change his opinions based on his review of the A.M.A., Guides and The
Guides Newsletter. Dr. Gordon stated that there was a lumbosacral radiculopathy, but that there
was no objective sensory or motor deficit as there were no “objective” neurologic findings.
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving

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the conflict, the opinion of such specialist, if sufficiently well rationalized, and based on a proper
factual background, must be given special weight.22
The Board finds that Dr. Gordon’s reports are entitled to the weight of the medical
evidence. Dr. Gordon provided an accurate history of injury, review of the medical evidence and
detailed finding on physical examination. He explained the nonphysiological aspect of
appellant’s sensory and motor deficits. Dr. Gordon noted that lumbosacral radiculopathy found
on electrodiagnostic testing was not confirmed by objective neurological findings on physical
examination. Without findings of impairment of the lower extremity based on physical
examination, the electrodiagnostic results alone are not sufficient to establish impairment under
the A.M.A., Guides.23 Dr. Gordon’s reports are entitled to the special weight of an impartial
medical examiner and do not support appellant’s claim for permanent impairment of a scheduled
member.
Following Dr. Gordon’s initial report, appellant submitted additional medical evidence
from Drs. Cresanti-Daknis, Rosenblum and Coplin. These physicians did not address her
permanent impairment and these reports are not sufficiently detailed to establish appellant’s
entitlement to a schedule award or to create a conflict with Dr. Gordon’s detailed and wellreasoned reports.
The Board finds that Dr. Gordon’s reports are entitled to the special weight of the
medical evidence and resolve the conflict of medical opinion between Dr. Becan and Dr. Fries.
These reports do not establish a permanent impairment of the left lower extremity entitling
appellant to a schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant does not have a permanent impairment of a scheduled
member entitling her to a schedule award.

22

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

23

B.T., Docket No. 13-2128 (issued March 10, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the April 30, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.24
Issued: September 28, 2015
Washington, DC

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

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

24

Michael E. Groom, Alternate Judge, participated in the preparation of this decision, but was no longer a
member of the Board effective December 27, 2014.

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL SEA
SYSTEMS COMMAND, West Palm Beach, FL,
Employer
__________________________________________

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

Docket No. 11-2058
Issued: May 8, 2012

Case Submitted on the Record

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

JURISDICTION
On September 14, 2011 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) merit decision dated March 22, 2011. She also appealed an
August 17, 2011 nonmerit decision finding that she abandoned her request for a hearing.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
developed an emotional condition in the performance of duty; and (2) whether OWCP properly
determined that appellant abandoned her request for a hearing.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 27, 2010 appellant, then a 50-year-old administrative technician specialist,
filed an occupational disease claim alleging that she developed severe depression, anxiety and
stress disorders due to a hostile work environment and negative personnel actions. She noted a
date of injury of February 4, 2009 and realized her condition was caused by her work on
October 4, 2010. Appellant stopped work on October 4, 2010 and did not return.
In statements dated November 3 and 8, 2010, appellant asserted that Mike Knecht, head
of testing and operations, on February 11, 2010, advised her that she was being replaced due to
the failure of a security compliance audit and would be transferred to another facility. She
asserted that she was required to train her replacement which caused her emotional stress.
Appellant alleged that her commander, Jeff Pafford, made comments to her and believed she was
spying on him and reporting his behavior back to the authorities. She asserted that in 2008 there
was a serious security compromise to which she, but not her managers, were privy. Appellant
indicated that her supervisor, Harriet Coleman, was upset because appellant failed to inform her
of the investigation surrounding the security breach and thereafter appellant was subject to
retribution from management.
On November 15, 2010 OWCP asked appellant and the employing establishment to
provide additional evidence.
Appellant submitted a December 16, 2010 statement and asserted that from October 29,
2008 to February 3, 2009 she had several acts of retaliation for working on a counter intelligence
case; that on February 4, 2009 she was reprimanded by her supervisor for reporting issues to the
authorities and others outside their command; and that in March 2009 her supervisor attempted
to remove a portion of her job duties and then transferred her back to Florida. She submitted an
October 4, 2010 note from Dr. Frantz Saint Louis, a Board-certified internist, who noted that she
was excused from work from September 27 to October 8, 2010. Appellant submitted reports
from Dr. Leslie H. Schwartz, a Board-certified psychiatrist, from October 20, 2010 to
January 20, 2011, who treated her for major depressive disorder, recurrent and panic disorder
with occupational stressors. Dr. Schwartz advised that appellant was totally disabled. Appellant
also submitted an October 25, 2010 e-mail asserting that her supervisor, Mr. Knecht, falsely
filled out her application for leave which indicated that she volunteered for a 120-day detail
when she had been “clearly” relieved from her duties as security manager for reporting security
problems and for requiring military and government personnel to follow security regulations.
She also submitted a job description for an administrative technician specialist.
The employing establishment submitted a December 2, 2010 statement from Mr. Knecht,
who indicated that he did not observe appellant having any symptoms in the workplace.
Mr. Knecht indicated that appellant received satisfactory performance ratings. He disagreed that
appellant’s job conditions were unusually stressful. Mr. Knecht noted that appellant revealed
suffering from stress-related disorders in the past prior to her employment and no underlying
disability requiring accommodation was made known to him. He denied appellant’s allegations
that she had a conflict with leadership. Mr. Knecht also strongly denied that he engaged in any
misconduct and indicated that he was unaware of any misconduct by any other management
officials.

2

Also submitted was a letter from the Office of Special Counsel to appellant advising her
that further inquiry was warranted into her complaint against officials of the employing
establishment who she alleged curtailed her overseas assignment and subjected her to significant
change in duties and or reassignment.
In a decision dated March 22, 2011, OWCP denied appellant’s claim finding that the
claimed emotional condition did not occur in the performance of duty. It found that she did not
establish any compensable work factors.
On March 28 and April 19, 2011 appellant requested an oral hearing. She submitted an
April 5, 2011 attending physician’s report from Dr. Swartz. On June 14, 2011 OWCP advised
appellant that a telephone hearing would be held on July 26, 2011 at 3:30 p.m., eastern time. It
instructed her to call the provided toll-free number a few minutes before the hearing time and
enter the pass code to gain access to the conference call. OWCP mailed the June 14, 2011 letter
to appellant’s address of record.
By decision dated August 17, 2011, OWCP found that appellant had abandoned her
request for a hearing. It determined that she received a written notice of the hearing 30 days
before the scheduled hearing but did not appear and did not explain her absence either before or
after the scheduled hearing.
LEGAL PRECEDENT -- ISSUE 1
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to the emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.4 When an employee experiences emotional stress in carrying out his or
her employment duties, and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed

2

George H. Clark, 56 ECAB 162 (2004).

3

28 ECAB 125 (1976).

4

See Robert W. Johns, 51 ECAB 137 (1999).

3

by the employing establishment or by the nature of the work.5 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.6 Where the claimant
alleges compensable factors of employment, he or she must substantiate such allegations with
probative and reliable evidence.7 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.8 On the other hand the disability is not covered where
it results from such factors as an employee’s fear of a reduction-in-force or her frustration from
not being permitted to work in a particular environment or to hold a particular position.9
ANALYSIS -- ISSUE 1
Appellant alleged an emotional condition as a result of being transferred to a different
worksite. She asserted that she was required to train her replacement and her commander, made
improper comments to her. Appellant asserted that from October 29, 2008 to February 3, 2009
she was subject to acts of retribution for working on a counter intelligence case and on
February 4, 2009 she was reprimanded by her supervisor for reporting issues to the authorities
and others outside our command. The Board must thus, initially review whether these alleged
incidents and conditions of employment are covered employment factors under the terms of
FECA. Appellant has not attributed her emotional condition to the regular or specially assigned
duties of her position as an administrative technician specialist. Therefore, she has not alleged a
compensable factor under Cutler.10
Appellant made several allegations related to administrative and personnel actions. In
Thomas D. McEuen,11 the Board held that an employee’s emotional reaction to administrative
actions or personnel matters taken by the employing establishment is not covered under FECA as
such matters pertain to procedures and requirements of the employer and do not bear a direct
relation to the work required of the employee. The Board noted, however, that coverage under
FECA would attach if the factual circumstances surrounding the administrative or personnel
action established error or abuse by the employing establishment superiors in dealing with the
claimant. Absent evidence of such error or abuse, the resulting emotional condition must be
considered self-generated and not employment generated. In determining whether the employing
establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.12
5

Lillian Cutler, supra note 3.

6

J.F., 59 ECAB 331 (2008).

7

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

8

Roger Williams, 52 ECAB 468 (2001).

9

See Lillian Cutler, supra note 3.

10

Id.

11

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991).

12

See Richard J. Dube, 42 ECAB 916, 920 (1991).

4

Appellant asserted that on February 11, 2010 Mr. Knecht advised her that she was being
replaced due to the failure of a security compliance audit and would be transferred. The Board
has held that denials by an employing establishment of a request for a different job, promotion or
transfer are not compensable factors of employment as they do not involve the employee’s
ability to perform his or her regular or specially assigned work duties but rather constitute his or
her desire to work in a different position.13 The employing establishment has either denied these
allegations or contended that it acted reasonably in these administrative matters. Mr. Knecht
noted that appellant received satisfactory performance ratings and denied any allegation of
misconduct. Appellant has presented no corroborating evidence to support that the employing
establishment erred or acted abusively with regard to these allegations. Thus she has not
established administrative error or abuse in the performance of these actions and therefore they
are not compensable under FECA.
Appellant asserted that she was required to train her replacement which caused her stress.
The Board notes that the assignment of work is an administrative function14 and the manner in
which a supervisor exercises his or her discretion falls outside the ambit of FECA. Absent
evidence of error or abuse, appellant’s mere disagreement or dislike of a managerial action is not
compensable.15 The Board finds that appellant has not offered sufficient evidence to establish
error or abuse regarding her work assignments. The evidence does not establish that the
employing establishment acted unreasonably.16 Appellant has not established administrative
error or abuse in the performance of these actions and therefore they are not compensable under
FECA.
Appellant asserted that on February 4, 2009 she was reprimanded by her supervisor for
reporting issues to the authorities and others outside the command. Her allegation that the
employing establishment improperly disciplined her relates to an administrative or personnel
matter unrelated to her regular or specially assigned duties and does not fall within the coverage
of FECA.17 Although the handling of disciplinary actions and evaluations are generally related
to the employment, they are administrative functions of the employer and not duties of the
employee.18 The record, as noted above, fails to establish that appellant was disciplined.
Appellant’s supervisor noted that appellant received satisfactory performance ratings. To the
extent that appellant is complaining about the manner in which a supervisor performs his duties
as a supervisor or the manner in which a supervisor exercises his supervisory discretion fall, as a
rule, is outside the scope of coverage provided by FECA. This principle recognizes that a
13
14

Donald W. Bottles, 40 ECAB 349, 353 (1988).

Donney T. Drennon-Gala, 56 ECAB 469 (2005).
15

See Barbara J. Latham, 53 ECAB 316 (2002); see also Peter D. Butt Jr., 56 ECAB 117 (2004) (allegations
such as improperly assigned work duties, which relate to administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties do not fall within the coverage of FECA).
16

D.L., 58 ECAB 217 (2006).

17

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
18

Id.

5

supervisor or manager in general must be allowed to perform his duties, that employees will at
times dislike the actions taken, but that mere disagreement or dislike of a supervisory or
management action will not be actionable, absent evidence of error or abuse.19 Absent evidence
of error or abuse, appellant’s mere disagreement or dislike of a managerial action is not
compensable.20 The Board finds that appellant has not offered sufficient evidence to establish
error or abuse and evidence does not establish that the employing establishment acted
unreasonably. Appellant has not established administrative error or abuse in the performance of
these actions and therefore they are not compensable under FECA.
Appellant asserted that from October 29, 2008 to February 3, 2009 she was subject to
several acts of reraliation from her supervisors for working on a counter intelligence case. To
the extent that incidents alleged as constituting harassment or a hostile environment by a
supervisor are established as occurring and arising from appellant’s performance of her regular
duties, these could constitute employment factors.21 However, for harassment to give rise to a
compensable disability under FECA, there must be evidence that harassment did in fact occur.
Mere perceptions of harassment are not compensable under FECA.22 The factual evidence fails
to support appellant’s claim for harassment. The record does not support her allegation that she
was harassed or worked in a hostile work environment. Mr. Knecht, as noted, denied appellant’s
allegations that there was conflict with leadership and management and denied any allegation of
misconduct. There is no corroborating evidence to support that the employer treated appellant
disparately. Appellant has not established a compensable factor of employment in this regard.
To the extent that appellant alleged that her commander, Mr. Pafford, made improper
comments to her, the Board has recognized the compensability of verbal abuse in certain
circumstances. This does not imply, however, that every statement uttered in the workplace will
give rise to coverage under FECA.23 The Board finds that the facts of the case do not support
any specific incidents of verbal abuse. Appellant provided no corroborating evidence, or witness
statements to establish her allegations at a particular time and place.24 There is no corroborating
evidence to support that any verbal interaction with appellant by Mr. Pafford or others rises to
the level of a compensable employment factor.25

19

See Marguerite J. Toland, 52 ECAB 294 (2001).

20

See Barbara J. Latham, supra note 15.

21

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

22

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a
claimant must substantiate allegations of harassment or discrimination with probative and reliable evidence).
23

Charles D. Edwards, 55 ECAB 258 (2004).

24

See William P. George, 43 ECAB 1159, 1167 (1992) (claimed employment incidents not established where
appellant did not submit evidence substantiating that such incidents actually occurred).
25

See Judy L. Kahn, 53 ECAB 321 (2002) (the fact that a supervisor was angry and raised her voice does not, by
itself, support a finding of verbal abuse).

6

Consequently, appellant has not established her claim for an emotional condition as she
has not attributed her claimed condition to any compensable employment factors.26 She may
submit new evidence or argument with a written request for reconsideration to OWCP within one
year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through
10.607.
LEGAL PRECEDENT -- ISSUE 2
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.27 Unless
otherwise directed in writing by the claimant, OWCP’s hearing representative will mail a notice
of the time and place of the hearing to the claimant and any representative at least 30 days before
the scheduled date.28
The authority governing the abandonment of hearings rests with OWCP’s procedure
manual, which provides that a hearing can be abandoned only under very limited circumstances.
All three of the following conditions must be present: the claimant has not requested a
postponement; the claimant has failed to appear at a scheduled hearing; and the claimant has
failed to provide any notification for such failure within 10 days of the scheduled date of the
hearing. Under these circumstances, the Branch of Hearings and Review will issue a formal
decision finding that the claimant has abandoned her request for a hearing and return the case to
the district OWCP.29
ANALYSIS -- ISSUE 2
By decision dated March 22, 2011, OWCP denied appellant’s claim for an occupational
disease. Appellant timely requested an oral hearing. In a June 14, 2011 letter, OWCP notified
her that a telephone hearing was scheduled for July 26, 2011 at 3:30 p.m. eastern time. It
instructed appellant to telephone a toll-free number and enter a pass code to connect with the
hearing representative. Appellant did not telephone at the appointed time. She did not request a
postponement of the hearing or explain her failure to appear at the hearing within 10 days of the
scheduled hearing date of July 26, 2011.30 The Board therefore finds that she abandoned her
request for a hearing.

26

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).
27

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

28

20 C.F.R. § 10.617(b).

29

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999). See also G.J., 58 ECAB 651 (2007).
30

Id.

7

On appeal appellant asserted that she became ill and required surgery and could not
attend the hearing but she did not abandon the hearing. She requested that the Board issue a
decision on the record. As explained, appellant failed to request a postponement; failed to
appear at a scheduled hearing; and failed to provide any notification for such failure within 10
days of the scheduled date and therefore abandoned her request for an oral hearing.31
CONCLUSION
The Board finds that the evidence fails to establish that appellant sustained an emotional
condition in the performance of duty. The Board further finds that appellant abandoned her
request for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the August 17 and March 22, 2011 of the Office of
Workers’ Compensation Programs are affirmed.
Issued: May 8, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

31

Id.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lockbourne, OH, Employer
__________________________________________

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

Docket No. 10-1966
Issued: June 13, 2011

Case Submitted on the Record

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

JURISDICTION
On July 27, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated June 28, 2010, which affirmed a January 5, 2010
decision denying her claim for recurrence of disability. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of disability on April 13, 2009 causally related to the accepted employment injury of
August 27, 2008.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On September 23, 2008 appellant, then a 56-year-old rural letter carrier, filed an
occupational disease claim for carpal tunnel syndrome that she attributed to performing repetitive
duties at work. The Office accepted the claim for bilateral carpal tunnel syndrome and left
cubital tunnel syndrome and authorized surgery. Appellant stopped work on September 12, 2008
and returned to a light-duty position with restrictions on January 2, 2009 and was released to full
duty on January 6, 2009. She was placed in emergency off-duty status on April 21, 2009 and on
May 4, 2009 she was removed from her job for misconduct.
Appellant was initially treated by Dr. Neil C. Ghany, a Board-certified orthopedist, from
May 21 to October 13, 2008, for worsening bilateral hand numbness. Dr. Ghany noted a
November 12, 2007 electromyogram (EMG) of the right upper extremity revealed severe right
carpal tunnel syndrome. He further noted that an August 12, 2008 EMG of the left upper
extremity revealed left carpal tunnel syndrome and cubital tunnel syndrome. Dr. Ghany
diagnosed bilateral carpal tunnel syndrome and cubital tunnel syndrome of the left elbow and
recommended surgical intervention. On September 11, 2008 he performed right carpal tunnel
release and diagnosed right carpal tunnel syndrome. On September 25, 2008 Dr. Ghany
performed a left carpal tunnel release and left elbow ulnar nerve transposition and diagnosed left
carpal tunnel syndrome and left elbow cubital tunnel syndrome. Appellant was also treated by
Dr. Carl E. Otton, Board-certified in occupational medicine, from September 13 to
November 28, 2008, for bilateral carpal tunnel syndrome and ulnar neuropathy. She reported
performing repetitive duties at work approximately 48 hours per week and developing pain and
numbness in both wrists. Dr. Otton diagnosed bilateral carpal tunnel syndrome and left cubital
tunnel syndrome status post carpal tunnel releases. In reports dated October 17 to November 28,
2008, he opined that appellant’s condition was work related and noted that she was totally
disabled.
On January 2, 2009 Dr. Otton released appellant to work with restrictions and to full duty
on January 6, 2009. On March 17, 2009 he noted that she returned to work full time but
experienced weakness and pain in her thumb and fingers. Dr. Otton diagnosed possible
inflammation in the flexor tendon of the thumb and noted that appellant could continue to work
without restrictions. On April 13, 2009 appellant presented with flexor tendon pain in both
thumbs after working 48 hours per week performing repetitive duties. Dr. Otton diagnosed
stenosing flexor tenosynovitis of both thumbs and recommended that she continue to work
without restrictions. In a discharge and return to work certificate dated April 13, 2009, he
diagnosed bilateral carpal tunnel syndrome, status post bilateral carpal tunnel release and left
cubital tunnel syndrome release and returned appellant to work without restrictions.
On April 22, 2009 the employing establishment noted that appellant was placed in
off-duty status as of April 21, 2009 for improper conduct. On May 5, 2009 the employing
establishment removed appellant from employment for improper conduct after determining that
she disposed of deliverable mail into a dumpster on April 20, 2009.
Appellant was treated by Dr. Ghany on April 27, 2009 who noted that she returned to
work in January 2009 but had worsening pain and numbness in the fingertips. Dr. Ghany noted
findings of mild clawing of the ring and small finger and decreased sensation. He diagnosed

2

severe carpal tunnel and cubital tunnel syndrome with lack of function of the nerves. On May 4,
2009 Dr. Ghany treated appellant for left side numbness and weakness. He noted positive
Phalen’s test at the elbow, mild clawing of the hand and diminished sensation. Dr. Ghany noted
improvement with regard to the carpal tunnel surgery and worsening over the ulnar nerve
transposition and recommended a revision ulnar nerve transposition. In a May 4, 2009 work
status report, he noted that appellant was off work awaiting approval for surgery.
On May 12, 2009 Dr. Otton treated appellant for recurrent carpal tunnel syndrome.
Appellant related to Dr. Otton that Dr. Ghany placed her off work on May 4, 2009. In a return to
work certificate, Dr. Otton diagnosed status post bilateral carpal tunnel release, left cubital tunnel
release and recurrent carpal tunnel syndrome and noted that she was totally disabled from
May 12 to June 2, 2009. On June 2, 2009 he treated appellant for symptoms associated with
recurrent carpal tunnel syndrome and left cubital tunnel syndrome. Dr. Otton noted weakness in
both hands and triggering in her thumbs. In a June 2, 2009 return to work certificate, he
diagnosed recurrent carpal tunnel syndrome and noted that appellant was totally disabled from
June 2 to July 14, 2009. On July 14, 2009 Dr. Otton diagnosed status post carpal tunnel release
and left cubital tunnel release and recurrent carpal tunnel syndrome and noted that she was
totally disabled from July 14 to August 18, 2009.
In a July 28, 2009 report, Dr. Ghany noted that appellant was status post bilateral carpal
tunnel release and left cubital tunnel release with worsening ulnar nerve symptoms. He
diagnosed worsening of the ulnar neuropathy at the elbow with trigger thumb and noted that he
would perform surgery. On July 28, 2009 Dr. Ghany performed a left elbow flexion pronator
muscle lengthening with transpositioning of the ulnar nerve and diagnosed left elbow recurrent
ulnar nerve compressive neuropathy.2
In reports dated August 18 and September 15, 2009, Dr. Otton noted that appellant was
status post July 28, 2009 revision of left ulnar nerve transposition. He diagnosed recurrent
bilateral carpal tunnel syndrome and bilateral thumb triggering and noted that she was to remain
off work. In a September 15, 2009 return to work certificate, Dr. Otton advised that appellant
was totally disabled from September 15 to October 8, 2009.
On September 24, 2009 appellant filed a Form CA-2a, notice of recurrence of disability
alleging that on April 13, 2009 she had a recurrence of weakness and pain in her arms and hands
causally related to her August 27, 2008 work injury. The employer noted that she stopped work
on April 21, 2009. Appellant submitted an October 8, 2009 report from Dr. Otton who
diagnosed ulnar neuropathy and recurrent left cubital tunnel syndrome status post 2008 left
carpal tunnel release and 2009 revision of left cubital. He recommended occupational therapy
and advised that appellant would remain off work. Also submitted were September 9 to
November 16, 2009 reports from Dr. Ghany who noted that she was post surgery of left elbow
ulnar nerve transposition and was improving.

2

The Office authorized the surgery.

3

By letter dated November 10, 2009, the Office advised appellant of the type of evidence
needed to establish her claim for recurrence of disability and requested that she submit such
evidence, particularly requesting that she submit a physician’s reasoned opinion addressing the
relationship of his claimed condition and specific employment factors.
Appellant submitted physical therapy notes from April 14 to December 14, 2009. Also
submitted was a December 3, 2009 report from Dr. Otton who diagnosed left ulnar neuropathy,
recurrent, status post left carpal tunnel release and a 2009 revision of the left cubital. He
recommended that appellant remain off work.
In a January 5, 2010 decision, the Office found that the evidence submitted did not
establish that appellant sustained a recurrence of disability on April 13, 2009 causally related to
her August 27, 2008 work injury.
On January 18, 2010 appellant requested an oral hearing which was held on
April 13, 2010. She submitted reports from Dr. Ghany dated April 27 to July 28, 2009,
previously of record. Appellant submitted a December 14, 2009 functional capacity evaluation
which noted that she could work in the medium work demand level with limitations. Other
reports from Dr. Otton dated January 7 to June 10, 2010, diagnosed recurrent left ulnar
neuropathy, status post left carpal tunnel release and 2009 revision of left cubital tunnel repair.
In return to work certificates dated January 7 to June 10, 2010, he returned appellant to work on
January 7, 2010 with restrictions. Appellant submitted an undated note received by the Office on
January 22, 2010 indicating that she was resigning from her position because she was no longer
able to perform her duties due to her medical condition.
In a June 28, 2010 decision, the Office hearing representative affirmed in part and
modified in part the January 5, 2010 decision. The hearing representative noted that the
evidence was sufficient to support that appellant’s accepted left ulnar condition worsened and
that she became totally disabled on July 28, 2009, the date appellant underwent authorized ulnar
surgery and sustained a recurrence of disability on that date.
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 resulted from a previous
injury or illness without an intervening injury or a new exposure to the work environment.3
When an employee claims a recurrence of disability causally related to an accepted
employment injury, he or she has the burden of establishing by the weight of the reliable,
probative and substantial medical evidence that the claimed recurrence of disability is causally
related to the accepted injury.4 This burden includes the necessity of furnishing medical evidence
from a physician who, on the basis of a complete and accurate factual and medical history,
concludes that the disabling condition is causally related to the employment injury and supports
3

20 C.F.R. § 10.5(x).

4

Alfredo Rodriguez, 47 ECAB 437 (1996); see Dominic M. DeScala, 37 ECAB 369 (1986).

4

that conclusion with sound medical reasoning.5 An award of compensation may not be made on
the basis of surmise, conjecture, or speculation or on an appellant’s unsupported belief of causal
relation.6
When a claimant stops working at the employing establishment for reasons unrelated to
his employment-related physical condition, he has no disability within the meaning of the Act.7
ANALYSIS
The Office accepted that appellant sustained bilateral carpal tunnel syndrome and left
cubital tunnel syndrome and authorized right carpal tunnel release on September 11, 2008, left
carpal tunnel release and left ulnar nerve transposition on September 25, 2008 and revision of
left ulnar nerve transposition on July 28, 2009. Appellant stopped work on September 12, 2008
and returned to work with restrictions on January 2, 2009 and full duty on January 6, 2009. She
was placed in emergency off-duty status on April 21, 2009 and on May 4, 2009 she was removed
from employment for misconduct. On September 24, 2009 appellant filed a claim for a
recurrence of disability occurring on April 13, 2009. She stopped work on April 21, 2009 when
she was placed in emergency off-duty status. The Board finds that the medical record lacks a
well-reasoned narrative from appellant’s physicians relating appellant’s claimed recurrence of
disability to her accepted employment injury.
Appellant submitted reports from Dr. Otton, who released her to work full duty on
January 6, 2009. On March 17 and April 13, 2009 Dr. Otton noted that she could continue to
work without restrictions. None of the medical records submitted most contemporaneous with
the onset of the alleged recurrence of disability specifically mention that appellant had a
recurrence of disability or that any work stoppage beginning April 21, 2009 was causally related
to the August 27, 2008 employment injury and that she could not work. Rather, Dr. Otton
indicated that appellant could continue working full duty.
On May 12, 2009 Dr. Otton treated appellant for recurrent carpal tunnel syndrome and
related that Dr. Ghany recommended that she stop work. In reports dated June 2 and July 14,
2009, he treated appellant for recurrent carpal tunnel syndrome and left cubital tunnel syndrome
and continued total disability. Likewise, in return to work certificates dated May 12 to July 14,
2009, Dr. Otton diagnosed recurrent carpal tunnel syndrome and noted that appellant was totally
disabled from May 12, to August 18, 2009. However, the Board notes that these medical reports
fail to specifically support that she had a recurrence of total disability causally related to the
accepted work injury or otherwise provide medical reasoning explaining why any current
condition or disability was disabling and due to the August 27, 2008 employment injury. The

5

See Nicolea Bruso, 33 ECAB 1138 (1982).

6

Ausberto Guzman, 25 ECAB 362 (1974).

7

See John W. Normand, 39 ECAB 1378 (1988) (where the claimant was removed from his light-duty position for
disciplinary reasons, the Board found no disability within the meaning of the Act). Office regulations indicate that
there is no recurrence of disability when withdrawal of light duty occurs for reasons of misconduct, nonperformance
of job duties or a reduction-in-force. 20 C.F.R. § 10.5(x). Regarding the Act, see 5 U.S.C. §§ 8101-8193.

5

Board has found that vague and unrationalized medical opinions on causal relationship have little
probative value.8 Therefore, these reports are insufficient to meet appellant’s burden of proof.
Appellant was treated by Dr. Ghany on April 27, 2009 who diagnosed severe carpal
tunnel and cubital tunnel syndrome but did not specifically address whether her disability
beginning April 21, 2009 was due to her accepted conditions. On May 4, 2009 Dr. Ghany noted
worsening of her condition over the ulnar nerve transposition which was caused by scarring of
the nerves or damage to the blood supply when moving the nerve on September 25, 2008. He
recommended a revision ulnar nerve transposition and noted that appellant was off work
awaiting approval for surgery. However, none of the medical records submitted specifically
mention that she had a recurrence on April 13, 2009 or that disability beginning April 21, 2009
causally related to the August 27, 2008 employment injury or otherwise provide medical
reasoning explaining why any current condition or disability was due to the August 27, 2008
employment injury.9 Therefore, this report is insufficient to meet appellant’s burden of proof.
The Board further notes that appellant was placed on emergency off-duty status on
April 21, 2009 and was removed from her position on May 4, 2009. Appellant was working in a
full-time regular-duty position when she was removed from the employing establishment due to
misconduct. There is no evidence indicating that the removal from regular duty was related to
her employment injury. As noted above, when a claimant stops working at the employing
establishment for reasons unrelated to her employment-related physical condition, she has no
disability within the meaning of the Act.10
Appellant did not otherwise submit medical evidence supporting that she sustained a
recurrence of disability from April 21 to July 27, 2009, that was causally related to her
August 27, 2008 work injury. As noted, the Office hearing representative accepted her disability
beginning July 28, 2009 due to her accepted surgery of that date.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained a recurrence of disability from April 21 to July 27, 2009 causally related to her
accepted condition.

8

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
9

Id.

10

See John W. Normand, supra note 7.

6

ORDER
IT IS HEREBY ORDERED THAT the June 28, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 13, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, San Antonio, TX,
Employer
__________________________________________

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

Docket No. 13-754
Issued: July 2, 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 February 11, 2013 appellant filed a timely appeal from the December 13, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has more than
10 percent permanent impairment of her right leg, for which she received a schedule award.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on March 15, 2011 appellant, then a 40-year-old transportation
security screener, sustained unspecified internal derangement of her right knee, sprain of her
right knee and leg, contusion of her right knee and traumatic arthropathy of her right lower leg
due to lifting a bag onto a conveyor belt. Appellant began performing limited-duty work for the
employing establishment and received partial disability compensation on the daily rolls.
On September 14, 2011 Dr. Francisco J. Garcia, an attending Board-certified orthopedic
surgeon, performed OWCP-authorized right leg surgery, including partial lateral meniscectomy,
chondroplasty of the lateral femoral condyle with drilling of 1 by 1.5 centimeter lesion,
chondroplasty without drilling of the patellofemoral joint and arthroscopic lateral retinacular
release. Appellant stopped work on September 14, 2011 and received total disability
compensation.
On May 21, 2012 appellant returned to her regular, full-time work for the employing
establishment.
In a June 4, 2012 report, Dr. Garcia indicated that he performed an examination of
appellant on that date. He noted that appellant had completed the postoperative rehabilitation
from her September 14, 2011 right knee surgery and posited that she had reached maximum
medical improvement as of June 4, 2012. Dr. Garcia stated that, under Table 16-3 (Knee
Regional Grid) on page 511 of the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (6th ed. 2009), appellant had the diagnosis-based
condition of right primary knee joint arthritis (full-thickness articular cartilage defect) and
therefore fell under the class 1 default value of a seven percent impairment. With respect to
grade modifiers, applying Table 16-5 through Table 16-9 showed that appellant had a grade
modifier 2 for Physical Examination (GMPE) (moderate lateral joint line pain with moderate
crepitus); a grade modifier 2 for Clinical Studies (GMCS) (diagnoses confirmed by diagnostic
testing and moderate pathology); and a grade modifier 1 for Functional History (GMFH) (slight
antalgic gait, but no requirement of an assistive device). Dr. Garcia noted that application of the
Net Adjustment Formula on page 521 meant that movement was warranted two places to the
right of the class 1 default value on Table 16-3. Therefore, the diagnosis-based impairment
rating for appellant’s right knee arthritis yielded a nine percent impairment of the right knee.2 In
his June 4, 2012 report, Dr. Garcia further noted that appellant exhibited 105 degrees of flexion
in her right knee and that, under Table 16-23 on page 549, she had a 10 percent impairment of
her right leg due to loss of motion. He concluded that her final rating would be based on this
motion deficit and found that the total permanent impairment of appellant’s right knee was 10
percent.

2

Dr. Garcia also calculated a two percent diagnosis-based impairment for appellant’s right partial lateral
meniscectomy, but determined that it was more appropriate to use her right knee arthritis for the diagnosis-based
impairment rating calculation as this yielded a higher degree of impairment. He also noted that she did not have
sensory or motor loss associated with her peripheral nerves and therefore did not have an impairment under
Table 16-12 on pages 534 and 535. Moreover, appellant did not have impairment based on complex regional pain
syndrome per Table 16-15 on page 541 or on amputation per Table 16-16 on page 542.

2

On July 31, 2012 appellant filed a claim for a schedule award due to her work injuries.
On August 20, 2012 Dr. Garcia stated that, upon examination on that date, appellant had
full active range of motion of her right knee without instability.
In an October 10, 2012 report, Dr. Henry Mobley, a Board-certified internist serving as
an OWCP medical adviser, stated that he had reviewed the June 4, 2012 report of Dr. Garcia and
noted that appellant’s date of maximum medical improvement was the date of Dr. Garcia’s
examination, i.e., June 4, 2012. He indicated, “Dr. Garcia reports right knee injury [status post]
arthroscopic partial lateral meniscectomy, no atrophy, no laxity, [range of motion] -5/105
degrees, no sensory deficits, no motor loss, moderate joint line tenderness with crepitus, slight
antalgic gait and impairment of 10 percent [right lower extremity] based upon [range of motion]
deficits.” Dr. Mobley concluded that, based on Dr. Garcia’s report and the standards of
Table 16-23 on page 549 of the sixth edition of the A.M.A., Guides, appellant had a 10 percent
permanent impairment of her right leg due to her 105 degrees of right knee flexion.3
In a December 13, 2012 decision, OWCP granted appellant a schedule award for 10
percent permanent impairment of her right leg. The award ran for 28.8 weeks from July 4, 2012
to January 21, 2013 and was based on the opinions of Dr. Garcia and Dr. Mobley.4
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7 For OWCP decisions issued on or after
May 1, 2009, the sixth edition of the A.M.A., Guides (6th ed. 2009) is used for evaluating
permanent impairment.8

3

Dr. Mobley also stated, “Dr. Garcia reports -5 degrees extension deficit. However, in his report
(August 20, 2012) he states the claimant has ‘full active [range of motion].’ I have accepted his 10 percent
impairment figure.”
4

The record contains a November 28, 2012 document with the same language, but this document is unsigned and
appears to represent a draft of the December 13, 2012 decision.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id.

8

See FECA Bulletin No. 9-03 (issued March 15, 2009). For OWCP decisions issued before May 1, 2009, the
fifth edition of the A.M.A., Guides (5th ed. 2001) is used.

3

In determining impairment for the lower extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the lower
extremity to be rated. With respect to the knee, the relevant portion of the leg for the present case,
reference is made to Table 16-3 (Knee Regional Grid) beginning on page 509.9 After the class of
diagnosis (CDX) is determined from the Knee Regional Grid (including identification of a
default grade value), the Net Adjustment Formula is applied using the grade modifier for
functional history, grade modifier for physical examination and grade modifier for clinical
studies. The Net Adjustment Formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10
Under Chapter 2.3, evaluators are directed to provide reasons for their impairment rating choices,
including choices of diagnoses from regional grids and calculations of modifier scores.11
Chapter 16 of the sixth edition of the A.M.A., Guides, pertaining to the lower extremities,
provides that diagnosis-based impairment is “the primary method of calculation for the lower
limb” and that most impairments are based on the diagnosis-based impairment where impairment
class is determined by the diagnosis and specific criteria as adjusted by the grade modifiers for
functional history, physical examination and clinical studies. Chapter 16 further provides:
“Alternative approaches are also provided for calculating impairment for
peripheral nerve deficits, complex regional pain syndrome, amputation and range
of motion. Range of motion is primarily used as a physical examination
adjustment factor and is only used to determine actual impairment values when it
is not possible to otherwise define impairment.”12
ANALYSIS
OWCP accepted that on March 15, 2011 appellant sustained unspecified internal
derangement of her right knee, sprain of her right knee and leg, contusion of her right knee and
traumatic arthropathy of her right lower leg. On September 14, 2011 Dr. Garcia, an attending
Board-certified orthopedic surgeon, performed OWCP-authorized right leg surgery, including
partial lateral meniscectomy, chondroplasty of the lateral femoral condyle with drilling of 1 by
1.5 centimeter lesion, chondroplasty without drilling of the patellofemoral joint and arthroscopic
retinacular release.
In a December 13, 2012 decision, OWCP granted appellant a schedule award for 10
percent permanent impairment of her right leg. The award was based on the June 4, 2012 report
of Dr. Garcia and the October 10, 2012 report of Dr. Mobley, a Board-certified internist serving
as an OWCP medical adviser.
Dr. Garcia stated that, under Table 16-3 of the sixth edition of the A.M.A., Guides,
appellant had the diagnosis-based condition of right primary knee joint arthritis (full-thickness
9

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

10

Id. at 515-22.

11

Id. at 23-28.

12

Id. at 497, 544-53.

4

articular cartilage defect) and therefore fell under the class 1 default value of a seven percent
impairment. Appellant had a grade modifier 2 for physical examination; a grade modifier 2 for
clinical studies; and a grade modifier 1 for functional history. Dr. Garcia noted that application
of the Net Adjustment Formula meant that movement was warranted two places to the right of
the class 1 default value on Table 16-3. Therefore, the diagnosis-based impairment rating for
appellant’s right knee arthritis yielded a nine percent impairment of the right knee. Dr. Garcia
further noted that appellant exhibited 105 degrees of flexion in her right knee and that, under
Table 16-23 of the A.M.A., Guides on page 549, she had 10 percent impairment of her right leg
due to loss of knee motion. He concluded that appellant’s final rating would be based on this
motion deficit and found that the total permanent impairment of her right knee was 10 percent.
In his October 10, 2012 report, Dr. Mobley followed Dr. Garcia’s reasoning and also concluded
that appellant had 10 percent impairment of her right leg due to loss of knee motion.
The Board finds that, as a diagnosis-based impairment rating was available to evaluate
appellant’s right leg impairment, but OWCP based her schedule award on the range of motion
method for evaluating right leg impairment without adequately explaining use of this impairment
rating method. As noted, above the sixth edition of the A.M.A., Guides provides that the
diagnosis-based method of impairment rating is preferred for evaluating leg impairment and
provides that calculating leg impairment using range of motion deficits, such as considering knee
motion deficits under Table 16-23, should only be undertaken if no other approach is available
for rating.13 Therefore, the case will be remanded to OWCP for further consideration of this
matter to include an explanation of whether it is appropriate to base appellant’s right leg
impairment on the range of motion rating method given the standards of the sixth edition of the
A.M.A., Guides.14 After carrying out the development directed by this decision of the Board,
OWCP shall issue an appropriate decision regarding appellant’s right leg impairment.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
has more than 10 percent permanent impairment of her right leg, for which she received a
schedule award.

13

See supra note 12.

14

On January 29, 2014 the Board requested a pleading from the Director of OWCP, posing various questions
regarding the circumstances in which the range of motion rating method may be used for evaluating permanent
impairment under the sixth edition of the A.M.A., Guides. A response was not received within the allotted period.

5

ORDER
IT IS HEREBY ORDERED THAT the December 13, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: July 2, 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

6