United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Plainview, NY, Employer
__________________________________________

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Appearances:
William Bothwell, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1283
Issued: April 5, 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 May 24, 2017 appellant, through his representative, filed a timely appeal from an
April 4, 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 this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish an injury in the
performance of duty on September 8, 2016, as alleged.
On appeal appellant’s representative contends that OWCP’s decisions are incorrect
because they both found that appellant suffered an idiopathic fall.
FACTUAL HISTORY
On September 19, 2016 appellant, then a 54-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on September 8, 2016 he sustained a head injury when he fell and
hit his head on the pavement while unloading a long life vehicle (LLV) on the loading dock at
work. He stopped work on the date of injury. On the reverse side of the claim form an employing
establishment supervisor contended that appellant suffered from a medical emergency and that he
was not in the performance of duty as he had an idiopathic fall due to a nonjob-related condition.
By letter dated September 15, 2016, the employing establishment continued to controvert
the claim, reiterating that appellant sustained an idiopathic fall due to a nonwork-related medical
condition. It noted that he fell in its parking lot on September 8, 2016. The employing
establishment referenced accompanying witness statements from employees, which indicated that,
after loading mail, appellant was sitting on the back of his truck when he fell directly to the floor
and hit his head. He was seen contorting his face, twisting his arms, and shaking his arms and
legs. The employing establishment noted that its investigation of the claimed injury showed that
appellant was not in the performance of duty. It maintained that it could be assumed that he
suffered a seizure, stroke, or aneurysm prior to his fall based on the accompanying witness
statements. In a September 8, 2016 statement, A.S. related that he saw appellant standing at the
back of his truck on that day. Both of his hands were twisted and he was shaking before he hit the
ground. K.W. indicated, in a September 13, 2016 witness statement, that she saw appellant sitting
on the edge of the back of a fully loaded truck. She related that she was playing with him by
saying that he looked tired. K.W. noted that appellant got up and made a strange face and then he
spun around and fell straight back hitting his head very hard. She screamed loudly for help and
twice called 911. K.W. tried talking to appellant, but he did not respond. She noted that, while he
was sitting on the back of the LLV truck, his face, arm, and leg movements were contorted and
strange. The employing establishment also submitted a city carrier position description.
In a September 8, 2016 Nassau University Medical Center medical report, Dr. Richard J.
Batista, a Board-certified general surgeon, noted appellant’s chief complaint of trauma with
concussion and presenting symptoms of concussion with loss of consciousness less than 30
minutes. Appellant indicated that he was at work with colleagues and went out for a cigarette. He
stated that he did not feel well and sat down. Appellant was witnessed shaking and then falling
down onto the ground. He related that he had no recollection of the events that occurred. A
witness claimed that appellant was unconscious for 10 to 15 minutes. Dr. Batista noted that
appellant was able to answer questions, but he was confused and continuously forgot what had
occurred. He provided his social history and medical background and discussed examination
findings. Dr. Batista assessed “54 M level 2” trauma with seizure then fall with concussion with

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loss of consciousness, pneumocephalus, skull fracture, left parietal hematoma, intraparenchymal
hemorrhage, left pleural effusion, and respiratory distress.
In a September 22, 2016 development letter, OWCP advised appellant of the deficiencies
in his claim. It allowed him 30 days to respond to an attached questionnaire to establish the factual
element of his claim and provide additional medical evidence to establish a diagnosed medical
condition causally related to his employment. OWCP requested that the employing establishment
provide additional witness statements, a copy of appellant’s preemployment physical examination,
whether appellant had a medical condition that may have contributed to his claimed injury, and a
copy of an investigative report. It also requested that the employing establishment respond to
several questions regarding such matters as the location of appellant’s claimed injury relative to
the ownership of the parking lot facilities, whether the public was permitted to use the parking lot,
whether appellant was required to use the parking lot and to pay for parking, whether parking
spaces were assigned, whether the parking lot was monitored for use by unauthorized cars, and
whether appellant was entitled to reimbursement for parking expenses.
OWCP received a September 8, 2016 patient care report in which Robert Mcevoy, an
ambulance driver, noted that appellant was found unconscious and seated on the ground by his
coworkers status post an apparent fall. Appellant had a large hematoma to the back of his head
with bleeding from the right ear. He also had repetitive questioning and an altered mental status.
Mr. Mcevoy assessed essentially normal findings on physical examination with the exception of a
combative and confused mental state.
On October 18, 2016 appellant responded to OWCP’s factual development questionnaire.
He related that he was on the back of his truck on the loading dock at the time of injury. Appellant
maintained that he was on the employing establishment’s premises and performing his regularly
assigned duties at the time of injury. He indicated that the parking lot was not owned, controlled,
or managed by the employing establishment and that the employing establishment did not require
him to park in the lot. Appellant related that it was not his responsibility to pay for parking. He
claimed that his fall was caused by losing his balance on pavement that was inclined and cracked
as he turned to return to the office. Appellant also claimed that he did not have a history of fainting
spells and did not suffer from a heart condition or epileptic seizures. He noted that he had no
similar disability or symptoms before his injury.
Appellant submitted an October 18, 2016 Nassau University Medical Center letter in which
Dr. Vilma S. Vas, an attending Board-certified internist, noted that appellant was evaluated in the
emergency room on September 8, 2016 for level-2 trauma. The letter indicated that he had loss of
consciousness, seizure, concussion, pneumocephalus, skull fracture, left parietal hematoma,
intraparenchymal hemorrhage, left pleural effusion, and respiratory distress. Appellant was also
status post tracheostomy.
By letter dated October 19, 2016, the employing establishment responded to OWCP’s
inquiries. It noted that a preemployment medical report was not available as it was 22 years old.
The employing establishment maintained that it had no knowledge of any medical condition that
may have contributed to appellant’s alleged injury. It was now aware that he was a heavy smoker
and had a very small balance of annual/sick leave at the time of the claimed injury due to prior
usage. The employing establishment indicated that it was not privy to a condition for which

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appellant had protection under the Family and Medical Leave Act. It related that the Occupational
Safety and Health Administration (OSHA) was notified of the incident, but it had not taken any
action. The employing establishment believed that OSHA processed this as a nonjob-related
incident. It indicated that appellant had loaded his parked vehicle at the back of the employing
establishment in his usual daily manner. The employing establishment facility was leased and the
parking lot was owned and maintained by the landlord. The lot was used for many years at the
facility. The employing establishment noted that all postal vehicles parked in this lot. The only
other vehicles that used this area were mailers dropping off mail at the dock area. The employing
establishment related that it understood that employees parked their personal vehicles in an area
in the regular lot in the front lot of stores. Parking spots were not assigned to employees. The
parking area was not monitored on a continual basis, but cars entering the area could not go to
other parts of the lot. The employing establishment related that employees did not pay for parking
at any of its facilities, and, thus, they were not entitled to reimbursement.
The employing establishment submitted an October 19, 2016 letter from S.C., its health
resources management manager. S.C. noted that an investigation of the alleged injury determined
that appellant had finished loading his truck with his mail and he was not out on a smoke break as
suggested. Appellant was witnessed sitting in the back of his LLV truck prior to standing up,
turning around, and falling straight to the ground. He did not strike any objects on his way down.
The parking lot was not congested during the time appellant loaded his LLV on the date of injury.
S.C. indicated that the ground in the parking lot was not deteriorated, unleveled, or uneven. It did
not show any signs of unevenness that would cause appellant to fall backwards. S.C. related that
there were no previous claims filed regarding unsafe factors in the parking lot. She stated that an
investigative team videotaped a reenactment of the September 8, 2016 incident, spoke to K.W.,
and determined that appellant had already finished loading his LLV and was sitting on the ledge
of the back of his LLV with the hatch open. Appellant was witnessed as not his usual self while
K.W. spoke to him. His eyes were witnessed rolling up and back while he was sitting in the back
of his LLV right before he stood up, turned around, and fell back to the ground without striking
any objects.
By decision dated October 28, 2016, OWCP denied appellant’s traumatic injury claim,
finding that his injury did not occur in the performance of duty because his fall was idiopathic and
was unrelated to factors of his federal employment.
On November 28, 2016 appellant requested an oral hearing before an OWCP hearing
representative. He submitted a November 11, 2016 letter in which Eric Lehnert, a certified family
nurse practitioner, reviewed his existing medical records from a prior primary care provider and
noted that he had no history of seizure activity.
OWCP received multiple additional medical records from Nassau University Medical
Center, including surgical intensive care progress notes and reports dated September 8 to 18, 2016
from physicians and physical therapists who reiterated appellant’s history of injury, noting that he
was status post fall at work and seizure and sustained head trauma, loss of consciousness, amnesia,
and acute respiratory failure.
During the hearing held on February 10, 2017, appellant testified that when he went to turn
his leg it would not move. He did not know if his foot was stuck or something else was stuck.

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Next thing appellant knew, he was on the ground. He was subsequently hospitalized for six days.
Appellant asserted that he did not remember K.W. being at the place where his injury occurred as
she loaded her truck on the outside of a fence and not at the place of his injury. He acknowledged
that A.S. could have been at the place of injury. Appellant contended that a supervisor who
accompanied him to the hospital indicated that there were no witnesses to the incident. He asserted
that he had no preexisting condition that would have caused his fall.
In a March 12, 2017 letter, the employing establishment responded to the hearing
transcript. It maintained that appellant’s description of the incident was now suspect since prior
to the hearing he had no recollection of what happened. The employing establishment further
maintained that this was exactly what appellant’s union representative claimed when he requested
continuation of pay for appellant which it controverted. It noted that, throughout this claim and
investigation, appellant was unable to tell anyone exactly what happened. Now he remembered
what happened, but nothing else. The employing establishment asserted that the investigation
showed there was nothing to stop appellant’s foot from moving as he now testified. It asserted
that he was sitting on the back of his truck when he suddenly had a seizure episode as made clear
by a witness to the claimed injury and videotaped reenactment of the injury.
The employing establishment submitted a December 15, 2016 letter from Dr. Nadeem
Shabbir, a Board-certified neurologist, who verified that appellant was being followed in the
neurology clinic at Nassau University Medical Center since October 2016. Dr. Shabbir provided
diagnoses of post-traumatic seizure disorder and vertigo. He related that appellant was on
antiepileptic medications and was not allowed to drive or operate any machinery until cleared.
In an April 4, 2017 decision, an OWCP hearing representative affirmed the October 28,
2016 decision. She found that appellant had sustained an idiopathic fall, which was not considered
to have arisen in the performance of duty. The hearing representative found that the evidence of
record established that he had a seizure prior to his fall.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning FECA, that the claim was timely filed, that an injury was
sustained in the performance of duty as alleged, and that any disability or medical condition for
which compensation is claimed is causally related to the employment injury.4
It is a well-settled principle of workers’ compensation law, and the Board has so held, that
an injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology causes
an employee to collapse and to suffer injury upon striking the immediate supporting surface, and
there is no intervention or contribution by any hazard or special condition of employment -- is not

3

Supra note 2.

4

Steven S. Saleh, 55 ECAB 169 (2003).

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within coverage of FECA.5 Such an injury does not arise out of a risk connected with the
employment and is, therefore, not compensable. However, as the Board has made equally clear,
the fact that the cause of a particular fall cannot be ascertained or that the reason it occurred cannot
be explained, does not establish that it was due to an idiopathic condition.6
This follows from the general rule that an injury occurring while in the performance of
duty is compensable unless the injury is established to be within an exception to such general rule.7
OWCP has the burden of proof to submit medical evidence showing the existence of a
personal, nonoccupational pathology if it chooses to make a finding that a given fall is idiopathic
in nature.8 If the record does not establish that the particular fall was due to an idiopathic condition,
it must be considered as merely an unexplained fall, one which is distinguishable from a fall in
which it is definitely proved that a physical condition preexisted and caused the fall.9
ANALYSIS
Appellant alleged that he sustained a head injury in the performance of duty when he fell
at work on September 8, 2016. OWCP does not contest that appellant fell while performing his
job duties as a letter carrier. The evidence indicated that he had finished unloading a LLV located
on the loading dock at the employing establishment’s facility when he lost consciousness and fell.
OWCP denied the claim after finding that appellant had a seizure.
As noted, an injury resulting from an idiopathic fall is not compensable.10 If appellant’s
injury was due to an idiopathic condition, the injury would not arise out of his employment.
OWCP has the burden of proof to submit medical evidence showing the existence of a personal,
nonoccupational pathology if it chooses to make a finding that a given fall is idiopathic in nature.
The fact that the cause of a particular fall cannot be determined does not establish that it was due
to an idiopathic condition and if the record does not establish a particular fall was due to an
idiopathic condition, it must be considered as merely an unexplained fall, which is covered under
FECA.11
The Board finds that the medical evidence establishes that appellant’s fall on September 8,
2016 was due to a personal, nonoccupational pathology without employment contribution. In a
September 8, 2016 Nassau University Medical Center report, Dr. Batista noted that appellant
described not feeling well at work and that he was witnessed unconscious for 10 to 15 minutes.
5

Carol A. Lyles, 57 ECAB 265 (2005).

6

See M.M., Docket No. 08-1510 (issued November 25, 2008).

7

Dora Ward, 43 ECAB 767 (1992).

8

P.P., Docket No. 15-0522 (issued June 1, 2016); see also Jennifer Atkerson, 55 ECAB 317 (2004).

9

John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988).

10

R.C., 59 ECAB 427 (2008).

11

H.B., Docket No. 12-0840 (issued November 20, 2012); supra note 6; supra note 8.

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He found that appellant had “54 M level 2” trauma with seizure then fall with concussion with loss
of consciousness, pneumocephalus, skull fracture left parietal hematoma, intraparenchymal
hemorrhage, left pleural effusion, and respiratory distress. Other reports from Nassau University
Medical Center, including Dr. Shabbir’s December 15, 2016 report, indicated that appellant was
status post fall and seizure at work. The reports provided diagnoses of head trauma, loss of
consciousness, amnesia, acute respiratory failure, post-traumatic seizure disorder, and vertigo.
None of the medical records related the apparent seizure or other diagnosed conditions to
appellant’s work duties or conditions. While Mr. Lehnert, a certified family nurse practitioner,
noted in a November 11, 2016 report that appellant had no history of seizure activity, his statement
does not constitute probative medical evidence and thus cannot establish that appellant’s fall was
not idiopathic.12 The Board finds, therefore, that the evidence of record is sufficient to meet
OWCP’s burden of proof that the fall caused by appellant’s personal, condition of seizure and was
thus idiopathic.13
Further, the Board finds that the evidence of record does not show that appellant
experienced an intervention or contribution by any hazard or special condition of employment.
Appellant did not allege that he struck any object related to his employment when he fell to the
ground. He initially related that he could not recall what happened on September 8, 2016. It was
not until he testified at the February 10, 2017 hearing that appellant related that he thought his foot
was stuck or something else was stuck prior to his fall. The Board notes that the most
contemporaneous evidence includes the employee witness statements and statement from S.C., the
employing establishment’s health resources management manager. These tend to prove that
appellant did not strike any object other than the floor when he fell at work. A.S. related that he
witnessed that both of appellant’s hands were twisted and he was shaking before he hit the ground
on September 8, 2016. On that same day K.W. indicated that she witnessed appellant making a
strange face before he spun around and fell straight back hitting his head. S.C. reported that an
investigation of the September 8, 2016 incident, which included a videotape reenactment of the
incident, revealed that appellant had finished loading mail into his LLV and when he got up from
sitting in the back of his LLV he turned around and fell straight to the ground. She related that he
did not hit any objects as he fell down. S.C. noted that the parking lot where appellant loaded his
LLV was not congested and the ground in the parking lot was in good condition. She further noted
that no previous complaints had been filed regarding unsafe conditions in the parking lot. S.C.
noted the witness statements of A.S. and K.W. Based on these statements, the Board therefore
finds that appellant’s fall on September 8, 2016, without any further intervention or contribution
by the employing establishment, is considered idiopathic and therefore noncompensable.14
The Board finds that appellant suffered an idiopathic fall and that appellant failed to
establish any intervention or contribution by the employing establishment to bring the fall within

12

5 U.S.C. § 8101(2). See also Paul Foster, 56 ECAB 208 (2004) (where the Board found a nurse practitioner was
not considered a physician under FECA).
13

See G.W., Docket No. 14-0593 (issued June 10, 2015).

14

L.B., Docket No. 13-1640 (issued March 21, 2014); R.C., Docket No. 07-0651 (issued July 6, 2007).

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the performance of duty. Accordingly, appellant has not established that he sustained an injury in
the performance of duty.
On appeal appellant’s representative contends that OWCP’s decisions are incorrect
because they both found that appellant suffered an idiopathic fall. The evidence of record, as
explained above, establishes that appellant’s fall on September 8, 2016 was idiopathic and
therefore noncompensable.
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 USC § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish an injury
in the performance of duty on September 8, 2016, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the April 4, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 5, 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
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, PLANO MAIN POST
OFFICE, Plano, TX, Employer
__________________________________________

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

Docket No. 20-0401
Issued: February 26, 2021

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 December 10, 2019 appellant filed a timely appeal from July 17 and 23, and
October 30, 2019 merit decisions 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.2
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and entitlement to a schedule award, effective July 21, 2019, as he refused

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5 U.S.C. § 8101 et seq.

The Board notes that following the issuance of OWCP’s decisions, appellant submitted additional evidence.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.
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an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2); and (2) whether OWCP properly
exercised its discretion in denying appellant’s request to change his treating physician.
FACTUAL HISTORY
On September 3, 1998 appellant, then a 23-year-old city carrier, filed a traumatic injury
(Form CA-1) alleging that on August 1, 1998 he was injured while in the performance of duty.
OWCP accepted the claim for a back sprain, displacement of the lumbar intervertebral disc without
myelopathy, and bilateral thoracic or lumbosacral neuritis or radiculitis. The record reflects that
OWCP paid him wage-loss compensation on the supplemental rolls commencing December 3,
2013 and on the periodic rolls commencing October 19, 2014.
On July 1, 2014 appellant underwent an unsuccessful spinal cord stimulator implant and
remained off work following the procedure.
In a December 21, 2016 report, Dr. Robert Helsten, Board-certified in family medicine,
noted that appellant complained of severe lower back pain radiating down his right leg and foot
from a work injury and that he was walking with a cane. Associated symptoms included sensorymotor loss and sleep disruption, and pain exacerbated by standing and alleviated by lying down or
sitting. A physical examination of appellant’s lower back revealed severe tenderness and a range
of motion of 30 degrees flexion, 10 degrees extension, 30 degrees right lateral flexion, and 20
degrees left lateral flexion. He diagnosed a herniated disc and right sciatica and indicated that
appellant should permanently work light duty. Dr. Helsten referred appellant to Dr. Daniel
Keelen, Board-certified in pain management, for further medical treatment.
In a December 21, 2016 work capacity evaluation (Form OWCP-5c), Dr. Helsten indicated
that appellant was not capable of performing his usual job without restrictions. He further
indicated that appellant had difficulty walking, bending, and lifting and could work eight hours
per day with permanent physical restrictions, however he noted that appellant had not reached his
maximum medical improvement (MMI). Dr. Helsten related that appellant could work at the
sedentary, light, and medium strength levels, and he listed work restrictions as including a
maximum of two hours of walking, two hours of standing, two hours of pushing up to 40 pounds,
two hours of pulling up to 40 pounds, two hours of lifting up to 40 pounds, two hours of squatting,
and no climbing.
In a March 8, 2018 work status report, Dr. Helsten indicated that appellant was able to
return to work with restrictions and he noted that he had listed appellant’s restrictions in a
December 21, 2016 Form OWCP-5c. In an attached February 12, 2018 report, signed by
Dr. Helsten on March 8, 2018, he related that appellant injured his low back when lifting a heavy
tray of mail and he listed lumbar tenderness, limited range of motion, and limited lifting ability as
clinical findings. Dr. Helsten noted appellant’s diagnoses of intervertebral disc displacement of
the lumbar region, sprain of the ligaments of the lumbar spine, and radiculopathy of the lumbar
region. He related that appellant could work eight hours per day and indicated that he did not
anticipate that appellant would need a functional capacity evaluation (FCE) or other vocational
rehabilitation services. Dr. Helsten concluded that appellant’s restrictions were permanent and
that he had reached MMI on December 21, 2016.

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A May 11, 2018 offer of modified duty from the employing establishment indicated that
the position of customer care specialist was offered to appellant with an effective date of
May 11, 2018. The duties of the position were listed as case resolution/working with customers
for six to seven hours per day and answering telephones for one to two hours per day. The physical
requirements included sitting for six to eight hours per day, standing/walking for one to two hours
per day, and keyboarding for one to six hours per day. The employing establishment signed the
offer on May 16, 2018. The offer indicated that it had considered documentation from Dr. Helsten
from December 21, 2016 and March 8, 2018. It listed appellant’s permanent work restrictions as
including walking and standing for up to two hours per day; pushing, pulling, lifting and squatting
for up to two hours per day with a 40-pound weight limit; and no climbing.
A May 16, 2018 priority for assignment worksheet from the employing establishment
indicated that appellant could not perform carrier duties with his current restrictions. It related that
appellant could perform work that was within his restrictions, which included handling customer
issues and answering telephones, which could be performed while sitting for the majority of the
day for 40 hours per week.
A May 16, 2018 letter from the employing establishment requested that appellant accept
the modified job offer and report to work no later than May 24, 2018. It stated that if appellant
declined the modified job offer he should provide his reasons for doing so, and that the offer would
remain available until OWCP issued a decision regarding whether the offer complies with his
medical restrictions.
On May 22, 2018 appellant rejected the employing establishment’s offer of modified
assignment dated May 11, 2018 and signed by the employing establishment on May 16, 2018. He
contended that it did not adhere to his current work restrictions provided by Dr. Keelen.
OWCP subsequently received a May 22, 2018 medical report, wherein Dr. Helsten
indicated that appellant complained of lower back pain radiating down his right leg and lower left
leg pain. Dr. Helsten listed appellant’s date of injury as August 1, 1998 and noted that appellant
had a medical history of multiple back surgeries. He further noted that appellant’s pain was
exacerbated by getting up and down and alleviated by changing position and using a
transcutaneous electrical nerve stimulation (TENS) unit. Dr. Helsten’s associated symptoms
included sleep disturbance. He stated that appellant was off of work and was offered a job, but
Dr. Keelen did not want appellant to drive, due to his prescribed medication. A physical
examination revealed severe tenderness in appellant’s lower back and a range of motion of 40
degrees flexion, 10 degrees extension, 30 degrees right lateral flexion, and 20 degrees left lateral
flexion. Dr. Helsten noted appellant’s diagnoses of lumbar strain, lumbar disc displacement,
lumbar radiculopathy, a herniated disc, and sciatica. He opined that appellant could work light
duty permanently and that he had referred appellant to Dr. Keelen for pain management.
In a May 22, 2018 patient pain drawing signed by Dr. Helsten, appellant indicated that he
was off of work and was experiencing severe pain, which he rated a 6 out of 10. He stated that he
was using his TENS unit for 30 minutes per day, and that it relieved his pain by 25 percent.
Appellant related that he experienced pain in his lower back, buttocks, right upper leg, and left
lower leg.

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A May 23, 2018 Form OWCP-5c signed by Dr. Keelen indicated that appellant could not
perform his usual job without restrictions because he was in severe continuous pain and was not
improving. Dr. Keelen also related that appellant could not work eight hours per day with
restrictions because he was unable to sit or stand due to swelling and pain, and he indicated that
appellant could work less than two hours per workday. He stated that he did not anticipate an
increase in the number of hours appellant could work and that it was unknown when appellant
would be able to work eight hours per day. Dr. Keelen opined that appellant had reached MMI
and was not able to work at the light, medium, heavy, or very heavy strength levels. He listed
appellant’s restrictions as including sitting, walking, standing, reaching, reaching above the
shoulder, twisting, bending/stooping, and operating a motor vehicle to/from work for less than two
hours per day, and no repetitive wrist or elbow movements, pushing, pulling, lifting, kneeling,
climbing, squatting, or operating a motor vehicle at work. Dr. Keelen additionally noted that
appellant should take a break every 15 minutes. He also asserted that other factors needed to be
taken into consideration in finding appellant a suitable job including past nerve damage and the
fact that appellant was prescribed opiate medication and had not been cleared for driving.
A March 21, 2019 medical report by Dr. Helsten indicated that appellant presented with
sharp lower back pain radiating down his right leg into his right foot and toes. He listed appellant’s
date of injury as August 1, 1998 and related that a physical examination revealed moderate
tenderness in appellant’s lower back and a range of motion of 30 degrees flexion, 10 degrees
extension, 30 degrees right lateral flexion, and 20 degrees left lateral flexion. Dr. Helsten noted
appellant’s diagnoses of lumbar sprain, lumbar disc displacement, lumbar radiculopathy, a
herniated disc, and sciatica. He concluded that appellant could perform light-duty work.
In a March 21, 2019 patient pain drawing signed by Dr. Helsten, appellant indicated that
he was off work and was experiencing severe pain which he rated a 6 out of 10. He noted that he
was using his TENS unit for 30 minutes per day, and that it relieved his pain by 15 percent.
Appellant related that he experienced pain in his lower back, buttocks, right leg and foot, and left
lower leg.
An April 5, 2019 memorandum from the employing establishment to OWCP indicated that
appellant refused a May 11, 2018 job offer. It noted that it had based the job offer on appellant’s
March 8, 2018 medical report from Dr. Helsten. The employing establishment contended that
appellant’s medical records from multiple doctors dating back to 2015 demonstrated that appellant
could return to work, but he has refused to do so. It noted that the position offered remained
available to appellant, provided work for the number of hours for which appellant has been released
to work, and is located within his commuting area. The employing establishment requested that
OWCP rule on the suitability of the job offer or send appellant for a second opinion or impartial
medical evaluation if there were questions about the medical evidence. It noted that both
appellant’s treating physician and his pain specialist had opined that he could return to work.
In a letter dated April 23, 2019, OWCP advised appellant that the employing establishment
had confirmed that the offered position remained available. It determined that the customer care
specialist position was suitable and in accordance with the medical restrictions set forth in
Dr. Helsten’s March 8, 2018 report and other medical documentation since 2015. OWCP
indicated that the case would be held open for 30 days for evaluation of the evidence. It further
advised appellant that if he failed to accept the position or provide adequate reasons for refusing
the job offer, his right to compensation would be terminated, pursuant to 5 U.S.C. § 8106(c)(2).
4

In letter dated April 30, 2019, OWCP instructed appellant to disregard its April 23, 2019
letter. It noted a corrected letter would be sent soon.
In a May 5, 2019 letter, appellant requested that his treating physician be changed to
Dr. Keelen. He indicated that he had been seeing Dr. Keelen since he was referred to him in 2014,
and he related that Dr. Keelen has been handling all of his restrictions, medications, and
procedures. Appellant noted that, while Dr. Helsten was listed as his treating physician, he had
only completed paperwork for him.
In a June 13, 2019 e-mail, OWCP asked the employing establishment to confirm whether
appellant’s job offer remained available.
In a June 14, 2019 letter, the employing establishment asserted that appellant’s “long-term
treating physician” stated that he could work eight hours a day. It requested an update on OWCP’s
position on the suitability of its job offer and appellant’s request to change his physician. The
employing establishment also stated that there appeared to be a material difference between the
work restrictions provided by Dr. Helsten and those provided by Dr. Keelen, and it asked OWCP
if it was appropriate to refer appellant for a second opinion examination.
In an e-mail dated June 26, 2019, the employing establishment confirmed that its modifiedduty offer remained available for appellant.
In a letter dated July 12, 2019, OWCP informed appellant that the offered position
remained available and was suitable and in accordance with the medical restrictions set forth in
Dr. Helsten’s December 21, 2016 and March 8, 2018 reports. It indicated that the case would be
held open for 30 days, with the expectation that appellant would accept the position within 30
days. OWCP further advised appellant that if he failed to accept the position or provide adequate
reasons for refusing the job offer, his right to compensation would be terminated, pursuant to 5
U.S.C. § 8106(c)(2).
A July 17, 2019 OWCP compensation termination sheet indicated that appellant’s
compensation was terminated, effective July 21, 2019, because “an 8106(c) was issued.”3 By
decision dated July 23, 2019, it denied appellant’s request to change his treating physician, finding
that the evidence of record was insufficient to establish that the current medical treatment he was
receiving was improper or inadequate.
OWCP subsequently received additional medical evidence. In a July 23, 2019 report,
Dr. Helsten indicated that appellant presented with constant lower back pain radiating down into
both of his thighs and into his right foot. He listed appellant’s date of injury as August 1, 1998
and related that a physical examination revealed severe tenderness in appellant’s lower back and
a range of motion of 30 degrees flexion, 10 degrees extension, 20 degrees right lateral flexion, and
20 degrees left lateral flexion. Dr. Helsten noted appellant’s diagnoses of lumbar strain, a
herniated disc, and sciatica. He indicated that appellant was currently not working and he opined
that appellant could perform light-duty work.

3
A July 16, 2019 e-mail from the employing establishment indicated that appellant had applied for retirement,
effective May 30, 2019.

5

In a July 23, 2019 patient pain drawing signed by Dr. Helsten, appellant indicated that he
was off of work and was experiencing severe pain which he rated a 6 out of 10. He also noted that
he was using his TENS unit for 30 minutes per day, and that it relieved his pain by 10 percent.
Appellant reported that he experienced pain in his lower back, buttocks, and thighs.
A June 23, 2019 duty status report (Form CA-17) by Dr. Keelen listed appellant’s date of
injury as August 1, 1998. His clinical findings included back pain and leg paralysis, and he listed
appellant’s diagnosis as chronic pain syndrome. Dr. Keelen advised appellant not to return to
work. He listed appellant’s work restrictions as continuously lifting a maximum of 10 pounds and
intermittently lifting a maximum of 15 pounds for two hours per day, sitting and standing for two
hours per day, simple grasping, fine manipulation including keyboarding, reaching above the
shoulder, exposure to temperature extremes, high humidity, chemicals, fumes/dust, and noise for
four hours per day, and no walking, climbing, kneeling, bending/stooping, twisting, pushing, or
pulling. Dr. Keelen additionally noted that appellant walked with a cane due to his leg paralysis
and frequently changed positions. He related that appellant required medication management for
nerve damage and was unable to drive due to his medication.
On August 9, 2019 appellant requested reconsideration of the July 23, 2019 decision. In
an accompanying statement, he indicated that Dr. Helsten’s office was located 37 minutes further
away from his home than Dr. Keelen’s office, and that the extra travel caused increased pain and
stiffness. Appellant asserted that while Dr. Keelen was a certified anesthesiologist and pain
management specialist, Dr. Helsten was a family practice physician who did not practice pain
management. He related that OWCP had approved all of his appointments and procedures with
Dr. Keelen, and he indicated that he felt that Dr. Keelen was best suited to serve as his treating
physician.
OWCP received additional medical evidence. In an August 9, 2019 report, Dr. Helsten
indicated that appellant presented with back pain radiating down into the toes of his right foot. He
listed appellant’s date of injury as August 1, 1998 and related that a physical examination revealed
severe tenderness in appellant’s lower back and a range of motion of 30 degrees flexion, 10 degrees
extension, 20 degrees right lateral flexion, and 20 degrees left lateral flexion. Dr. Helsten noted
appellant’s diagnoses of lumbar strain, herniated disc, and sciatica. He indicated that appellant
could perform light-duty work permanently.
In an August 9, 2019 patient pain drawing signed by Dr. Helsten, appellant indicated that
he was off of work and was experiencing severe pain which he rated a 7 out of 10. He stated that
he was using his TENS unit for 30 minutes per day, and that it relieved his pain by 20 percent.
Appellant related that he experienced pain in his lower back, buttocks, and right lower leg and
foot.
In an August 9, 2019 Form OWCP-5c, Dr. Helsten indicated that appellant was not capable
of performing his usual job without restrictions because he had difficulty walking, bending, and
lifting. He related that appellant could work an eight-hour day with permanent physical
restrictions. Dr. Helsten stated that appellant had not reached MMI and was capable of working
at the sedentary, light, and medium strength levels. He listed appellant’s restrictions as including
squatting, sitting, and walking for up to two hours, pushing, pulling, and lifting a maximum of 40
pounds for up to two hours, and no climbing.

6

By decision dated October 30, 2019, OWCP denied modification.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it bears the burden of proof to
justify modification or termination of benefits.4 It has authority under 5 U.S.C. § 8106(c)(2) of
FECA to terminate compensation for any partially disabled employee who refuses or neglects to
work after suitable work is offered. To justify termination, OWCP must show that the work offered
was suitable, that appellant was informed of the consequences of his refusal to accept such
employment, and that he or she was allowed a reasonable period to accept or reject the position or
submit evidence or provide reasons why the position is not suitable.5 In determining what
constitutes suitable work for a particular disabled employee, it considers the employee’s current
physical limitations, whether the work was available within the employee’s demonstrated
commuting area, and the employee’s qualifications to perform such work.6
OWCP’s procedures provide that acceptable reasons for refusing an offered position
include withdrawal of the offer or medical evidence of inability to do the work or travel to the job.7
Section 8106(c) will be narrowly construed as it serves as a penalty provision, which may
bar an employee’s entitlement to compensation based on a refusal to accept a suitable offer of
employment.8 Section 10.517(a) of FECA’s implementing regulations provide that an employee
who refuses or neglects to work after suitable work has been offered or secured, has the burden of
showing that such refusal or failure to work was reasonable or justified.9 Pursuant to section
10.516, the employee shall be provided with the opportunity to make such a showing before a
determination is made with respect to termination of entitlement to compensation.10

4

E.W, Docket No. 19-1711 (issued July 29, 2020); Bernadine P. Taylor, 54 ECAB 342 (2003).

5

5 U.S.C. § 8106(c)(2); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining
Wage-Earning Capacity, Chapter 2.814.4 (June 2013) (the claims examiner (CE) must make a finding of suitability,
advise the claimant that the job is suitable and that refusal of it may result in application of the penalty provision of 5
U.S.C. § 8106(c)(2), and allow the claimant 30 days to submit his or her reasons for refusing or abandoning the
position. If the claimant submits evidence and/or reasons for refusing or abandoning the position, the CE must
carefully evaluate the claimant’s response and determine whether the claimant’s reasons for doing so are valid); R.A.,
Docket No. 19-0065 (issued May 14, 2019); Ronald M. Jones, 52 ECAB 190, 191 (2000); see also Maggie L. Moore,
42 ECAB 484, 488 (1991), reaff’d on recon., 43 ECAB 818, 824 (1992).
6

20 C.F.R. § 10.500(b).

7

Supra note 5 at Chapter 2.814.5a (June 2013).

8

E.W., supra note 4; Joan F. Burke, 54 ECAB 406 (2003); see Robert Dickerson, 46 ECAB 1002 (1995).

9

20 C.F.R. § 10.517(a); Ronald M. Jones, supra note 5.

10

Id. at § 10.516.

7

ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, effective July 21, 2019, for refusal of an
offer of suitable work under 5 U.S.C. § 8106(c)(2).
In a letter dated July 12, 2019, OWCP advised appellant that the May 11, 2018 modified
job offer remained available, and was suitable and in accordance with the medical restrictions set
forth in Dr. Helsten’s December 21, 2016 and March 8, 2018 reports. It indicated that the case
would be held open for 30 days acceptance of the position or submission of additional evidence.
OWCP further advised appellant that if he failed to accept the position or provide adequate reasons
for refusing the job offer, his right to compensation would be terminated, pursuant to 5 U.S.C.
§ 8106(c)(2). A July 17, 2019 compensation termination sheet indicated that it terminated
appellant’s compensation, effective July 21, 2019, because “an 8106(c) was issued.”
As stated above, to justify termination, OWCP must show that the work offered was
suitable, that appellant was informed of the consequences of his refusal to accept such
employment, and that he or she was allowed a reasonable period to accept or reject the position or
submit evidence or provide reasons why the position is not suitable.11 It did not issue a final
termination decision, showing that the work offered was suitable, that appellant was informed of
the consequences of his refusal to accept such employment, and that he was allowed a reasonable
period to accept or reject the position or submit evidence or provide reasons why the position was
not suitable. Rather, OWCP summarily terminated appellant’s compensation on July 17, 2019,
just five days after it provided the July 12, 2019 letter to appellant. As such, the Board finds that
OWCP has not met its burden of proof to terminate appellant’s wage-loss compensation and
entitlement to a schedule award, effective July 21, 2019, for refusal of an offer of suitable work
under 5 U.S.C. § 8106(c)(2).
LEGAL PRECEDENT -- ISSUE 2
When the physician originally selected to provide treatment for a work-related injury refers
the employee to a specialist for further medical care, the employee need not consult OWCP for
approval.12 In all other instances, however, the employee must submit a written request to OWCP
with his or her reasons for desiring a change of physician.13
Any transfer of medical care should be accomplished with due regard for professional
ethics and courtesy. No transfer or termination of treatment should be made unless it is in the best
interest of the claimant and the government. Employees who want to change attending physicians
must explain their reasons in writing and OWCP must review all such requests. OWCP may
approve a change when the original treating physician refers the claimant to another physician for
further treatment; the claimant wants to change from the care of a general practitioner to that of a
specialist in the appropriate field or from the care of one specialist to another in the appropriate
11

Supra note 5.

12

20 C.F.R. § 10.316(a).

13

Id.

8

field; or the claimant moves more than 50 miles from the original physician (since OWCP has
determined that a reasonable distance of travel is up to a roundtrip distance of 100 miles). It must
use discretion in cases where other reasons are presented.14
The Board has recognized that OWCP, acting as the delegated representative of the
Secretary of Labor, has broad discretion in approving services provided under FECA. OWCP has
the general objective of ensuring that an employee recovers from her injury to the fullest extent
possible in the shortest amount of time. It, therefore, has broad administrative discretion in
choosing means to achieve this goal. The only limitation on OWCP’s authority is that of
reasonableness. Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
deductions from established facts. It is not enough to show merely that the evidence could be
construed to produce a contrary conclusion.15
ANALYSIS -- ISSUE 2
The Board finds that OWCP abused its discretion in denying appellant’s request to change
his treating physician.
The December 21, 2016 medical report from Dr. Helsten, who is Board-certified in family
medicine and appellant’s treating physician, referred appellant to Dr. Keelen, who is Boardcertified in pain management. A May 22, 2018 medical report by Dr. Helsten also referred
appellant to Dr. Keelen for pain management.
As previously noted, when the physician originally selected to provide treatment for a
work-related injury refers the employee to a specialist for further medical care, the employee need
not consult OWCP for approval.16 Both the December 21, 2016 and May 22, 2018 medical reports
by Dr. Helsten, appellant’s attending physician, indicate that he referred appellant to Dr. Keelen,
Board-certified in pain management, for further medical care. Therefore, the Board finds that
OWCP abused its discretion in denying appellant’s request to change his treating physician.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, effective July 21, 2019, for refusal of an
offer of suitable work under 5 U.S.C. § 8106(c)(2). The Board also finds that OWCP abused its
discretion in denying appellant’s request to change his treating physician.

14

Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing Examination and Treatment, Chapter
3.300.6(c)(1) (February 2012).
15

K.T., Docket No. 15-1202 (issued August 19, 2015); see T.R., Docket No. 14-1514 (issued January 8, 2014);
R.G., Docket No. 12-0811 (issued June 15, 2012); Daniel J. Perea, 42 ECAB 221 (1990).
16

Supra note 11.

9

ORDER
IT IS HEREBY ORDERED THAT the October 30 and July 23 and 17, 2019 decisions
of the Office of Workers’ Compensation Programs are reversed.
Issued: February 26, 2021
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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chapin, SC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-949
Issued: August 11, 2008

Case Submitted on the Record

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

JURISDICTION
On February 13, 2008 appellant filed a timely appeal of a November 15, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs, denying his request for
reconsideration because it was not timely filed and failed to establish clear evidence of error.
Because more than one year has elapsed between the most recent merit decision dated
August 23, 2005 and the filing of the appeal, the Board lacks jurisdiction to review the merits of
his claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
On February 1, 2005 appellant, then a 37-year-old rural carrier, filed a traumatic injury
claim alleging that on January 28, 2005 he hurt his neck, arms and left hand and experienced
frequent headaches as a result of a motor vehicle accident which occurred in the performance of
duty.

By decision dated March 18, 2005, the Office denied appellant’s claim. It found that the
record was sufficient to establish that the alleged incident occurred at the time, place and in the
manner alleged; however, the medical evidence was sufficient to establish that appellant
sustained a medical condition causally related to the automobile accident. On April 6, 2005
appellant requested a review of the written record by an Office hearing representative. In a
March 7, 2005 medical report, Dr. Joseph N. Gabriel, a Board-certified internist, stated that
appellant experienced diffuse myofascial pain, trouble with his left hand and frequent headaches
due to the February 1, 2005 employment incident. Appellant also experienced pain in the lumbar
region. Treatment notes covering intermittent dates from June 9 to July 24, 2005 indicated that
appellant received physical therapy for his left shoulder and low back pain.
By decision dated August 23, 2005, an Office hearing representative affirmed the
March 18, 2005 decision. She found that the evidence submitted by appellant was insufficient to
establish that he sustained a medical condition causally related to the accepted January 28, 2005
employment incident.
In a September 25, 2005 report, Dr. Gabriel’s stated that appellant had low back pain.
By letter dated October 17, 2007, appellant requested reconsideration of the August 23,
2005 decision. He submitted medical reports of Dr. John M. Motto, a specialist in palliative
medicine, dated from October 10, 2006 to October 2, 2007. Dr. Motto stated that appellant had
other syndromes affecting the cervical region which included cervical syndrome, Klippel’s
disease and occipital neuralgia. Appellant also had facet arthropathy syndrome, myalgia and
myositis not otherwise specified and photophobia. In an August 13, 2007 report, Dr. Motto
stated that appellant’s prognosis remained fair but the physician could not address questions
regarding appellant’s fitness for work or disability as they were outside the scope of his practice.
He recommended a functional capacity evaluation followed by an independent medical
evaluation by a rehabilitation medical specialist.
In a decision dated November 15, 2007, the Office found that appellant’s October 17,
2007 letter requesting reconsideration was more than one year after the August 23, 2005 decision
and untimely. It found that the evidence he submitted failed to establish clear evidence of error
in the Office’s prior decisions.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act1 does not entitle a claimant
to a review of an Office decision as a matter of right.2 The Office, through its regulations, has
imposed limitations on the exercise of its discretionary authority under section 8128(a). Section
10.607(a) of the Office’s implementing regulation provides that an application for
reconsideration must be sent within one year of the date of the Office decision for which review
is sought.3
1

5 U.S.C. § 8128(a).

2

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

3

20 C.F.R. § 10.607(a).

2

Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.4
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by the Office.5 The evidence must be positive, precise and explicit and
must be manifest on its face that the Office committed an error.6 Evidence that does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.7 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.8 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.9
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of the Office decision.10 The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of the Office such that the Office abused its discretion in denying merit
review in the face of such evidence.11
ANALYSIS
The Board finds that appellant failed to file a timely application for review of the
August 23, 2005 merit decision. In implementing the one-year time limitation, the Office’s
procedures provide that the one-year time limitation period for requesting reconsideration begins
on the date of the original Office decision. However, a right to reconsideration within one year
accompanies any subsequent merit decision on the issues.12
The most recent merit decision was issued by an Office hearing representative on
August 23, 2005. She found that appellant did not sustain a medical condition causally related to
the accepted January 28, 2005 employment incident. As appellant’s October 17, 2007 letter
4

Id. at § 10.607(b).

5

Nancy Marcano, 50 ECAB 110, 114 (1998).

6

Leona N. Travis, 43 ECAB 227, 241 (1991).

7

Richard L. Rhodes, 50 ECAB 259, 264 (1999).

8

Leona N. Travis, supra note 6.

9

See Nelson T. Thompson, 43 ECAB 919 (1992).

10

Veletta C. Coleman, 48 ECAB 367, 370 (1997).

11

Thankamma Mathews, 44 ECAB 765, 770 (1993).

12

Larry L. Litton, 44 ECAB 243 (1992).

3

requesting reconsideration was made more than one year after the August 23, 2005 decision, it
was not timely filed.
The Board further finds that appellant has not submitted evidence establishing clear
evidence of error by the Office in finding that he did not sustain an injury causally related to the
January 28, 2005 employment incident. In support of his October 17, 2007 reconsideration
request, appellant submitted Dr. Gabriel’s September 25, 2005 report which noted that appellant
experienced low back pain. Dr. Motto’s reports stated that appellant had other syndromes
affecting the cervical region which included cervical syndrome, Klippel’s disease and occipital
neuralgia. Appellant also had facet arthropathy syndrome, myalgia and myositis not otherwise
specified and photophobia. In an August 13, 2007 report, Dr. Motto stated that he could not
address questions regarding appellant’s fitness for work and disability as they were outside the
scope of his practice. He recommended a functional capacity evaluation followed by an
independent medical evaluation by Dr. Westerkam. This evidence is insufficient to prima facie
shift the weight of the medical evidence in favor of appellant’s claim. Neither Dr. Gabriel nor
Dr. Motto provided any opinion as to whether appellant sustained a medical condition causally
related to the January 28, 2005 employment incident. The Board finds that their reports do not
establish clear evidence of error. For this reason, the Board finds that appellant has not
established clear evidence of error on the part of the Office.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the November 15, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 11, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE
)
Pittsburgh, PA, Employer
)
___________________________________________ )
I.C., Appellant

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

Docket No. 07-586
Issued: June 7, 2007

Case Submitted on the Record

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

JURISDICTION
On December 27, 2006 appellant filed a timely appeal of a June 5, 2006 merit decision of
the Office of Workers’ Compensation Programs’ hearing representative, which affirmed a prior
decision that denied her claim. She also appealed the Office’s October 11, 2006 nonmerit
decision which denied her request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(2), the Board has jurisdiction over the merit and nonmerit decisions.
ISSUES
The issues are: (1) whether appellant has established that she sustained an injury while in
the performance of duty; and (2) whether the Office properly denied her request for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 9, 2005 appellant, then a 50-year-old window clerk, filed a traumatic
injury claim (Form CA-1) alleging that on September 1, 2005 “between early lunch,” she injured
herself while picking up a parcel. She also stated that she was picking up tubs with flats in them.

Appellant noted that the only other clerk on duty at the time of injury was pregnant. She alleged
that she sustained a herniated disc and a pinched nerve in her lower back which caused weakness
and pain in her back and right leg. Appellant stopped work on September 16, 2005.1
In a letter dated November 14, 2005, Patricia Gold, a case manager from the employing
establishment, controverted the claim. She noted that appellant had provided several
explanations for her physical condition over the period September 1 to 15, 2005. Ms. Gold also
noted that appellant continued to work without restriction for more than two weeks and was
placed off work for total disability on September 16, 2005. In an October 26, 2006 statement,
Alicia M. Mathes, a customer service supervisor, noted that on September 13, 2005 appellant
alleged that she had a “sore stomach” and believed that it was her kidneys. Appellant indicated
that she would contact her physician. Ms. Mathes alleged that on September 14, 2005 appellant
alleged that “her back was bothering her.” She questioned appellant to ascertain whether it was
job related and she informed her that “no, it was from picking up the grandbabies.” Appellant
informed Ms. Mathes that she was calling her physician for an appointment. Ms. Mathes noted
that, on September 15, 2005, appellant used sick leave to care for her husband. Additionally, she
noted that she received a telephone call from appellant on September 19, 2005 informing her that
she was in the hospital because of disc problems and a lump on her lung. Additionally,
Ms. Mathes noted that appellant was involved in a nonwork-related automobile accident in
March 2002.
In a September 21, 2005 report, Dr. Quynh-Nhu Pham, a Board-certified general surgeon,
noted that appellant had spinal stenosis and nerve compression, which caused weakness and pain
in her back and right leg. He advised that appellant was unable to stand or lift heavy objects.
Dr. Pham opined that appellant was “incapable of working” and recommended that she remain
off work from September 16 to October 31, 2005.
By letter dated December 5, 2005, the Office advised appellant that additional factual and
medical evidence was needed. Appellant was requested to describe in detail how the injury
occurred and to provide dates of examination and treatment, a history of injury given by her to a
physician, a detailed description of any findings, the results of all x-rays and laboratory tests, a
diagnosis and course of treatment followed and a physician’s opinion supported by a medical
explanation as to how the reported work incident caused the claimed injury.
On December 16, 2005 the Office received an August 31, 2005 disability certificate in
which Dr. Pham advised that appellant was “ill and had an appointment today.” In a
September 2, 2005 certificate, Dr. Pham noted that appellant was “unable to work until Tuesday
second to illness.” In a duty status report dated November 10, 2005, he diagnosed spinal
foraminal stenosis and advised that appellant could return to work on December 6, 2005 with
restrictions.2

1

The employing establishment controverted continuation of pay as the claim was filed more than 30 days after
the injury.
2

The writing is difficult to decipher, but it appears that he indicated “December 2006.”

2

The Office also received an October 24, 2005 operative report from Dr. Robert Salvage, a
Board-certified anesthesiologist, who performed a left-sided epidural injection for lumbar
radiculopathy, lumbar displaced disc and lumbar degenerative disc disease.
By decision dated January 19, 2006, the Office denied appellant’s claim on the grounds
that she did not establish an injury as alleged. The Office found that the evidence was
insufficient to establish that the events occurred as alleged. Appellant was advised that she
needed to provide more details regarding the facts surrounding her claim, including a more
detailed description of how the injury occurred, the approximate weight of the package she lifted,
names of witnesses and why she waited for over two months to file her claim. The Office also
advised appellant that they needed to know whether or not she had any other similar symptoms
before the alleged injury to determine if any preexisting condition was playing a role in her
condition. Appellant was advised that, because she did not respond to the letter, the Office could
not determine the facts surrounding her claim.
On February 10, 2006 appellant requested a review of the written record.
The Office subsequently received the first page of a medical report dated October 17,
2005 from Dr. Salvage and the first pages of operative reports from Dr. Salvage dated
October 25 and November 8, 2005. The Office also received a copy of Dr. Pham’s
November 10, 2005 duty status report.
A September 17, 2005 magnetic resonance imaging (MRI) scan of the lumbar spine read
by Dr. Jean K. Yi, a Board-certified diagnostic radiologist, revealed mild congenital spinal
stenosis and degenerative disc disease at the L4-5 level.
On January 20, 2006 the Office received a December 30, 2005 response from appellant.
Appellant noted that in the beginning of September 2005, she was working the window when a
customer brought in several packages. She alleged that she asked the customer if the packages
were heavy and he responded, “no.” Appellant further alleged that, when he set the package on
the counter, she went to lift it to put it on the scale and that, while she could not recall the exact
weight, she thought that it was approximately 30 pounds. She alleged that, as she lifted it to
place it behind her, she felt a pinch in her lower back and her back began to hurt. Appellant
alleged that she turned to the customer and informed him that she just hurt her back. She alleged
that it continued to hurt her for a few weeks and she again informed her supervisor, who told her
to sit in the back office and who never told her to fill out any forms. Appellant alleged that, in
September, even though she “was not well,” she was at the customer service window with a
coworker, “Stacie,” who was pregnant. She alleged that, after putting postage on approximately
25 parcels, she told Stacie that her “back was killing” her. Appellant alleged that her supervisor
was not available so she could not file a complaint. She alleged that, when her supervisor
arrived, she informed her that she was in pain and she was “told to sit for awhile and take it
easy.” Appellant also alleged that her supervisor “knew it was not the first time, I complained
about my back hurting me.” She alleged that she was hospitalized on September 16, 2005
because of her back pain and that a black spot on her lung was also discovered. Appellant
disputed her supervisor’s allegations that she injured herself lifting her granddaughter and
alleged that her injury occurred while performing her duties.

3

In an undated report, received by the Office on January 20, 2006, Dr. Pham noted that
appellant had debilitating back pain that at times was so severe that it prevented her from
performing her duties. He noted that appellant was currently receiving pain medications and
spine injections. Dr. Pham indicated that her “symptoms began last September 12, 2005.” He
advised that appellant related that she noticed intense lower back pain immediately after lifting a
heavy package at work. Dr. Pham noted that appellant tried conservative management with rest
and nonsteroidal anti-inflammatory agents but the pain worsened over the next few days. He
indicated that, when he saw appellant on September 16, 2005, she was in so much pain that she
was unable to move and had lower leg weakness. Dr. Pham advised that appellant was
hospitalized for pain management and for additional testing and observation. He noted that an
MRI scan of her spine revealed severe L4-5 spinal foraminal stenosis and spinal nerve
inflammation and opined that appellant’s condition was worsened with the musculoskeletal
injury to her back on September 12, 2005.
The Office received a December 8, 2005 statement from Greg Shober, a window clerk,
who noted that he worked with appellant on a daily basis. Mr. Shober alleged that appellant was
having back pain from lifting heavy parcels and that, at times, she was unable to stand at the
window. He alleged that she would have to sit down to relieve her pain.
On January 20, 2006 the Office received a statement from Calvin Allison, a customer,
who alleged that he witnessed appellant hurt her back in September 2005, while handling one of
his parcels.
The Office also received a patient discharge summary from a nurse, a light-duty work
status report for nonjob-related injury or illness, Dr. Pham’s September 21 and October 31, 2005
reports, and Dr. Salvage’s October 17, 25 and November 8, 2005 reports. The Office also
received a copy of an October 5, 2005 letter to appellant from Marcella Proctor, a regular carrier,
regarding family medical leave.
By decision dated June 5, 2006, the Office hearing representative affirmed the Office’s
January 19, 2006 decision.
On July 17, 2006 the Office received appellant’s undated request for reconsideration.
Appellant alleged that she was enclosing a report from Dr. Pham, which supported that her injury
occurred on September 1, 2005. In a June 23, 2006 report, Dr. Pham noted that he was
amending previous errors and inconsistencies contained in his prior reports. He noted that
appellant’s symptoms began on September 1, 2005 and not September 12, 2005.
The Office also received disability certificates dated May 15, 2006 from Dr. Pham
requesting physical therapy and a May 19, 2006 report from Dr. Thomas D. Kohl, a Boardcertified family practitioner, describing follow-up treatment.
By decision dated October 11, 2006, the Office denied appellant’s request for
reconsideration on the grounds that it neither raised a substantive legal question nor included
new and relevant evidence, and thus, it was insufficient to warrant a merit review of its prior
decision.

4

LEGAL PRECEDENT -- ISSUE 1
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.3
In order to meet her burden of proof to establish the fact that she sustained an injury in the
performance of duty, an employee must submit sufficient evidence to establish that she actually
experienced the employment injury or exposure at the time, place and in the manner alleged.
An injury does not have to be confirmed by eyewitnesses in order to establish that an
employee sustained an injury in the performance of duty as alleged, but the employee’s
statements must be consistent with surrounding facts and circumstances and her subsequent
course of action. Such circumstances as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury and failure to
obtain medical treatment may cast sufficient doubt on an employee’s statements in determining
whether she has established a prima facie case. The employee has the burden of establishing the
occurrence of the alleged injury at the time, place and in the manner alleged, by a preponderance
of the reliable, probative and substantial evidence. An employee has not met this burden when
there are such inconsistencies in the evidence as to cast serious doubt upon the validity of the
claim.4
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.5 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.6 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.7
ANALYSIS -- ISSUE 1
Appellant alleged that she sustained a traumatic injury on September 1, 2005. She
explained that, in the beginning of September 2005, she was working the window when a
customer brought in several packages. Appellant alleged that she set the package on the counter,
which she believed weighed approximately 30 pounds, and when she lifted it to place it behind
her, she felt a pinch in her lower back and her back began to hurt. She alleged that she turned to
3

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

4

Merton J. Sills, 39 ECAB 572 (1988); Vint Renfro, 6 ECAB 477 (1954).

5

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
6

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

7

Charles E. Evans, 48 ECAB 692 (1997).

5

the customer and informed him that she just hurt her back. Appellant also alleged that she
continued to work, but that it continued to hurt and that, when she informed her supervisor, she
was told to sit in the back office, but was not told to fill out any forms.8 Additionally, she denied
her supervisor’s allegations that she injured herself lifting her granddaughter and alleged that it
occurred in the performance of duty. To support her claim, appellant submitted a statement from
Mr. Allison, a customer, who confirmed that he witnessed appellant hurt her back in
September 2005 while handling one of his parcels. While the employing establishment
controverted the claim and alleged that there were several explanations, it appears that appellant
listed several instances where she may have sustained an injury. However, she was consistent
with regard to the September 1, 2005 incident. While the employing establishment noted that
appellant worked without restriction from September 1 to 15, 2005, she explained that her back
began to hurt her when she lifted the package and that finally she was hospitalized on
September 16, 2005 and unable to work. While Ms. Mathes noted that on September 13, 2005
appellant alleged that she had a “sore stomach” and believed that it was her kidneys, appellant
noted that, when she was hospitalized, a black spot was also found on her lung. Furthermore,
while Ms. Mathes suggested that appellant injured her back from picking up her grandchildren,
appellant denied this allegation and provided a statement from the customer, Mr. Allison, who
witnessed appellant handling his parcel when she stated that she hurt her back.
The Board finds that the first component of fact of injury, the claimed incident -- that she
lifted a package at work on September 1, 2005 occurred as alleged. The Board finds that
appellant has established that she experienced this incident at the time, place and in the manner
alleged. With respect to whether appellant sustained an injury on September 1, 2005, the Board
finds that the medical evidence is sufficient to require further development of the claim.
The record reflects that appellant’s treating physician, Dr. Pham, noted that appellant was
suffering from debilitating back pain which prevented her from performing her duties. He noted
that her symptoms began on September 1, 2005.9 Dr. Pham noted appellant’s description of the
injury which included that she noticed intense lower back pain immediately after lifting a heavy
package at work and that she tried conservative management with rest and nonsteroidal antiinflammatory agents but that her pain worsened over the next few days. He indicated that an
MRI scan of her spine revealed severe L4-5 spinal foraminal stenosis and spinal nerve
inflammation and opined that appellant’s condition was worsened with the musculoskeletal
injury to her back on September 1, 2005.
The Board finds that the report of Dr. Pham is sufficient to require further development
of the claim. The medical report reflects an accurate history of the accepted employment
incident and noted, with explanation, how appellant’s spinal foraminal stenosis was worsened by
her work on September 1, 2005. While the report of Dr. Pham lacks a full review of appellant’s
preexisting conditions and is not fully rationalized to discharge appellant’s burden of proof, it

8

Appellant also described another incident that occurred in September 2005, as noted in the text of this decision,
which involved placing postage on approximately 25 parcels.
9

While he originally indicated September 12, 2005, the physician explained that this was an error and provided
the correct date in an addendum dated June 23, 2006.

6

raises an uncontroverted inference between her condition and the accepted employment
incident.10
On remand, the Office should further develop the medical evidence, as appropriate, to
obtain a physician’s opinion regarding whether the September 1, 2005 incident at work caused a
condition or aggravated appellants preexisting conditions11 and the need for treatment. After
such further development as deemed necessary, the Office should issue a merit decision on
appellant’s entitlement to benefits under the Federal Employees’ Compensation Act.
CONCLUSION
The Board finds that the case requires further development on whether appellant
sustained injury to her back on September 1, 2005.
ORDER
IT IS HEREBY ORDERED THAT the October 11 and June 5, 2006 decisions of the
Office of Workers’ Compensation Programs are set aside and the case remanded for further
proceedings consistent with the above opinion.12
Issued: June 7, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
10

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
11

As noted above the record reflects that appellant had lumbar radiculopathy, lumbar displaced disc and lumbar
degenerative disc disease in addition to the spinal stenosis.
12

In light of the Board’s disposition, the second issue is moot.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Jersey City, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-665
Issued: October 6, 2009

Case Submitted on the Record

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

JURISDICTION
On January 8, 2009 appellant filed a timely appeal from a May 6, 2008 decision of the
Office of Workers’ Compensation Programs adjudicating her claim for a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has more than three percent impairment to her right upper
extremity, for which she received a schedule award.
FACTUAL HISTORY
This is the second appeal in this case.1 By decision dated March 7, 2006, the Board
affirmed a November 8, 2004 Office decision denying appellant’s claim for a recurrence of
disability on September 2, 2003.
1

See Docket No. 06-78 (issued March 7, 2006).

On April 1, 1998 appellant, then a 45-year-old clerk, filed a traumatic injury claim
alleging that she strained her right arm while processing mail. The Office accepted her claim for
a right arm strain and a lesion of the right ulnar nerve. On January 23, 2002 appellant underwent
surgery for her ulnar nerve compression neuropathy, consisting of right ulnar nerve submuscular
transposition at the elbow. On June 11, 2003 she filed a claim for a schedule award.
In a March 18, 2003 report, Dr. David Weiss, an osteopathic physician specializing in
orthopedic medicine, reviewed appellant’s medical history and provided findings on physical
examination. He diagnosed right arm post-traumatic ulnar nerve neuropathy with surgical right
ulnar nerve transposition on January 23, 2002. Dr. Weiss stated that appellant had right elbow
numbness extending to the right hand and a burning sensation in her right upper arm. She had a
well-healed surgical scar over the medial aspect of the elbow joint. There was exquisite
tenderness over the medial epicondyle. Tinel’s sign was localized over the medial aspect of the
elbow joint. Range of motion of the right elbow was normal with 0 degrees of extension,
145 degrees of flexion and 80 degrees both of pronation and supination. The wrist
hyperextension sign was negative. Manual muscle strength testing revealed a grade of 5/5. Grip
strength testing performed via Jamar Hand Dynamometer at level 3 revealed 14 kilograms (kg)
of force in the dominant right hand compared to 30 kg in the left hand which equated to a
63 percent strength deficit index in the right hand.2 Sensory examination failed to reveal any
perceived dermatomal abnormalities involving the right upper extremity. Dr. Weiss calculated
23 percent right upper extremity impairment, including 20 percent for grip strength deficit, based
on Table 16-34 at page 509 of the fifth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides) and 3 percent for pain-related
impairment, based on Figure 18-1 at page 574.
In a November 12, 2003 report, Dr. Irving D. Strouse, a Board-certified orthopedic
surgeon and an Office referral physician, provided a history of appellant’s condition and findings
on physical examination. He diagnosed a right elbow sprain with secondary ulnar neuropathy
and status post anterior transposition of the right elbow ulnar nerve. Dr. Strouse stated that
appellant had right arm pain and numbness along the ulnar aspect of the right forearm. The pain
occurred daily and appellant had difficulty lifting with her right arm and driving a motor vehicle
because of the pain. She had full range of motion of the right shoulder. There was full range of
motion of the right elbow in flexion, extension and rotation. There was full range of motion of
the right wrist and hand. Measurements of both arm and forearm areas approximately five
inches above and below the elbow joint revealed no upper extremity atrophy. There was full
muscle strength in the right upper extremity. There was no hypesthesia in the fingers of the right
hand. Appellant had no atrophy of the small muscles of the hand. There was full motion of all

2

It appears that, in applying the mathematical formula for determining strength loss index percentage on page
509, Dr. Weiss subtracted 14 kg of force (limited strength) in appellant’s dominant right hand from 30 kg in the left
hand (normal strength) and then divided the result by the normal strength number of 30 kg. However, the resulting
strength loss index is 53 percent, not 63 percent as indicated by Dr. Weiss (30 minus 14 equals 16, divided by
30 equals 53 percent). Because he calculated 20 percent upper extremity impairment based on Table 16-34 on page
509, which includes a range of 31 to 60 percent strength loss index, the incorrect 63 percent appears to be a
typographical error in his report. A 53 percent strength loss index equals 20 percent upper extremity impairment,
based on Table 16-34.

2

small joints of the right hand. Dr. Strouse calculated three percent right upper extremity for pain
based on Figure 18-1 at page 574 of the A.M.A., Guides.
On July 25, 2006 an Office medical adviser, calculated 1 percent right upper extremity
impairment for sensory deficit, based on Table 16-15 at page 492 and Table 16-10 at page 482 of
the fifth edition of the A.M.A., Guides (5 percent maximum for sensory deficit of the medial
brachial cutaneous nerve from Table 16-15 multiplied by 20 percent for Grade 4 deficit from
Table 16-10 equals 1 percent).3 He stated that the physical examination reported by Dr. Strouse
was normal except for some hypothesia posterior to the surgical scar. There were no residuals in
the ulnar nerve. The Office medical adviser indicated that the three percent impairment for pain
calculated by Dr. Strouse based on Chapter 18 was not in accordance with the A.M.A., Guides
but did not explain.
By decision dated October 16, 2007, the Office granted appellant a schedule award based
on three percent right upper extremity for 9.36 weeks, from November 12, 2003 to
January 16, 2004.4
On October 19, 2007 appellant requested an oral hearing that was held on
February 26, 2008. By decision dated May 6, 2008, the Office affirmed the October 16, 2007
decision.
LEGAL PRECEDENT
Section 8107 of the Act5 authorizes the payment of schedule awards for the loss or loss of
use of specified members, organs or functions of the body. Such loss or loss of use is known as
permanent impairment. The Office evaluates the degree of permanent impairment according to
the standards set forth in the specified edition of the A.M.A., Guides.6
Section 8123(a) of the Act provides that “if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
[of Labor] shall appoint a third physician who shall make an examination.”7 Where a case is
3

Table 16-10 at page 482 of the A.M.A., Guides provides for a range of 1 to 25 percent impairment of the upper
extremity for Grade 4 impairment, described as “Distorted superficial tactile sensibility (diminished light touch),
with or without minimal abnormal sensations or pain, that is forgotten during activity.”
4

The Federal Employees’ Compensation Act provides for 312 weeks of compensation for 100 percent loss or loss
of use of the upper extremity. 5 U.S.C. § 8107(c)(10). Multiplying 312 weeks by three percent equals 9.36 weeks
of compensation. The schedule award decision was reissued on October 16, 2007 because the Office did not send a
copy of an August 4, 2006 decision to appellant’s representative. It appears that the Office based the schedule
award on the three percent impairment calculation of Dr. Strouse rather than the Office medical adviser’s one
percent calculation.
5
6

5 U.S.C. § 8107.

20 C.F.R. § 10.404 (1999).
(5 ed. 2001).

Effective February 1, 2001, the Office began using the A.M.A., Guides

th

7

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan),
45 ECAB 207 (1993).

3

referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.
ANALYSIS
The Board finds that this case is not in posture for a decision. There is a conflict in the
medical opinion evidence necessitating referral to an impartial medical specialist.
Dr. Weiss diagnosed right arm post-traumatic ulnar nerve neuropathy with surgical right
ulnar nerve transposition on January 23, 2002. Appellant had right elbow numbness extending to
the right hand and a burning sensation in her right upper arm. She had a well-healed surgical
scar over the medial aspect of the elbow joint. There was exquisite tenderness over the medial
epicondyle. Tinel’s sign was localized over the medial aspect of the elbow joint. Range of
motion of the right elbow was normal with 0 degrees of extension, 145 degrees of flexion and 80
degrees both of pronation and supination. Manual muscle strength testing revealed a grade of
5/5. Grip strength testing performed via Jamar Hand Dynamometer at level 3 revealed 14 kg of
force in the dominant right hand compared to 30 kg in the left hand. Sensory examination failed
to reveal any perceived dermatomal abnormalities involving the right upper extremity.
Dr. Weiss calculated 23 percent right upper extremity impairment, including 20 percent for grip
strength deficit, based on Table 16-34 at page 509 of the fifth edition of the A.M.A., Guides and
3 percent for pain-related impairment, based on Figure 18-1 at page 574. The A.M.A., Guides
provides, however, that in compression neuropathies additional impairment values are not given
for decreased grip strength.8 Appellant sustained a compression of the ulnar nerve for which she
underwent surgery. Dr. Weiss did not explain why he did not calculate impairment due to
sensory deficit or pain based on Chapter 16 (The Upper Extremities) and Table 16-10 at page
482 and Table 16-15 at page 492. He calculated three percent for pain-related impairment based
on Figure 18-1 in Chapter 18.9 However, the A.M.A., Guides warns that examiners should not
use Chapter 18 to rate pain-related impairment for any condition that can be adequately rated on
the basis of the body and organ impairment rating systems given in other chapters.10 Moreover,
as the A.M.A., Guides explains: “The impairment ratings in the body organ system chapters
make allowance for expected accompanying pain.”11 Dr. Weiss did not adequately explain why
appellant’s condition could not be rated in other chapters of the A.M.A., Guides or how her
condition falls within one of the several situations identified under section 18.3a (When This
Chapter Should Be Used to Evaluate Pain-Related Impairment).12 For these reasons, the
calculation of Dr. Weiss is not sufficient to establish appellant’s right upper extremity
impairment.

8

A.M.A., Guides 494.

9

The A.M.A., Guides provides for a maximum of three percent impairment for pain in Chapter 18 at page 573.

10

A.M.A., Guides 571.

11

Id. at 20.

12

Id. at 570-71.

4

Dr. Strouse stated that appellant had right arm pain and numbness along the ulnar aspect
of the right forearm. The pain occurred daily and appellant had difficulty lifting with her right
arm and driving because of the pain. Dr. Strouse calculated three percent right upper extremity
for pain based on Figure 18-1 at page 574 of the A.M.A., Guides. However, he also did not
adequately explain why appellant’s condition could not be rated in other chapters of the A.M.A.,
Guides or how her condition falls within one of the several situations identified under section
18.3a. Dr. Strouse stated that there was full muscle strength in the right upper extremity. He
found full range of motion of the right elbow in flexion, extension and rotation and full range of
motion of the right wrist and hand. However, Dr. Strouse did not provide range of motion
measurements. He stated that measurements of both arm and forearm areas revealed no upper
extremity atrophy but he did not provide the measurements taken. For these reasons, the
impairment calculation of Dr. Strouse is not sufficient to establish appellant’s right upper
extremity impairment.
An Office medical adviser, calculated 1 percent right upper extremity impairment for
sensory deficit, based on Table 16-15 at page 492 and Table 16-10 at page 482 of the fifth
edition of the A.M.A., Guides (5 percent maximum for sensory deficit of the medial brachial
cutaneous nerve from Table 16-15 multiplied by 20 percent for Grade 4 deficit from Table 16-10
equals 1 percent).13 He stated that the physical examination reported by Dr. Strouse was normal
except for some hypothesia posterior to the surgical scar and that there were no residuals in the
ulnar nerve. However, Dr. Strouse noted that appellant had pain and numbness along the ulnar
aspect of the forearm. The Office medical adviser did not explain why she did not have
impairment based on sensory deficit or pain related to the ulnar nerve.14 He did not provide
sufficient medical rationale for his assignment of a Grade 4 classification of sensory deficit or
pain from Table 16-10 to appellant’s medial brachial cutaneous nerve sensory deficit. The
Office medical adviser did not explain why he calculated 20 percent impairment from Table 1610 for Grade 4 sensory deficit of the medial brachial cutaneous nerve when the range for Grade 4
is 1 to 25 percent. For these reasons, the impairment calculation of the Office medical adviser is
not sufficient to determine appellant’s right upper extremity impairment.
On appeal, appellant states that she continues to have right arm aches and pain. She
asserts that there is a conflict in the medical opinion evidence between Dr. Weiss on one side and
Dr. Strouse and the Office medical adviser on the other side. As explained above, the Board has
determined that there is a conflict in this case and the case is remanded for further development
of the medical evidence. On appeal, appellant states that her right arm surgical scar is “horrible
to look at.” The Act provides that, for serious disfigurement of the face, head or neck likely to
handicap an individual in securing or maintaining employment, proper and equitable
compensation not to exceed $3,500.00 shall be awarded in addition to any other compensation

13

Table 16-10 at page 482 of the A.M.A., Guides provides for a range of 1 to 25 percent impairment of the upper
extremity for Grade 4 impairment, described as “Distorted superficial tactile sensibility (diminished light touch),
with or without minimal abnormal sensations or pain, that is forgotten during activity.”
14

Table 16-15 at page 492 provides for seven percent impairment for ulnar nerve sensory deficit. The seven
percent maximum for the ulnar nerve is multiplied by the appropriate grade from Table 16-10 at page 482 of the
A.M.A., Guides to determine the upper extremity impairment based on peripheral nerve sensory deficit or pain.

5

payable under this schedule.15 There is no provision under the Act for impairment due to
disfigurement of the arm. Therefore, this argument is without merit.
CONCLUSION
The Board finds that this is not in posture for a decision. On remand, the Office should
refer appellant to an appropriate Board-certified specialist for an independent examination and
evaluation of her right upper extremity impairment. After such further development as the
Office deems necessary, it should issue an appropriate decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 6, 2008 is set aside and the case is remanded for further
action consistent with this decision.
Issued: October 6, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

5 U.S.C. § 8107(c)(21).

6