United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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T.G., Appellant
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and
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U. S. POSTAL SERVICE, POST OFFICE,
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Rochester, NY, Employer
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___________________________________________ )
Appearances:
David Covino, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1147
Issued: November 20, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 2, 2012 appellant, through her representative, filed a timely appeal from the
Office of Workers’ Compensation Programs’ (OWCP) schedule award decision dated
March 12, 2012. 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 schedule award determination.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has more than
a 37 percent permanent impairment of her right leg.2

1
2

5 U.S.C. § 8101 et seq.

The March 12, 2012 decision found that appellant had no more than 37 percent impairment of the right leg and
no more than 15 percent impairment of the right eye. On appeal, appellant’s counsel appealed only from the right
leg impairment rating. Therefore, the Board will not address the right eye impairment.

FACTUAL HISTORY
This case has previously been before the Board.3 In an August 24, 2010 decision, the
Board found that the case was not in posture for decision regarding whether appellant had more
than 10 percent impairment of the right leg. The Board found that OWCP should have
conducted further medical development and remanded the case for a medical opinion on the
nature and extent of her permanent impairment. The facts and the history contained in the prior
appeal are incorporated by reference. The relevant facts include that the claim was accepted for
fractured pelvis, fractured right ankle, as well as eye and facial trauma.
By letter dated November 18, 2010, OWCP referred appellant for a second opinion,
together with a statement of accepted facts, a set of questions and the medical record, to
Dr. Charles E. Jordan, a Board-certified orthopedic surgeon.
In a report dated December 9, 2010, Dr. Jordan described appellant’s history of injury
and treatment and examined her. He utilized the American Medical Association, Guides to the
Evaluation of Permanent Impairment, (A.M.A., Guides) (6th ed. 2009) and provided findings for
the right lower extremity. For the right hip, Dr. Jordan determined that appellant had a 29
centimeter (cm) incision with diffuse local tenderness over the buttocks and sacroiliac area and
no significant tenderness over the trochanter. He determined that she had full extension and
flexion to 95 degrees, abduction of 25 degrees, adduction of 10 degrees, external rotation of
40 degrees and internal rotation of 10 degrees. Dr. Jordan referred to the Hip Regional
Diagnostic Grid, Table 16-4.4 He stated that a significantly displaced acetabular fracture,
resulted in a class 3. Dr. Jordan noted that appellant’s functional history grade modifier was 1,
her physical examination grade modifier was 2 and the clinical studies grade modifier was 1. He
explained that the default value of 37 resulted in a shift to a grade A level, with a percentage loss
of 31. For the right foot, Dr. Jordan noted two well-documented one cm incisions, one medial
and one lateral in the area of the mid foot, minimal local tenderness and slight stiffness in the
mid foot, slight loss of motion in the ankle with five degrees of dorsiflexion and 45 degrees of
plantar flexion, good subtalar motion, normal sensory and motor function to the forefoot and
normal motion in the toes. He referred to Table 16-2 for Lisfranc dislocation and determined
that appellant fell into a class 1, functional history level 1 and physical examination level 1.
Dr. Jordan noted that clinical studies were not available which would be class 0. He explained
that, after making the appropriate adjustments, appellant was a grade level B with a lower
extremity percentage of six percent. Dr. Jordan explained that, when multiple assessments were
made to the same extremity, it was recommended that Table 16-10 be used as 6 percent loss of
the foot would then translate as a secondary impairment and be changed to 4 percent for a total
combined of the lower extremity impairment of 35 percent.5 He opined that appellant reached
maximum medical improvement on March 21, 2005, when Dr. Linda Karbonit, an osteopath,
provided the last impairment examination.

3

Docket No. 09-1856 (issued August 24, 2010).

4

A.M.A., Guides 514.

5

Id. at 530.

2

In a January 31, 2011 report, an OWCP medical adviser noted appellant’s history of
injury and treatment and utilized the findings provided by Dr. Jordan. The medical adviser
concurred with Dr. Jordan’s findings of 31 percent for the hip utilizing the Hip Regional
Diagnostic Grid at Table 16-4.6 However, he advised that appellant had greater impairment for
the ankle/foot condition. The medical adviser noted that when referring to Table 16-2 for the
Foot/Ankle Regional Diagnostic Grid,7 Dr. Jordan utilized the diagnosis of Lisfranc and obtained
a class 1 with a default impairment value of seven percent. For clinical studies, he did not
provide a value because there were no clinical studies available. The medical adviser disagreed
explaining that appellant qualified for a modifier of one as there must have been x-rays to show
the Lisfranc dislocation before the percutaneous pinning was done. He explained that Dr. Jordan
had a net modifier adjustment of -1 which made the default value (DV) of seven go to the left to
six percent for the right foot. The medical adviser noted that Dr. Jordan utilized the conversion
table and got 4 percent for the left lower extremity and then added (31 +4) which resulted in
35 percent for the right leg. He explained that this was not correct as the six percent value was
for the leg, not the foot, such that no conversion was needed. The medical adviser indicated that
using the GMCS of 1 resulted in net adjustment of 0 not -1 as indicated by Dr. Jordan. He
explained that the DV of seven stayed at seven percent impairment of the leg according to Table
16-2.8 OWCP’s medical adviser utilized the Combined Values Chart and explained the total
impairment of 31 percent for the hip and 7 percent for the foot when combined was equal to 37
percent of the right lower extremity.9
By decision dated June 6, 2011, OWCP granted appellant a schedule award for
37 percent permanent impairment of the right leg. As appellant previously received an award of
10 percent for the right leg, the additional award was for 27 percent.
In a letter dated January 19, 2012, appellant’s counsel requested reconsideration. He
argued that the medical adviser’s calculation of the schedule award was a result of “sloppy
arithmetic” and that appellant had 38 percent impairment of the right leg.10
In a March 12, 2012 decision, OWCP denied modification of the prior decision. It found
that the medical evidence did not support increased impairment.

6

See supra note 4.

7

A.M.A., Guides 504.

8

Id.

9

A.M.A., Guides 604.

10

Counsel also inquired about a schedule award for facial disfigurement. This matter is not presently before the
Board.

3

LEGAL PRECEDENT
The schedule award provision of FECA11 and its implementing federal regulations,12 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.13 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.14
For decisions issued after May 1, 2009, the sixth edition will be used.15
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS).16 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX).17
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the medical adviser for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale
for the percentage of impairment specified.18
ANALYSIS
The sixth edition of the A.M.A., Guides provides that lower extremity impairments be
classified by diagnosis which is then adjusted by grade modifiers according to the formula noted
above.19 Appellant’s accepted conditions include a fractured pelvis and right ankle. On June 26,
2011 she was granted a schedule award for 37 percent permanent impairment of the right lower
extremity.
The Board notes that both Dr. Jordan and the medical adviser discussed the relevant
tables in the sixth edition of the A.M.A., Guides. The Board notes that Dr. Jordan opined that
11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404.

13

Id. at § 10.404(a).

14

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

15

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

16

A.M.A., Guides 494-531; see J.B., Docket No. 09-2191 (issued May 14, 2010).

17

A.M.A., Guides 521.

18

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
19

See supra note 17.

4

appellant was entitled to an impairment of 35 percent to the right lower extremity but the medical
adviser utilized his findings to conclude that appellant was actually entitled to 37 percent of the
right lower extremity. The discrepancy appeared in relation to the calculation of the right foot
ankle. Both Dr. Jordan and the medical adviser referred to Table 16-2, Foot and Ankle Regional
Grid.20 The medical adviser explained that Dr. Jordan, when referring to Table 16-2, properly
utilized the diagnosis of Lisfranc dislocation with a class 1 DV of seven percent. However, in
applying the net adjustment formula, he opined that the rating should move one place to the left
for six percent impairment of the foot as there were no clinical studies available. The medical
adviser explained that appellant would qualify for at least a clinical studies modifier of 1, as
there must have been x-rays to show the Lisfranc dislocation before the percutaneous pinning
was done. With a clinical studies modifier of one, he utilized the net adjustment formula and
found no net adjustment from the DV of seven percent impairment. The medical adviser further
explained that Table 16-2 provided for lower extremity impairment, not foot impairment such
that there was no need to convert foot impairment to leg impairment.21
The medical adviser concurred with Dr. Jordan’s findings related to the hip. As noted
above, both physicians referred to Chapter 16, the Hip Regional Diagnostic Grid, Table 16-4.22
The medical adviser and Dr. Jordan indicated that due to, a significantly displaced acetabular
fracture, appellant fell into a class 3 category with a default value of 37. They applied the grade
modifiers for functional history 1, physical examination 2 and clinical studies 1, to the net
adjustment formula and determined that she had a net adjustment of 5 which moved the default
grade C to grade A for 31 percent impairment.
The medical adviser utilized the Combined Values Chart to combine the values for the
hip and lower extremity and determined that the 31 percent for the hip and 7 percent for the
foot/ankle region yielded 37 percent of the right leg impairment. However, the Board notes that
the two values combine to yield 36 percent impairment.23
The Board finds that OWCP’s medical adviser otherwise properly applied the A.M.A.,
Guides to rate impairment to appellant’s right lower extremity. The medical adviser reviewed
the medical evidence and fully explained how he determined appellant’s rating and why the
rating of Dr. Jordan with regard to the right lower extremity was not in conformance with the
A.M.A., Guides. There is no medical evidence conforming with the A.M.A., Guides that
supports greater impairment.
On appeal, appellant’s counsel contended that appellant was entitled to 38 percent
impairment to the right lower extremity. However, the values are not added but are combined
using the Combined Values Chart. Thirty-one percent combined with 7 percent yields 36
percent.24

20

Supra note 7.

21

Id.

22

A.M.A., Guides 514.

23

Supra note 9.

24

See id. See also A.M.A., Guides 20 (Table 2-1) (all regional impairments in the same organ or body system

5

Appellant may request a schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she has
more than a 37 percent permanent impairment of her right lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the March 12, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 20, 2012
Washington, DC

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

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

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

shall be combined); A.M.A., Guides 22 (provides that various organ systems can be accounted for with one
numerical value using the Combined Values Chart which is based on the idea that a second or a succeeding
impairment should apply not to the whole but only to the part that remains after the first and other impairments have
been applied; multiple impairments are to be combined using the Combined Values Chart).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Salt Lake City, UT,
Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-180
Issued: September 9, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 29, 2010 appellant, through his attorney, filed a timely appeal from June 9
and August 12, 2010 merit decisions of the Office of Workers’ Compensation Programs reducing
his compensation based on his capacity to earn wages. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation based on its
findings that he had the capacity to earn wages as a fast food manager.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 1, 2004 appellant, then a 35-year-old lead security screener, filed a claim
alleging that on June 26, 2004 he sustained an injury to his left rotator cuff in the performance of
duty. OWCP accepted the claim for a left shoulder sprain, a tear of the left rotator cuff, brachial
neuritis or radiculitis, cervical spinal stenosis and unilateral total paralysis of the vocal cords. On
August 20, 2004 appellant underwent a subscapularis repair of the left shoulder and a biceps
reconstruction of the sheath. He underwent a subacromial decompression on November 6, 2004,
an open subscapularis lengthening on March 29, 2005 and a C6-7 fusion and discectomy on
September 29, 2007.
On April 10, 2008 Dr. David J. Nathan, a neurosurgeon, diagnosed a C6-7 herniated disc,
surgically treated.2 He advised that appellant could “attend school for retraining” but noted that
he did not treat appellant’s shoulder injury.
OWCP referred appellant to Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon,
for a second opinion examination. On August 15, 2008 Dr. Swartz reviewed the history of injury
and the medical reports of record. She found that appellant had continuing residuals of his left
shoulder condition. Dr. Swartz related that he had hoarseness due to a laryngeal nerve injury and
opined that his C6-7 surgery was not related to his claim as he did not sustain an injury at C7.
She found that appellant sustained a tear of the subscapularis and a C6 traction injury due to his
June 28, 2004 employment injury. In a work restriction evaluation, Dr. Swartz found that he
could not perform his usual employment but could work with left arm restrictions of reaching
four hours a day, no overhead reaching, performing repetitive work with the left wrist and elbow
four hours a day and lifting, pushing and pulling up to five pounds four hours a day. She further
determined that appellant could lift up to 25 pounds with the right arm, squat, kneel and climb
four hours a day and operate a motor vehicle for two hours a day.
On October 7, 2008 OWCP referred appellant for vocational rehabilitation.3 In a report
dated November 5, 2008, a rehabilitation counselor discussed his history of working as a bus
driver, garbage truck driver, retail store security guard, bodyguard, security guard and fast food
manager. He noted that appellant was a high school graduate. The rehabilitation counselor
reviewed the results of vocational testing and found that he had the vocational ability to work as
a food service, retail or hotel manager, security guard, sales clerk, cashier and customer service
representative.
On March 12, 2009 OWCP approved 90 days of job placement assistance for appellant to
search for work as a security guard or customer service representative.

2

In a report dated August 6, 2008, Dr. Nathan related that he did not have any significant lessening of pain in his
upper extremities following his C6-7 fusion. He noted that appellant had vocal cord palsy that had improved
following a vocal cord injection.
3

OWCP had previously referred appellant for vocational rehabilitation in 2006; however, services ceased as he
required surgery.

2

On March 19, 2009 the rehabilitation counselor informed OWCP that appellant was
having grand mal seizures and liver problems due to his diabetes medication. An OWCP
rehabilitation specialist informed that rehabilitation counselor that appellant remained in 90-day
job placement status pending information from a physician about his ability to work. On
April 30, 2009 the rehabilitation counselor noted that appellant had not searched for a position
due to his seizures and medications.
In a report dated March 18, 2009, Dr. Jahan Imani, a neurologist, discussed appellant’s
history of seizures and noted that a December 2008 electroencephalogram (EEG) showed
epileptiform discharge. He noted that appellant had a frozen shoulder from a prior injury with
some muscle atrophy. Dr. Imani diagnosed generalized tonic-clonic seizures.
In a report dated May 5, 2009, Dr. Imani diagnosed generalized tonic-clonic seizures
based on an abnormal EEG and family history. He advised that appellant could not drive, climb
or operate heavy machinery.
On June 22, 2009 OWCP’s rehabilitation specialist questioned why the position of fast
food manager was not included in the rehabilitation plan.4 The rehabilitation counselor informed
him that it was at appellant’s request.
On June 20, 2009 the rehabilitation counselor completed a job classification form for the
position of fast food services manager. The definition of the position, as set forth in the
Department of Labor’s Dictionary of Occupational Titles, (DOT) includes participating in the
“preparation of and cooking, wrapping or packing types of food served or prepared by
establishment, collecting of monies from in-house or take-out customers, or assembling food
orders for wholesale customers.” The strength level required is light and necessitates frequent,
reaching, handing and fingering. The DOT classifies an activity as frequent when it is performed
one-third to two-thirds of the time. The rehabilitation counselor found that appellant met the
specific vocational preparation for the job through his high school education, aptitude test and
past work as a fast food manager. He confirmed that the position was reasonably available
through contacting the state employment services and noted that there were 180 openings a year
statewide with a median weekly wage of $589.20.
On September 22, 2009 OWCP advised appellant of its proposed reduction of his
compensation benefits based on its finding that he had the capacity to earn wages of $589.20 per
week as a fast food manager.
In a September 29, 2009 response, appellant related that he telephoned several managers
at fast food restaurants and was told each time that he was not qualified for any position. He
related that starting salaries were much lower than $589.20. Appellant asserted that he gained
weight after his work injury and developed diabetes. He was undergoing surgery for his seizures
in a few weeks and could no longer drive.

4

In a June 22, 2009 telephone call, appellant requested an extension of his job placement services as his diabetes
and seizures prevented his participation in the program. OWCP’s claims examiner explained that he must provide
medical evidence from his physician explaining why he could not perform a job search.

3

By decision dated November 30, 2009, OWCP reduced appellant’s compensation based
on its finding that he had the physical and vocational capability of earning wages as a fast food
manager. It calculated his wage-earning capacity in accordance with the principles set forth in
Albert C. Shadrick.5
On December 23, 2009 appellant requested a hearing that was held on March 18, 2010.
His attorney argued that he could not physically perform the position of fast food manager based
on the restrictions of Dr. Schwartz. Appellant’s attorney asserted that as Dr. Schwartz found that
he could not reach over his shoulder, reach over four hours or lift, push or pull over 5 pounds
with his left arm, he could not perform the duties of a fast food manager which required lifting
up to 20 pounds and frequently reaching, fingering and handling. Counsel further argued that the
wages used in the reduction of compensation were median rather than local.
On April 21, 2010 appellant’s attorney reiterated that he was physically unable to
perform the reaching and lifting required by the position, that the medical evidence was
unexplained and that the rehabilitation counselor did not properly analyze the wage information
and the job availability.
By decision dated June 9, 2010, a hearing representative affirmed the November 10, 2009
decision. On June 24, 2010 appellant, through his attorney, requested reconsideration. He
submitted employment projections for the position of food service manager. By decision dated
August 12, 2010, OWCP denied modification of its June 9, 2010 decision.
On appeal, appellant’s attorney argues that he could not work as a manager, that the work
was not reasonably available and could not earn the wages found by OWCP.
LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction of benefits.6 Under section 8115(a), wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent his or her wageearning capacity, or if the employee has no actual earnings, his or her wage-earning capacity is
determined with due regard to the nature of the injury, the degree of physical impairment, his or
her usual employment, age, qualifications for other employment, the availability of suitable
employment and other factors or circumstances which may affect wage-earning capacity in his or
her disabled condition.7
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position listed in the Department of Labor’s Dictionary of Occupational Titles or
5

5 ECAB 376 (1953); codified by regulation at 20 C.F.R. § 10.403.

6

T.O., 58 ECAB 377 (2007).

7

Harley Sims, Jr., 56 ECAB 320 (2005); Karen L. Lonon-Jones, 50 ECAB 293 (1999).

4

otherwise available in the open market, that fits the employee’s capabilities with regard to his or
her physical limitations, education, age and prior experience.8 Once this selection is made, a
determination of wage rate and availability in the open labor market should be made through
contact with the state employment service or other applicable service. Finally, application of the
principles set forth in Albert C. Shadrick9 will result in the percentage of the employee’s loss of
wage-earning capacity.
ANALYSIS
OWCP determined that the selected position of fast food manager was medically and
vocationally suitable and represented appellant’s wage-earning capacity. The issue of whether
an employee has the physical ability to perform a modified position is a medical question that
must be resolved by probative medical evidence.10 The Board finds that the medical evidence
does not support a finding that the selected position of fast food manager is within appellant’s
physical limitations.
OWCP referred appellant to Dr. Swartz for a second opinion examination. On
August 15, 2008 Dr. Swartz diagnosed a C6 traction injury and a tear of the subscapularis of the
left shoulder. She determined that residuals of appellant’s work injury prevented him from
returning to his regular employment. Dr. Swartz found that he could work eight hours a day with
left arm restrictions of no reaching over four hours, no reaching overhead, no lifting, pushing or
pulling over five pounds and no repetitive work with the left wrist and elbow for more than four
hours a day. She opined that appellant could lift up to 25 pounds with the right arm and could
squat, kneel and climb up to four hours a day. The rehabilitation counselor submitted job
descriptions for the position of fast food manager as listed in the DOT. Although the position
was classified as light, it required frequent reaching, handling and fingering. The DOT provides
that an activity is frequent if it is performed from one-third to two-thirds of the time. Dr. Swartz
restricted appellant from reaching or performing repetitive movements over four hours a day
with his left arm. She further found that he could lift only 5 pounds with his left arm while the
position of fast food managers necessitated occasional lifting of up to 20 pounds. The duties of
the position, such as preparing, cooking, wrapping and packing food, would require appellant to
use his left arm in addition to his right. The evidence does not establish that appellant had the
capacity to work as a fast food manager. OWCP’s procedures state that, unless the medical
evidence is clear and unequivocal that the selected position is medically suitable, it should send a
job description to an appropriate physician for an opinion regarding whether the claimant can
perform the position.11 As the medical evidence does not clearly and unequivocally establish
that appellant could perform the duties of the selected position, OWCP did not meet its burden of
proof to reduce his compensation.

8

Mary E. Marshall, 56 ECAB 420 (2005); James A. Birt, 51 ECAB 291 (2000).

9

5 ECAB 376 (1953); codified by regulation at 20 C.F.R. § 10.403.

10

See Maruissa Mack, 50 ECAB 498 (1999); Robert Dickinson, 46 ECAB 1002 (1995).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8(d) (December 1995); see also William H. Woods, 51 ECAB 619 (2000).

5

CONCLUSION
The Board finds that OWCP improperly reduced appellant’s compensation based on its
finding that he had the capacity to earn wages as a fast food manager.
ORDER
IT IS HEREBY ORDERED THAT the August 12 and June 9, 2010 decisions of the
Office of Workers’ Compensation Programs are reversed.
Issued: September 9, 2011
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, San Diego, CA, Employer
__________________________________________

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

Docket No. 10-1781
Issued: April 8, 2011

Case Submitted on the Record

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

JURISDICTION
On June 23, 2010 appellant filed a timely appeal from a June 8, 2010 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 28 percent left leg permanent impairment.
FACTUAL HISTORY
On February 4, 2008 appellant, then a 52-year-old nurse, filed a traumatic injury claim
(form CA-1) alleging that she sustained a left ankle fracture in the performance of duty on
February 1, 2008. She underwent left ankle surgery on February 2, 2008. The Office accepted
the claim for left closed bimalleolar ankle fracture and open fracture left ankle.
In a report dated February 25, 2009, Dr. Lindy O’Leary, an occupational medicine
specialist, provided results on examination. He opined that under the fifth edition of the

American Medical Association, Guides to the Evaluation of Permanent Impairment appellant
had a 20 percent whole person impairment. The rating included impairments for atrophy,
arthritis and loss of motion.
The Office referred the medical evidence to an Office medical adviser for review. In a
report dated March 22, 2009, the medical adviser opined that appellant had a 24 percent left leg
impairment due to cartilage space narrowing, pursuant to Table 17-31. He found the date of
maximum medical improvement was February 25, 2009.
By decision dated April 2, 2009, the Office issued a schedule award for a 24 percent left
leg permanent impairment. The period of the award was 69.12 weeks of compensation
commencing February 25, 2009.
Appellant requested a review of the written record. She submitted an April 10, 2009
report from Dr. O’Leary, who stated that he disagreed with the Office medical adviser and
reiterated his opinion that appellant had a 20 percent whole person impairment.
By decision dated July 13, 2009, an Office hearing representative remanded the case for
further development. The hearing representative found a conflict existed under 5 U.S.C.
§ 8123(a), and the case was remanded for resolution of the conflict.
The Office referred appellant to Dr. James Tasto, a Board-certified orthopedic surgeon
selected as a referee physician. In a report dated December 10, 2009, Dr. Tasto found appellant
had a 39 percent left leg impairment under the fifth edition of the A.M.A., Guides. The Office
requested that Dr. Tasto provide an opinion under the sixth edition of the A.M.A., Guides.
In a report dated January 12, 2010, Dr. Tasto, utilizing the sixth edition, identified Table
16-2, and found appellant had a 22 percent impairment for a healed bimalleolar ankle fracture.
He indicated that no adjustments were warranted from the default value of 22 percent. Dr. Tasto
also indicated there was joint space narrowing for the talonavicular joint, for a Class 1 problem
with a default value of 10 percent. He reduced the default value to eight percent, noting that both
history and physical examination would be -1 modifications to the default value. Combining the
22 percent and 8 percent under the Combined Values Chart, Dr. Tasto found appellant had a 28
percent left leg impairment.
By decision dated February 17, 2010, the Office awarded appellant an additional four
percent left leg permanent impairment. The period of the award was 11.52 weeks commencing
at the end of the prior award.
Appellant again requested a review of the written record. By decision dated April 20,
2010, an Office hearing representative remanded the case, finding that an Office medical adviser
should have reviewed the file.
In a report dated May 28, 2010, the Office medical adviser concurred that the left leg
impairment was 28 percent under the sixth edition of the A.M.A., Guides. The medical adviser
opined that appellant had a 22 percent leg impairment under Table 16-2 for residual problems
from the open reduction internal fixation of a bimalleolar ankle fracture with documented loss of
motion, and an 8 percent left lower extremity impairment for residual problems with post2

traumatic arthritis with documented joint space narrowing of the talonavicular joint. The
impairments were combined under the Combined Values Chart for a 28 percent left leg
impairment.
By decision dated June 8, 2010, the Office issued a revised schedule award that again
found appellant was entitled to a total of 28 percent impairment to the left leg.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act provides that, if there is
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member
or function.1 Neither the Act nor the regulations specify the manner in which the percentage of
impairment for a schedule award shall be determined. For consistent results and to ensure equal
justice for all claimants the Office has adopted the A.M.A., Guides as the uniform standard
applicable to all claimants.2 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition.
Office procedures provide that, effective May 1, 2009, all schedule awards are to be
calculated under the sixth edition of the A.M.A., Guides.3 Any recalculations of previous awards
which result from hearings or reconsideration decisions issued on or after May 1, 2009, should
be based on the sixth edition of the A.M.A., Guides. A claimant who has received a schedule
award calculated under a previous edition and who claims an increased award, will receive a
calculation according to the sixth edition for any decision issued on or after May 1, 2009.4
It is well established that, when a case is 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.5
ANALYSIS
The Office issued a schedule award for a 24 percent left leg impairment on April 2, 2009.
This award was appropriately based on the fifth edition of the A.M.A., Guides. The June 8, 2010
decision before the Board on this appeal determined that appellant had a 28 percent permanent
impairment under the sixth edition of the A.M.A., Guides.

1

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
2

A. George Lampo, 45 ECAB 441 (1994).

3

FECA Bulletin No. 09-03 (issued March 15, 2009); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700 (January 2010).
4

Id.

5

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

3

In the present case, the Office found that there was a conflict under 5 U.S.C. § 8123(a)
between attending physician Dr. O’Leary and the Office medical adviser as to the degree of left
leg permanent impairment.6 Dr. Tasto was selected as a referee physician and initially provided
an opinion under the fifth edition of the A.M.A., Guides. As noted above, any decision after
May 1, 2009 must be based on the sixth edition, even if the initial impairment was calculated
under the fifth edition.
Dr. Tasto identified Table 16-2 in the sixth edition, which provides diagnosis-based
impairments for the ankle. Once the diagnostic criteria is identified, the severity is determined
and a Class of Diagnosis (CDX) identified. Table 16-2 provides a default impairment (Grade C)
for the specific criteria and severity. The default value then may be adjusted based on grade
modifiers for functional history (GMFH), physical examination (GMPE) and clinical studies
(GMCS). The adjustment formula is (GMFH – CDX) + (GMPE – CDX) + (GMCS – CDX).7
Dr. Tasto identified a Class 2 (moderate) impairment for bimalleolar ankle with moderate to
severe motion deficits, which has a default (Grade C) value of a 22 percent leg impairment. The
referee physician determined that no adjustment for GMFH, GMPE or GMCS was warranted
under the appropriate formula.
In addition, Dr. Tasto identified arthritis in the talonavicular joint, with one millimeter
cartilage interval. Under Table 16-2, the Grade C impairment is 10 percent. Dr. Tasto modified
the impairment to a Grade B, or eight percent, based on the adjustment formula noted above.
The impairments of 22 percent and 8 percent were then combined under the Combined Values
Chart for a 28 percent left leg impairment.8
The Board finds that the referee physician provided a rationalized medical opinion that
represents the weight of the medical evidence.9 He identified the appropriate tables and provided
a rationalized medical opinion under the sixth edition of the A.M.A., Guides.
The number of weeks of compensation for a schedule award is determined by the
compensation schedule at 5 U.S.C. § 8107(c). For complete loss of use of the leg, the maximum
number of weeks of compensation is 288 weeks. Since appellant’s impairment was 28 percent, she
is entitled to 28 percent of 288 weeks, or 80.64 weeks of compensation. It is well established that
6

The Act provides that, if there is a disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall make the
examination. 5 U.S.C. § 8123(a). The implementing regulations state that, if a conflict exists between the medical
opinion of the employee’s physician and the medical opinion of either a second opinion physician or an Office
medical adviser, the Office shall appoint a third physician to make an examination. This is called a referee
examination and the Office will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case. 20 C.F.R. § 10.321 (1999).
7

A result of +2 is Grade E, +1 Grade D, -1 Grade B and -2 is Grade A.

8

See A.M.A., Guides 499 (lower extremity diagnosis-based impairments are combined, rather than added, using
the Combined Values Chart).
9

An Office medical adviser concurred with the 28 percent impairment rating. The Board notes that, when the
case is referred to a referee physician, it is the referee physician who must resolve the conflict. See Thomas J.
Fragale, 55 ECAB 619 (2004).

4

the period covered by a schedule award commences on the date that the employee reaches
maximum medical improvement from residuals of the employment injury.10 In this case, the
Office medical adviser concluded that the date of maximum medical improvement was
February 25, 2009, the date of examination by Dr. O’Leary.
On appeal, appellant argues that her injury occurred and maximum medical improvement
was established, while the fifth edition of the A.M.A., Guides was in use by the Office. She
argues it was unfair to change to the sixth edition, which resulted in a lower impairment than
would have been calculated under the fifth edition. In Harry D. Butler,11 the Board notes that
Congress delegated authority to the Director regarding the specific methods by which permanent
impairment is to be rated. Pursuant to this authority, the Director adopted the A.M.A., Guides as
a uniform standard applicable to all claimants and the Board has concurred in the adoption.12 On
March 15, 2009, the Director exercised authority to advise that as of May 1, 2009 all schedule
award decisions of the Office should reflect use of the sixth edition of the A.M.A., Guides.13
The applicable date of the sixth edition is as of the schedule award decision reached. It is not
determined by either the date of maximum medical improvement or when the claim for such
award was filed.
CONCLUSION
The Board finds the evidence of record does not establish more than a 28 percent left leg
permanent impairment.

10

Albert Valverde, 36 ECAB 233, 237 (1984).

11

43 ECAB 859 (1992).

12

Id. at 866.

13

FECA Bulletin No. 90-03 (March 15, 2009). The FECA Bulletin was incorporated in the Federal (FECA)
Procedure Manual, Part 2 -- Claims, Schedule Award & Permanent Disability Claims, Chapter 2.808.6(a)
(January 2010).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 8, 2010 is affirmed.
Issued: April 8, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 21-1278
Issued: March 29, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 23, 2021 appellant filed a timely appeal from a February 23, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 As more than 180 days
elapsed from the last merit decision dated January 7, 2020 to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case. 3

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from OWCP’s February 23, 2021 decision was August 22, 2021. As
this fell on a Sunday, the appeal was due the next business day, which was Monday, August 23, 2021, rendering the
appeal timely filed. See 20 C.F.R. § 501.3(f)(3).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the February 23, 2021 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedures provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On September 24, 2018 appellant, then a 34-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that on September 12, 2018 she sustained an injury
to her left shoulder when she was carrying packages upstairs and an entire step collapsed, causing
her to fall to the left and hit her shoulder, while in the performance of duty. She did not stop work.
A September 12, 2018 urgent care report from Dr. Brian Hagler, a Board-certified family
practitioner, related appellant’s history of injury. Dr. Hagler’s examination revealed pain with
movement of the left shoulder and tenderness over the acromioclavicular (AC) joint. He reviewed
x-ray scans of appellant’s left shoulder taken on the same date, which revealed no acute
abnormality, and diagnosed a left shoulder injury.
A medical report dated October 3, 2018 from Dr. Thomas E. Kingsley, Board-certified in
family medicine and an occupational medicine specialist, related appellant’s history of carrying
packages up cement steps when a step gave way, causing her to fall to her left and hit her trapezius
muscles between her shoulder and neck on the handrail. Dr. Kingsley reviewed appellant’s
medical records from the date of injury, noting that her left shoulder x -ray was negative. His
examination revealed discomfort and tenderness to palpation in the trapezius muscles of the upper
back just behind the left clavicle, pain in left trapezius muscles with reaching the left hand over
head and with movement of the head. Dr. Kingsley diagnosed myalgia, referred appellant to
physical therapy, and advised her to use ibuprofen. An accompanying duty status report (Form
CA-17) of even date diagnosed shoulder pain and advised that appellant would need help when
lifting objects above her head at work.
In November 1 and December 26, 2018 medical reports, Dr. Kingsley related appellant’s
history of injury, diagnosed myalgia, and advised that appellant should not lift, push, or pull more
than 10 pounds with her left arm or lift above her head. In a work restriction note, patient discharge
summary, and Form CA-17, all dated December 26, 2018, he related that appellant could lift, push,
and pull up to 10 pounds with her left arm with no lifting above her head.
Appellant also submitted medical reports from Dr. Dominic McKinley, Board-certified in
family practice and sports medicine, dated February 1 and 12, 2019. In his February 1, 2019
report, Dr. McKinley related appellant’s history of injury. He indicated that, though appellant was
in physical therapy, she continued to experience left shoulder and neck pain that was aggravated
with activity. Dr. McKinley’s examination revealed tenderness along the left side of appellant’s
neck, acromion region, and trapezius region, painful arc of motion with lightly limited flexion,
positive empty can test, and positive impingement signs. He reviewed x-ray scans of the left
shoulder taken that day, which revealed a partially fused os acromiale, and noted that there was
some indication that the region had partially healed, as compared to the Sep tember 12, 2018 x-rays.
Additionally, cervical spine x-rays revealed no abnormalities. Dr. McKinley diagnosed cervical
strain with possible left-side radiculopathy and left shoulder pain, which he believed had
multifactorial etiology, including possible referred pain from her neck, symptomatic healing os
acromiale avulsion fracture, and possible rotator cuff injury. He recommended appellant undergo
2

magnetic resonance imaging (MRI) scans and advised that appellant should not lift more than 10
pounds with her left arm, lift overhead, or reach behind herself. In his February 12 report,
Dr. McKinley noted that appellant’s shoulder pain had increased, she was having difficulty lifting
objects at work, and she had missed work in previous days due to the aggravated pain. He injected
a mixture of betamethasone and lidocaine into the left subacromial space , which improved
appellant’s range of motion in her neck and left shoulder. Dr. McKinley advised that appellant
should not work pending the recommended MRI scan.
In a development letter dated March 5, 2019, OWCP informed appellant of the deficiencies
of her claim. It advised her as to the type of factual and medical evidence needed and provided a
questionnaire for completion. OWCP afforded appellant 30 days to respond.
Appellant submitted a Form CA-17 dated February 12, 2019 from Dr. McKinley, who
diagnosed cervical radiculitis and left shoulder pain. Dr. McKinley recommended that appellant
undergo an MRI scan of her left shoulder before returning to work.
On March 11, 2019 appellant responded to OWCP’s development questionnaire, relating
that she was delivering packages at an apartment complex on September 12, 2018 and, as she
climbed the steps, a step collapsed and she “went left,” trying to hold herself up while carrying
packages, and hit her shoulder. She reported that she notified R.W., the employing establishment
supervisor on September 12, 2018, the day she fell. Appellant also noted that she had no prior
injuries.
In a March 19, 2019 medical report, Dr. McKinley noted appellant’s continuing left
shoulder and neck pain, as well as a sensation of “lack of blood flow” radiating from her shoulder
down to her hand for the previous 4 to 6 weeks. Appellant had not returned to work and was no
longer undergoing physical therapy. Dr. McKinley reviewed the March 9, 2019 left shoulder MRI
and the March 16, 2019 cervical spine MRI.4 He diagnosed neck pain secondary to cervical strain
due to compensating for left shoulder discomfort, noting that the MRI did not reveal findings
consistent with a work-related injury, as well as persisting left shoulder pain with multifactorial
etiology including symptomatic biceps tendinitis and aggravation of pre -existing left AC joint
arthritis.5 Dr. McKinley advised that appellant should not lift more than five pounds or use her
left upper extremity.
By decision dated April 11, 2019, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the incident occurred, as alleged. It noted that
the evidence of record contained factual inconsistencies and that appellant had not adequately

4

The March 16, 2019 cervical spine MRI scan revealed suspected congenital incomplete segmentation of the C5C6 cervical level, minor superimposed cervical spine degeneration, and borderline to mild left side neural foraminal
stenosis at the left C7 and C8 nerve levels.
5

Dr. McKinley also diagnosed swelling and fullness in the left supraclavicular region associated with an enlarged
axillary lymph gland unrelated to her injury.

3

described the mechanism of injury. It concluded, therefore, that the requirements had not been
met to establish an injury as defined by FECA. 6
On April 29, 2019 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. The hearing was held on July 25, 2019. OWCP did not receive
any further evidence.
By decision dated September 3, 2019, OWCP’s hearing representative affirmed the
April 11, 2019 decision, as modified, finding that the evidence of record established that the
incident occurred as alleged. The claim remained denied, however, as the medical evidence of
record was insufficient to establish causal relationship between appellant’s diagnosed conditions
and the accepted September 12, 2018 employment incident.7
OWCP subsequently received a September 13, 2019 narrative medical report from
Dr. Dawn Quashie, a Board-certified family practitioner, who described appellant’s employment
duties and history of injury and examined appellant. Dr. Quashie diagnosed a sprain of the AC
joint, a sprain of the left shoulder joint, and adhesive capsulitis of the left shoulder. She advised
that appellant was temporarily disabled and should be on light-duty work. In her discussion of the
September 12, 2018 employment incident, Dr. Quashie described the anatomy of the shoulder and
stated that appellant “tried to stop her fall by stretching out her left arm . . . [and] she jammed her
humerus into the shoulder joint leading to her shoulder sprain.” She further explained what occurs
when a person falls forward onto an outstretched hand,
“[T]he impact force travels up the arm and exits in the cervical spine (neck) and thoracic
spine (upper back) similar to a whiplash type injury. Residual delayed symptoms may
appear, which include headaches, neck pain, muscle spasm, tingling or numbness in the
arm, and pain between the shoulder blades. [Appellant’s] fall caused mechanical and
functional damage to the left shoulder leading to inefficient movement and compensations.
These neurological compensations are part of your nervous system[‘]s hardwired survival
mechanism to avoid pain at all cost by taking the path of least resistance.”
Dr. Quashie opined that appellant’s shoulder sprain was directly and causally attributed to
the September 12, 2018 employment incident.
On October 10, 2019 appellant requested reconsideration.
By decision dated January 7, 2020, OWCP denied modification of its September 3, 2019
decision.
OWCP subsequently received an October 7, 2020 narrative medical report from
Dr. Quashie relating that appellant’s neck and left shoulder pain had progressively worsened and
6

Appellant subsequently submitted the March 9, 2019 left shoulder MRI scan, which revealed mild supraspinatus
and infraspinatus tendinosis, mild biceps tenosynovitis, mild AC osteoarthritis, and a single enlarged left axillary
lymph node.
7

The hearing representative noted that appellant’s 2016 injury had been assigned OWCP File No. xxxxxx987 and
accepted for limited medical expenses without formal adjudication. The representative ordered the case files to be
administratively combined. On January 9, 2020 it administratively combined OWCP File Nos. xxxxxx987 and
xxxxxx854, with the current file designated as the master file.

4

that she continued to have reduced range of motion with pain for the left shoulder. She diagnosed
arthropathy and primary osteoarthritis of the left shoulder and advised that appellant should remain
on light duty. Dr. Quashie noted that “[w]hile most people experience wear and tear in their joints
as they age, the development of [appellant’s] acromioclavicular joint arthrosis caused
degeneration, disabling the shoulder joint, sometimes making it appear la rger. Spurs, or spiny
projections from the bones, may develop around the joint. With this condition, there is usually
pain and swelling that limits the motion of the arm.” Dr. Quashie explained that appellant’s
employment duties, including sorting mail and lifting and delivering packages, placed a great deal
of stress on her shoulder joint, leading to “cartilage deterioration in her right [sic] shoulder ... and
allowing arthritis to develop into the joint.” She opined that appellant’s September 12, 2018 fall
through the apartment steps exacerbated her arthritic shoulder, leading to her AC joint arthropathy.
On January 29, 2021 appellant requested reconsideration. OWCP did not receive any
further evidence.
By decision dated February 23, 2021, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.8 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 9 Timeliness is determined by the document receipt date, i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS). 10
Imposition of this one-year filing limitation does not constitute an abuse of discretion. 11
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 12 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of

8

5 U.S.C. § 8128(a); see T.J., Docket No. 21-0586 (issued September 30, 2021); L.W., Docket No. 18-1475 (issued
February 7, 2019); Y.S., Docket No. 08-0440 (issued March 16, 2009).
9

20 C.F.R. § 10.607(a).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4b (September 2020).

11

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
12

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499 (1990).

5

OWCP.13 In this regard, OWCP will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record. 14
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. 15 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP 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 OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.16
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face demonstrates that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued, would
have created a conflict in medical opinion requiring further development, is not clear evidence of
error.17 The Board makes an independent determination of whether a claimant has demo nstrated
clear evidence of error on the part of OWCP. 18
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed.
The last merit decision was dated January 7, 2020. As appellant’s request for
reconsideration was not received by OWCP until January 21, 2021, more than one year after
January 7, 2020, pursuant to 20 C.F.R. § 10.607(a), the request for reconsideration was untimely
filed. Consequently, appellant must demonstrate clear evidence of error by OWCP in denying the
claim.19
The Board further finds that OWCP summarily denied appellant’s request for
reconsideration without complying with the review requirement of FECA and its implementing
13

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 10 at Chapter 2.1602.5 (September 2020).
14

J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

15

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 10 at Chapter 2.1602.5a (September 2020).

16

C.M., Docket No. 19-1211 (issued August 5, 2020).

17

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 10 at Chapter 2.1602.5(a) (September 2020).

18

D.S., Docket No. 17-0407 (issued May 24, 2017).

19

20 C.F.R. § 10.607(b); S.C., Docket No. 20-1537 (issued April 14, 2021); R.T., Docket No. 19-0604 (issued
September 13, 2019); see Debra McDavid, 57 ECAB 149 (2005).

6

regulations.20 As noted, section 8124(a) of FECA provides that OWCP shall determine and make
a finding of fact and make an award for or against payment of compensation.21 Its regulations at
20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings and
facts and a statement of reasons. 22 As well, OWCP’s procedures provide that the reasoning behind
OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence which would overcome it.23
In the February 23, 2021 decision, OWCP did not address Dr. Quashie’s October 7, 2020
medical report, which was received after the January 7, 2020 merit decision. It failed to analyze
this evidence as to whether it was sufficient to demonstrate clear evidence of error. The Board
finds that OWCP failed to properly explain the findings with respect to the issue presented so that
appellant could understand the basis for the decision, i.e., whether she had demonstrated clear
evidence that OWCP’s last merit decision was incorrect.
The case must, therefore, be remanded for findings of fact and a statement of reasons, to
be followed by an appropriate decision on appellant’s untimely reconsideration request.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed. The Board
further finds that the case is not in posture for decision regarding whether appellant has
demonstrated clear evidence of error.

20

See Order Remanding Case, W.D., Docket No. 20-0859 (issued November 20, 2020); Order Remanding Case,
C.G., Docket No. 20-0051 (issued June 29, 2020); Order Remanding Case, T.P., Docket No. 19-1533 (issued April 30,
2020); see also 20 C.F.R. § 10.607(b).
21

5 U.S.C. § 8124(a).

22

20 C.F.R. § 10.126.

23

Federal (FECA) Procedure Manual Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013) (all
decisions should contain findings of fact sufficient to identify the benefit being denied and the reason for the
disallowance).

7

ORDER
IT IS HEREBY ORDERED THAT the February 23, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: March 29, 2022
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.J., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
FINANCE & ACCOUNTING SERVICE,
Columbus, OH, Employer
__________________________________________

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

Docket No. 20-0013
Issued: November 19, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On October 2, 2019 appellant, through counsel, filed a timely appeal from a June 6, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the June 6, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective October 30, 2018, as she no longer had
residuals or disability due to her accepted employment injury; and (2) whether appellant has met
her burden of proof to establish continuing residuals or disability on or after October 30, 2018.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are set forth
below.
On November 13, 2003 appellant, then a 34-year-old accounting technician, filed a
traumatic injury claim (Form CA-1) alleging that on that date a door closed on her left hand while
in the performance of duty. She stopped work on November 13, 2003 and returned to light-duty
work on November 24, 2003. Appellant worked part time beginning in January 2004 and stopped
work completely on September 6, 2004. OWCP accepted the claim for contusion of the left hand,
crush injury of the left hand, reflex sympathetic dystrophy (RSD) of the left arm, right carpal tunnel
syndrome, bilateral tenosynovitis of the hands and wrists, anxiety and a single episode of moderate
depression. It paid appellant intermittent wage-loss compensation on the supplemental rolls as of
January 10, 2004 and on the periodic rolls as of December 26, 2004.
By decision dated October 5, 2009, OWCP terminated appellant’s medical benefits finding
that all of the accepted conditions had resolved.
On October 13, 2009 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative. The hearing was held on January 11, 2010. By decision dated
March 30, 2010, an OWCP hearing representative affirmed the October 5, 2009 decision
terminating medical benefits. OWCP further found, however, that a conflict in medical opinion
had been created as to whether appellant had continuing residuals of her RSD condition.
OWCP then referred appellant, along with a statement of accepted facts (SOAF), to
Dr. Michael S. Baugh, a Board-certified neurologist, for an impartial evaluation. In a report dated
May 17, 2020, Dr. Baugh advised that she had symptoms of intractable left upper extremity pain,
but his objective findings and her available diagnostic test results did not meet the diagnostic
criteria for RSD.
By decision dated June 9, 2010, OWCP terminated appellant’s medical benefits for her
RSD condition.
On June 22, 2010 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative. The hearing was held on October 7, 2010. By decision dated
December 28, 2010, an OWCP hearing representative affirmed the June 9, 2010 decision
terminating appellant’s medical benefits for the RSD condition based on the opinion of Dr. Baugh.

4

Docket No. 13-0517 (issued May 19, 2014); Docket No. 10-0743 (issued November 2, 2010).

2

Appellant continued to request reconsideration. By decisions dated March 8 and
September 26, 2012, OWCP denied modification of its prior decisions regarding termination of
her RSD condition.
Appellant continued to receive wage-loss compensation due to her accepted emotional
condition. On January 3, 2013 appellant, through counsel, filed an appeal from the September 26,
2012 decision terminating medical benefits for her left arm RSD condition. By decision dated
May 19, 2014, the Board found that OWCP had properly terminated appellant’s medical benefits
for her RSD condition and that she had not established continuing employment-related residuals
of RSD after June 9, 2010.5
Subsequent to OWCP’s September 26, 2012 decision, appellant submitted an August 20,
2012 report in which Urszula Klich, Ph.D., a clinical psychologist, noted appellant’s history of
chronic pain and described her pain management psychotherapy. Dr. Klich indicated that
appellant was seeking referral to another provider for pain management. In reports dated
August 22 and September 5, 2012, Kristina Seymour, M.A., a clinical doctoral student, described
appellant’s participation in group therapy sessions.
On November 6, 2014 OWCP referred appellant to Dr. Brian Teliho, a Board-certified
psychiatrist, for a second opinion evaluation. In a December 8, 2014 report, Dr. Teliho noted
seeing her for psychiatric evaluation on December 4, 2014 and he reported that she had not
received psychological care since 2012. He performed a mental status examination and diagnosed
pain disorder associated with both psychological factors and general medical condition, mild major
depressive disorder, and anxiety and personality disorders, not otherwise specified.
In June 2015, OWCP referred appellant to Dr. Eric Furie, a Board-certified orthopedic
surgeon. In an August 27, 2015 report, following physical examination and a left hand x-ray study,
Dr. Furie advised that the crush injury of the fourth metacarpal head had resolved and diagnosed
a left small finger proximal interphalangeal (PIP) joint contracture. He indicated that appellant’s
subjective complaints seemed to outweigh objective findings and opined that her complaints were
likely related to her anxiety and depression. Dr. Furie advised that she could perform the duties
of an accounting technician. On an attached work capacity evaluation (Form OWCP-5c), the only
restriction provided was a 5-minute break every 30 minutes for fingers of the left hand.6
On July 24, 2018 OWCP referred appellant to Dr. Robert Michael Prudent, a Boardcertified psychiatrist, for a second opinion evaluation. In an August 22, 2018 report, Dr. Prudent
noted his review of the SOAF, medical record, and questions provided. He indicated that he had
previously seen appellant in 2010.7 Dr. Prudent indicated that it was significant that she was not
involved in psychiatric treatment and had not seen a psychologist on a regular basis, but had
participated in some sort of therapy or support group at her church. Appellant also, continued to
take a low dose of medication for her depression and anxiety, which was managed by a primary
care physician and not a psychiatrist. Dr. Prudent diagnosed anxiety and depressive disorders, not
otherwise specified, and chronic pain disorder. He opined that, given appellant’s orthopedic
5

Docket No. 13-0517, id.

6

The SOAF provided Dr. Furie set forth the physical requirements of the accounting technician position.

7

Dr. Prudent had previously provided a second opinion evaluation on October 20, 2010.

3

injuries had largely resolved, it was difficult to believe that she continued to have a psychiatric
diagnosis resulting from a hand injury that had occurred 15 years prior. Dr. Prudent noted that her
symptoms outweighed the objective findings, indicating that, if anxiety and depression were so
significant and precluded her from working, one would assume she would be more actively
engaged in psychiatric and psychological treatment. He concluded that appellant’s continued
anxiety and depression were not the result of the employment injury. On an attached psychiatric
work capacity evaluation (Form OWCP-5a), Dr. Prudent advised that she could perform her usual
job strictly from a psychiatric prospective.
On September 28, 2018 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits based on Dr. Prudent’s second opinion report. It afforded her 30 days to
provide a written response if she disagreed with the proposed termination. Nothing further was
received.
By decision dated October 30, 2018, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective that same day, based on Dr. Prudent’s evaluation.
On November 7, 2018 appellant, through counsel, requested a hearing before an OWCP
hearing representative.
In a February 25, 2019 report, Dr. Kela Y. Henry, a Board-certified family physician, noted
that she was appellant’s primary care physician. She noted that appellant was injured in
November 2003 and subsequently diagnosed with RSD, which was a painful condition that could
not be cured. Dr. Henry indicated that appellant’s pain fluctuated in intensity and was worse
during the cold weather months and could range from mild to extremely severe and disabling, and
that attempts to use her hand and fingers caused increased pain such that she could not move her
left upper extremity without assistance. She advised that, due to her chronic pain, appellant also
suffered from moderate anxiety and depression, and appellant’s ability to work was very limited,
especially during the fall and winter. Dr. Henry opined that appellant would never fully recover
from her injuries and was unable to perform her previous job duties and could not work a typical
full-time schedule of 40 hours weekly.8
At the March 22, 2019 hearing, counsel asserted that Dr. Prudent’s opinion was illogical
because he provided no basis for his conclusion. He argued that appellant’s left hand injury
remained symptomatic after 15 years and that Dr. Henry’s opinion supported that appellant’s
condition remained employment related. Appellant testified that she still had severe left hand and
finger pain.
By decision dated June 6, 2019, an OWCP hearing representative affirmed the October 30,
2018 decision. She found that it was illogical to conclude that appellant’s current reported
symptoms of depression and anxiety were employment related because Dr. Henry advised that

8
In the interim, on December 11, 2018, OWCP issued a preliminary determination that an overpayment of
compensation in the amount of $2,853.35 had been created because appellant continued to receive wage-loss
compensation after the October 30, 2018 termination. Appellant did not respond to the preliminary determination,
and by decision dated January 14, 2019, OWCP finalized the overpayment. She did not file an appeal with the Board
from the January 14, 2019 final overpayment decision.

4

appellant’s emotional condition was due to RSD, however, OWCP and the Board had found that
appellant’s RSD condition had resolved.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits.9 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.10 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.11
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.12 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.13
ANALYSIS -- ISSUE 1
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective October 30, 2018, as she no longer had residuals or
disability due to her accepted employment injury.
The Board finds that OWCP properly accorded the weight of the medical opinion evidence
to Dr. Prudent. In his August 22, 2018 report, Dr. Prudent described appellant’s November 13,
2003 employment injury, noted her extensive medical history and that her accepted orthopedic
conditions and RSD had resolved. He noted that it was difficult to understand how she continued
to have psychiatric diagnoses resulting from a hand injury that occurred 15 years prior. Dr. Prudent
indicated that appellant’s symptoms outweighed her objective findings. He explained that, if her
anxiety and depression were so significant and precluded her from working, one would assume
she would be more actively engaged in psychiatric and psychological treatment. Dr. Prudent
concluded that appellant’s continued anxiety and depression were not the result of the employment
injury and advised that she could perform her usual job strictly from a psychiatric prospective.
Dr. Prudent based his opinion on a proper factual and medical history and physical
examination findings. He provided medical rationale for his opinion that appellant did not have a
current residual emotional condition related to the employment injury.14 Moreover, appellant did
not respond to the notice of proposed termination, and there is no other medical evidence
9

D.B., Docket No. 19-0663 (issued August 27, 2020); S.F., 59 ECAB 642 (2008).

10

V.S., Docket No. 19-1792 (issued August 4, 2020); I.J., 59 ECAB 408 (2008).

11

A.C., Docket No. 19-1522 (issued July 27, 2020); T.P., 58 ECAB 524 (2007).

12

D.B., supra note 9; Kathryn E. Demarsh, 56 ECAB 677 (2005).

13

A.J., Docket No 18-1230 (issued June 8, 2020); T.P., supra note 11.

14

T.C., Docket No. 19-1383 (issued March 2 2020); see N.G., Docket No. 18-1340 (issued March 6, 2019);
A.F., Docket No. 16-0393 (issued June 24, 2016).

5

contemporaneous with the termination on October 30, 2018. The last medical evidence submitted
by her was an August 20, 2012 report from Dr. Klich who described pain management
psychotherapy, and two treatment notes dated August 22 and September 5, 2012 in which
Ms. Seymour indicated that appellant had attended group therapy sessions.15
The Board therefore finds that Dr. Prudent’s opinion was the only medical evidence of
record contemporaneous with the termination. Accordingly, OWCP properly relied on his wellrationalized September 22, 2018 second opinion report in terminating appellant’s wage-loss
compensation and medical benefits, effective October 30, 2018.16
LEGAL PRECEDENT -- ISSUE 2
As OWCP properly terminated appellant’s wage-loss compensation and medical benefits,
the burden of proof shifts to her to establish continuing disability or residuals, after that date,
causally related to her accepted injury.17 To establish a causal relationship between the condition
as well as any attendant disability claimed and the employment injury, an employee must submit
rationalized medical evidence based on a complete medical and factual background, supporting
such a causal relationship.18 Causal relationship is a medical issue and the medical evidence
required to establish a causal relationship is rationalized medical evidence.
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish continuing
employment-related disability or residuals, on or after October 30, 2018, due to the accepted
employment injury.
Following the termination of her wage-loss compensation and medical benefits, appellant
submitted a February 25, 2019 report in which Dr. Henry noted that appellant was diagnosed with
RSD, which was a painful condition that could not be cured. Dr. Henry advised that, due to
appellant’s chronic pain, appellant also suffered from moderate anxiety and depression, that she
would never fully recover from her injuries, and that she was unable to perform her previous job
duties and could not work 40 hours weekly. While she concluded that appellant could not return
to her prior employment position or work for a 40-hour workweek, appellant did not provide
rationale to explain why her continuing disability was causally related to her accepted conditions.
The Board has held that a mere conclusion without the necessary rationale as to whether a period
of disability is due to an accepted employment condition is insufficient to meet a claimant’s burden

15

See L.B., Docket No. 19-1380 (issued February 11, 2020).

16

T.C., supra note 14; see also L.B., id.

17

C.C., Docket No. 19-1062 (issued February 6, 2020).

18

T.C., supra note 14.

6

of proof.19 Dr. Henry’s report is therefore of diminished probative value and insufficient to meet
appellant’s burden of proof to establish continuing disability.20
Appellant has not submitted sufficiently rationalized medical evidence establishing
employment-related disabilities or residuals on or after September 17, 2017 due to an accepted
condition. As such, the Board finds that she has not met her burden of proof.21
On appeal counsel argues that OWCP’s decision was contrary to fact and law. As
explained above, however, the medical evidence of record established that OWCP properly
terminated appellant’s wage-loss compensation and medical benefits for her anxiety and
depression conditions on October 30, 2018. Furthermore, the record does not contain a
rationalized medical opinion establishing continuing residuals or disability on or after that date.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits for her anxiety and depression conditions on October 30, 2018.
The Board further finds that appellant has not met her burden of proof to establish continuing
residuals or disability, on or after October 30, 2018, causally related to her accepted November 13,
2003 employment injury.

19

A.T., Docket No. 19-0410 (issued August 13, 2019); E.L., Docket No. 17-1632 (issued January 3, 2018).

20

L.S., Docket No. 19-0959 (issued September 24, 2019).

21

T.C., supra note 14.

7

ORDER
IT IS HEREBY ORDERED THAT the June 6, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 19, 2020
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
)
)
)
and
)
)
DEPARTMENT OF AGRICULTURE, FSIS
)
INSPECTION OPERATIONS PROGRAM,
)
Fort Morgan, CO, Employer
)
___________________________________________ )
J.B., Appellant

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

Docket No. 08-2100
Issued: May 1, 2009

Case Submitted on the Record

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

JURISDICTION
On July 25, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated April 23, 2008, which found that he did not sustain an
injury, as alleged. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained a
traumatic injury on February 25, 2008.
FACTUAL HISTORY
On February 25, 2008 appellant, then a 34-year-old slaughter food inspector, filed a
traumatic injury claim alleging that, on that date, while “opening hearts,” he cut his right hand
and right index finger. He stopped work on February 25, 2008.

The Office received a March 6, 2008 disability certificate from David Keller, a
physician’s assistant, who advised that appellant could return to work. Mr. Keller indicated that
appellant should utilize a finger splint.
In a letter dated March 18, 2008, the Office advised appellant that his claim was
originally received as a simple uncontroverted case, which resulted in minimal or no time lost
from work. It requested additional medical evidence. Appellant was requested to provide a
report from his physician, which included a history of injury and a detailed description of any
findings, the results of all x-rays and laboratory tests, a diagnosis and course of treatment and an
opinion on the relationship of the diagnosed condition to the claimed injury. The Office
explained that the physician’s opinion was crucial to his claim and allotted appellant 30 days
within which to submit the requested information. No additional evidence was received within
30 days.
By decision dated April 23, 2008, the Office denied appellant’s claim on the grounds that
he did not establish an injury as alleged. It determined that the claimed event occurred; however,
there was no medical evidence that provided a diagnosis which could be connected to the event.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act2 and that an injury was
sustained in the performance of duty.3 These are the essential elements of each compensation
claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational
disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.6
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989).

3

James E. Chadden, Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyet, 41 ECAB 992 (1990).

5

John J. Carlone, 41 ECAB 354 (1989).

6

Id.

2

specific employment incident or to specific conditions of employment.7 Causal relationship is a
medical issue and the medical evidence generally required to establish causal relationship is
rationalized medical opinion evidence. Rationalized medical opinion evidence is medical
evidence that includes a physician’s rationalized opinion on whether there is a causal relationship
between the claimant’s diagnosed condition and the established incident or factor of
employment. The opinion must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
established incident or factor of employment.8
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish a causal relationship.9
Office procedures provide that a case may be accepted without a medical report when the
condition reported is a minor one which can be identified on visual inspection by a lay person;
the injury was witnessed or reported promptly, and no dispute exists as to the fact of injury; and
no time was lost from work due to disability.10
ANALYSIS
Appellant alleged that he sustained an injury to his right hand and right index finger
while “opening hearts” in the performance of duty on February 25, 2008. There is no dispute
that appellant cut his right hand and right index finger while performing his duties as a food
inspector. The Board finds that the claimed incident occurred as alleged.
However, appellant has not submitted any medical evidence to establish that the
February 25, 2008 employment incident caused or aggravated a specific diagnosed medical
condition to his right hand or index finger. On March 18, 2008 the Office advised him of the
medical evidence needed to establish his claim and allowed him 30 days to submit such
evidence.
Appellant submitted a March 6, 2008 disability certificate from a physician’s assistant,
who indicated that appellant could return to work and should utilize a finger splint. However,
section 8101(2) of the Act11 provides that the term “physician” includes surgeons, podiatrists,
dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within
7

Katherine J. Friday, 47 ECAB 591, 594 (1996).

8

John W. Montoya, 54 ECAB 306 (2003).

9

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (July 2000).

11

See 5 U.S.C. § 8101(2). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held
that a medical opinion, in general, can only be given by a qualified physician).

3

the scope of their practice as defined by the applicable state law. As a physician’s assistant is not
a physician as defined under the Act, this report is not considered medical evidence.
Appellant did not submit any other medical evidence prior to the Office’s April 23, 2008
decision.12 Therefore, he has failed to establish a prima facie claim for compensation.13
Appellant did not meet his burden of proof in establishing that he sustained an injury in the
performance of duty causally related to his federal employment.
Office procedures provide that a case may be accepted without a medical report when the
condition reported is a minor one which can be identified on visual inspection by a lay person;
the injury was witnessed or reported promptly, and no dispute exists as to the fact of injury; and
no time was lost from work due to disability.14 In this case, there appears to be time lost from
work following the February 25, 2008 incident, as the employing establishment indicated that
appellant stopped work on February 25, 2008 and the physician’s assistant advised that he could
return to work on March 6, 2008. The Board finds that a medical report is required under the
circumstances of this case.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained a traumatic injury on February 25, 2008.

12

The record on appeal contains evidence received after the Office issued the April 23, 2008 decision. The Board
may not consider evidence that was not before the Office at the time it rendered its final decision. 20 C.F.R.
§ 501.2(c). Appellant may submit such evidence to the Office with a request for reconsideration.
13

See Donald W. Wenzel, 56 ECAB 390 (2005).

14

See supra note 10.

4

ORDER
IT IS HEREBY ORDERED THAT the April 23, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 1, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5