United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oakland, CA, Employer
__________________________________________

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

Docket No. 17-1468
Issued: August 6, 2018

Case Submitted on the Record

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

JURISDICTION
On June 21, 2017 appellant, through counsel, filed a timely appeal from a May 15, 2017
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 the claim.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
3

5 U.S.C. § 8101 et seq.

After OWCP issued its May 15, 2017 decision, appellant provided additional evidence. The Board’s jurisdiction
is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the Board is precluded
from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of total
disability commencing June 2, 2015 causally related to her accepted July 27, 2014 employment
injury.
FACTUAL HISTORY
On July 30, 2014 appellant, then a 54-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on July 27, 2014 she sustained bruising, swelling, and a
contusion of her right hip when she ran into a guard rail while clocking in from lunch. She stopped
work on July 27, 2014 and returned to full-time limited-duty work on August 1, 2014. OWCP
assigned the claim File No. xxxxxx687 and accepted it for right hip and thigh contusion.4
In a June 9, 2014 report predating the July 27, 2014 injury, Dr. H. Darien Behravan, an
osteopath and Board-certified anesthesiologist, indicated that appellant’s July 9, 2013 pelvic x-ray
showed degenerative arthritis and subchondral cystic formation at both hips consistent with
advanced degenerative joint disease. He also noted that in 2013 appellant was informed that she
needed bilateral hip replacements. Dr. Behravan opined, in pertinent part, that appellant’s severe
degenerative joint disease of her bilateral hips and bilateral hip osteoarthritis were causally related
to the repetitive nature of her work for the past 20 years.
On July 27, 2014 the date of appellant’s claimed injury, Dr. Brian Baskin, a Board-certified
emergency medicine specialist, noted the history of injury and diagnosed a right hip contusion/
flexor strain. He reported an abnormal examination of right hip laterally and medially with no
bruising. Dr. Baskin indicated that no acute disease was seen on the right hip x-ray. He placed
appellant off work from July 27 through 30, 2014.
In a September 16, 2014 report, Dr. Behravan noted the July 27, 2014 work injury and that
appellant had gone to Kaiser Emergency Department. He indicated that the July 27, 2014 x-ray of
the right hip showed severe bilateral hip osteoarthritis with subchondral collapse of the
superolateral aspect of both femoral heads. No evidence of an acute right hip fracture was seen.
Dr. Behravan noted that appellant had severe bilateral hip osteoarthritis and severe degenerative
joint disease, which he opined were partially industrial given the repetitive nature of her work.
In an October 14, 2014 report, Dr. Behravan indicated that appellant had bilateral hip pain
and evidence of cumulative damage to her hips. He noted that the osteoarthritis developed over
time and one cause was repetitive use.
On November 13, 2014 a physician assistant noted that appellant had injured her hip at
work in July 2014. Appellant was diagnosed with severe right hip osteoarthritis and advised a
total hip arthroplasty was needed.

4

Under OWCP File No. xxxxx998, appellant filed an occupational disease claim (Form CA-2) on July 26, 2013
alleging that she sustained bilateral hip osteoarthritis due to bending, lifting, and twisting as required by her federal
employment duties. OWCP denied this occupational disease claim on October 23, 2013.

2

On November 20, 2014 OWCP received a request for right total hip replacement.
In his November 18 and December 16, 2014 reports, Dr. Behravan referenced appellant’s
cumulative work activity and opined that her bilateral hip conditions were industrial in nature.
In a December 23, 2014 report, Dr. Aaron K. Salyapongse, a Board-certified orthopedic
surgeon, noted appellant’s work activity and that the x-rays of the right hip revealed severe joint
space narrowing. In that report, as well as in a March 6, 2015 report, he opined that the bilateral
severe hip degeneration was related to the repetitive-type injuries appellant sustained over the past
16 plus years working for the employing establishment.
In his January 20, 2015 report, Dr. Behravan indicated that appellant would undergo a right
total hip replacement. In February through April 2015 reports, he continued to attribute appellant’s
right hip severe degenerative joint disease/osteoarthritis to her many years of repetitive injury. On
March 17, 2015 Dr. Behravan requested that appellant’s care be transferred to Dr. Michael E.
Hebrard, a Board-certified physiatrist.
In a May 19, 2015 report, Dr. Hebrard diagnosed contusion of hip and thigh, which he also
noted were accepted diagnoses. He opined that appellant’s underlying condition of osteoarthritis
of the hips was aggravated by her repetitive work. Dr. Hebrard recommended that she see an
orthopedic surgeon for consideration of total hip replacement.
On June 2, 2015 Dr. Hebrard related that was appellant totally disabled from work. He
advised that her diagnosis of hip and thigh contusion needed to be updated to clearly reflect
osteoarthritis, which had been permanently aggravated by the repetitive nature of her employment
duties.
Additional reports from Dr. Behravan and Dr. Salyapongse recommended hip surgery for
severe degenerative joint disease of her bilateral hips, which they attributed to repetitive type of
injuries sustained over years of working for the employing establishment.
On July 16, 2015 appellant filed a claim for compensation (Form CA-7) claiming wage
loss from work commencing June 2, 2015.
In a July 27, 2015 development letter, OWCP advised appellant that the medical evidence
submitted did not support that her disability and worsening of her condition was causally related
to the July 27, 2014 work injury. Rather, the medical evidence supported medical conditions
related to other repetitive activities, for which appellant had filed a claim under OWCP File No.
xxxxxx998. OWCP advised appellant that if she was claiming disability due to a worsening of her
accepted right hip contusion as a result of striking her right hip on a guard rail on July 27, 2014,
then she must submit a comprehensive medical report from her physician which contained a wellrationalized medical explanation as to how her accepted right hip condition worsened such that
she was no longer able to perform her limited duties when she stopped work on June 2, 2015. It
afforded appellant 30 days to submit the requested information.
An October 1, 2015 x-ray of her bilateral hips reported an impression of severe
osteoarthritis, bilateral hips with suspected coexisting avascular necrosis, bilateral hips was

3

provided. There was no evidence of a hip fracture or dislocation. There was also no evidence of
sacroiliac joint arthritis.
In an October 1, 2015 report, Dr. Hebrard related appellant’s employment history as well
as the history of her July 27, 2014 work injury. He diagnosed contusion of right hip and right
thigh. In an October 1, 2015 work excuse note, Dr. Hebrard indicated that appellant was
temporarily totally disabled from October 1 to 9, 2015 pending x-ray review.
In an October 9, 2015 report, Dr. Hebrard noted that appellant’s severe bilateral hip
osteoarthritis was a preexisting condition that had been aggravated with repetitive use. He
indicated that the traumatic injury to the inside of the right thigh caused a forceful, unexpected
abduction of the right thigh and hip which led to an increased amount of stress on the preexisting
degenerative hip condition. Dr. Hebrard concluded that the underlying condition was aggravated
in the course of that injury. He indicated that appellant’s ongoing functional deficits were
consistent with a combination of restricted range of motion of the hips due to the severe nature of
degenerative joint disease and sciatica. Dr. Hebrard opined that appellant had suffered a
permanent aggravation of her underlying osteoarthritic condition and sciatic neuropathy. He
continued to opine that appellant was totally disabled as her hip conditions precluded her from
doing any prolonged sitting, standing, walking, stooping, bending, twisting, pushing, pulling,
lifting and walking on uneven surfaces.
By letter dated November 18, 2015, OWCP advised Dr. Hebrard that additional medical
explanation was needed to explain how appellant’s bilateral degenerative joint disease was
aggravated as a result of her July 27, 2014 work injury. It noted that when a preexisting condition
involving the same part of the body was present, the physician must provide a medical opinion
which differentiates between the effects of the employment-related injury and the preexisting
condition and explain how the underlying condition was materially altered and whether the
underlying condition was temporarily or permanently aggravated.
In a November 12, 2015 report, Dr. Scott M. Taylor, a Board-certified orthopedic surgeon,
noted the history of the July 27, 2014 work injury and that she was diagnosed with a hip contusion.
He diagnosed right hip unilateral primary osteoarthritis and left hip unilateral primary
osteoarthritis.
In a November 20, 2015 report, Dr. Hebrard responded to OWCP’s September 1 and
November 18, 2015 letters. He opined that the July 27, 2014 work injury caused a permanent
aggravation of appellant’s underlying preexisting degenerative joint disease. Dr. Hebrard
explained that the blunt force trauma of the July 27, 2014 work injury caused a rapid and traumatic
abduction and external rotation of the right hip and groin region, which resulted in shearing across
the preexisting degenerated hip joint and led to accelerated inflammatory changes in the joint
which further limited motion and strength. He explained that any rapid and forceful movement in
the areas which involve the hip in their movement and rotation, can be sufficient to aggravate a
previously-quiescent severe degenerative joint disease. Dr. Hebrard indicated that clinical
findings, subjective complaints, and diagnostic studies were consistent with the severe
degenerative joint disease diagnosis. He opined that appellant was temporarily totally disabled as
she could not sit, stand, or walk for extended periods of time. Dr. Hebrard also recommended total
hip arthroplasties.

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In January 27, February 24, and March 25, 2016 reports, Dr. Hebrard opined that
appellant’s ongoing condition was present and medically disabling and that a bilateral total hip
replacement was needed. In his January 27, 2016 report, he opined that appellant’s hip condition
was causally related to the “factors of occupational injury” which had accelerated the underlying
functional deficits permanently with irreversible functional loss of strength in the hip. Dr. Hebrard
noted that appellant was favoring the opposite side, which accelerated the aggravation of the left
hip.
In his February 24, 2016 report, Dr. Hebrard opined that, based on the natural history and
progression of the disease pathology, appellant’s trauma accelerated her deterioration. He noted
that she had not recovered from her underlying hip osteoarthritis and that she now had a permanent
aggravation of osteoarthritis which was accelerated and aggravated due to the right hip trauma.
Dr. Hebrard indicated that her favoring of her left side had accelerated the injury there as well. He
noted appellant was not aware that she had hip osteoarthritis until the injury in the instant claim.
In his March 25, 2016 report, Dr. Hebrard opined that appellant’s underlying preexisting
condition was aggravated in the course of the blunt trauma force to her right hip, which caused a
forceful migration of the hip joint which was already compromised due to severe osteoarthritis.
He noted that the blunt trauma forced to the outer edge of the hip in the greater trochanter which
caused a forceful migration of the hip joint and increased the injury spectrum to the right hip to
the point where her underlying condition was aggravated. Dr. Hebrard indicated that appellant’s
right hip degenerative joint disease was permanently aggravated and it was unlikely that this
condition would return to baseline level of function. He concluded that there had been a material
change in appellant’s condition as there was weakness throughout the lower extremities,
particularly of the hip flexion and restriction of range of motion of both hips, which had affected
her activities of daily living and her independence. Dr. Hebrard opined that her condition was a
direct aggravation of the July 9, 20135 work injury and that she was totally and permanently
disabled from all levels of occupation given the functional restricted range of motion of the hips,
which had affected her sitting, standing, and walking tolerance and ultimately her pushing and
pulling.
By decision dated April 20, 2016, OWCP denied appellant’s claimed recurrence of
disability commencing June 2, 2015. It found that the medical evidence of record was insufficient
to establish that appellant was disabled due to a material change/worsening of her accepted workrelated conditions.
On May 13, 2016 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review, which was held on August 25, 2016. During the hearing,
appellant testified that she had a painful bilateral hip condition prior to the July 27, 2014 work
injury, but that the injury had intensified the pain and caused additional symptoms.
Additional medical reports from Dr. Hebrard indicated that appellant was disabled and that
she had a permanent aggravation of her pelvis and thigh osteoarthritis. In a May 9, 2016 report,
he indicated that appellant would have surgery on May 16, 2017. Dr. Hebrard noted that the
ongoing condition from her July 27, 2014 work injury had never healed and that appellant
5

The date of July 9, 2013 appears to be a typographical error as Dr. Hebrard correctly refers to the present claim.

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continued to have ongoing functional deficits related to sitting, standing, and walking. He
indicated that, as a result of the contusion of the right thigh and right hip area, appellant had an
initial aggravation of her underlying condition, from which she had not recovered.
In June 27 and July 8, 2016 reports, Dr. Hebrard reported that appellant had right total hip
replacement on May 16, 2016. He opined that the contusion to the right hip had aggravated her
underlying previously asymptomatic hip condition. Dr. Hebrard explained that as a result of the
trauma to the hip, more compression was created along the arthritic hip of the femoroacetabular
joint space, which was minimized through the arthritis, and had expedited and precipitated
inflammatory response. This led to increased weakness and more functional restricted range of
motion of the hip, which affected her sitting, standing, walking, pushing, pulling, reaching, and
lifting tolerance. Based on the natural history and progression of disease pathology on top of the
aggravating event, appellant’s underlying previously quiescent arthritic hip due to the contusion
trauma had accelerated injury to the right hip which resulted in a failing of conservative measures
and a total hip replacement. Dr. Hebrard opined that this ongoing condition involving the right
total hip replacement should be accepted as a progression of disease pathology due to the accepted
occupational injury. He also opined that there was a consequential injury involving the left hip
and that appellant was a candidate for a total hip replacement on the left side.
In an August 22, 2016 report, Dr. Hebrard continued to opine that the spontaneous change
in appellant’s previously quiescent and underlying degenerative joint disease of both right of left
hips resulted from the blunt trauma force that was accepted to the right hip area. As a result of the
contusion, appellant had increased inflammation, swelling and the like. He again opined that
appellant had a compensable consequential injury to the left hip which had accelerated damage to
the underlying preexisting condition.
By decision dated November 3, 2016, an OWCP hearing representative affirmed the denial
of appellant’s recurrence claim, finding that the medical evidence of record did not contain medical
reasoning that discussed “the usual etiology and course of the underlying condition” and which
explained whether and how the accepted work injury actually changed the underlying medical
condition.
On May 2, 2017 appellant, through counsel, requested reconsideration. In support of the
reconsideration request, appellant submitted copies of evidence previously of record, and
additional reports from Dr. Hebrard.
In a February 1, 2017 report, Dr. Hebrard noted that appellant would undergo a left hip
total replacement the following day. He also noted that diagnostic information revealed severe
degenerative changes and that it was his opinion that appellant’s underlying preexisting condition,
which was previously quiescent, was aggravated by the injury and caused trauma to the underlying
arthritic condition, which resulted in pain, stiffness and weakness in the right hip.
In a March 23, 2107 report, Dr. Hebrard indicated that appellant was status post right total
hip replacement on May 16, 2016 and status post left total hip replacement on February 2, 2017
with underlying osteoarthritis. A diagnosis of contusion of right thigh and contusion of right hip
was provided. Dr. Hebrard opined that the blunt trauma force to the hip area, which was an
accepted condition, accelerated and/or aggravated the underlying preexisting previously quiescent

6

arthritic condition of her right hip. This required a right total hip replacement and also resulted in
a consequential injury to her left arthritic hip, which resulted in a left total hip replacement.
In a March 31, 2017 letter to counsel, Dr. Hebrard indicated that he reviewed the hearing
representative’s decision of November 3, 2016. He indicated that, on the date of injury, appellant
had suffered a blunt force trauma to the lateral side of the hip and thigh. This blow applied
compressive force to the hip joint and also triggered an arthritis process, which resulted in
inflammation, stiffness, and weakness in the hip joint. Dr. Hebrard indicated this reduced
appellant’s tolerance for sitting, standing, and walking and negatively impacted her ability to
perform work duties. He opined that the mechanical process of the blunt force trauma and
contusion led to an acceleration and an aggravation of an underlying, preexisting right hip
condition.
By decision dated May 15, 2017, OWCP found that Dr. Hebrard’s opinions on causation
were of diminished probative value as they were not sufficiently rationalized to explain how
biomechanically appellant’s preexisting osteoarthritis of the hips worsened due to the accepted
injury and caused total disability as of June 2, 2015.
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.6 This term also means an inability to work when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to the work-related 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.7
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 of proof 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.8
An employee who claims a recurrence of disability resulting from an accepted employment
injury has the burden of proof to establish that the disability is related to the accepted injury. This
burden requires furnishing medical evidence from a physician who, on the basis of a complete and

6

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

7

Id.

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

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accurate factual and medical history, concludes that the disabling condition is causally related to
the employment injury and supports that conclusion with sound medical reasoning.9
ANALYSIS
The Board finds that appellant has not established a recurrence of total disability
commencing June 2, 2015 causally related to the accepted July 27, 2014 employment injury.
OWCP accepted that appellant sustained right hip and thigh contusion on July 27, 2014
when she ran into a guard rail while clocking in from lunch. Until the claimed recurrence of
disability, appellant had returned to work performing modified duties for eight hours a day.
The medical reports from Dr. Behravan, Dr. Salyapongse, and Dr. Hebrard
contemporaneous to the claimed recurrence of June 2, 2015 failed to establish that appellant had a
return or increase of disability due to a change/worsening of her accepted work condition causally
related to the July 27, 2014 mechanism of injury. Rather, the medical evidence from these
physicians supported a finding that appellant’s current condition was causally related to her
preexisting bilateral degenerative disease of the hips, caused by repetitive trauma, not related to
the July 27, 2014 injury. The Board has explained that medical reports are of limited probative
value regarding appellant’s claim for total disability if they do not provide a rationalized medical
opinion that the alleged period of total disability was due to the accepted injury.10 As such, these
reports are insufficient to establish appellant’s recurrence claim.
In his November 12, 2015 report, Dr. Taylor noted the history of appellant’s July 27, 2014
injury. He diagnosed right hip unilateral primary osteoarthritis and left hip unilateral primary
osteoarthritis, conditions which had not been accepted as causally related to the July 27, 2014
injury. As Dr. Taylor did not provide an opinion regarding whether these conditions were causally
related to the accepted work injury or caused disability, his opinion is of insufficient probative
value to establish a recurrence of disability.11
Dr. Hebrard submitted numerous reports beginning on June 2, 2015 when he reported that
appellant was totally disabled. It is not the number of reports, but the care of analysis manifested
and the medical rationale provided in the reports that determines the probative value of the
evidence.12
In his June 2, 2015 report, Dr. Hebrard advised that the diagnosis of contusion of the hip
and thigh needed to be updated to clearly reflect permanent aggravation of appellant’s pelvis and
thigh osteoarthritis. On October 9, 2015 he opined that appellant’s preexisting severe bilateral hip
osteoarthritis was aggravated in the course of her July 27, 2014 injury. Dr. Hebrard concluded
that appellant had suffered a permanent aggravation of her underlying osteoarthritic condition and
9

S.S., 59 ECAB 315 (2008).

10

See K.M., Docket No. 16-1667 (issued November 6, 2017).

11

Id.

12

See Connie Johns, 44 ECAB 560 (1993).

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sciatic neuropathy which prevented her from prolonged sitting, standing, walking, stooping,
bending, twisting, pushing, pulling, lifting, and walking on uneven surfaces. If there is an
aggravation of a preexisting condition, an opinion with respect to aggravation must differentiate
between the effects of the work-related injury or disease and the preexisting condition.13 In this
regard, the June 9, 2014 report from Dr. Behravan, prior to the July 27, 2014 work injury, related
that appellant had advanced degenerative arthritis of both hips, as seen on pelvic x-ray dated
July 9, 2013. It was also noted that appellant had been advised in 2013 that she required bilateral
hip replacements. In light of this medical history, Dr. Hebrard did not offer a rationalized medical
explanation as to how the act of running into a guard rail on July 27, 2014 would have altered the
course or permanently aggravated appellant’s preexisting hip osteoarthritic condition and sciatic
neuropathy. Without explaining how physiologically the movements involved in the accepted
employment injury caused or contributed to the diagnosed conditions, his opinion is of limited
probative value.14
Similarly, in his other reports, Dr. Hebrard failed to offer a rationalized medical
explanation as to how the act of running into a guard rail on July 27, 2014 would have altered the
course of or permanently aggravated appellant’s preexisting conditions. In his November 20, 2015
report, Dr. Hebrard explained that the blunt force trauma of the July 27, 2014 work injury led to
accelerated inflammatory changes in the degenerative hip joint which limited motion and strength.
He opined that any rapid and forceful movement in the areas which involve the hip in their
movement and rotation, can be sufficient to aggravate a previously-quiescent severe degenerative
joint disease. In his February 24, 2016 report, Dr. Hebrard opined that based on the natural history
and progression of the disease pathology, appellant’s trauma accelerated her deterioration. An
August 22, 2016 report indicated a change in the preexisting condition, asserting that the injury
led to increased inflammation, swelling and the like, in her previous quiescent condition. In his
February 1 and March 23, 2017 reports, Dr. Hebrard opined that the underlying preexisting
condition, which was previously quiescent, was aggravated by the July 27, 2014 work injury as
appellant failed to progress after the July 27, 2014 work injury and had pain, stiffness and
weakness in the right hip. He also opined that the right hip damage resulted in a consequential
injury to the left hip.
However, Dr. Hebrard’s opinion is based upon an inaccurate medical history as appellant’s
preexisting degenerative hip condition was not quiescent prior to July 27, 2014, in fact bilateral
hip replacement had been medically recommended a year prior. To meet her burden of proof,
appellant must furnish 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 that conclusion with sound medical reasoning.15 Where no
such rationale is present, medical evidence is of diminished probative value.16 Dr. Hebrard failed
to discuss the usual etiology and course of the underlying condition, given the gravity of the
13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(e) (January 2013).

14

See T.G., Docket No. 14-751 (issued October 20, 2014).

15

See W.H., Docket No. 17-1390 (issued April 23, 2018).

16

Id.

9

condition prior to the July 27, 2014 work injury, and he did explain based upon objective medical
findings how the accepted work injury worsened the underlying conditions. He provided no
review of any medical evidence prior to the claimed recurrence or up to the time appellant began
treating with him to establish a worsening of the preexisting condition. Thus, there is no medical
explanation as to whether and how the preexisting underlying condition actually worsened due to
the July 27, 2014 work injury. Dr. Hebrard’s reports are, therefore, of diminished probative
value.17
The diagnostic studies of record did not provide a cause of any diagnosed conditions.
Medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship.18
Likewise, reports from a physician assistant have no probative medical value in
establishing appellant’s claim as a physician assistant is not considered a physician as defined
under FECA.19
In assessing medical evidence, the weight of a physician’s opinion is determined by the
opportunity for and thoroughness of the examination, the accuracy and completeness of the
physician’s knowledge of the facts and medical history, the care of analysis manifested, and the
medical rationale used to explain the conclusions reached.20 For the reasons given, none of the
medical reports submitted in this case contained sufficient rationale to establish a recurrence of
total disability commencing June 2, 2015. Thus, appellant has not met her burden of proof.
On appeal counsel alleges that OWCP’s decision is contrary to fact and law. For the
reasons discussed above, the Board finds that the medical evidence of record is insufficient to
establish a recurrence of total disability commencing June 2, 2015.
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 established a recurrence of total disability
commencing June 2, 2015 causally related to the accepted July 27, 2014 employment injury.

17

Id.

18

Willie M. Miller, 53 ECAB 697 (2002).

19
See M.M., Docket No. 17-1641 (issued February 15, 2018); K.J., Docket No. 16-1805 (issued February 23,
2018); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 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).
20

L.G., Docket No. 09-1692 (issued August 11, 2010).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated May 15, 2017 is affirmed.
Issued: August 6, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
DEPARTMENT OF DEFENSE, NATIONAL
SECURITY AGENCY, Fort Meade, MD,
Employer
__________________________________________

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

Docket No. 08-1803
Issued: February 12, 2009

Case Submitted on the Record

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

JURISDICTION
On June 10, 2008 appellant filed a timely appeal from an April 21, 2008 merit decision of
the Office of Workers’ Compensation Programs denying his claim for an increased schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule
award decision.
ISSUE
The issue is whether appellant has more than a 10 percent permanent impairment of the
left upper extremity and a 5 percent permanent impairment of the left lower extremity.
FACTUAL HISTORY
On April 4, 1999 appellant, then a 52-year-old security protective officer, filed a
traumatic injury claim alleging that on April 3, 1999 he injured his left shoulder, arm and lower
back opening a broken vehicle gate. The Office accepted the claim for a left elbow and shoulder

strain, lumbar strain and a herniated disc at L5-S1.1 On May 3, 2002 appellant underwent a
laminectomy at L5, extensive bilateral foraminotomies at L5 and S1 and a left L5-S1
discectomy. He resumed full-time light-duty employment on July 29, 2002.2 Appellant
subsequently stopped work and the Office placed him on the periodic rolls beginning
September 13, 2003.
By decision dated June 6, 2003, the Office granted appellant a schedule award for a 10
percent impairment of the left upper extremity and a 5 percent permanent impairment of the left
lower extremity. In a decision dated June 15, 2004, the Office denied appellant’s request for
further merit review of its June 6, 2003 decision.
On January 20, 2005 appellant filed a claim for an additional schedule award. In a report
dated November 30, 2005, Dr. William J. Launder, a Board-certified orthopedic surgeon, found
that appellant had a 30 percent impairment of the left shoulder and a 30 percent impairment of
each lower extremity. On February 16, 2006 an Office medical adviser stated that Dr. Launder
failed to explain the basis for his impairment ratings. The Office medical adviser determined
that appellant had a five percent impairment of the left lower extremity due to a sensory deficit
of the left S1 nerve root.
On March 21, 2006 the Office referred appellant to Dr. Kevin F. Hanley, a Boardcertified orthopedic surgeon, for a second opinion examination. In a report dated April 4, 2006,
Dr. Hanley applied the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001) (A.M.A., Guides) and found that appellant had a five percent
impairment of the left upper extremity and a one percent impairment of the left lower extremity.
The Office determined that a conflict existed between Dr. Launder and Dr. Hanley
regarding the extent of appellant’s permanent impairment. On January 31, 2007 it referred
appellant to Dr. Stephen R. Matz, a Board-certified orthopedic surgeon, to resolve the conflict in
medical opinion. In a report dated February 20, 2007, Dr. Matz discussed appellant’s complaints
of decreased strength and intermittent left shoulder pain and constant low back pain with
numbness into the lower extremities. He measured calf circumference on the left as one-quarter
inch less than the right. Dr. Matz stated:
“There is no shoulder tenderness. Left shoulder active range of motion revealed
165 degrees abduction and forward flexion. [Appellant] has full internal rotation,
full external rotation, full backward flexion and full adduction. He has some
degree of left shoulder pain at the extremes of all ranges of motion. [Appellant]
has strong internal and external rotation against resistance with the elbow at 90
degrees and the forearm in neutral position and the arm adducted to his side. He
has no scapula winging or shoulder girdle atrophy. Gentle abduction is strong.
1

By decision dated December 3, 1999, the Office found that appellant failed to establish that he sustained a back
condition due to his April 3, 1999 work injury. On March 21, 2000 an Office hearing representative reversed the
December 3, 1999 and accepted that appellant sustained lumbar strain. On May 8, 2001 the Office accepted
appellant’s claim for a herniated disc at L5-S1 due to the April 3, 1999 employment incident.
2

In a decision dated June 9, 2003, the Office reduced appellant’s compensation based on his actual earnings as a
training instructor effective October 14, 2002.

2

[Appellant] has symmetric strength when compared to the right shoulder. There
is no shoulder hike during elevation.”
Dr. Matz found no loss of range of motion of the fingers, wrists or elbow and good strength and
range of motion of the lower extremities. He determined that appellant had one percent
impairment due to loss of abduction and one percent impairment due to loss of forward flexion
according to page 476 and 477 of the A.M.A., Guides, which yielded a two percent impairment
of the left upper extremity. Dr. Matz noted that the remaining ranges of motion yielded no
impairment. Citing Chapter 15 of the A.M.A., Guides, which is relevant to impairments of the
spine, he opined that appellant had a 10 percent whole person impairment of the lumbosacral
spine. Dr. Matz further found an additional seven percent whole person impairment for loss of
range of motion of the lumbar spine. He stated, “On the basis of some mild residual sensory
deficit left lateral calf, page 424, [T]able 15-15, Grade 4, [T]able 15-18 equals an additional one
[percent] of the whole person. There was no motor weakness.” Dr. Matz concluded that
appellant had a 17 percent whole person impairment of the lower back due to his work injury.
On June 4, 2007 an Office medical adviser reviewed the medical evidence and noted that
Dr. Hanley, the second opinion physician, performed a “very detailed evaluation.” He concurred
with Dr. Hanley’s findings of a five percent impairment of the upper extremity and a one percent
impairment of the lower extremity. The Office medical adviser opined that appellant reached
maximum medical improvement in May 2003.
By decision dated July 2, 2007, the Office granted appellant a schedule award for a five
percent impairment of the left upper extremity and a one percent impairment of the left lower
extremity. The period of the award ran from July 8 to November 14, 2007. The Office noted
that appellant had previously received a schedule award for a 10 percent impairment of the left
upper extremity and a five percent impairment of the left lower extremity.
On July 24, 2007 appellant requested a review of the written record. By decision dated
November 28, 2007, the hearing representative set aside the July 2, 2007 schedule award
decision. She noted that the Office medical adviser applied the A.M.A., Guides to the findings
of the second opinion examiner, Dr. Hanley, rather than obtaining clarification of the degrees of
impairment from Dr. Matz, the impartial medical examiner. The hearing representative noted
that Dr. Matz improperly provided a whole person impairment to the lumbosacral spine. She
instructed the Office to request that the impartial medical examiner determine whether appellant
had lower extremity impairment and provide references to the tables and pages of the A.M.A.,
Guides in support of his findings. The hearing representative further indicated that, as appellant
had previously received a schedule award for a 10 percent impairment of the left upper extremity
and a five percent impairment of the left lower extremity, appellant “was not entitled to an
additional schedule award at the time the July 2007 decision was issued.” She found that the
Office should determine whether he was entitled to an additional schedule award and, if not,
address whether an overpayment existed.
On December 19, 2007 the Office requested that Dr. Matz address whether appellant had
a permanent impairment of the lower extremities according to the A.M.A., Guides. In a
supplemental report dated February 26, 2008, Dr. Matz indicated that he was “unable to relate

3

any specific or significant permanent partial physical impairment to the lower extremities. This
is a low back injury and low back surgery.”
On March 21, 2008 the Office medical adviser applied the A.M.A., Guides to the
findings by Dr. Matz in his February 20, 2007 report. He concurred with Dr. Matz finding that
appellant had a two percent impairment of the left upper extremity. The Office medical adviser
found that 165 degrees abduction constituted a 0.5 or one percent, impairment according to
Figure 16-43 on page 477 of the A.M.A., Guides and that 165 degrees forward flexion
constituted one percent impairment according to Figure 16-40 on page 476. He noted that
Dr. Matz found full internal and external rotation, extension and adduction. The Office medical
adviser stated:
“[Dr. Matz] states that there is mild residual sensory deficit [of the] left lateral
calf and he used [p]age 424, Table 15-15 to place the claimant in a Grade 4
classification which gives up to a 24 [percent] sensory deficit which would be
multiplied times Table 15-18 for nerve root impairment of a maximum loss of 5
[percent]. This will give a 1.25 [percent] (rounded off to one [percent]) lower
extremity impairment. This is essentially what Dr. Matz did. On [p]age 7 of his
report, he used Tables 15-15 and 15-18 on [p]age 424 of the [A.M.A., Guides] but
he stated that the one [percent] was for whole person whereas Table 15-18 gives
this impairment of the lower extremity.”
The Office medical adviser found no impairment for ¼ inch of calf atrophy. He
concluded that appellant had a one percent impairment of the left lower extremity and a two
percent impairment of the left upper extremity.
By decision dated April 21, 2008, the Office denied appellant’s claim for an increased
schedule award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing federal regulations,4 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss or loss of use, of scheduled members or
functions of the body. However, 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 for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.5 Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in
2001, for all decisions made after February 1, 2001.6

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

4

Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.7 The implementing regulation states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.8 When there exist opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical examiner for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.9 If the opinion of the impartial medical examiner
requires clarification or elaboration, the Office has the responsibility to secure a supplemental
report from the specialist for the purpose of correcting the defect in the original opinion. If the
impartial medical examiner is unwilling or unable to clarify and elaborate on his or her opinion,
the case should be referred to another appropriate impartial medical specialist.10
In order to properly resolve a conflict in medical evidence with respect to a schedule
award, it is the referee examiner who should provide a reasoned medical opinion as to a
permanent impairment to a scheduled member of the body in accordance with the A.M.A.,
Guides. An Office medical adviser may review the opinion, but resolution of the conflict is the
responsibility of the referee examiner.11
ANALYSIS
The Office accepted that appellant sustained a left elbow and shoulder strain, lumbar
strain and a herniated disc at L5-S1 due to an April 3, 1999 employment injury. On June 6, 2003
it granted him a schedule award for a 10 percent permanent impairment of the left upper
extremity and a 5 percent permanent impairment of the left lower extremity.
In a report dated November 30, 2005, Dr. Launder, appellant’s attending physician,
opined that he had a 30 percent permanent impairment of the left shoulder and a 30 percent
impairment of each lower extremity. On April 4, 2006 Dr. Hanley, who provided a second
opinion examination, found that appellant had a five percent left upper extremity impairment and
a one percent left lower extremity impairment. The Office determined that a conflict existed in
the medical evidence and referred appellant to Dr. Matz for an impartial medical examination.12
In a report dated February 20, 2007, Dr. Matz measured left shoulder range of motion of 165
7

5 U.S.C. § 8123(a).

8

20 C.F.R. § 10.321.

9

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

10

See Guiseppe Aversa, 55 ECAB 164 (2003).

11

See V.G., 59 ECAB ___ (Docket No. 07-2179, issued July 14, 2008); Thomas J. Fraale, 55 ECAB 619 (2004).

12

The Office initially referred appellant to Dr. Launder for an impartial medical examination; however, this was
improper as he had previously examined appellant as he was on one side of the conflict in the evidence.

5

degrees abduction and forward flexion. He found full range of motion in internal and external
rotation, extension and adduction. Dr. Matz further determined that appellant had a 10 percent
whole person impairment of the lumbar spine and 7 percent impairment due to loss of range of
motion of the lumbar spine. Citing Tables 15-15 and 15-18 on page 424 of the A.M.A., Guides,
he asserted that appellant had an additional one percent whole person impairment for sensory
deficit in the left lateral calf. The Act, however, does not provide for impairment of the whole
person.13 Additionally, the Act specifically excludes the back as an organ and, therefore, the
back does not come under the provisions for payment of a schedule award.14
On November 28, 2007 an Office hearing representative instructed the Office to obtain
clarification from Dr. Matz regarding whether appellant had lower extremity impairment.15 In a
report dated February 26, 2008, Dr. Matz asserted that he could not “relate any specific or
significant permanent partial physical impairment to the lower extremities” as the injury was to
the lower back. On March 21, 2008 an Office medical adviser applied the A.M.A., Guides to the
findings by Dr. Matz in his February 20, 2007 report. He determined that 165 degrees abduction
constituted 0.5 or 1 percent, impairment according to Figure 16-43 on page 477 of the A.M.A.,
Guides and that 165 degrees forward flexion constituted 1 percent impairment according to
Figure 16-490 on page 476. The Office medical adviser noted that Dr. Matz found full internal
and external rotation, extension and adduction. Dr. Matz, however, did not provide any
measurements for internal and external rotation, extension and adduction in his report.
Consequently, his report is not entitled to special weight on the issue of the extent of appellant’s
upper extremity impairment as it contains insufficient clinical findings regarding appellant’s
range of motion.16
The Office medical adviser further reviewed Dr. Matz’ finding in his February 20, 2007
report that appellant had a one percent whole person impairment by finding a Grade 4
impairment which he multiplied by a sensory deficit of an unidentified nerve. The Office
medical adviser applied the A.M.A., Guides to his findings and concluded that appellant had a
one percent impairment of the lower extremity. The Office’s procedures, however, provide that
when the Office directs an employee to undergo a referee examination, it is to rely on the opinion
of the medical referee in determining the issue.17 An Office medical adviser may review the
opinion but the resolution of the conflict is the responsibility of the impartial medical specialist.18
Dr. Matz initially found that appellant had a one percent whole person impairment of the lower
extremity. In his supplemental report dated February 26, 2008, he found no lower extremity
13

See D.J., 59 ECAB ___ (Docket No. 08-725, issued July 9, 2008); Tania R. Keka, 55 ECAB 354 (2004).

14

See 5 U.S.C. § 8107; Patricia J. Horney, 56 ECAB 256 (2005); Francesco C. Veneziani, 48 ECAB 572 (1997).

15

The hearing representative noted that the Office medical adviser applied the A.M.A., Guides to the findings of
Dr. Hanley rather than the impartial medical examiner.
16

Patricia J. Penney-Guzman, 55 ECAB 757 (2004).

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluation Medical Evidence, Chapter
2.810.7(g) (April 1993) (while a district medical adviser may create a conflict in medical opinion, he or she may not
generally resolve it).
18

See V.G., supra note 11; Richard R. LeMay, 56 ECAB 341 (2005).

6

impairment. Dr. Matz did not explain the discrepancies between his reports and thus his opinion
is insufficiently rationalized to be accorded special weight as the impartial medical examiner.19
The case will be remanded so that appellant may be referred to another impartial medical
examiner to resolve the conflict regarding the extent of permanent impairment of his left upper
and lower extremity. Following such further development as deemed necessary, the Office shall
issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 21, 2008 is set aside and the case is remanded for further
proceedings consistent with this decision of the Board.
Issued: February 12, 2009
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

19

See Elaine Sneed, 56 ECAB 373 (2005).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, WATTSBURG POST
OFFICE, Wattsburg, PA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-1540
Issued: December 17, 2020

Case Submitted on the Record

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

On August 17, 2020 appellant filed an appeal from a February 12, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 20-1540.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180th day following the February 12, 2020 decision was August 10, 2020. As
appellant did not file an appeal with the Board until August 17, 2020, more than 180 days after the
February 12, 2020 OWCP decision, the Board finds that the appeal docketed as No. 20-1540 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered

1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

a reason to explain the failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”3
IT IS HEREBY ORDERED THAT the appeal docketed as No. 20-1540 is dismissed.
Issued: December 17, 2020
Washington, DC

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

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

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

3

Id. at § 501.6(d).

2


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

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

Docket No. 12-1758
Issued: April 19, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 20, 2012 appellant, through her attorney, filed a timely appeal of a May 18,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) addressing her
alleged recurrence of disability on April 1, 2009. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
developed a recurrence of disability on April 1, 2009 causally related to her December 2, 2008
employment injuries.
On appeal, counsel argued that the statement of accepted facts did not accurately describe
appellant’s light-duty position at the time of her alleged recurrence of disability. He further
alleged that, the report of the impartial medical examiner, Dr. Roy Friedenthal, a Board-certified
1

5 U.S.C. § 8101 et seq.

orthopedic surgeon, supported her claim or in the alternative was not sufficiently well reasoned
to constitute the weight of the medical opinion evidence.
FACTUAL HISTORY
On December 2, 2008 appellant, then a 43-year-old window and distribution clerk filed
an occupational disease claim alleging that she developed carpal tunnel syndrome and ulnar
neuritis in her right arm. She stated that her symptoms were beginning in her left arm.
Appellant attributed her condition to repetitious actions at the employing establishment.
Dr. Scott Fried, an osteopath, examined appellant on November 19, 2008 and diagnosed flexor
tenosynovitis on the right, radial neuropathy and ulnar neuropathy on the right and ulnar
neuropathy on the left. He also diagnosed brachial plexopathy/cervical radiculopathy on the
right and carpal tunnel median neuropathy. Dr. Fried attributed appellant’s condition to her
employment duties and recommended an alternate day work schedule with rest in between. He
also restricted her overhead reaching and repetitive activities.
Appellant provided her job descriptions from December 19, 1987. Beginning on
January 21, 2008 she performed various duties in three different postal services including
Margate, Atlantic City and Ventor. Appellant worked on Monday, Tuesday, Wednesday, Friday
and Saturday performing window service, postage due and business reply mail, registry and mail
distribution duties. OWCP accepted her claim for cubital tunnel syndrome, carpal tunnel
syndrome and wrist sprain all on the right on January 27, 2009.
In a report dated April 9, 2009, Dr. Fried reviewed appellant’s functional capacity
evaluation on February 26, 2009 and found that this demonstrated diminished abilities to
manipulate small objects and significantly increased symptoms with repetitive activities in the
upper extremities and with lifting and carrying activities. He opined that she could not return to
her full-duty position. The functional capacity evaluation indicated that appellant could sit for
four hours, stand for five hours and walk for eight hours a day. She was limited to 30 minutes of
sitting at a time and two hours of standing and walking. Appellant could lift up to 10 pounds.
She was unable to perform fine manipulation, firm grasping or pushing and pulling. Appellant
was limited to sedentary work. The examination noted that she was having significant symptoms
working eight hours a day three days a week and suggested that she should be limited to
four-hour shifts.
Dr. Fried completed electromyogram (EMG) and nerve conduction velocity studies on
February 24, 2009 and reviewed the results on April 20, 2009. He opined that appellant’s
electrodiagnostic testing revealed brachial plexus involvement on the right, ulnar nerve
involvement at the elbows, bilaterally and bilateral median nerve involvement at the carpal canal
as well as radial nerve involvement of the right elbow. On April 29, 2009 Dr. Fried noted that
she was not working.
Appellant filed a notice of recurrence on May 4, 2009 alleging that on April 1, 2009 she
stopped work due to Dr. Fried’s recommendations. In a note dated April 1, 2009, Dr. Fried
stated that she experienced ongoing significant symptoms without any overall benefits from
therapy. He noted appellant’s moderate-to-severe pain and paresthesias. Dr. Fried noted that she
was working part time, three days a week with a day off in between for rest. He described

2

appellant’s duties as lifting packages up to 10 pounds, operating the register and scanning.
Dr. Fried stated that she reported that she was unable to take breaks because of pressure to keep
moving. He concluded, “We will pull her from work at this point to focus on rest and treatment
and add a trial of the water massage tables.”
OWCP requested additional information regarding appellant’s claim on May 26, 2009.
Appellant provided her employment duties on June 15, 2009. OWCP referred her for a second
opinion evaluation with Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon. In his
June 24, 2009 report, Dr. Hanley diagnosed bilateral overuse syndrome with probable
entrapment neuropathies at both elbows and recommended that appellant’s left upper extremity
condition be accepted as well as her right. He found that she could work with restrictions on her
upper extremities including no repetitive work for more than 30 minutes at a time. Dr. Hanley
also restricted appellant’s lifting, pushing and pulling to 10 pounds for two hours a day. He also
restricted her reaching and reaching above the shoulder to two hours each a day, but indicated
that she could work eight hours a day.
The employing establishment stated that appellant was a full-time regular sales and
window clerk with other duties assigned. Appellant’s duties included four hours of back-up
window clerk, two hours of prepping mail to be forwarded or returned to the sender and two
hours of distribution clerk work. As a distribution clerk she was required to carry up to 70
pounds. The employing establishment noted appellant’s restriction on November 19, 2008 of
working every other day, no lifting over 10 pounds and no pushing or pulling. It stated that she
began working as the main window clerk with assistance for heavy parcels and coworkers
moving the wheeled containers as she could not pull or push.
The statement of accepted facts indicated that appellant reduced her work schedule to
limited-duty eight hours a day, three days a week on October 22, 2008. Appellant stopped work
on March 25, 2009. On August 3, 2009 Dr. Fried continued to support her total disability for
work. He examined appellant on August 5, 2009 and diagnosed flexor tenosynovitis right,
scapholunate ligament injury right wrist, radial neuropathy right, ulnar neuropathy right and left
and brachial plexopathy or cervical radiculopathy on the right, carpal tunnel syndrome due to
work activities. Appellant underwent an EMG on August 14, 2009 which demonstrated mild left
ulnar nerve compromise at the medial elbow level unchanged from February 24, 2009, normal
right ulnar nerve, normal bilateral median nerves and mild right lower brachial plexus nerve
compromise.
On September 10, 2009 OWCP requested a supplemental report from Dr. Hanley. On
October 28, 2009 Dr. Hanley reviewed a video supplied by the employing establishment and
stated that this did not alter his opinion. He attributed appellant’s condition to her repetitive
duties and noted that she could return to work within his earlier restrictions. In a note dated
November 3, 2009, Dr. Hanley responded to OWCP’s request for additional information and
stated that he had not examined her since June 24, 2009 and could not address whether her
condition was ongoing.
By decision dated November 17, 2009, OWCP denied appellant’s claim for recurrence.
It found that she had not submitted the necessary medical opinion evidence to establish a change

3

in her injury condition on or after April 1, 2009. Counsel requested an oral hearing before an
OWCP hearing representative.
OWCP referred appellant for a second opinion report with Dr. Robert Draper, a Boardcertified orthopedic surgeon, on January 6, 2010. In his report dated January 28, 2010,
Dr. Draper reviewed the statement of accepted facts and noted her accepted conditions. He
performed a physical examination and diagnosed overuse syndrome of the right upper extremity.
Dr. Draper found an essentially normal examination with minimal decrease in range of motion
for right wrist flexion and extension. He noted that appellant’s EMG demonstrated mild changes
in the median nerve. Dr. Draper stated that appellant’s diagnosis was causally related to her
employment. He opined that appellant was capable of performing modified-duty work lifting up
to 20 pounds occasionally and 10 pounds frequently. Dr. Draper stated that she could work eight
hours a day with no restriction to standing, walking, stooping, bending or sitting. He found that
appellant had reached maximum medical improvement.
At the oral hearing on March 11, 2010, appellant described her employment duties. She
testified that her arms began going numb in October 2008. Following the oral hearing appellant
submitted a report dated March 16, 2010 from Dr. Fried describing her history and noting that,
six months prior to his report, she noted progressive increased symptoms on the right with more
frequent pain in the medial elbow and radiation of numbness and tingling into her hand.
Dr. Fried stated in December 2008, appellant had experienced benefits from therapy and noted
that she was working three days a week mostly at the window. He stated that by February 19,
2009 appellant noted intermittent symptoms and increased pain. Dr. Fried stated, “By April 1,
2009 [appellant] felt that she had some improvement with her treatments and continued to work
modified[-]duty part time.” He stated that her February 24, 2009 EMG corroborated brachial
plexus involvement and radial nerve issues on the right, bilateral ulnar nerve involvement at the
elbow and bilateral median nerve involvement at the carpal tunnels. Dr. Fried noted that
appellant stopped work by April 29, 2009 and felt that her symptoms had improved. He
reviewed Dr. Hanley’s report and agreed with his diagnoses. Dr. Fried stated that he advised
appellant to stop work on April 1, 2009 as her work activities were worsening her problem and
she was showing progression of symptomatology trying to perform her work activities. He
stated, “She not only had a recurrence but actually a progression of her underlying pathology and
this was the cause of her need to come out of work.”
The hearing representative set aside OWCP’s November 17, 2009 decision on June 1,
2010 and remanded the case. She found that appellant’s accepted conditions should include left
side overuse syndrome and nerve entrapment. The hearing representative also found that
appellant was capable of working four hours a day with restrictions and was entitled to
compensation for partial disability beginning April 1, 2009 for four hours a day. She further
found a conflict between Dr. Fried and Dr. Hanley regarding the extent of appellant’s disability
for work. The hearing representative remanded the case for referral to an impartial medical
examiner.
In a decision dated July 26, 2010, the Chief of the Branch of Hearings and Review, set
aside the hearing representative’s June 1, 2010 decision and affirmed the November 17, 2009
decision in part and remanded in part. He found that Dr. Hanley supported that appellant could
work eight hours a day with restrictions rather than four hours as found by the hearing

4

representative. He further found that Dr. Fried’s March 16, 2010 report created a conflict with
Dr. Hanley and that no benefits would be payable until the medical conflict was resolved.
OWCP referred appellant for an impartial medical examination with Dr. George Glenn, a
Board-certified orthopedic surgeon, on September 27, 2010. It completed a statement of
accepted facts on August 17, 2010 listing the accepted conditions of cubital tunnel syndrome,
carpal tunnel syndrome and wrist sprain on the right. OWCP noted that appellant was not
working.
In a report dated November 16, 2010, Dr. Glenn noted that he had reviewed the statement
of accepted facts and the medical record. He performed a physical examination and noted
appellant’s description of pain with flexion and extension of the elbows greater on the right than
left. Dr. Glenn stated that she had a host of subjective complaints involving her right neck and
entire right arm as well as her left elbow, which could not be explained on the basis of concrete
reproducible physical findings. He found no clinical or electrodiagnostic evidence of ulnar
compression syndrome at the right elbow, bilateral carpal tunnel syndrome or tendinitis.
Dr. Glenn found that appellant was capable of performing modified-duty work eight hours a day.
He provided lifting restrictions of 20 pounds occasionally and 10 pounds frequently. Dr. Glenn
also stated that appellant should not lift overhead. He completed a work capacity evaluation on
November 25, 2010 and indicated that she could work eight hours a day with restrictions and that
she should not reach above the shoulder.
On December 28, 2010 OWCP denied appellant’s claim for compensation for the period
June 6, 2009 to August 13, 2010. Counsel requested an oral hearing on January 4, 2011. At the
oral hearing on April 13, 2011, he argued that Dr. Glenn’s report did not address the issue of
appellant’s left upper extremity or her recurrence on April 1, 2009. By decision dated July 6,
2011, the hearing representative set aside the December 28, 2010 decision and remanded for
further development. She found that the opinions of Drs. Hanley and Draper were of diminished
probative value and required further development. The hearing representative determined that
there was not a conflict between Dr. Hanley and Dr. Fried or Dr. Draper and Dr. Fried. She
stated that Dr. Glenn’s report was therefore not entitled to special weight as he was not properly
designated as the impartial medical examiner. The hearing representative determined that
Dr. Glenn’s report was sufficient to create a conflict with the reports of Dr. Fried and required
referral to an impartial medical examiner.
In a letter dated July 21, 2011, OWCP referred appellant to Dr. Friedenthal to resolve the
identified conflict of medical opinion evidence. It drafted a statement of accepted facts on
July 13, 2011 listing her history of injury, her accepted conditions and her performance of light
duty. The statement of accepted facts included appellant’s medical treatment and OWCP
referrals. OWCP provided Dr. Friedenthal with a list of questions, asking whether he believed
that she was disabled on April 1, 2009 from performing the duties of her job.
Dr. Friedenthal completed a report on September 14, 2011. He described appellant’s
history of injury and medical treatment. Dr. Friedenthal noted his findings of physical
examination stating that she limited the range of motion of her neck during examination to less
than that demonstrated on observation. He also stated that appellant severely restricted range of
motion at both shoulders and complained of severe pain on passive motion of the right shoulder.

5

Dr. Friedenthal found that she did not have atrophy, joint effusion, crepitus or swelling in her
upper arm. He noted that appellant’s left thenar muscle showed a very mild scaphoid appearance
when compared to the right suggesting mild muscle atrophy. On neurologic evaluation appellant
had no focal sensory deficits. She demonstrated give way weakness throughout the right upper
extremity. Appellant had positive Tinel’s signs at the median nerves at the wrist and ulnar
nerves at the elbows. Dr. Friedenthal reviewed her electrodiagnostic testing. He stated that
appellant currently had no clear objective deficits with no neural impairment. Dr. Friedenthal
stated, “While she reports Tinel’s sign at both elbows, she has positive Tinel’s sign in
nonphysiologic distributions, again reflecting nonphysiologic factors in this individual.” He
concluded that appellant’s ulnar nerve was sensitive to her repetitive work activities and that her
variable symptoms in the median distribution may be consistent with developing carpal tunnel
syndrome.
Dr. Friedenthal opined that appellant was capable of working eight hours a day with
restrictions against lifting greater than 20 pounds occasionally and 10 pounds routinely. He
stated that there were no objective clinical findings of right carpal tunnel syndrome, right wrist
sprain or right cubital tunnel syndrome or other identified conditions causally related to her
employment. Dr. Friedenthal stated that appellant’s medical records did not provide evidence of
total disability. In regard to diagnostic testing, he stated that while additional studies are
necessarily warranted, additional studies would not be inappropriate and might be of value.
In an October 26, 2011 decision, OWCP denied appellant’s claim for recurrence of
disability on April 1, 2009 finding that Dr. Friedenthal’s report established that she was currently
capable of working full time with restrictions. Counsel requested an oral hearing.
At the oral hearing on February 29, 2012 counsel argued that Dr. Friedenthal’s report did
not address the issue of a recurrence of disability on April 1, 2009. He further noted that the
statement of accepted facts did not describe appellant’s employment duties at the time of her
alleged recurrence.
By decision dated May 18, 2012, the hearing representative found that there was no
rationalized medical evidence in support of appellant’s claim that her condition and disability
after April 1, 2009 was due to her accepted work injuries. She further found that Dr. Friedenthal
opined that appellant was capable of working full time with restrictions. The hearing
representative affirmed OWCP’s October 26, 2011 decision.
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. This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn or when the physical requirements of such an
assignment are altered so that they exceed his or her established physical limitations.2 When an
2

20 C.F.R. § 10.5(x).

6

employee, who is disabled from the job he or she held when injured on account of employmentrelated residuals, returns to a light-duty position or the medical evidence of record establish that
he or she can perform the light-duty position, the employee has the burden to establish by the
weight of the reliable, probative and substantial evidence a recurrence of total disability and
show that he or she cannot perform such light duty. As part of this burden, the employee must
show 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.3
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA, which provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination and resolve the conflict of medical evidence.4 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.5
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
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.6
ANALYSIS
OWCP accepted appellant’s claim for cubital tunnel syndrome, carpal tunnel syndrome
and wrist sprain all on the right on January 27, 2009. Appellant began working three days a
week on November 19, 2008 with no lifting over 10 pounds and no pushing or pulling. She
began working as the main window clerk with assistance for heavy parcels and coworkers
moving the wheeled containers as she could not pull or push. Appellant stopped work and filed a
notice of recurrence of disability on April 1, 2009.
In support of her claim for total disability beginning April 1, 2009, appellant submitted a
report from Dr. Fried dated March 16, 2010 stating that he advised her to stop work on April 1,
2009 as her work activities were worsening her problem. Dr. Fried stated that she had
progression of her underlying pathology which resulted in her total disability for work.
OWCP referred appellant to Drs. Hanley and Draper for second opinion evaluations. An
OWCP hearing representative initially found that there was a conflict in medical opinion
evidence between Drs. Hanley and Fried regarding her disability for work. OWCP referred
appellant to Dr. Glenn for an impartial medical examination.
A subsequent hearing
representative found that, as Dr. Hanley did not fully respond to OWCP’s request for questions,
3

Terry R. Hedman, 38 ECAB 222 (1986).

4

5 U.S.C. §§ 8101-8193, 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

5

R.C., 58 ECAB 238 (2006).

6

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

7

his reports were not sufficient to create a conflict with Dr. Fried. The hearing representative
determined that this rendered Dr. Glenn a second opinion physician for OWCP, rather than an
impartial medical specialist. Due to the change in designation, there was a resulting conflict
between Drs. Glenn and Fried regarding whether appellant was disabled and sustained a
recurrence of total disability.7 OWCP referred appellant to Dr. Friedenthal for an impartial
medical examination. The Board finds that Dr. Friedenthal was properly designated as the
impartial medical examiner.
The Board further finds, however, that Dr. Friedenthal’s report is detailed and well
reasoned but does not resolve the existing conflict of medical opinion evidence, namely whether
appellant sustained a recurrence of disability on or after April 1, 2009 due to her accepted
employment-related injuries. While he stated that she was currently capable of working with
restrictions, in response to OWCP’s questions regarding her alleged recurrence of disability in
April 2009, his only statement was that her medical records did not provide evidence of total
disability. Dr. Friedenthal did not explain how he reached this conclusion or why he discounted
Dr. Fried’s findings and conclusions. Without medical reasoning supporting his opinion that
appellant was never totally disabled, his conclusory statement is not sufficient to resolve the
conflict of medical opinion evidence.
The Board further finds that the statement of accepted facts presented to Dr. Friedenthal
did not provide him with sufficient information regarding appellant’s employment duties either
in her date-of-injury position or in her light-duty position at the time of her recurrence to
determine whether she could return to work. Dr. Friedenthal provided work restrictions, but
these restrictions exceed her date-of-injury position, which required lifting up to 70 pounds. He
did not specifically address appellant’s light-duty position in determining whether or not she had
a period of recurrence of total disability. Furthermore, Dr. Friedenthal did not correlate his
positive physical findings including thenar atrophy, ulnar nerve sensitivity and questionable
carpal tunnel syndrome to accepted conditions or to electrodiagnostic testing. In regard to
diagnostic testing, he stated that additional studies might be of value. Dr. Friedenthal did not
request or review such studies.
Due to the deficiencies in Dr. Friedenthal’s report, the Board finds that the case is not in
posture for decision as the conflict of medical opinion evidence has not been resolved.
CONCLUSION
The Board finds that OWCP must undertake additional development of the medical
evidence to resolve the existing conflict of medical opinion evidence by providing
Dr. Friedenthal with a complete statement of accepted facts and requesting a supplemental report
addressing the central issue of appellant’s alleged recurrence of disability in April 2009.

7

See e.g., J.B., Docket No. 07-1889 (issued January 29, 2008); see generally Cleopatra McDougal-Saddler, 47
ECAB 480 (1996) (the Board found that the report of a physician improperly designated as an impartial medical
examiner, because there was no existing conflict in medical opinion, could still be considered for its own intrinsic
value).

8

ORDER
IT IS HEREBY ORDERED THAT the May 18, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: April 19, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Laredo, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1110
Issued: March 3, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 8, 2021 appellant filed a timely appeal from a June 30, 2021 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 his burden of proof to establish permanent impairment
of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On February 25, 2020 appellant, then a 40-year-old criminal investigator, filed a traumatic
injury claim (Form CA-1) alleging that on January 29, 2020, he injured his right wrist when
1

5 U.S.C. § 8101 et seq.

attempting to perform a bridge maneuver during survival training while in the performance of duty.
He asserted that he heard and felt something “pop” in his right wrist.
On May 14, 2020 OWCP accepted the claim for sprain of unspecified part of right wrist
and hand, and other instability of the right wrist.
In a May 21, 2020 report, Dr. Michael Jones, a Board-certified orthopedic surgeon
specializing in surgery of the hand, provided a history of injury and treatment. On examination of
the right upper extremity, he noted mild subluxation of the ulna with manipulation with the forearm
in full supination. Dr. Jones diagnosed a right wrist sprain. He recommended an MRI scan of the
right wrist to assess whether the TFCC remained detached at the insertion of the ulnar fovea.
A June 3, 2020 MRI scan of the right wrist demonstrated a TFCC tear at its ulnar
attachment with a small bony flake and fluid around the ulnar styloid, small central perforation of
the TFCC with fluid in the distal radioulnar joint, tears of the ulnar collateral and radial collateral
ligaments, thickening and mild intrasubstance increased thickening and mild intrasu bstance
increased signal in the extensor carpi ulnaris tendon compatible with tendinosis, and a small
amount of fluid in the carpometacarpal joint of the right thumb.
In a June 17, 2020 report, Dr. Jones noted that appellant experienced intermittent slight
soreness on the ulnar side of the right wrist, which appellant attributed to his return to full duty.
On examination, he found no abnormalities of the right wrist. Dr. Jones returned appellant to fullduty work with no restrictions.
In a June 17, 2020 Form OWCP-5c, Dr. Jones diagnosed a right wrist sprain with
instability. He returned appellant to full-duty work with no restrictions.
On June 17, 2020 Dr. Jones referred appellant for an impairment rating. On June 26, 2020
his office requested OWCP authorization for an impairment rating to be performed by Snowden
Orthopedic and Occupational Rehabilitation.
In a July 21, 2020 impairment rating, Thomas I. Washington, a physical therapist with
Snowden Orthopedic and Occupational Rehabilitation, reviewed a history of injury and treatment.
On examination of the right upper extremity, he observed right wrist flexion at 50 degrees, right
wrist extension at 40 degrees, radial deviation at 15 degrees, ulnar deviation at 25 degrees, forearm
supination at 75 degrees, and forearm pronation at 70 degrees. Appellant completed a QuickDASH
questionnaire, scored at 18. Mr. Washington provided an impairment rating referring to the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides),2 utilizing the diagnosis-based impairment (DBI) method, to find that, under
Table 15-3, page 396, the class of diagnosis (CDX) for TFCC injury with residual findings,
resulted in a class 1 impairment with a default value of eight. He assigned a grade modifier for
functional history (GMFH) of 1 according to Section 15.3a, page 406 of the A.M.A., Guides, based
on his clinical observations and functional history, a grade modifier for physical examination
(GMPE) of 1 according to Table 15-8, page 408, for minimal palpatory findings consistently
documents, and a grade modifier for clinical studies of (GMCS) of 1 for June 3, 2020 MRI findings
2

A.M.A., Guides (6 th ed. 2009). Table 15-3 is entitled “Wrist Regional Grid: Upper Extremity Impairments.”

2

according to Table 15-9, page 410. Applying the net adjustment formula, (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX), or (1-1) + (1-1) + (1-1) = 0, Mr. Washington calculated a net
adjustment of zero. He therefore found an eight percent permanent impairment of the right upper
extremity.
On September 9, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a development letter dated September 16, 2020, OWCP advised appellant of the
additional evidence needed to establish his schedule award claim. It noted that the impairment
rating received was insufficient to support his claim as it had not been countersigned by a qualified
physician. OWCP requested that appellant submit his physician’s opinion as to whether appellant
had attained maximum medical improvement (MMI), the date MMI had been reached, the clinical
findings indicating that the employment condition had reached a fixed and stable state, a detailed
description of all pertinent findings, and a final rating of permanent impairment according to the
applicable criteria of the A.M.A., Guides. It afforded him 30 days to respond.
On October 14, 2020 Dr. Jones examined appellant, noted findings, and provided ROM
measurements of the hand and wrist. He opined that appellant had attained MMI. Dr. Jones
reviewed the impairment rating performed by Mr. Washington and concurred with the rating. He
maintained appellant on full duty with no physical restrictions.
On November 10, 2020 OWCP referred the case record, along with a statement of accepted
facts (SOAF) noting Mr. Washington’s July 21, 2020 impairment rating, to Dr. Arthur S. Harris,
a Board-certified orthopedic surgeon serving as a District Medical Adviser (DMA), for a
permanent impairment rating of the right upper extremity.
Dr. Harris submitted a May 11, 2021 report in which he found that appellant had attained
MMI as of the July 21, 2020 impairment evaluation. He reviewed Mr. Washington’s calculations
and references to the A.M.A., Guides, and concurred with the methodology and calculations as
presented. Dr. Harris found that appellant had eight percent permanent impairment of the right
upper extremity utilizing the DBI method, based on the diagnosed right wrist TFCC tear. He
commented that the range of motion (ROM) rating method would have also resulted in an eight
percent permanent impairment of the right upper extremity.
By decision dated June 30, 2021, OWCP denied appellant’s schedule award claim, finding
that the medical evidence of record did not support permanent impairment of a scheduled member
or function of the body.
LEGAL PRECEDENT
The schedule award provisions of FECA 3 and its implementing federal regulations, 4 set
forth the number of weeks of compensation payable to employees sustaining permanent
3

Supra note 1.

4

20 C.F.R. § 10.404.

3

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 loss of a member shall be determined.
The method used in making such a 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, published in 2009. 5 The Board has approved the use by OWCP of
the A.M.A., Guides for the purpose of determining the percentage loss of use of a member of the
body for schedule award purposes. 6
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury. 7 OWCP’s procedures provide
that, to support a schedule award, the file must contain competent medical evidence which shows
that the impairment has reached a permanent and fixed state and indicates the da te on which this
occurred, describes the impairment in sufficient detail so that it can be visualized on review, and
computes the percentage of impairment in accordance with the A.M.A., Guides.8
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment CDX, which is then adjusted by GMFH, GMPE, and GMCS. 9 The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10
The A.M.A., Guides also provide that ROM impairment methodology is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
DBI sections are applicable. 11 If ROM is used as a stand-alone approach, the total of motion
impairment for all units of function must be calculated. All values for the joint are measured and
added.12 Adjustments for functional history may be made if the evaluator determines that the

5

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6 th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also id. at Chapter 3.700, Exhibit 1 (January 2010).
6

See K.J., Docket No. 19-1492 (issued February 26, 2020); P.R., Docket No. 19-0022 (issued April 9, 2018);
Isidoro Rivera, 12 ECAB 348 (1961).
7

See T.H., Docket No. 19-1066 (issued January 29, 2020); D.F., Docket No. 18-1337 (issued February 11, 2019);
Tammy L. Meehan, 53 ECAB 229 (2001).
8

See 5 U.S.C. § 8101(19); J.K., Docket Nos. 19-1420 and 19-1422 (issued August 12, 2020); Francesco C.
Veneziani, 48 ECAB 572 (1997).
9

Supra note 2 at 383-492.

10

Id. at 411.

11

Id. at 461.

12

Id. at 473.

4

resulting impairment does not adequately reflect functional loss and functional reports are
determined to be reliable.13
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments. 14 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“Upon initial review of a referral for upper extremity impairment evaluatio n, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM); and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)15
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”16
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified. 17
ANALYSIS
The Board finds that appellant has established that he sustained eight percent permanent
impairment of the right upper extremity, warranting a schedule award.
The record establishes that on June 26, 2020, Dr. Jones, a Board-certified orthopedic
surgeon specializing in surgery of the hand, referred appellant for an impairment rating by
Snowden Orthopedic and Occupational Rehabilitation which was performed by Mr. Washington,
a physical therapist, on July 21, 2020. On October 14, 2020 Dr. Jones examined appellant, noted
13

Id. at 474.

14

FECA Bulletin No. 17-06 (May 8, 2017).

15

Id.

16

Id.; see also H.H., Docket No. 19-1530 (issued June 26, 2020); A.G., Docket No. 18-0329 (issued July 26, 2018).

17

Supra note 5 at Chapter 2.808.6(f); J.M., Docket No. 20-0602 (issued October 8, 2021); P.W., Docket No.
19-1493 (issued August 12, 2020).

5

findings, and provided ROM measurements of the hand and wrist. He opined that appellant had
attained MMI. Dr. Jones reviewed the impairment rating performed by Mr. Washington and
concurred with the rating.18
Consistent with its procedures, OWCP properly referred the case record to Dr. Harris,
serving as DMA, for an opinion regarding appellant’s permanent impairment in accordance with
the sixth edition of the A.M.A., Guides.19 In his May 11, 2021 report, Dr. Harris agreed that
appellant had sustained an eight percent permanent impairment of the right upper extremity based
on the diagnosed TFCC tear.
The Board finds that the DMA, Dr. Harris, properly considered the findings contained in
the July 21, 2020 impairment evaluation, as reviewed and approved by Dr. Jones, and explained
that appellant’s current impairment was eight percent total permanent impairment of the right
upper extremity based on the diagnosed right wrist TFCC tear. In addition, the DMA properly
utilized the DBI method and considered the ROM method to rate appellant’s accepted upper
extremity condition pursuant to FECA Bulletin No. 17-06.
Therefore, the Board finds that appellant has established eight percent permanent
impairment of the right upper extremity, based upon the reports of Dr. Jones and DMA Dr. Harris.
Consequently, OWCP’s June 30, 2021 decision must be reversed, and the case returned to OWCP
for payment of the schedule award for an eight percent permanent impairment of the right upper
extremity.
CONCLUSION
The Board finds that appellant has established that he sustained eight percent permanent
impairment of the right upper extremity, warranting a schedule award.

18

The Board has held that a report may be considered as probative medical evidence when either signed or reviewed
by a qualified physician. Merton J. Sills, 39 ECAB 572, 575 (1988); see also D.J., Docket No. 21-0414 (issued
October 14, 2021); R.H., Docket No. 20-1684 (issued August 27, 2021); M.W., Docket No. 19-1667 (issued
June 29, 2020).
19

P.T., Docket No. 21-0138 (issued June 14, 2021); see S.C., Docket No. 20-0769 (issued January 12, 2021).

6

ORDER
IT IS HEREBY ORDERED THAT the June 30, 2021 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7