United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
DEPARTMENT OF DEFENSE, STEVENS
ELEMENTARY SCHOOL, Fort Benning, GA,
Employer
__________________________________________

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

Docket No. 12-295
Issued: June 11, 2012

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 November 28, 2011 appellant, through her attorney, filed a timely appeal from the
October 18, 2011 decision of the Office of Workers’ Compensation Programs (OWCP) denying
her claim for a schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained permanent impairment to a
scheduled member due to her accepted back conditions.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated November 1, 2010,
the Board affirmed OWCP’s October 29, 2009 decision terminating appellant’s compensation
1

5 U.S.C. § 8101 et seq.

benefits on the grounds that she was no longer disabled due to her accepted injury. The facts and
law contained in that decision are incorporated herein by reference.2 Relevant facts are detailed
below.
OWCP accepted appellant’s November 12, 2003 traumatic injury claim for lumbar
subluxation, sacroiliitis and lumbar disc disorder without myelopathy. Appellant underwent
approved lumbar surgery in 2006. On October 29, 2009 OWCP terminated her compensation
benefits based upon the March 14, 2008 referee report of Dr. Graham Howarth, a Board-certified
orthopedic surgeon, who opined that she was no longer disabled due to her accepted conditions.
On February 25, 2011 appellant submitted a schedule award claim. By letter dated
March 4, 2009, OWCP informed her that she should provide a physician’s rating of impairment
to the lower extremities, in accordance with the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).3
Appellant did not submit any additional medical evidence within the 30-day period.
By decision dated April 14, 2011, OWCP denied appellant’s claim for a schedule award,
finding that she had not provided the requested medical evidence.
On April 20, 2011 appellant, through her attorney, requested a telephonic hearing. In a
June 30, 2011 report, Dr. Gary Dawson, a Board-certified physiatrist, found decreased cervical
range of motion and limited active lumbar range of motion. Pain was elicited with back
extension and tenderness with palpation. Dr. Dawson opined that appellant would experience
pain indefinitely and was totally disabled from working in any capacity.
The record contains a July 7, 2011 magnetic resonance imaging (MRI) scan of the lumbar
spine. The report revealed degenerative end-plate marrow changes anteriorly from T9 to S1 and
throughout the end-plates at L4-5 and L5-S1; disc bulges at T9 to T12-Ll; degenerative facet
disease bilaterally at T12-L1; and a mild broad-based disc bulge at L1 -2. At L2-3 there was a
mild broad-based disc bulge; degenerative facet disease bilaterally; and mild-to-moderate
effacement of the thecal sac with mild-to-moderate central canal stenosis. At L3-4 there was a
mild broad-based disc protrusion extending to the foramina asymmetrically more prominent
within the left foramen; degenerative facet disease; and mild central canal stenosis. At L4-5 the
report reflected approximately 0.8 cm. anterior spondylolisthesis; right foraminal stenosis; right
foraminal osteophytes; and intervertebral graft. At L5-S1, there was approximately 0.1 to 0.2
cm. anterior spondylolisthesis of L5 on L1; a mild disc bulge; and small foraminal osteophytes
bilaterally. The report contained an impression of right foraminal stenosis at L4-5; mild-tomoderate central canal stenosis at L2-3; and additional multilevel findings as noted.
At the August 9, 2011 hearing, counsel contended that the medical evidence, which
included a July 5, 2011 report from Dr. Dawson, was sufficient to establish that appellant
sustained a permanent impairment of her left lower extremity. OWCP’s hearing representative

2

Docket No. 10-513 (issued November 1, 2010).

3

A.M.A., Guides (6th ed. 2009).

2

informed counsel that the record did not contain a copy of Dr. Dawson’s July 5, 2011 report and
left the record open for 30 days for submission.
Appellant submitted the July 5, 2011 report from Dr. Dawson, who stated that she
reached maximum medical improvement on June 29, 2011. On examination, extension was 0
degrees, active flexion was 40 degrees and rotation was 5 degrees. There was some muscle
atrophy of the paraspinal muscles. Appellant had a positive left straight leg maneuver and
sensory deficits in the left L5 dermatome. Dr. Dawson stated that she had constant lumbar and
left radicular pain. There was stiffness, leg weakness and pain with standing, sitting, walking
and lifting. He opined that appellant had a 50 percent left lower extremity impairment and a 25
percent whole body impairment.
By decision dated October 18, 2011, OWCP’s hearing representative found the medical
evidence insufficient to establish a compensable permanent impairment and affirmed the
April 14, 2011 decision.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing federal regulations5 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.6 For decisions from
February 1, 2001 through April 30, 2009, the fifth edition of the A.M.A., Guides was used to
calculate schedule awards.7 For decisions issued after May 1, 2009, the sixth edition will be
used.8
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.9 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, a
claimant may be entitled to a schedule award for permanent impairment to an extremity even
though the cause of the impairment originates in the spine.10 In determining the amount of the
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

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

8

FECA Bulletin No. 09-03 (issued March 15, 2009); see also id. at Chapter 3.700, Exhibit 1 (January 2010).

9

Pamela J. Darling, 49 ECAB 286 (1998).

10

Thomas J. Engelhart, 50 ECAB 319 (1999).

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schedule award for a member of the body that sustained an employment-related impairment,
preexisting impairments are to be included in the evaluation of permanent impairment.11 FECA
does not authorize schedule awards for permanent impairment of the whole person.12
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the district medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.13
ANALYSIS
The Board finds this case is not in posture for decision. Dr. Dawson’s July 5, 2011 report
included an impairment rating for appellant’s left lower extremity, as well as a whole person
impairment. As noted, a schedule award is not payable under FECA for injury to the spine,14 and
FECA does not authorize schedule awards for permanent impairment of the whole person.15
Dr. Dawson provided physical examination findings including positive left straight leg maneuver
and sensory deficits in the left L5 dermatome. He noted that appellant had constant lumbar and
left radicular pain, as well as stiffness, leg weakness and pain with standing, sitting, walking and
lifting. A claimant may be entitled to a schedule award for permanent impairment to an
extremity even though the cause of the impairment originated in the spine.16
In this case, OWCP’s hearing representative found that the record did not support
permanent impairment. OWCP procedures provide that, after obtaining all necessary medical
evidence, the file should be routed to the district medical adviser for an opinion concerning the
nature and percentage of any impairment in accordance with the A.M.A., Guides.17 In this case,
none of the medical evidence was forwarded to the district medical adviser for review. For these
reasons, the October 18, 2011 decision will be set aside and the case remanded to OWCP for
review of the medical record by the district medical adviser. Following such development as
OWCP deems necessary, it shall issue an appropriate merit decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

11

B.P., Docket No. 08-1457 (issued February 2, 2009).

12

D.J., 59 ECAB 620 (2008).

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
14

Supra note 9.

15

Supra note 12.

16

Supra note 10.

17

Supra note 13.

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ORDER
IT IS HEREBY ORDERED THAT the October 18, 2011 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded to OWCP for proceedings
consistent with this decision of the Board.
Issued: June 11, 2012
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

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United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
Z.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kingwood, TX, Employer
__________________________________________

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

Docket No. 19-0253
Issued: May 15, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 29, 2018 appellant filed a timely appeal from a May 11, 2018 merit decision
and an August 21, 2018 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over these decisions.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish disability
from work for the period January 20 through February 2, 2018 causally related to her accepted
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the August 21, 2018 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.

May 21, 2014 employment injury; and (2) whether OWCP properly denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 22, 2015 appellant, then a 43-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 21, 2014 she injured her neck when she was sorting mail,
packages, and letters while in the performance of duty. She stopped work on May 21, 2014.
OWCP initially accepted appellant’s claim for right brachial neuritis or radiculitis, and it later
expanded the accepted conditions to include cervical disc disorder with radiculopathy
(cervicothoracic region), and strain of the muscles and tendons of the right rotator cuff. On
November 3, 2017 Dr. Barrett S. Brown, a Board-certified orthopedic surgeon, performed OWCPauthorized right shoulder surgery, including arthroscopic biceps tenodesis and rotator cuff repair.
OWCP paid appellant wage-loss compensation on the supplemental rolls from September 19
through November 11, 2017, and on the periodic rolls from November 12, 2017 through
January 23, 2018.
On December 22, 2017 Dr. Brown removed the sutures and staples from the November 3,
2017 surgery and instructed appellant to return to limited activities as tolerated. In a January 4,
2018 report, he medically cleared appellant to return to work light/modified-duty status.
On January 22, 2018 Dr. Charles Reinhardt, an osteopath specializing in pain medicine,
diagnosed cervical spinal disc disease with spasm and several right shoulder conditions, including
multiple tendon strains/tears and acromioclavicular joint. He opined that appellant would remain
off work due to her right shoulder condition with poor range of motion. In a duty status report
(Form CA-17) dated January 22, 2018, Dr. Reinhardt opined that she was totally disabled. In a
work status report dated January 22, 2018, he noted that appellant should remain off work until
February 12, 2018.
On January 23, 2018 the employing establishment offered appellant full-time work (eight
hours per day, five days per week) as a modified rural carrier effective January 23, 2018 subject
to restrictions from Dr. Brown. Appellant accepted the position and returned to work on
January 24, 2018 without wage loss.
Dr. Brown treated appellant on February 5, 2018 and, in a report of the same date, he
instructed her to remain out of work. In a work status report dated February 5, 2018, he noted that
her medical condition prevented her from returning to work.3
On February 12, 2018 appellant filed a claim for compensation (Form CA-7) requesting
wage-loss compensation for leave without pay (LWOP) due to disability from January 20 through
February 2, 2018. She requested eight hours of LWOP on January 22 and 23, 2018 and noted
“OWCP paid.” On an accompanying time analysis form (Form CA-7a) completed on February 12,
2018, appellant reported working eight hours a day from January 24 through February 2, 2018.
She noted LWOP for 1.2 hours on January 24 through 27, and February 1, 2018 (adding the
3
Appellant submitted a January 19, 2018 arthrogram of the right upper extremity which contained an impression
of no deep vein thrombosis within the deep venous structures.

2

notation “difference reg. rt. paid”), and 2 hours of LWOP on January 29, 31, and February 2, 2018
(adding the notation “aquatic therapy”). On the same Form CA-7a, an employing establishment
official noted on February 14, 2018 that appellant was working eight hours a day and that her claim
of lost time from work could not be verified.4
In a report dated February 12, 2018, Dr. Reinhardt opined that appellant was unable to
perform her regular work and would remain off work due to her right shoulder condition. In a
February 12, 2018 Form CA-17 report, he noted that she was totally disabled. In a work status
report of the same date, Dr. Reinhardt indicated that appellant could not work from February 12
to March 12, 2018.
In a February 27, 2018 development letter, OWCP notified appellant that the evidence
submitted was insufficient to establish that she was entitled to wage-loss compensation for the
period January 20 through February 2, 2018. It advised her that the employing establishment
indicated that she had been working eight hours per day. OWCP requested that appellant submit
medical evidence supporting disability from work during the claimed period. It afforded her 30
days to submit the requested evidence.
Appellant submitted a March 5, 2018 magnetic resonance imaging (MRI) scan of the right
shoulder and a March 8, 2018 narrative report in which Dr. Brown diagnosed right adhesive
capsulitis and sprain of the right rotator cuff capsule. In work status reports dated March 8 and
April 5, 2018, Dr. Brown indicated that she was “off work.” In Form CA-17 reports dated
March 12 and April 9, 2018, Dr. Reinhardt advised that appellant was totally disabled.
By decision dated April 23, 2018, OWCP denied appellant’s claim for wage-loss
compensation for the period February 5 through 16, 2018 and for intermittent periods between
March 5 and April 13, 2018.5
On May 3, 2018 appellant requested reconsideration of the April 23, 2018 decision. She
submitted a May 3, 2018 work excuse report from Dr. Brown who returned her to light-duty work.
In a May 7, 2018 report, Dr. Reinhardt diagnosed status post rotator cuff repair of the right
shoulder and indicated that appellant would remain off work due to her right shoulder condition.
By decision dated May 11, 2018, OWCP denied appellant’s claim for wage-loss
compensation from January 20 through February 2, 2018. It found that she was on the periodic
rolls for total disability through January 23, 2018 and therefore was not entitled to additional wage4

Appellant later submitted several claims for compensation (Form CA-7) requesting wage-loss compensation due
to disability from February 5 through 16, 2018, February 19 through March 2, 2018, March 5 through 16, 2018,
March 19 through March 30, 2018, and April 2 through 13, 2018. These claims are not the subject of the current
appeal.
5

In its April 23, 2018 decision, OWCP characterized appellant as having filed a wage-loss compensation claim for
“March 5, 2018 and continuing” but the specific periods commencing March 5, 2018 for which she claimed
entitlement to wage-loss compensation were March 5 through 16, 2018, March 19 through 30, 2018, and April 2
through 13, 2018. Appellant also filed a disability claim for the period February 19 through March 2, 2018, but the
case record does not contain an OWCP decision addressing this claim. The Board notes that it does not have
jurisdiction over the April 23, 2018 decision as more than 180 days has elapsed from the issuance of the decision to
the filing of the present appeal on October 29, 2018. See 20 C.F.R. §§ 501.2(c) and 501.3.

3

loss compensation for January 20 through 23, 2018. OWCP further indicated that appellant
returned to work on a full-time basis (eight hours per day, five days per week) on January 24, 2018
and continued full-time work through February 2, 2018. Therefore, it found that she did not have
wage loss and was not entitled to wage-loss compensation for this period.
Appellant continued to submit evidence after her request for reconsideration of OWCP’s
April 23, 2018 decision, including a May 3, 2018 narrative report from Dr. Brown who diagnosed
right adhesive capsulitis, sprain of the right rotator cuff capsule, and superior glenoid labrum lesion
of the right shoulder. In work excuse reports dated June 4 and 18, 2018, he noted that appellant
was unable to return to work.
In a May 7, 2018 Form CA-17 report, Dr. Reinhardt diagnosed radiculopathy and returned
appellant to work on a full-time basis with restrictions. In a May 7, 2018 work status report, he
indicated that she could perform light-duty work. In a narrative report and a Form CA-17 report
dated June 4, 2018, Dr. Reinhardt opined that appellant was unable to perform her regular work.
On July 2, 2018 he produced a narrative report and a Form CA-17 report in which he advised that
appellant could not perform any work.
Appellant submitted May 31, June 15, 22, and 29, 2018 reports from her physical
therapists, Eloina Parsons and Steven Sopher.6 An unsigned June 13, 2018 emergency room report
reveals that appellant was treated for right shoulder pain on that date. Appellant was also treated
on July 26, 2018 by Dr. Ryan M. Stuckey, a Board-certified orthopedic surgeon, who diagnosed
cervical spondylosis and symptoms of cervical radicular syndrome.
Appellant also submitted evidence which was previously of record, including a report from
Dr. Reinhardt dated July 10, 2017, reports from Dr. Brown dated October 19 and November 3,
2017, and February 5, 2018, two MRI scans dated September 18, 2017 (right shoulder and cervical
spine), an arthrogram dated January 19, 2018 (right upper extremity), and an MRI scan dated
March 5, 2018 (right shoulder).
By decision dated August 21, 2018, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.7 For each period of disability
claimed, the employee has the burden of establishing that he or she was disabled for work as a
result of the accepted employment injury.8 Whether a particular injury causes an employee to

6

Appellant also submitted an April 23, 2018 report of an aquatic therapy session and a June 28, 2018 FCE report
produced by physical therapists with illegible signatures.
7

T.A., Docket No. 18-0431 (issued November 7, 2018).

8

D.R., Docket No. 18-0232 (issued October 2, 2018).

4

become disabled for work, and the duration of that disability, are medical issues that must be
proved by a preponderance of probative and reliable medical opinion evidence.9
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.10 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn wages.
An employee who has a physical impairment causally related to his or her federal employment,
but who nonetheless has the capacity to earn the wages that he or she was receiving at the time of
injury, has no disability and is not entitled to compensation for loss of wage-earning capacity.11
When, however, the medical evidence establishes that the residuals or sequelae of an employment
injury are such that, from a medical standpoint, they prevent the employee from continuing in his
or her employment, he or she is entitled to compensation for any loss of wages.12
OWCP’s procedures provide that wages lost for compensable medical examination or
treatment may be reimbursed. A claimant may be paid compensation for wage loss while obtaining
medical services and for a reasonable time spent traveling to and from the medical provider’s
location. OWCP’s procedures further provide that wage loss is payable only if the examination,
testing, or treatment is provided on a day which is a scheduled workday and during a scheduled
tour of duty. Wage-loss compensation for medical treatment received during off-duty hours is not
reimbursable.13
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period January 20 through February 2, 2018 causally related to her accepted May 21,
2014 employment injury.
The case record reveals that OWCP paid appellant wage-loss compensation for total
disability on the supplemental rolls from September 19 through November 11, 2017, and on the
periodic rolls from November 12, 2017 through January 23, 2018. As appellant received wageloss compensation for total disability during this period, she would not be entitled to any additional
wage-loss compensation for the dates falling within this period for which she claimed disability in
connection with the present claim, i.e., January 20 through 23, 2018.14
On January 23, 2018 the employing establishment offered appellant a full-time modified
position (eight hours per day, five days per week) and she returned to work in this position on
9

Id.

10

See B.K., Docket No. 18-0386 (issued September 14, 2018); 20 C.F.R. § 10.5(f).

11

See B.A., Docket No. 17-1471 (issued July 27, 2018).

12

See D.R., supra note 8.

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter 2.901.19a
(February 2013). See also E.W., Docket No. 17-1988 (issued January 28, 2019).
14

See supra note 10.

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January 24, 2018 without wage loss. She requested 1.20 hours of leave for each day from
January 24 through 27, 2018, and for February 1, 2018. However, appellant worked on a full-time
basis and was paid for eight hours of work for each of these days. She was therefore not entitled
to wage-loss compensation for the claimed disability from work for these days.15 Additionally,
appellant requested two hours of leave for each of the days January 28 and 31, and February 2,
2018 in order to attend aquatic therapy. The record reveals that appellant worked on a full-time
basis and was paid for eight hours of work for each of these days. As noted above, wage loss is
payable only if the examination, testing, or treatment is provided on a day which is a scheduled
workday and during a scheduled tour of duty. The case record reflects that appellant participated
in aquatic therapy on two of the days she claimed wage-loss compensation for such participation,
January 31 and February 2, 2018. However, as noted, appellant was paid for eight hours of work
on each of these days and would not be entitled to additional wage-loss compensation. In three
January 22, 2018 reports, Dr. Reinhardt indicated that appellant was totally disabled. The Board
notes, however, that appellant was fully compensated, either through wage-loss compensation or
pay, during the entire claimed period of disability, i.e., January 20 through February 2, 2018.
Wage-loss compensation for medical treatment received during off-duty hours is not
reimbursable.16 Therefore, appellant would not be entitled to wage-loss compensation for the
claimed disability from work for these days.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.17
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.18
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.19 If it chooses to grant reconsideration, it reopens

15

See B.A., supra note 11.

16

See supra note 13.

17

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); V.P., Docket No. 17-1287 (issued
October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
18
20 C.F.R. § 10.606(b)(3); see M.S., Docket No. 18-1041 (issued October 25, 2018); L.G., Docket No. 09-1517
(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
19

20 C.F.R. § 10.607(a). The one-year period begins on the next day after the date of the originally contested
decision. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System. Id. at Chapter 2.1602.4b.

6

and reviews the case on its merits.20 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.21
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record22 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.23
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant filed a timely request for reconsideration of OWCP’s April 23, 2018 decision,24
but she did not establish that OWCP erroneously applied or interpreted a specific point of law, or
advance a relevant legal argument not previously considered by OWCP. Accordingly, the Board
finds that appellant is not entitled to a review of the merits based on either the first or second
requirement under 20 C.F.R. § 10.606(b)(3).
In support of her request for reconsideration, appellant submitted reports from Dr. Brown
dated November 3, 2017,25 May 3, June 4, and 18, 2018, reports from Dr. Reinhardt dated May 7,
June 4, and July 2, 2018, and a report from Dr. Stuckey dated July 26, 2018. These reports
collectively addressed appellant’s medical condition and ability to work in November 2017 and
between May and July 2018. While this medical evidence was new, its submission did not require
reopening appellant’s claim for merit review because it was not relevant to the issue of the
April 23, 2018 decision for which she requested reconsideration, i.e., whether she submitted
sufficient medical evidence to establish work-related disability for the period January 20 through
February 2, 2018. None of the above-noted reports contains an opinion that appellant sustained
disability from work for these periods causally related to the accepted May 21, 2014 employment

20

20 C.F.R. § 10.608(a); see D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., 59 ECAB 231 (2007).

21

Id. at § 10.608(b); see T.V., Docket No. 19-1504 (issued January 23, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).
22

N.L., Docket No. 18-1575 (issued April 3, 2019); Eugene F. Butler, 36 ECAB 393, 398 (1984).

23

M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

24

See J.F., Docket No. 16-1233 (issued November 23, 2016).

Appellant submitted several November 3, 2017 medical reports signed by Dr. Brown. Other than Dr. Brown’s
principle November 3, 2017 report describing the right shoulder surgery he performed on that date, these reports had
not previously been part of the case record.
25

7

injury. As noted above, the Board has held that the submission of evidence or argument which
does not address the particular issue involved does not constitute a basis for reopening a case.26
Appellant also submitted a report from Dr. Reinhardt dated July 10, 2017, reports from
Dr. Brown dated October 19, November 3, 2017, and February 5, 2018, MRI scans dated
September 18, 2017 and March 5, 2018, and an arthrogram dated January 19, 2018. However, this
evidence is duplicative of evidence previously submitted and considered by OWCP. Evidence that
repeats or duplicates evidence already in the case record does not constitute a basis for reopening
a case.27 Therefore, these reports are insufficient to require OWCP to reopen appellant’s claim for
a merit review.28
Therefore, appellant also failed to satisfy the third requirement under 20 C.F.R.
§ 10.606(b)(3). The Board accordingly finds that appellant did not meet any of the requirements
of 20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish entitlement to
wage-loss compensation from January 20 through February 2, 2018 causally related to her
May 21, 2014 employment injury. The Board finds that OWCP properly denied appellant’s
request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

26

See supra note 23. Appellant also submitted new administrative documents from her November 3, 2017 surgery,
but these documents would not be relevant to the medical issue of the April 23, 2018 decision. Id.
27

See supra note 22.

28
Appellant submitted April 17, 19, 20, 23, and June 28, 2018 reports from attending physical therapists with
illegible signatures and May 31, June 15, 22, and 29, 2018 reports signed by her physical therapists, Ms. Parsons and
Mr. Sopher. Appellant’s submission of these reports would not require reopening of her claim for merit review as
they are not relevant to the medical issue of the April 23, 2018 decision because physical therapists are not physicians
as defined under FECA and their reports do not constitute medical evidence. See S.T., Docket No. 17-0913 (issued
June 23, 2017); 5 U.S.C. § 8101(2). Appellant also submitted a June 13, 2018 emergency room report, but it is not
relevant to the medical issue of the April 23, 2018 decision because it is unsigned and does not constitute medical
evidence. See C.B., Docket No. 09-2027 (issued May 12, 2010) (a medical report may not be considered as probative
medical evidence if unsigned and there is no indication it was completed by a physician as defined under FECA).

8

ORDER
IT IS HEREBY ORDERED THAT the August 21 and May 11, 2018 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 15, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY & INSPECTION SERVICE,
Minneapolis, MN, Employer
__________________________________________

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

Docket No. 16-0520
Issued: June 13, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 27, 2016 appellant, through counsel, filed a timely appeal from an
October 28, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a recurrence of
disability on or after November 4, 2014 due to her October 30, 2012 work injury.
FACTUAL HISTORY
On November 1, 2012 appellant, then a 55-year-old consumer safety inspector, filed a
traumatic injury claim (Form CA-1) alleging that on October 30, 2012 she hit her head and
1

5 U.S.C. § 8101 et seq.

injured both knees due to a slip and fall on a wet floor at work. OWCP administratively
accepted her claim without formally adjudicating it.
The findings of October 31, 2012 x-rays of appellant’s knees revealed that she previously
underwent a total knee replacement for her left knee with satisfactory results and had multicompartmental degenerative disease of her right knee.
Appellant returned to regular duty for the employing establishment on
November 3, 2012. She was given work limitations on November 23, 2012, but she was again
released to regular duty on December 3, 2012.
A magnetic resonance imaging (MRI) scan of appellant’s right knee, obtained on
December 13, 2012, showed a complex tear of her right medial meniscus and severe arthritis in
the medial compartment. In a February 14, 2013 report, Dr. Robert Mochizuki, an attending
Board-certified orthopedic surgeon, discussed the severe preexisting osteoarthritis of her right
knee and the symptoms, which necessitated injections of the right knee. He described the
complex tear of appellant’s right medial meniscus shown on the December 13, 2012 MRI scan
and recommended arthroscopic surgery. Dr. Mochizuki continued her on regular duty.
By decision dated March 4, 2013, OWCP accepted appellant’s claim for bilateral
contusions of her knees and fingers.2 Appellant received disability compensation on the daily
rolls beginning March 28, 2013.
Dr. Mochizuki performed right knee surgery on March 29, 2013 including arthroscopic
resection of a torn portion of appellant’s medial meniscus, tricompartmental synovectomy, and
chondroplasty of her medial femoral condyle and patella. The procedures were authorized by
OWCP.
Dr. Mochizuki carried out follow-up examinations after the surgery and opined that
appellant could return to regular duty on May 20, 2013. Appellant returned to regular duty on
May 21, 2013. In a report dated June 27, 2013, Dr. Mochizuki indicated that appellant reported
that she had been taken off work by her primary physician for “mental exhaustion.” He noted
that appellant’s right knee complaints included pain with weight bearing activities, soft tissue
swelling without effusion, and tenderness. Dr. Mochizuki placed her on sedentary duties. In a
report dated September 26, 2013, appellant reported experiencing increased discomfort in her
right knee and being helped up the stairs in her home by her husband. Dr. Mochizuki placed her
on total disability. Appellant’s right knee condition began to improve shortly thereafter and
Dr. Mochizuki returned appellant to her regular work on December 20, 2013.
In a February 18, 2014 report, Dr. Mochizuki reported that appellant was again
complaining of increased right knee discomfort. He recommended a total right knee replacement

2

OWCP later updated the accepted conditions to include old bucket handle tear of the medial meniscus of
appellant’s right knee and joint pain in her right lower leg.

2

and indicated that appellant was to continue her regular work duties.3 On March 27, 2014
Dr. Mochizuki indicated that appellant was reporting that her right knee was swollen, stiff, and
painful at the end of her work shift. He continued to find that she could perform her regular
work. In a May 8, 2014 report, Dr. Mochizuki reported that appellant requested medical
limitations because she had difficulty with climbing and walking activities. He placed her on
limited-duty work effective May 8, 2014.4
On June 24, 2014 Dr. Mochizuki indicated that appellant had stopped working due to a
foreign body in her left foot that caused an infection. On November 4, 2014 he reported that she
was still awaiting approval for the total right knee replacement. Dr. Mochizuki noted that
appellant was now indicating pain in her right hip and increasing discomfort in her right knee.
He added the diagnoses of synovitis of the right hip and foreign body of the left foot and took her
off work.
On November 17, 2014 Dr. Mochizuki indicated that appellant was complaining of
worsening pain in her knee as well as pain in her left lower back. He continued to keep her on
total disability.5
On November 19, 2014 appellant filed a claim for compensation (Form CA-7) requesting
compensation from November 4 to 16, 2014.6
By letter dated December 18, 2014, OWCP advised appellant of the medical evidence
necessary to establish her claim for a work-related recurrence of disability beginning
November 4, 2014. It indicated that her claim had not been accepted for a degenerative knee
condition and that a comprehensive narrative medical report was needed from her physician to
explain the relationship of the claimed disability to her October 30, 2012 work injury.7
In a report dated December 23, 2014, Dr. Mochizuki indicated that appellant injured her
right knee when she fell at work on October 30, 2012. He reported findings on physical
examination noting swelling and tenderness in her right knee. Dr. Mochizuki opined that
appellant injured her right knee, causing a tear of her medial meniscus and progression of the
underlying chondromalacia of her medial femoral condyle and patella. He opined that this injury
changed her weight bearing, concentrating more of her weight on the medial aspect of her right
knee. Because of the eburnated bone on the medial tibial plateau, appellant was experiencing
more discomfort in the knee than she had prior to the right knee injury of October 30, 2012.
Dr. Mochizuki noted, “It is my conclusion that the work injury which caused the meniscal tear
3

Appellant requested authorization for this surgery. The record does not contain a final decision of OWCP
regarding whether the surgery should be authorized and this matter is not currently before the Board. See 20 C.F.R.
§§ 501.2(c) and 501.3(a).
4

It does not appear from the record that appellant incurred wage loss during this period.

5

In a December 2, 2014 report, Dr. Mochizuki continued to keep appellant on total disability.

6

Appellant later submitted Forms CA-7 claiming work-related disability through mid-2015.

7

OWCP noted, “If Dr. Mochizuki believes an aggravation is indicated, then it should be explained if the
aggravation is temporary or permanent.”

3

and chondromalacia of the medial femoral condyle aggravated the underlying osteoarthritis of
[appellant’s] right knee. The work injury of October 30, 2012 aggravated the underlying
osteoarthritis and has made it necessary for [her] to take time off work due to the knee pain.” On
January 8, 2015 he found that appellant continued to be totally disabled.
In a January 26, 2015 decision, OWCP denied appellant’s claim because she had not
submitted medical evidence establishing a recurrence of disability on November 4, 2014 due to
her October 30, 2012 employment injury. It found that Dr. Mochizuki had not adequately
explained how her medical condition from the October 30, 2012 work injury had changed such
that she had work-related disability on or after November 4, 2014. OWCP noted that appellant
already had severe osteoarthritis at the time of the October 30, 2012 injury and indicated that a
work-related aggravation of that condition had not been established by the medical evidence.
On February 5, 2015 Dr. Mochizuki indicated that appellant could resume light-duty
work on February 6, 2015. In April 7, June 9, and August 13, 2015 reports, he reported that she
could continue performing light-duty work.
On July 1, 2015 appellant filed a claim for a schedule award (Form CA-7) due to her
accepted employment injuries.
Appellant requested a hearing with an OWCP hearing representative. During the hearing
held on August 19, 2015 appellant’s counsel argued that Dr. Mochizuki’s reports should have
been sufficient to establish an aggravation of appellant’s underlying condition or to require
further development of the medical evidence. Appellant testified that she had ongoing catching
in her right knee as well as an altered gait.
Appellant submitted a September 25, 2015 report in which Dr. Mochizuki noted swelling
and tenderness in her right knee and recommended continuing light-duty work.
By decision dated October 20, 2015, OWCP denied appellant’s claim for a schedule
award.8
In an October 28, 2015 decision, an OWCP hearing representative denied appellant’s
recurrence of disability claim, noting that she had not submitted sufficient medical evidence
establishing disability on or after November 4, 2014 due to her October 30, 2012 work injury.
She found that Dr. Mochizuki did not provide the necessary medical rationale to support his
opinion that appellant’s underlying degenerative right knee condition was aggravated by the
October 30, 2012 accepted work injury.
LEGAL PRECEDENT
An individual who claims a recurrence of disability due to an accepted employment-related
injury has the burden of establishing by the weight of the substantial, reliable and probative
evidence that the disability for which compensation is claimed is causally related to the accepted

8

Appellant did not appeal this decision to the Board and thus is not currently before the Board.

4

injury.9 This burden includes the necessity of furnishing medical evidence from a physician who,
on the basis of a complete and accurate factual and medical history, concludes that the disabling
condition is causally related to the employment injury and supports that conclusion with sound
medical rationale.10 Where no such rationale is present, medical evidence is of diminished
probative value.11
ANALYSIS
OWCP accepted that on October 30, 2012 appellant sustained bilateral contusions of her
knees and fingers, old bucket handle tear of the medial meniscus of her right knee, and joint pain
in her right lower leg due to a fall at work. Dr. Mochizuki, an attending Board-certified
orthopedic surgeon, performed right knee surgery on March 29, 2013 including arthroscopic
resection of a torn portion of her medial meniscus, tricompartmental synovectomy, and
chondroplasty of her medial femoral condyle and patella. The procedures were authorized by
OWCP.
Appellant stopped work on November 4, 2014 and filed claims alleging that she sustained
a recurrence of disability beginning November 4, 2014 due to the October 30, 2012 work injury.
OWCP denied her claim finding that she had not submitted sufficient medical evidence to
establish her claim.
The Board finds that the medical evidence was insufficient to establish a recurrence of
disability on or after November 4, 2014 due to her October 30, 2012 work injury. Appellant
submitted several medical reports in which Dr. Mochizuki found disability beginning
November 4, 2014, but these reports did not contain a rationalized medical opinion establishing
disability on or after November 4, 2014 due to the October 30, 2012 work injury or other work
factors.
In a report dated December 23, 2014, Dr. Mochizuki posited that appellant’s right knee
injury on October 30, 2012 caused not only a medial meniscus tear but a progression of the
underlying chondromalacia of her medial femoral condyle and patella. He noted, “It is my
conclusion that the work injury which caused the meniscal tear and chondromalacia of the
medial femoral condyle aggravated the underlying osteoarthritis of [appellant’s] right knee. The
work injury of October 30, 2012 aggravated the underlying osteoarthritis and has made it
necessary for [appellant] to take time off work due to the knee pain.”
Dr. Mochizuki did not provide adequate medical rationale in support of his opinion on
causal relationship. The Board has held that a medical report is of limited probative value on the

9

Charles H. Tomaszewski, 39 ECAB 461, 467 (1988); Dominic M. DeScala, 37 ECAB 369, 372 (1986). Under 20
C.F.R. § 10.5(x), a recurrence of disability is defined, in part, as “an inability to work after an employee has returned
to work, caused by a spontaneous change in a medical condition which had resulted from a previous injury or illness
without an intervening injury or new exposure to the work environment that caused the illness.”
10

L.F., Docket No. 15-1069 (issued August 12, 2015); Mary S. Brock, 40 ECAB 461, 471-72 (1989).

11

Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

5

issue of causal relationship if it contains a conclusion unsupported by medical rationale.12
Dr. Mochizuki only briefly described the October 30, 2012 work injury. He did not explain the
medical process through which it could have been competent to cause aggravation of the
underlying severe degenerative condition or to establish that appellant had work-related disability
on or after November 4, 2014 due to the accepted conditions. Dr. Mochizuki did not review
medical records regarding her right knee condition prior to October 30, 2012 to determine what
aspect of her underlying condition changed due to the October 30, 2012 injury. He opined that
this injury changed appellant’s weight bearing, concentrating more of her weight on the medial
aspect of her right knee, but he did not provide any explanation for this opinion. Dr. Mochizuki
indicated that, because of the eburnated bone on the medial tibial plateau, she was experiencing
more discomfort in the knee than she had prior to the right knee injury of October 30, 2012. The
Board has held that the fact that a condition manifests itself or worsens during a period of
employment does not raise an inference of causal relationship between a claimed condition and
employment factors.13 Dr. Mochizuki did not adequately consider whether appellant’s continuing
complaints were due to the natural progression of her underlying nonwork-related right knee
condition or to the nonwork-related left foot condition (foreign body with infection) were the
cause of disability on November 4, 2014. He produced other reports recommending total
disability after November 4, 2014, but none of these reports contains an opinion on the need for
such work stoppage.14
For these reasons, appellant did not establish a recurrence of disability on or after
November 4, 2014 due to her October 30, 2012 work injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a recurrence
of disability on or after November 4, 2014 due to her October 30, 2012 work injury.

12

C.M., Docket No. 14-88 (issued April 18, 2014).

13

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

14

There is no medical evidence showing that appellant had disability on or after November 4, 2014 due to the
accepted contusion, medial meniscus tear, or joint pain conditions.

6

ORDER
IT IS HEREBY ORDERED THAT the October 28, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 13, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.L., Appellant
and
DEPARTMENT OF THE AIR FORCE,
RANDOLPH AIR FORCE BASE, TX, Employer
__________________________________________

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

Docket No. 17-0666
Issued: March 5, 2018

Case Submitted on the Record

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

JURISDICTION
On February 2, 2017 appellant filed a timely appeal from an October 5, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than 10 percent permanent impairment of his
right upper extremity, for which he previously received a schedule award.
FACTUAL HISTORY
OWCP accepted that on October 25, 2012 appellant, then a 36-year-old firefighter,
sustained a right shoulder sprain and right shoulder superior labrum anterior and posterior

1

5 U.S.C. § 8101 et seq.

(SLAP) tears when the hydrant marker he was placing got hung up on the handle and pulled the
marker out of his hand in a jerking fashion. He stopped work on October 26, 2012.
On March 20, 2013 appellant returned to full-time limited-duty employment.
On April 1, 2013 appellant underwent authorized right shoulder surgery and stopped
work. OWCP paid him disability compensation on the periodic rolls from April 7 through
September 10, 2013. On September 11, 2013 appellant returned to full-duty employment.
Appellant underwent a second authorized right shoulder surgery on September 23, 2014
and stopped work again. OWCP paid him disability compensation and placed him on the
periodic rolls, effective September 24, 2014. On February 25, 2015 appellant returned to fulltime light duty.
On December 11, 2015 appellant filed a claim for a schedule award (Form CA-7). He
submitted a September 23, 2015 report by Dr. Daniel M. Veltri, a Board-certified orthopedic
surgeon, who examined appellant for a work-related right shoulder injury. Dr. Veltri reviewed
the medical treatment that appellant had received. He related appellant’s complaints of only
mild pain with extremes of range of motion (ROM) and swelling. Upon examination of both of
appellant’s shoulders, Dr. Veltri reported negative Neer and Hawkins impingement tests, Speed
test, belly-press test, lift-off test, Rowe apprehension test, and Jobe relocation test. ROM
examination of the right shoulder showed forward flexion to 140 degrees, extension to
40 degrees, abduction to 140 degrees, adduction to 30 degrees, external rotation to 70 degrees,
and internal rotation to 40 degrees. Dr. Veltri noted that appellant, on that day, had reached
maximum medical improvement (MMI). He opined that, based on Table 15.34, on page 475 of
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides)2 appellant had 12 percent permanent impairment of his right upper
extremity due to his ROM deficits. Dr. Veltri advised that appellant could return to regular duty
work.
In a June 9, 2016 report, Dr. David Garelick, a Board-certified orthopedic surgeon and
OWCP medical adviser, indicated that he reviewed the statement of accepted facts and
Dr. Veltri’s September 23, 2015 report. He noted that appellant underwent two right shoulder
surgeries and complained of mild pain at the extremes of motion. Dr. Garelick related that
physical examination of appellant’s shoulders showed minimally diminished rotator cuff strength
and minimally diminished right shoulder ROM. He reported that the rest of the examination was
unremarkable. Dr. Garelick opined: “Given the [appellant’s] excellent result, I would suggest
he be awarded 10 percent right upper extremity permanent impairment for a distal clavicle
resection according to Table 15-5, page 403, of the A.M.A., Guides.” He explained that there
would be no change to the award based on the net adjustment formula. Dr. Garelick reported a
MMI date of September 23, 2015 based on Dr. Veltri’s recommendation.
Dr. Veltri indicated in a July 25, 2016 report that he disagreed with Dr. Garelick’s June 9,
2016 impairment rating. He explained that, according to the A.M.A., Guides, appellant could be
rated either for his surgical procedure, as Dr. Garelick provided, or based on ROM
2

A.M.A., Guides (6th ed. 2009).

2

measurements. Dr. Veltri related that he chose ROM based on the actual objective
measurements that he performed on September 23, 2015. He reiterated that according to the
A.M.A., Guides, Table 15-34, page 475, appellant had 12 percent permanent impairment of the
right upper extremity. Dr. Veltri noted that his opinion remained unchanged as he obtained
accurate measurements as opposed to chart review. He indicated that there was a theoretical
10 percent right upper extremity permanent impairment that could be provided by appellant’s
surgical procedure. Dr. Veltri explained, however, that he believed that his ROM ratings were a
more accurate representation of appellant’s level of function.
On September 26, 2016 OWCP requested clarification from Dr. Garelick to explain his
reasoning for using postsurgical diagnostic results as opposed to ROM measurements for
classification purposes. In a September 26, 2016 report, Dr. Garelick noted that he reviewed
Dr. Veltri’s July 25, 2016 impairment rating report and disagreed with an impairment rating
based on ROM. He noted that column 1 on page 387 of the A.M.A., Guides provided: “ROM is
used primarily as a physical examination adjustment factor and only to determine actual
impairment values in the rare case when it is not possible to otherwise define impairment.”
Dr. Garelick related that given the fact that there was a diagnosis-based impairment (DBI)
method for rating appellant’s condition (the distal clavicle resection), then the DBI method was
the appropriate manner in which to award permanent impairment in this particular case. He
opined that there should be no change to his previous permanent impairment rating of 10 percent
right upper extremity impairment.
By decision dated October 5, 2016, OWCP granted appellant a schedule award for 10
percent permanent impairment of his right upper extremity. The award ran from September 23,
2015 to April 28, 2016.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement FECA program with the director of OWCP.3 Section 8107 of
FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use
of specified members, functions, and organs of the body.4 FECA, however, does not specify the
manner by which the percentage loss of a member, function, or organ shall be determined. To
ensure consistent results and equal justice under the law, good administrative practice requires
the use of uniform standards applicable to all claimants. Through its implementing regulations,
OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.5
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A., Guides issued a 52-page document entitled “Clarifications and
3

See 20 C.F.R. §§ 1.1-1.4.

4

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
5

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

3

5 U.S.C.

Corrections, [s]ixth [e]dition, [A.M.A.,] Guides to the Evaluation of Permanent Impairment.”
The document included various changes to the original text, intended to serve as an
erratum/supplement to the first printing of the A.M.A., Guides. In April 2009, these changes
were formally incorporated into the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).6 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.7
ANALYSIS
The issue on appeal is whether appellant has more than 10 percent permanent impairment
of his right upper extremity, for which he previously received a schedule award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.8
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.9 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.10
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the October 5, 2016 decision. Utilizing a
consistent method for calculating permanent impairment for upper extremities applied

6

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); id. at Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.5a
(February 2013).
7

Isidoro Rivera, 12 ECAB 348 (1961).

8

T.H., Docket No. 14-0943 (issued November 25, 2016).

9

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

10

Supra note 8.

4

uniformly,11 and after such other development as may be deemed necessary, OWCP shall issue a
de novo decision on appellant’s claim for an upper extremity schedule award.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 5, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision
Issued: March 5, 2018
Washington, DC

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

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

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

11

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.A., Appellant
and
DEPARTMENT OF THE AIR FORCE,
MAUI SPACE SURVEILLANCE CENTER,
Haleakala, HI, Employer
__________________________________________

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

Docket No. 12-368
Issued: June 22, 2012

Case Submitted on the Record

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

JURISDICTION
On December 13, 2011 appellant, through his representative, filed a timely appeal from
the September 9, 2011 merit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied reimbursement of travel expenses.
FACTUAL HISTORY
On October 13, 2010 appellant, a 43-year-old police officer, sustained a traumatic injury
in the performance of duty when he struck his left shoulder on the latch mechanism for a hatch.
OWCP accepted his claim for sprain of the shoulder and upper arm acromioclavicular and for an
1

5 U.S.C. § 8101 et seq.

unspecified disorder of the bursae and tendons in the left shoulder. It informed appellant that
travel expenses exceeding $75.00 were subject to prior approval.
When appellant informed OWCP that he traveled to Washington State to see a doctor
because he could not find one on Maui who would accept workers’ compensation cases, OWCP
requested a written explanation. He explained that he had been on the island only a short time
and had not obtained a new family doctor. Appellant’s previous doctor was in Washington. He
stated that his supervisors told him to make sure that he saw a doctor who took federal workers’
compensation cases and who also accepted his personal insurance coverage.
Appellant stated that he went to the only hospital on Maui to obtain a referral sheet of all
orthopedists on the island: four were private doctors and three were Kaiser insurance doctors (he
did not have Kaiser insurance). One of the private doctors advised that he did not take federal
workers’ compensation cases and the others advised that the earliest appointment would be over
a month away. When appellant stated that he was in pain and missing work, all the doctors
advised that he find a doctor on the island of Oahu or fly to the mainland.
Appellant called the two large orthopedic practices on Oahu, but neither took federal
workers’ compensation claims. He contacted an orthopedic practice in his hometown in
Washington. After it advised that an appointment was available within a week, appellant booked
a flight and saw the doctor in Washington. He saw the doctor once again during the holidays and
was advised to have surgery. Appellant requested reimbursement of $847.58 in travel expenses
due to an orthopedist not being available to see him for over a month while he was in pain.
OWCP authorized left shoulder surgery but on February 15, 2011 it denied
reimbursement for travel expenses. It noted that appellant checked for physicians only on Maui
and Oahu. Appellant did not state why he did not look elsewhere. OWCP found that he failed to
establish that he was not able to find an orthopedist willing to treat him for his workers’
compensation injury. It found that he did not meet his burden to establish that he was required to
travel to Washington for treatment of his shoulder condition.
On February 24, 2011 in Washington appellant underwent an open rotator cuff repair on
his left shoulder.
In a September 9, 2011 decision, an OWCP hearing representative noted that appellant
sought medical treatment from an orthopedist in Washington without prior OWCP approval. She
found that the evidence did not show that it was necessary for appellant to go to Washington to
obtain medical treatment or that the particular type of treatment he received was available only
from the physician in Washington. Appellant had indicated that a physician on Maui could see
him but appellant felt the appointment was not soon enough. Further, after his first evaluation in
Washington, there was no evidence that he was subsequently unable to establish care with an
appropriate physician in Hawaii. The hearing representative found that appellant’s travel was
based on his preference of treating physicians and that the evidence was insufficient to support
that the travel expenses were medically necessary or that OWCP was unreasonable in denying
reimbursement.

2

LEGAL PRECEDENT
The employee may initially select a physician to provide medical services, appliances and
supplies, in accordance with such regulations and instructions as OWCP considers necessary,
and may be furnished necessary and reasonable transportation and expenses incident to the
securing of such services, appliances and supplies.2
The employee is entitled to reimbursement of reasonable and necessary expenses,
including transportation needed to obtain authorized medical services, appliances or supplies. To
determine what is a reasonable distance to travel, OWCP will consider the availability of the
services, the employee’s condition and the means of transportation. Generally, 25 miles from the
place of injury, the work site or the employee’s home is considered a reasonable distance to
travel.3
OWCP has broad discretion to authorize necessary and reasonable transportation incident
to the securing of services, appliances and supplies recommended for the treatment of accepted
medical conditions.4 It may authorize medical treatment but determine that the travel expense
incurred for such authorized treatment was unnecessary or unreasonable.5
ANALYSIS
Appellant explained how he came to see a physician in Washington. He indicated that he
relied on advice from supervisors and on information he was able to gather from a hospital on
Maui and from two practices on Oahu.
Appellant did not explain, however, why he did not contact OWCP. It was OWCP that
had the resources to authorize and schedule treatment for his accepted left shoulder injury. It
was OWCP that could authorize any necessary and reasonable travel expenses. In fact, when it
accepted his claim, OWCP informed appellant that travel expenses exceeding $75.00 were
subject to prior approval. Rather than obtain prior approval, appellant risked incurring expenses
for which he would be personally liable.
The hospital in Maui provided appellant a list of physicians. Four stated they did not take
federal workers’ compensation cases. Appellant discounted the others because they were Kaiser
doctors and he did not have Kaiser insurance. OWCP, however, could have scheduled an
appointment with one of those doctors and could have authorized medical and transportation
expenses, but appellant’s self-directed search took away that option.

2

Id. at § 8103(a).

3

20 C.F.R. § 10.315.

4

A.O., Docket No. 08-580 (issued January 28, 2009) (travel from Florida to New York to obtain medical
treatment).
5

Dr. Mira R. Adams, 48 ECAB 504 (1997).

3

In the case of J.J.,6 the employee explained that he did not feel comfortable with the
physicians in Ridgecrest, California, as they were not familiar with his case and would not accept
workers’ compensation cases. The Board found that this was not sufficient to establish that
traveling to Redlands, California, for treatment of his accepted medical conditions was both
reasonable and necessary.
OWCP gave due consideration to appellant’s explanation and to relevant factors, and it
found that travel from Hawaii to Washington was not necessary and reasonable for treatment of
his accepted left shoulder injury. It has broad discretion in this matter and the Board finds that
OWCP properly exercised that discretion to deny appellant’s request for reimbursement of
$847.58 in travel expenses. The Board will affirm OWCP’s September 9, 2011 decision.
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 properly denied reimbursement of travel expenses.
ORDER
IT IS HEREBY ORDERED THAT the September 9, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 22, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
6

Docket No. 10-1908 (issued June 16, 2011).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 06-1283
Issued: April 5, 2007

Case Submitted on the Record

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

JURISDICTION
On May 15, 2006 appellant filed a timely appeal of an Office of Workers’ Compensation
Programs’ schedule award decision dated May 8, 2006. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the schedule award issue.
ISSUE
The issue is whether appellant has more than an eight percent left lower extremity
impairment and a four percent right lower extremity impairment for which he received a
schedule award.
FACTUAL HISTORY
This case is on appeal to the Board for the second time. The Office accepted that, on
February 22, 1993, appellant, then a 43-year-old maintenance worker, was injured at work while
shoveling and picking up snow. The Office accepted the condition of low back strain and
herniated nucleus pulposus at L5 as being work related and authorized a lumbar discectomy and
fusion at L3-S1 on May 4, 2001. Following surgery, appellant returned to light-duty work. He

retired on December 2004. The record reflects that, on April 4, 2005, he filed a claim for a
schedule award.
On the first appeal, the Board found that appellant had greater than a one percent
permanent impairment to the right lower extremity and the three percent permanent impairment
to the left lower extremity.1 The Board found that the well-reasoned opinion of Dr. Donald J.
Viscusi, a Board-certified family practitioner and appellant’s attending physician, took
precedence over the Office medical adviser. Dr. Viscusi provided a rating of four percent right
lower extremity impairment and an eight percent left lower extremity impairment. The facts and
history of the case as set forth in the prior decision are hereby incorporated by reference.
In an April 4, 2005 report, Dr. Viscusi noted the history of injury and presented his
examination findings, which included normal strength with sensory disturbance with decreased
sensation into the right foot and decreased sensation in the left foot and lateral aspect of the left
lower extremity. He opined that appellant had a four percent right lower extremity impairment
due to sensory deficit/pain and an eight percent left lower extremity impairment due to sensory
deficit/pain according to the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment. Dr. Viscusi found that, as there were no motor deficits in
either leg, appellant had a zero percent impairment due to motor deficit of the spinal nerve. He
found that appellant had bilateral sensory deficits and provided a rating utilizing Tables 15-15,
15-18 as well as the Combined Values Chart in the A.M.A., Guides. For the right lower
extremity, Dr. Viscusi found that, under Table 15-15 on page 424, appellant’s L5 right sensory
disturbance would be classified as a Grade 2 sensory deficit or an 80 percent sensory deficit. As
the maximum loss for a sensory deficit or pain for an L5 nerve root equated to a 5 percent loss of
function under Table 15-18 on page 424, Dr. Viscusi multiplied that figure by the 80 percent
sensory deficit to yield a 4 percent right lower extremity impairment due to sensory deficit or
pain. For the left lower extremity, Dr. Viscusi found that appellant’s L5 and S1 sensory
impairment equated to a Grade 2 or 80 percent sensory deficit for each nerve under Table 15-15
which, when multiplied by the maximum percent loss of function of 5 percent, yielded a 4
percent impairment for both the left L5 and left S1 nerve. He then utilized the Combined Values
Chart on page 604 to find that the combined left lower extremity impairment was eight percent.
By decision dated May 8, 2006, the Office granted appellant an additional three percent
right leg impairment and an additional five percent left leg impairment (total of four percent right
lower leg impairment and eight percent left leg impairment). The schedule award ran for the
period April 4 to December 2, 2005 for 34.56 weeks of compensation.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act2
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence.3
1

Docket No. 05-1566 (issued April 5, 2006).

2

5 U.S.C. §§ 8101-8193.

3

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

2

Under section 8107 of the Act4 and section 10.404 of the implementing federal
regulation,5 schedule awards are payable for permanent impairment of specified body members,
functions or organs. The Act, however, does not specify the manner in which the percentage of
impairment shall be determined. For consistent results and to ensure equal justice under the law
for all claimants, good administrative practice necessitates the use of a single set of tables so that
there may be uniform standards applicable to all claimants. The A.M.A., Guides6 has been
adopted by the Office and the Board has concurred in such adoption, as an appropriate standard
for evaluating schedule losses.7
No schedule award is payable for a member, function or organ of the body not specified
in the Act or in the implementing regulations.8 As neither the Act nor its regulations provide for
the payment of a schedule award for the permanent loss of use of the back or the body as a
whole, no claimant is entitled to such a schedule award.9 The Board notes that section
8109(19) specifically excludes the back from the definition of organ.10 However, a claimant may
be entitled to a schedule award for permanent impairment to an upper or lower extremity even
though the cause of the impairment originated in the neck, shoulders or spine.11
ANALYSIS
In its April 5, 2006 decision, the Board found that the opinion of Dr. Viscusi, appellant’s
attending physician, established a four percent right lower extremity impairment from the L5
nerve root and an eight percent left lower extremity impairment due to sensory deficit or pain
from both the L5 and S1 nerve root. The Board directed the Office to compensate appellant for a
four percent right lower extremity impairment and an eight percent left lower extremity
impairment as determined by Dr. Viscusi. This decision of the Board became final upon the
expiration of 30 days from the date of its filing.12 On remand, the Office properly awarded an
additional three percent right lower extremity impairment and an additional five percent left
lower extremity impairment (total of four percent right lower extremity impairment and eight

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

7

See Joseph Lawrence, Jr., supra note 6; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB
1287 (1989).
8

Thomas J. Engelhart, 50 ECAB 319 (1999).

9

5 U.S.C. § 8107; see also Phyllis F. Cundiff, 52 ECAB 439 (2001); Jay K. Tomokiyo, 51 ECAB 361 (2000).

10

5 U.S.C. § 8109(c).

11

Thomas J. Engelhart, supra note 8.

12

20 C.F.R. § 501.6(d).

3

percent left lower extremity impairment).13 The Office considered no new evidence or argument
in issuing its May 8, 2006 decision, as directed by the Board. The record does not indicate that,
prior to issuance of the Office’s May 8, 2006 decision, appellant submitted new medical
evidence or argument to support a greater degree of permanent impairment than that found by
Dr. Viscusi. Thus, the issue adjudicated in the Board’s April 5, 2006 decision is res judicata and
not subject to further consideration by the Board on this appeal.14 Consequently, there is no
basis for finding any greater degree of impairment than that which the Office awarded in its
May 8, 2006 decision. The Office’s May 8, 2006 decision properly indicated that appellant was
entitled to receive a total of 34.56 weeks of compensation for eight percent impairment to the left
leg and four percent for the right leg.15
CONCLUSION
The Board finds that appellant has no greater than a four percent right lower extremity
impairment and an eight percent left lower extremity impairment for which he received a
schedule award.

13

See Paul Raymond Kuyoth, 27 ECAB 498, 503-04 (1976); Anthony Greco, 3 ECAB 84, 85 (1949) (the Board’s
determinations are binding upon the Office and must, of necessity, be so accepted and acted upon by the Director of
the Office).
14

See Clinton E. Anthony, Jr., 49 ECAB 476 (1998); Hugo A. Mentink, 9 ECAB 628 (1958).

15

The amount of compensation for total loss of use of a lower extremity with 100 percent impairment is 288
weeks. See 5 U.S.C. § 8107. Thus, for 8 percent of the left leg (.08 times 288), appellant is entitled to 23.04 weeks
of compensation and for 4 percent impairment of the right leg (.04 time 288), he is entitled to 11.52 weeks of
compensation. As appellant was previously paid a schedule award for 4 percent (1 percent for the right leg and 3
percent for the left leg), he is only entitled to an additional 8 percent impairment (3 percent for the right leg and 5
percent for the left leg), or 23.04 weeks of compensation, pursuant to the Office’s May 8, 2006 decision.

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated May 8, 2006 is affirmed.
Issued: April 5, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 12-1529
Issued: December 11, 2012

Case Submitted on the Record

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

JURISDICTION
On July 9, 2012 appellant filed a timely appeal from a June 26, 2012 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his disability for
the period December 20, 2011 through February 14, 2012 was causally related to his
employment injury.
FACTUAL HISTORY
On September 9, 2008 appellant, then a 61-year-old clerk, filed an occupational disease
claim (Form CA-2) alleging that he sustained a right toe condition due to factors of his federal
1

5 U.S.C. § 8101 et seq.

employment. OWCP accepted the claim for right great toe contusion, hallux valgus and bunion.
It authorized right toe and foot surgeries, which appellant underwent on July 15, 2010 and
April 21, 2011.
On December 20, 2011 appellant filed a claim for compensation for the period
December 20, 2011 through January 3, 2012 and submitted a November 16, 2011 report by
Dr. Robert J. Fink, a Board-certified orthopedic surgeon, who diagnosed status post surgery of
the left foot. Dr. Fink indicated that appellant was taking narcotic pain medication and was
totally incapacitated for duty. He took appellant off work from November 16, 2011 to
January 18, 2012.
In a January 3, 2012 letter, OWCP requested additional medical evidence and afforded
appellant 30 days for submission.
On January 10, 2012 appellant filed a claim for compensation for the period January 6
to 17, 2012 and submitted a January 18, 2012 duty status report by Dr. Fink who diagnosed right
large toe status post surgery and opined that appellant was not able to work.
On February 6, 2012 appellant filed a claim for compensation for the period February 2
to 14, 2012 and submitted a January 18, 2012 report by Dr. Anatoly Rozman, a physician Boardcertified in physical medicine and rehabilitation, took appellant off work from January 18 to
March 19, 2012. In a February 20, 2012 report, Dr. Fink took appellant off work from
February 20 to April 4, 2012 and indicated that appellant was unable to work until
April 18, 2011. Appellant also submitted two statements indicating that he was seen in therapy
on intermittent dates during the period June 16, 2011 through May 3, 2012.
In an April 20, 2012 report, Dr. Rozman indicated that a March 3, 2011 x-ray showed
narrowing of the metatarsophalangeal joint, medial exostosis. Right calcaneus showed no spurs
with some soft tissue swelling at the level of the plantar fascia. An electromyography (EMG)
test revealed L4-5 radiculopathy. Dr. Rozman opined that appellant had reached maximum
medical improvement and advised that he was not ready to start walking a full day long.
Appellant submitted a urine toxicology review from Dr. Fink dated April 10, 2012 and a
magnetic resonance imaging (MRI) scan of the right great toe dated November 10, 2009.2
By decision dated June 26, 2012, OWCP denied appellant’s claim for disability for the
period December 20, 2011 through February 14, 2012 on the basis that the medical evidence
submitted was not sufficient to support disability due to the employment injury.
LEGAL PRECEDENT
Section 8102(a) of FECA3 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
2

Appellant retired from the employing establishment effective April 2, 2012.

3

5 U.S.C. § 8102(a).

2

specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”4 This meaning, for brevity, is expressed as disability for work.5
For each period of disability claimed, the employee has the burden of proving that he or she was
disabled for work as a result of the accepted employment injury.6 Whether a particular injury
caused an employee to be disabled for employment and the duration of that disability are medical
issues which must be proved by the preponderance of the reliable, probative and substantial
medical evidence.7
Disability is not synonymous with physical impairment, which may or may not result in
an incapacity to earn wages. An employee who has a physical impairment causally related to his
or her federal employment, but who nonetheless has the capacity to earn the wages he or she was
receiving at the time of injury, has no disability as that term is used under FECA and is not
entitled to compensation for loss of wage-earning capacity. The Board will not require OWCP to
pay compensation for disability in the absence of any medical evidence directly addressing the
particular period of disability for which compensation is claimed. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.8
ANALYSIS
The Board finds that appellant has not established that he was disabled for the period
December 20, 2011 through February 14, 2012 causally related to his employment injury. While
OWCP accepted that appellant sustained an employment injury, appellant bears the burden to
establish through medical evidence that he was disabled during the claimed time periods and that
his disability was causally related to his accepted injury.9 The Board finds that appellant
submitted no rationalized medical evidence explaining how the employment injury materially
worsened or aggravated his right foot and toe conditions causing his disability for work from
December 20, 2011 to February 14, 2012.
On January 18, 2012 Dr. Rozman took appellant off work from January 18 to
March 19, 2012. On April 20, 2012 he indicated that a March 3, 2011 x-ray showed narrowing
of the metatarsophalangeal joint and that the right calcaneus showed no spurs with some soft
tissue swelling at the level of the plantar fascia. Dr. Rozman opined that appellant had reached
maximum medical improvement and advised that he was not ready to start walking a full day
long. Although he opined that appellant was disabled, he failed to provide a rationalized medical
4

20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548
(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).
5

See Roberta L. Kaaumoana, 54 ECAB 150 (2002).

6

See William A. Archer, 55 ECAB 674 (2004).

7

See Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

8

Id.

9

See supra notes 6-7. See also V.P., Docket No. 09-337 (issued August 4, 2009).

3

explanation that appellant had employment-related residuals and that those residuals prevented
him from continuing in his federal employment. Thus, these reports do not establish that he has
disability for work due to the employment injury.
In his reports, Dr. Fink diagnosed status post right toe surgery and opined that appellant
was totally incapacitated for duty due to taking narcotic pain medication. He took appellant off
work for the periods November 16, 2011 through January 18, 2012 and February 20 through
April 4, 2012. The Board finds that Dr. Fink also did not provide a rationalized medical opinion
to establish that appellant’s disability during the periods claimed was causally related to the
accepted employment injury.
The November 10, 2009 MRI scan is diagnostic in nature and therefore does not address
causal relationship.
The two statements prepared by an office manager indicating that appellant was seen in
therapy on intermittent dates during the period June 16, 2011 through May 3, 2012 do not
constitute medical evidence as they were not prepared by a physician.10
Appellant has not submitted any rationalized medical evidence establishing that he was
disabled during the period December 20, 2011 through February 14, 2012 causally related to the
accepted employment-related conditions. Thus, he has not met his burden of proof to establish
that he is entitlement to compensation for total disability.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his
disability for the period December 20, 2011 through February 14, 2012 was causally related to
his employment injury.

10

Lay persons are not competent to render medical opinions. See James A. Long, 40 ECAB 538, 542 (1989); see
also A.C., Docket No. 11-549 (issued December 14, 2011).

4

ORDER
IT IS HEREBY ORDERED THAT the June 26, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 11, 2012
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

5