United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Buffalo, NY, Employer
__________________________________________

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

Docket No. 18-1532
Issued: April 8, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 6, 2018 appellant, through counsel, filed a timely appeal from a May 30, 2018
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
3

5 U.S.C. § 8101 et seq.

The Board notes that following the May 30, 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 evidence for
the first time on appeal. Id.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective September 27, 2017, as he
refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On September 27, 2013 appellant, then a 56-year-old city letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that on September 25, 2013 he sustained a right ankle injury
when he slipped on a pipe as he walked across a lawn delivering mail while in the performance of
duty. He stopped work on September 27, 2013 and has not returned.
OWCP accepted that appellant sustained a right ankle sprain. It expanded acceptance of
the claim to include villonodular synovitis of the right ankle and foot. OWCP paid appellant wageloss compensation commencing November 11, 2013 and on the periodic rolls effective
February 9, 2014.
On April 7, 2014 Dr. Jennifer Gurske-dePerio, a treating Board-certified orthopedic
surgeon, performed an arthroscopic debridement of the right ankle, arthroscopic excision of a
lesion of the right lateral talus, open treatment of a medial talar body fracture and excision of
fragments, and saucerization of the right anteromedial talar neck and head.4 She held appellant
off work. Dr. Gurske-dePerio administered a series of steroid injections to the right ankle and
prescribed a custom Arizona brace.5
An April 21, 2016 functional capacity evaluation (FCE), performed at Dr. GurskedePerio’s request, demonstrated appellant’s capacity to perform full-time sedentary to light-duty
work, with restrictions of lifting limited to 10 pounds frequently and 20 pounds occasionally, and
occasional walking and standing.
On August 16, 2016 OWCP obtained a second opinion regarding the nature and extent of
appellant’s continuing employment-related condition from Dr. Donald Paarlberg, a Boardcertified orthopedic surgeon. Dr. Paarlberg reviewed the medical record and a statement of
accepted facts (SOAF). On examination of the right lower extremity he noted limited motion of
the ankle in all planes with minimal swelling. Dr. Paarlberg diagnosed status post ankle injury,
osteochondral defect of the talar dome with debridement, microfracturing, and subsequent arthritis.
He opined that appellant continued to have residuals of the accepted injury that disabled him from
his date-of-injury job. Dr. Paarlberg opined that appellant could perform full-time sedentary duty
with walking and standing for up to 10 minutes, no squatting, kneeling, or climbing, and lifting
limited to 10 pounds.

4

Appellant participated in physical therapy treatments from June to September 2014.

5

On January 6, 2015 OWCP obtained a second opinion regarding appellant’s work capacity from Dr. Sury M.
Putcha, a Board-certified orthopedic surgeon. Dr. Putcha opined that appellant could perform full-time modified duty
with walking limited to two hours a day, but could not resume his date-of-injury position. The employing
establishment confirmed on May 18, 2015 that there was no work available within Dr. Putcha’s restrictions.

2

In response to OWCP’s request for a supplemental report regarding appellant’s work
capacity, Dr. Paarlberg provided an October 6, 2016 addendum indicating that, based on the
April 21, 2016 FCE, appellant could perform full-time work with occasional walking and standing,
lifting up to 10 pounds frequently and 20 pounds occasionally, operating a motor vehicle for up to
eight hours a day, and no squatting, kneeling, or climbing. He also submitted a work capacity
evaluation for musculoskeletal conditions (Form OWCP-5c) in which he clarified that appellant
could walk up to eight hours a day if he wore his Arizona brace and could stand occasionally for
up to eight hours a day.
In reports dated November 22, 2016, Dr. Gurske-dePerio returned appellant to full-time,
limited-duty work within the tolerances demonstrated during the April 21, 2016 FCE.
On April 10, 2017 the employing establishment offered appellant a position as a full-time
modified city carrier, casing and delivering mail. During each 8-hour work shift, the position
required sitting, reaching, twisting, and grasping for 8 hours; standing and walking for up to 2
hours and 40 minutes; frequent holding up to 10 pounds for 5 hours and 20 minutes; occasional
holding up to 10 pounds for 2 hours and 40 minutes; and driving for up to 5 hours and 20 minutes.
By letter dated April 27, 2017, OWCP notified appellant that the offered position was
suitable and provided him 30 days to accept the position or to provide reasons for his refusal. It
informed him that an employee who refused an offer of suitable work was not entitled to
compensation, pursuant to 5 U.S.C. § 8106(c)(2).
Appellant, in a May 25, 2017 response, rejected the offered position. He asserted that its
physical requirements exceeded the work limitations noted in both the April 21, 2016 FCE and the
updated medical opinions from Dr. Gurske-dePerio. In reports dated May 25, 2017, Dr. GurskedePerio opined that appellant’s continuing right ankle soreness and limited motion was
attributable, in part, to his failure to comply with postsurgical instructions against full weight
bearing on the right foot for six weeks to allow the cartilage to heal. She diagnosed osteoarthritis.6
Dr. Gurske-dePerio opined that appellant could perform full-time work within the tolerances
demonstrated by the April 21, 2016 FCE.
On July 7, 2017 OWCP advised appellant that his reasons for refusing the position were
invalid and provided him an additional 15 days to accept the position or have his entitlement to
wage-loss compensation benefits terminated. No response was received.
By decision dated September 27, 2017, OWCP terminated appellant’s wage-loss
compensation and entitlement to schedule award benefits as he had refused an offer of suitable
work.
On October 6, 2017 appellant, through counsel, requested a telephonic oral hearing before
an OWCP hearing representative. At the hearing, held March 15, 2018, he contended that he
continued to have difficulties with his right ankle and could not stand for more than a few minutes.
Appellant ambulated with a quad cane or Canadian crutch and wore a prescribed Arizona brace.

6

May 25, 2017 right ankle x-rays demonstrated a lesion of the lateral talus, an excised talar dome fracture, calcific
changes at the Achilles insertion, and a distal tibia exostosis consistent with post-traumatic arthritis of the ankle.

3

He submitted a report from Dr. Gurske-dePerio dated November 29, 2017, reiterating that he could
perform full-time work within the tolerances demonstrated during the April 12, 2016 FCE.
By decision dated May 30, 2018, an OWCP hearing representative affirmed OWCP’s
decision dated September 27, 2017, finding that the additional medical evidence did not establish
that appellant was unable to perform the offered position.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification of
compensation benefits.7 Section 8106(c)(2) of FECA8 provides that a partially disabled employee
who refuses or neglects to work after suitable work is offered to, procured by, or secured for the
employee is not entitled to compensation.9 To justify termination of compensation, it must show
that the work offered was suitable and must inform appellant of the consequences of refusal to
accept such employment.10 Section 8106(c) will be narrowly construed as it serves as a penalty
provision, which may bar an employee’s entitlement to compensation based on a refusal to accept
a suitable offer of employment.11
Section 10.517(a) of FECA’s implementing regulations provides that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee, has
the burden of showing that such refusal or failure to work was reasonable or justified.12 Section
10.516 of OWCP’s regulations provide that it will advise the employee that the work offered is
suitable and provide 30 days for the employee to accept the job or present any reasons to counter
OWCP’s finding of suitability.13 Thus, before terminating compensation, OWCP must review the
employee’s proffered reasons for refusing or neglecting to work.14 If the employee presents such
reasons and OWCP finds them unacceptable, it will offer the employee an additional 15 days to
accept the job without penalty.15
Once OWCP establishes that the work offered is suitable, the burden of proof shifts to the
employee who refuses to work to show that the refusal or failure to work was reasonable or
justified.16 The determination of whether an employee is physically capable of performing a
7

Linda D. Guerrero, 54 ECAB 556 (2003).

8

Supra note 2.

9

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

10

Ronald M. Jones, 52 ECAB 190 (2000).

11

Joan F. Burke, 54 ECAB 406 (2003).

12

20 C.F.R. § 10.517(a); Ronald M. Jones, supra note 10.

13

20 C.F.R. § 10.516.

14

See Maggie L. Moore, 42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992).

15

20 C.F.R. § 10.516; see Sandra K. Cummings, 54 ECAB 493 (2003).

16

Id. at § 10.517(a).

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modified assignment is a medical question that must be resolved by medical evidence.17 OWCP
procedures state that acceptable reasons for refusing an offered position include medical evidence
of inability to do the work.18
ANALYSIS
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
entitlement to schedule award benefits, effective September 27, 2017, pursuant to 5 U.S.C.
§ 8106(c)(2), due to his refusal of an offer of suitable work.
Dr. Gurske-dePerio, an attending physician, obtained an April 21, 2016 FCE, which
demonstrated that appellant could perform full-time sedentary to light-duty work with occasional
walking and standing. Dr. Paarlberg, an OWCP referral physician, opined in an October 6, 2016
report that appellant could perform full-time light-duty work. He found that, if appellant wore his
prescribed Arizona brace, he could drive, walk, and stand for up to eight hours a day.
Based on Dr. Paarlberg’s report, the employing establishment offered appellant a position
as a modified city carrier. The duties involved casing and delivering mail. The position required
sitting for up to 8 hours a day, standing and walking for up to 2 hours and 40 minutes a day, holding
up to 10 pounds for 8 hours a day, and driving up to 5 hours and 20 minutes a day. The position
was within the restriction parameters set forth by Dr. Paarlberg, OWCP’s referral physician. The
Board finds, therefore, that OWCP properly determined that the offered position was suitable.19
In accordance with the procedural requirements of section 8106(c),20 OWCP advised
appellant on April 27, 2017 that it found the position offered by the employing establishment
suitable and provided him the opportunity to accept the position or provide reasons for his refusal
within 30 days. Appellant submitted May 25, 2017 reports from Dr. Gurske-dePerio, who
reiterated that appellant could perform full-time light-duty work within the tolerances of the
April 2, 2016 FCE. Dr. Gurske-dePerio did not indicate that appellant was medically unable to
perform any aspect of the offered position.
By letter dated July 7, 2017, OWCP informed appellant that his reasons for refusing the
position were not acceptable and provided him an additional 15 days to accept the position or have
his compensation terminated. Appellant did not accept the position or otherwise report to duty.
The Board, consequently, finds that OWCP followed established procedures prior to the
termination of compensation pursuant to section 8106(c) of FECA.21

17

D.L., Docket No. 18-0862 (issued October 12, 2018); Gayle Harris, 52 ECAB 319 (2001).

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5(a)(4)
(June 2013).
19

D.L., supra note 17.

20

5 U.S.C. § 8106(c).

21

D.L., supra note 17.

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After OWCP established that the offered position was suitable, the burden of proof shifted
to appellant to establish that his refusal was reasonable or justified.22 Subsequent to OWCP’s
termination of his wage-loss compensation, appellant submitted a November 29, 2017 report from
Dr. Gurske-dePerio, who reiterated that appellant could work full time within the restrictions
indicated by the April 21, 2016 FCE as he continued to have right ankle discomfort. Dr. GurskedePerio did not indicate that appellant was medically unable to perform the modified position.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective September 27, 2017, as he
refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
ORDER
IT IS HEREBY ORDERED THAT the May 30, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 8, 2019
Washington, DC

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

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

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

22

Id.; see M.S., 58 ECAB 328 (2007).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, San Bernardino, CA, Employer
__________________________________________

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

Docket No. 07-2265
Issued: April 28, 2008

Case Submitted on the Record

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

JURISDICTION
On September 5, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated January 26, 2007, denying his request for
reconsideration. The record also contains a schedule award decision regarding appellant’s left
eye dated November 8, 2006. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant was entitled to an augmented compensation rate
pursuant to the November 8, 2006 schedule award; and (2) whether the Office properly
determined that appellant’s application for reconsideration was insufficient to warrant merit
review of his occupational disease claim pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606.
FACTUAL HISTORY
The Office accepted that appellant sustained a left shoulder separation and left eye
detached retina in the performance of duty on August 6, 1996. On November 29, 2005 appellant

filed an occupational disease claim alleging that he had developed closed angle glaucoma and
loss of sight in his left eye as a result of the detached retina. On the claim form, he did not
indicate that he had any dependents.
Appellant was referred to Dr. Edward J. Puttre, a Board-certified ophthalmologist, for a
second opinion examination. In a report dated August 3, 2006, Dr. Puttre indicated that
appellant had an old retinal detachment and ischemic optic neuropathy which had caused
blindness in the left eye. The Office requested an opinion from Dr. Robert Rosenquist, Jr., an
ophthalmologist, with respect to permanent impairment. In a report received by the Office on
September 15, 2006, Dr. Rosenquist opined that appellant had no useful vision in his left eye and
the date of maximum medical improvement was November 18, 2005.
On October 4, 2006 appellant filed a claim for compensation (Form CA-7) and requested
a schedule award. With respect to dependents, he reported his former spouse, as well as his
current fiancée and her son. According to appellant, his fiancée and her son lived with him. He
submitted a judgment issued by the California Superior Court dissolving his marriage effective
June 8, 2003. The stipulation for judgment agreement indicated that appellant was to pay his
former spouse $500.00 per month in support.
By decision dated November 8, 2006, the Office issued a schedule award for a 100
percent permanent impairment for loss of vision in the left eye. The period of the award was 160
weeks commencing November 18, 2005. The compensation rate was 66 2/3 of appellant’s
weekly pay rate.
In a letter dated November 19, 2006, appellant requested reconsideration of the claim.
He argued that his former spouse was a dependent because he was making regular contributions
to her support pursuant to a court order. Appellant asserted that he was entitled to a
compensation rate of 75 percent, noting that 20 C.F.R. § 10.404(b) provides compensation for
schedule awards at 75 percent of pay when the employee has a dependent. He resubmitted the
marriage dissolution judgment.
By decision dated January 26, 2007, the Office denied the reconsideration request
without merit review of the claim. The Office stated that appellant’s former spouse did not meet
the criteria for a dependent and appellant’s letter did not raise substantial legal questions or
include new and relevant evidence.
LEGAL PRECEDENT -- ISSUE 1
The basic rate of compensation under the Federal Employees’ Compensation Act is
66 2/3 percent of the injured employee’s monthly pay. Where the employee has one or more
dependents as defined in the Act, he is entitled to have his basic compensation augmented at the
rate of 8 1/3 percent, for a total of 75 percent of monthly pay.1 Under the Act a dependent means
“a wife, if (a) she is a member of the same household as the employee; (b) she is receiving

1

5 U.S.C. § 8110(b); see also William G. Dimick, 38 ECAB 751 (1987). The compensation rate for schedule
awards is the same as compensation for wage loss. See 5 U.S.C. § 8107; 20 C.F.R. § 10.404(b) (1999).

2

regular contributions from the employee for her support; or (c) the employee has been ordered by
a court to contribute to her support.”2
A dependent also includes an unmarried child less than 18 years of age, while living with
the employee or receiving regular contributions for support.3 The term “child” includes
stepchildren, adopted children and posthumous children.4
ANALYSIS -- ISSUE 1
Appellant received a schedule award for a 100 percent permanent impairment to the left
eye pursuant to 5 U.S.C. § 8107(c)(5). He does not contest the percentage awarded or the period
of the award. It is appellant’s contention on appeal that the basic compensation rate of 66 2/3
percent of his monthly pay should be augmented under 5 U.S.C. § 8110(a) because his former
wife is a “dependent” under this section. He asserts that he made regular contributions for her
support pursuant to a court order. The contributions were made pursuant to a judgment of
dissolution terminating appellant’s marriage effective June 8, 2003.
A similar argument was raised in William S. Cappeller, M.D.5 In that case, the employee
made regular contributions to the support of his former spouse pursuant to a final divorce
judgment. The Board found that “an ex-wife does not come within the meaning of the term
“wife.” Therefore, even though appellant contributes to the support of his former wife, the
Board finds she does not qualify as a “dependent.”6 In the present case, the court judgment
dissolved the marriage as of June 8, 2003. As of that date appellant did not have a “wife” under
5 U.S.C. § 8110(a)(1) and therefore did not have a dependent under this section.7 The schedule
award began on November 18, 2005 and appellant’s former spouse was not a dependent under
the Act at that time.
Appellant also reported on the October 4, 2006 Form CA-7 as dependents in his
household a fiancée and her son. There is no provision under 5 U.S.C. § 8110 for augmented
compensation under these circumstances. The fiancée is not a wife and therefore 5 U.S.C.
§ 8110(a)(1) is not applicable. The son of the fiancée is not a “child” under the Act and therefore
not a dependent. While the term “child” under the Act includes stepchildren, since appellant was
not yet married the son is not a stepchild. With respect to adoption, appellant did not argue or
present evidence that the son of his fiancée had been adopted.
Based on the evidence of record before the Office at the time of the November 8, 2006
schedule award decision, there was no probative evidence that appellant had a dependent under 5
2

5 U.S.C. § 8110(a).

3

5 U.S.C. § 8110(a)(3).

4

5 U.S.C. § 8101(9).

5

28 ECAB 262 (1977).

6

Id. at 264.

7

See also Linda F. Green, 39 ECAB 636 (1988).

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U.S.C. § 8110. The Office accordingly found the schedule award was payable at the basic
compensation rate of 66 2/3 percent of monthly pay.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,8 the Office’s regulations provides that a claimant may
obtain review of the merits of the claim by submitting a written application for reconsideration
that sets forth arguments and contains evidence that either: “(i) shows that [the Office]
erroneously applied or interpreted a specific point of law; (ii) advances a relevant legal argument
not previously considered by [the Office]; or (iii) constitutes relevant and pertinent evidence not
previously considered by [the Office].”9 Section 10.608(b) states that any application for review
that does not meet at least one of the requirements listed in section 10.606(b)(2) will be denied
by the Office without review of the merits of the claim.10
ANALYSIS -- ISSUE 2
In his November 19, 2006 application for reconsideration, appellant argued that he should
be entitled to augmented compensation because his former wife was a dependant, since he made
contributions to her support through a court order. Appellant resubmitted the judgment
terminating his marriage on June 8, 2003 and the agreement requiring him to contribute the
support of his former wife.
As noted above, appellant must meet one of the standards of 20 C.F.R. § 10.606(b)(2) to
require the Office to reopen the case for review of the merits. He did not show that the Office
erroneously applied or interpreted a specific point of law. As the above discussion illustrates, the
Office had properly paid appellant at the basic compensation rate of 66 2/3 percent of monthly
pay. Appellant did not advance a new and relevant legal argument. He had previously asserted
that his former wife was a dependent and submitted evidence indicating he was required to make
regular contributions to her support. The application for reconsideration noted that an employee
with a dependent is entitled to a 75 percent compensation rate, without providing a new and
relevant legal argument. Furthermore, appellant did not submit new and relevant evidence. The
marriage dissolution judgment and the stipulation agreement were previously submitted and
considered by the Office.
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(2). The November 19, 2006 application for reconsideration was properly
denied without merit review of the claim.

8

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).
9

20 C.F.R. § 10.606(b)(2).

10

20 C.F.R. § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

4

CONCLUSION
The evidence of record did not establish that appellant was entitled to augmented
compensation pursuant to the November 8, 2006 schedule award. Appellant’s November 19,
2006 application for reconsideration was not sufficient to warrant merit review of the claim.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 26, 2007 and November 8, 2006 are affirmed.
Issued: April 28, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.S., Appellant
and
DEPARTMENT OF THE NAVY, SUBMARINE
BASE, Bangor, WA, Employer
__________________________________________

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

Docket No. 07-824
Issued: July 20, 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 February 5, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated October 31, 2006 regarding a hearing loss claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant’s claim for an employment-related hearing loss was
barred by the time limitation provisions of 5 U.S.C. § 8122; and (2) whether the Office properly
denied appellant’s request for a hearing.
FACTUAL HISTORY
On July 25, 2006 appellant filed an occupational disease claim (Form CA-2) alleging that
he sustained hearing loss as a result of his federal employment. In response to a question on the
claim form as to the date he first became aware of his condition, he reported January 1, 1978.

With respect to the date that appellant first realized that the condition was causally related to
employment, he reported January 1, 1980.
In a form entitled “checklist for filing federal occupational hearing loss claim,” appellant
indicated that he was last exposed to hazardous noise in 1988. He first noticed hearing loss in
1980 and as to the date that he first related hearing loss to employment, and the reason why, he
stated “none.” An employment history form indicated that appellant worked as a stockman and
motor vehicle operator, retiring from federal employment in 1988.
The record contains audiograms dated December 28, 2005 and July 25, 2006.1 By letters
dated September 14, 2006, the Office requested additional information from appellant and the
employing establishment. The employing establishment responded that appellant was retired and
no medical or other information was available. Appellant responded by letter dated
October 1, 2006. With respect to the date that he first noticed his hearing loss, he stated, “in
2005.” Appellant stated that he did not report hearing loss to his employer, since he was not
aware of it at that time. In response to inquiry as to the date that he first related hearing loss to
employment and how he realized this, appellant stated, “Did not notice hearing loss to work
expos[ure] since there was loud noises and every one spoke very loud to hear over the noises at
work. After I retired I notice[d] I had a hard time hearing people and they had to repeat in a
normal conversation.”
By decision dated October 31, 2006, the Office determined that the claim was not filed in
a timely manner pursuant to 5 U.S.C. § 8122. The Office noted that appellant indicated on the
claim form that he was aware of an employment-related hearing loss as of January 1, 1980.
Appellant requested a hearing before an Office hearing representative by letter
postmarked December 11, 2006. By decision dated January 9, 2007, the Office determined that
the request for hearing was untimely. The Office further determined the issue could equally well
be addressed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
Section 8122(a) of the Act states, “An original claim for compensation or death must be
filed within three years after the injury or death.”2 This section also indicates that a claim not
filed within three years will not be allowed unless the immediate supervisor had actual
knowledge of the injury or death within 30 days or written notice of injury was given within 30
days.3 Section 8122(b) provides that, in latent disability cases, the time limitation does not begin
to run until the claimant is aware, or by the exercise of reasonable diligence should have been
aware, of the causal relationship between his employment and the compensable disability.4
1

The record also contains audiograms dated January 6 and May 31, 2001, but the name on the reports is not
appellant’s.
2

5 U.S.C. § 8122(a).

3

Id.

4

5 U.S.C. § 8122(b).

2

ANALYSIS -- ISSUE 1
The record established that appellant was last exposed to noise in his federal employment
in 1988. As noted, the time limitation period does not begin to run until appellant is aware, or
reasonably should be aware, of the injury and its relationship to employment. The Office made a
determination that this date was January 1, 1980 based on information provided on the claim
form. While the information on the claim form is probative evidence, it is not dispositive in the
presence of additional relevant evidence.5 Appellant indicated, for example, in the October 1,
2006 statement that he was not aware of a hearing loss at the time he was employed. He also
reported that he did not notice a hearing loss until 2005, which may correspond to the 2005
audiogram of record. Medical evidence regarding hearing loss is relevant to the issue of when a
claimant reasonably should be aware of a condition and its relationship to employment.6
The Office did not properly address all of the relevant evidence and make proper findings
on the timeliness issue. It is not clear, for example, whether appellant had audiograms prior to
2005. The Office did not address appellant’s statements that appeared to conflict with his initial
reference to 1980 as the date he was aware of an employment-related hearing loss, nor did it
discuss the medical evidence.
On remand, the Office should secure any additional relevant evidence on the issue of
when appellant knew or should have known of an employment-related hearing loss. This would
include clarification from appellant regarding his prior statements, as well as any relevant
medical evidence. After such further development as the Office deems necessary, it should issue
an appropriate decision with proper findings. In view of the Board’s determination on this issue,
it will not address the denial of a hearing request issue.
CONCLUSION
The evidence of record is not sufficient to determine whether the claim was timely filed
and the case is remanded for further development.

5

See L.C., 57 ECAB
(Docket No. 06-1190, issued September 18, 2006) (Appellant had reported 1985 on the
claim form as the date he was aware of an employment-related hearing loss, but subsequently explained this was the
date of an ear infection. The Board found the time limitation period did not begin to run until a July 2004
audiogram showed hearing loss).
6

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 31, 2006 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: July 20, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.V., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Carol Stream, IL,
Employer
__________________________________________

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

Docket No. 16-1037
Issued: November 14, 2016

Case Submitted on the Record

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

JURISDICTION
On April 20, 2016 appellant filed a timely application for review from a January 11, 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 one percent permanent impairment of his
right upper extremity, for which he received a schedule award.
On appeal, appellant argues that his cervical spinal impairment ought to entitle him to a
schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 23, 2012 appellant, then a 46-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging a “traumatic injury” as a result of duties of his
federal employment, including lifting, pushing, standing, and dispatching for five days or more
per week. On April 24, 2012 OWCP accepted appellant’s claim as a traumatic injury that
occurred on January 25, 2012 and accepted conditions including right shoulder joint pain and
right-sided disturbance of skin sensation. On June 19, 2012 it accepted a temporary aggravation
of syndromes affecting the right cervical region; right-sided disturbance of skin sensation; and
right brachial neuritis or radiculitis. By decision dated June 19, 2012, OWCP amended its earlier
acceptance to reflect that appellant’s claim was accepted as an occupational disease, not a
traumatic injury. It listed accepted conditions including right-sided disturbance of skin
sensation, right cervical radiculopathy, and right shoulder joint pain.
On February 8, 2012 Dr. Rajit Shetty, Board-certified in neuroradiology, examined the
results of a magnetic resonance imaging (MRI) scan test of appellant’s cervical spine. He noted
impressions of moderate bilateral neural foraminal narrowing at C5-6 and C6-7, as well as mild
right-sided neural foraminal narrowing at C3-4.
On July 17, 2012 Dr. John Lavaccare, Board-certified in neurology, examined the results
of an electromyography test and a nerve conduction study. He concluded that there was
electrophysiologic evidence of mild chronic bilateral C6-7 radiculopathy, more notable on the
right than on the left.
On September 5, 2013 Dr. Eugene Lopez, a Board-certified orthopedic surgeon,
examined appellant and noted subjective complaints of neck pain, no paraspinal tenderness, a
normal cervical spine range of motion, normal upper extremity strength, normal reflexes, and
negative Spurling’s and Hoffman’s tests.
In a report dated September 24, 2013, Dr. Lopez examined appellant and calculated a
permanent impairment rating for his neck and right shoulder according to the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides). He referenced the Regional Impairment Cervical Regional Grid on page 564,
Table 17-2. Dr. Lopez found that appellant had class 3 diagnostic criteria as a result of a
diagnosis of disc herniation at multiple levels with residual radiculopathy at a single appropriate
level. He noted a grade C default rating of 19 percent, with a functional history adjustment of
grade modifier 1 due to a pain disability questionnaire score of 48. Dr. Lopez determined that
appellant had a physical examination grade modifier of 0 and no clinical studies adjustment. His
final percentage of permanent impairment for appellant’s cervical region was 15 percent. As for
appellant’s right shoulder, Dr. Lopez referenced the Regional Impairment Shoulder Regional
Grid on page 402, Table 15-5. He noted that appellant had a class 1 diagnostic criteria as a result
of a diagnosis of impingement syndrome. Dr. Lopez noted a grade C default rating of three
percent, with no functional history adjustment, no clinical studies adjustment, and a grade
modifier of 1 for physical examination due to positive impingement tests. His final percentage
of permanent impairment for appellant’s right shoulder was one percent.

2

Appellant submitted a September 23, 2013 report from Brian Trembly, a physical
therapist.
On December 23, 2013 appellant requested a schedule award (Form CA-7).
On May 8, 2014 OWCP forwarded Dr. Lopez’s report along with a statement of accepted
facts (SOAF) to a district medical adviser (DMA) for review. In a May 12, 2014 report, the
DMA noted that there was no accepted cervical spine condition in this case. He further noted
that physical examination of appellant’s right upper extremity was normal and the MRI scan
findings were nonspecific. The DMA concluded that there was no compelling evidence that
appellant had radiculopathy, and that as such there was no objective basis for assigning an
impairment rating.
By decision dated June 3, 2014, OWCP denied appellant’s claim for a schedule award. It
found that the report of September 23, 2013 was to be disregarded as it did not appropriately
apply the sixth edition of the A.M.A., Guides to appellant’s accepted conditions. OWCP
determined that the medical evidence failed to demonstrate a measureable impairment.
In an addendum report dated June 18, 2014, Dr. Lopez disputed the DMA’s report of
May 12, 2014. He noted that the DMA failed to consider the diagnostic tests of July 17, 2012,
which indicated evidence of mild radiculopathy. Dr. Lopez noted that he maintained that
appellant had 15 percent cervical impairment. He noted that appellant’s impingement syndrome
indicated one percent right upper extremity impairment.
On July 2, 2014 appellant requested a telephonic hearing before an OWCP hearing
representative.
By decision dated January 14, 2015, a hearing representative found that appellant had
submitted sufficient medical evidence to warrant further development of the case file. He noted
that, due to this disposition, the case file was not in posture for a hearing. The hearing
representative set aside the June 3, 2014 decision and remanded the case for further development
of the medical evidence.
OWCP forwarded Dr. Lopez’s June 18, 2014 addendum report, along with the case file
and a SOAF, to a DMA for review. In a report dated February 13, 2015, the DMA adjusted
appellant’s shoulder regional impairment rating to one percent. He noted that using Table 15-5
on page 402 of the sixth edition A.M.A., Guides, appellant’s diagnosis was a class 1, grade C,
with a default value of three percent. The DMA found a functional history modifier of 0 based
on a QuickDASH score of 18, a physical examination modifier of 1 based on Dr. Lopez’s
September 24, 2013 report, and a clinical studies modifier of 0. The net adjustment moved
appellant’s grade to a grade A, and using Table 15-5, appellant’s final impairment rating was
adjusted to one percent permanent impairment. The DMA also calculated appellant’s cervical
spinal impairment at zero percent impairment. He used the sixth edition of the A.M.A., Guides
along with The Guides Newsletter, July/August 2009, in order to perform an impairment rating
for appellant’s cervical spine. The DMA noted that appellant had normal sensation and normal
motor strength, which under Proposed Table 1 on page 4 of The Guides Newsletter,

3

July/August 2009 would result in zero percent impairment. He noted that Dr. Lopez had not
used the newsletter in his calculation of impairment.
By decision dated May 12, 2015, OWCP granted appellant a schedule award for one
percent permanent impairment of the right upper extremity.
On May 22, 2015 appellant requested an oral hearing before an OWCP hearing
representative. The hearing was held on October 30, 2015. At the hearing, appellant noted that
he retired effective February 1, 2014. Appellant stated that he believed the DMA did not
sufficiently address the “medical part” of his physicians’ reports, relying entirely on the
“mechanical part” of the examinations. He argued that a conflict of medical opinion existed
between his physicians and the DMA. The hearing representative explained that schedule
awards solely for the spine are not available under FECA, but that schedule awards based on
spinal injuries affecting the extremities were compensable. He further noted that the 15 percent
impairment rating was solely for the cervical spine, and was not calculated as an impairment of
the extremities resulting from a spinal injury.
By decision dated January 11, 2016, the hearing representative affirmed OWCP’s
May 12, 2015 decision. He found that appellant had not submitted sufficient medical evidence
to establish that his right upper extremity impairment rating should be altered based on an
impairment of the cervical spine.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing federal regulations3 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions, and organs of the body.
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 for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.4 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.5 For decisions issued after
May 1, 2009, the sixth edition is used to calculate schedule awards.6 It is well established that in
determining the amount of a schedule award for a member of the body that sustained an

2

Id. at § 8107.

3

20 C.F.R. § 10.404.

4

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

5

Id.

6

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

4

employment-related permanent impairment, preexisting impairments of the body are to be
included.7
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.8 A
schedule award is not payable for the loss or loss of use, of a part of the body that is not
specifically enumerated under FECA.9 Moreover, neither FECA nor its implementing
regulations provide for a schedule award for impairment to the back or to the body as a whole.
Furthermore, the back is specifically excluded from the definition of organ under FECA.10
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, as the schedule award provisions of FECA include the extremities, 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.11
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides
Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition
(July/August 2009) is to be applied.12 The Board has long recognized the discretion of OWCP to
adopt and utilize various editions of the A.M.A., Guides for assessing permanent impairment.13
In particular, the Board has recognized the adoption of this methodology for rating extremity
impairment, including the use of The Guides Newsletter, as proper in order to provide a uniform
standard applicable to each claimant for a schedule award for extremity impairment originating
in the spine.14

7

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3.a.3 (January 2010). This portion of OWCP’s procedure provides that the impairment
rating of a given scheduled member should include any preexisting permanent impairment of the same member or
function.
8

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

9

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

10

James E. Mills, 43 ECAB 215, 219 (1991); James E. Jenkins, 39 ECAB 860, 866 (1990).

11

Supra note 9.

12

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part 3
-- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is included as
Exhibit 4.
13

D.S., Docket No. 14-12 (issued March 18, 2014).

14

See E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).

5

OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s 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.15
ANALYSIS
The Board finds that the medical evidence of record does not establish any additional
impairment beyond the one percent permanent impairment of appellant’s right upper extremity,
for which he received a schedule award.
On September 24, 2013 Dr. Lopez examined appellant and calculated a permanent
impairment rating for his neck and right shoulder according to the sixth edition of the A.M.A.,
Guides. He referenced the Regional Impairment Cervical Regional Grid on page 564, Table 172. Dr. Lopez stated that appellant had a class 3 diagnostic criteria as a result of a diagnosis of
disc herniation at multiple levels with residual radiculopathy at a single appropriate level. He
noted a grade C default rating of 19 percent, with a functional history adjustment of grade
modifier 1 due to a pain disability questionnaire score of 48. Dr. Lopez determined that
appellant had a physical examination grade modifier of 0 and no clinical studies adjustment. His
final percentage of permanent impairment for appellant’s cervical region was 15 percent.
In an addendum report of June 18, 2014, Dr. Lopez disputed the DMA’s report of
May 12, 2014. He noted that the DMA failed to consider the diagnostic tests of July 17, 2012,
which indicated evidence of mild radiculopathy. Dr. Lopez noted that he maintained that
appellant had 15 percent cervical impairment. He stated that appellant’s impingement syndrome
indicated one percent permanent right upper extremity impairment.
In a report dated February 13, 2015, a DMA adjusted appellant’s shoulder regional
impairment rating to one percent permanent impairment. He noted that using Table 15-5 on page
402 of the sixth edition of the A.M.A., Guides, appellant’s diagnosis was a class 1, grade C, with
a default value of three percent. He found a functional history modifier of zero based on a
QuickDASH score of 18, a physical examination modifier of 1 based on Dr. Lopez’s
September 24, 2013 report, and a clinical studies modifier of 0. The net adjustment moved
appellant’s grade to a grade A, and using Table 15-5, appellant’s final impairment rating was
adjusted to one percent permanent impairment. The DMA also calculated appellant’s cervical
spinal impairment at zero percent impairment. He used the sixth edition of the A.M.A., Guides
along with The Guides Newsletter, July/August 2009, in order to perform an impairment rating
for appellant’s cervical spine. The DMA noted that appellant had normal sensation and normal
motor strength, which under Proposed Table 1 on page 4 of The Guides Newsletter,
July/August 2009 would result in a zero percent impairment. He noted that Dr. Lopez had not
used The Guides Newsletter in his calculation of impairment.
The Board finds that the DMA’s rating properly utilized the A.M.A., Guides and
represents the weight of medical opinion evidence. The DMA explained the differences between
15

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).

6

his impairment rating calculations and Dr. Lopez’s with citations to the A.M.A., Guides and The
Guides Newsletter, July/August 2009 for his estimate and adjustments based on the functional
history, clinical studies, and physical examination adjustments, and noted the areas in which
Dr. Lopez’s reports did not comport with these reference materials. He utilized the proper
method for measuring impairments of the extremities due to spinal injuries in calculating
appellant’s zero percent additional impairment beyond one percent of the right upper extremity
attributable to a cervical spine condition. The Board notes that because schedule awards are not
available for spinal impairments themselves, but are available for impairment to the extremities
resulting from spinal impairments, the DMA used the proper method for calculating appellant’s
percentage of impairment.16
Dr. Lopez’s reports, in contrast, do not provide a percentage of impairment to the
extremities attributable to a spinal condition, but instead present only a percentage of impairment
for the cervical spine itself. As such, his reports had diminished probative value on the issue of
an impairment of the extremities, and OWCP properly relied upon the DMA’s report in issuing
its May 12, 2015 schedule award decision.
Therefore, the Board finds that appellant has no more than one percent permanent
impairment of his right upper extremity, for which he has received a schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than one percent permanent impairment of his
right upper extremity, for which he received a schedule award.

16

See supra notes 8 to 11.

7

ORDER
IT IS HEREBY ORDERED THAT the January 11, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 14, 2016
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Flushing, NY, Employer
__________________________________________

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

Docket No. 09-1439
Issued: March 23, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 21, 2009 appellant filed a timely appeal from a January 2, 2009 merit decision of
the Office of Workers’ Compensation Programs denying modification of a July 9, 2008 merit
decision. 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 sustained an injury in the performance of duty on June 18,
2007 causally related to her employment.
FACTUAL HISTORY
On June 26, 2007 appellant, a 58-year-old window clerk, filed a traumatic injury claim
(Form CA-1) alleging that on June 18, 2007 she hit her head on a drawer and experienced pain.
She alleged experiencing back pain after pushing and pulling post carts.

On June 26, 2007 Dr. Allan Frishberg, a chiropractor, reported findings on examination
and diagnosed lumbar and cervical sprain as well as neck spasms. He reported that appellant
was injured when she hit her neck on a drawer.
The employing establishment controverted appellant’s claim. In a letter dated June 27,
2007, it reported that she requested two weeks of vacation time beginning June 25, 2007.
Appellant’s supervisor informed appellant that she only had three days of annual leave and
denied her request. The employing establishment alleged that appellant called in sick on
June 19, 2007 and did not return to work until August 25, 2007. The employing establishment
also noted that she attributed her absence to an incident when she hit her head and neck on a
drawer the night of June 18, 2007.
On June 28, 2007 Dr. Sheryl S. Elkowitz, a Board-certified diagnostic radiologist,
reported that x-rays of appellant’s cervical spine revealed no evidence of fracture. She opined
that the x-rays were consistent with muscle spasm.
On August 28, 2007 Dr. Frishberg reported findings on examination and diagnosed C5
changes and L5 segment dysfunction, and cervical sprain and strain. He attributed appellant’s
condition to loading and unloading mail trucks.
In a September 5, 2007 report (Form CA-20), Dr. Frishberg diagnosed cervical joint
dysfunction, lumbar segment joint dysfunction and lumbar cervical sprain. He attributed
appellant’s condition to loading and unloading mail trucks as well as “[striking] her head sharply
against [an] open drawer.”
By decision dated September 20, 2007, the Office denied the claim because the evidence
of record did not demonstrate that the identified employment incident occurred at the time, place
and in the manner alleged.
On October 9, 2007 Dr. Frishberg excused appellant from work until October 27, 2007.
On October 15, 2007 appellant requested review of the written record. In a narrative
statement, she described her employment duties. Appellant reported that, on June 18, 2007,
while making change for a customer, she dropped a coin. Having bent over to retrieve the coin
from the floor and forgetting that her cash drawer was open, she stood up and in the process hit
her head on the cash drawer. Appellant reported experiencing head pain for which she took a
Motrin. Later that night, she pushed post carts full of mail to the back of the employing
establishment and loaded their contents into a truck.
On October 23, 2007 Dr. Frishberg indicated that x-rays had been taken of appellant’s
spine and based upon these x-rays diagnosed degenerative changes at the C5-6, C6-7, C7-T1,
T1-T8, L2-3, L3-4, L4-5 levels. He also diagnosed scoliosis and lordosis.
By decision dated February 14, 2008, the Office affirmed its September 20, 2007
decision because the evidence of record did not establish that the incident occurred as alleged
and lacked medical evidence demonstrating that the alleged incident caused a medicallydiagnosed condition.

2

On May 1, 2008 appellant requested reconsideration. Her request noted that she had
accepted a new position with the employing establishment. Appellant reported that she was
awarded a position of window clerk but that upon reporting for duty found that the new position
was that of dispatcher, not window clerk. She noted that the dispatcher position requires loading
and unloading parcels onto tubs and post carts. Appellant felt that the employing establishment
took advantage of her. She submitted a reassignment offer and a notice from the employing
establishment.
In an undated note, appellant reported that her cash drawer had been malfunctioning; the
attached computer indicated that the drawer was open when it was actually closed. She reported
that, on June 18, 2007, while giving a customer change, she dropped a coin and, after closing her
cash drawer, bent over to pick up the coin. Having grasped the coin, as appellant was standing
up, her cash drawer opened and she struck her head on the drawer. She experienced a headache
for which she took Motrin. Additionally, appellant reported that later during her shift she pushed
and pulled tubs and post carts full of mail to the back of the store and loaded their contents into a
truck. Later that evening, she reported experiencing pain in her head and lower back.
Appellant also submitted an August 27, 2007 report of Dr. Barbara Joyce Freeman, a
Board-certified orthopedic surgeon, who diagnosed cervical and lumbar strain and sprain.
Dr. Freeman opined that appellant could perform regular work for eight hours per day with
restrictions concerning lifting, pushing and pulling, and no twisting and bending.
By decision dated July 9, 2008, the Office denied modification of its February 14, 2008
decision. It found that appellant had not established she experienced an employment-related
incident or that this incident produced an injury. Furthermore, the Office noted that the medical
evidence of record did not demonstrate that an employment-related incident caused a medicallydiagnosed injury.
On October 7, 2008 appellant requested reconsideration.
Appellant submitted an August 21, 2007 report of Dr. Freeman in which she diagnosed
cervical and lumbar spine sprain and strain. Dr. Freeman opined that appellant had a mild
orthopedic disability but was capable of performing light-duty work eight hours per day. She
restricted appellant’s activities to lifting, pushing or pulling no more than five pounds.
Appellant submitted a September 23, 2008 note in which Dr. Frishberg reported that
x-rays of appellant’s spine revealed subluxations “at all levels.” He opined:
“It is my [m]edical [o]pinion that lifting the heavy boxes and pushing the heavy
post carts caused her to have muscle spasms, which pulled on her spine causing a
[s]train, which pulled on the [v]ertebrae causing [s]ubluxations. Hitting her head
caused [t]rauma to her [n]eck since they are connected in such a way similar to a
whiplash syndrome. This added to her condition aggravating her [n]eck and
[u]pper [t]horacic regions. All of this is back [sic] by your own [o]rthopedic
[d]octor, Barbara Freeman and the [f]irst med[ical] [d]octor.
“The injury sustained on June 18, 2007 is causally related to the accident as
described to me by my patient.”
3

By decision dated January 2, 2009, the Office denied modification of its July 9, 2008
decision. It found appellant had not established that she sustained an injury as alleged on
June 18, 2007.
LEGAL PRECEDENT
An employee who claims benefits under the Federal Employees’ Compensation Act1 has
the burden of establishing the occurrence of an injury at the time, place and in the manner
alleged, by a preponderance of the reliable, probative and substantial evidence.2 An injury does
not have to be confirmed by eyewitnesses in order to establish the fact that an employee
sustained an injury in the performance of duty, but the employee’s statements must be consistent
with the surrounding facts and circumstances and his or her subsequent course of action.3 An
employee has not met his or her burden of proof of establishing the occurrence of an injury when
there are such inconsistencies in the evidence as to cast serious doubt upon the validity of the
claim.4 Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. 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.6 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.7
ANALYSIS
Appellant attributed her condition to a June 18, 2007 incident when she struck her head
on an allegedly malfunctioning cash drawer. She also attributed her condition to lifting, pushing
and pulling tubs and post carts as well as loading mail into a truck on June 18, 2007. The record
lacks any evidence contradicting the occurrence of these events. An employee’s statement
1

5 U.S.C. §§ 8101-8193.

2

D.B., 58 ECAB 464 (2007); George W. Glavis, 5 ECAB 363, 365 (1953).

3

M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); George W. Glavis, supra note 2.

4

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Gus Mavroudis, 9 ECAB 31, 33 (1956).

5

M.H., supra note 3; John D. Shreve, 6 ECAB 718, 719 (1954).

6

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

7

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).

4

alleging that an injury occurred at a given time and in a given manner is of great probative value
and will stand unless refuted by strong or persuasive evidence.8 Moreover, an injury does not
have to be confirmed by eyewitnesses in order to establish the fact that an employee sustained an
injury in the performance of duty, as alleged, but the employee’s statements must be consistent
with surrounding facts and circumstances and her subsequent course of action.9 As either of
these uncontradicted statements is sufficient to establish appellant experienced an employmentrelated incident, the Board finds the June 18, 2007 employment incidents are established.
However, appellant has not submitted sufficient probative, competent rationalized
medical opinion evidence demonstrating that the established employment incidents caused a
medically-diagnosed injury and therefore has not satisfied her burden of proof. Causal
relationship is a medical issue that can only be proven by submission of probative rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on whether there is a causal relationship between the
employee’s diagnosed condition and the accepted employment incident. The opinion of the
physician must be based on a complete factual and medical background of the employee, 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 specific employment incident
identified by the employee.10
Immediately following the alleged injury, appellant was seen by Dr. Frishberg, a
chiropractor. The term “physician” includes chiropractors only to the extent that their
reimbursable services are limited to treatment consisting of manual manipulation of the spine to
correct a subluxation as demonstrated by x-ray to exist.11 A chiropractor is not considered a
physician under the Act unless it is established that there is a spinal subluxation as demonstrated
by x-ray to exist.12 The first reports from Dr. Frishberg did not diagnose a subluxation, but
rather diagnosed cervical and lumbar sprains. As such, his reports did not constitute competent
medical evidence. Dr. Frishberg continued to treat appellant and in his reports dated August 28
and September 5, 2007 he diagnosed lumbar and cervical segment joint dysfunction, which
might be diagnoses of subluxation, but he still did not indicate that these diagnoses were made
based upon x-ray evidence. Therefore these were still not competent medical diagnoses.13 On
October 23, 2007 the Office received an undated report from Dr. Frishberg wherein he indicated
8

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Wanda F. Davenport, 32 ECAB 552,
556 (1981).
9

See Shirley A. Temple, 48 ECAB 404, 407 (1997); Joseph H. Surgener, 42 ECAB 541, 547 (1991).

10

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
11

The term physician includes chiropractors only to the extent that their reimbursable services are limited to
treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist
and subject to regulation by the Secretary. 5 U.S.C. § 8101(2); see also Jack B. Wood, 40 ECAB 95 (1988).
12

Mary A. Ceglia, 55 ECAB 626 (2004).

13

The Office’s regulations define subluxation to mean an incomplete dislocation, off-centering, misalignment,
fixation or abnormal spacing of the vertebrae which must be demonstrated on x-ray. 20 C.F.R. § 10.5(bb).

5

that he had reviewed x-rays of appellant’s spine, but he diagnosed degenerative changes of the
cervical, thoracic and lumbar spine, rather than subluxation. In his report dated September 23,
2008, Dr. Frishberg diagnosed subluxations “at all levels,” which he also stated were diagnosed
based upon x-ray evidence. However, he did not include an x-ray report. Dr. Frishberg also did
not indicate the date of the x-ray report upon which the new diagnosis was made and he did not
explain why this diagnosis, if retroactive to the June 18, 2007 injury, had not been made in his
earlier reports. As such, the reports from Dr. Frishberg are of limited probative value.
The other medical evidence of record consists of reports from Drs. Elkowitz and
Freeman. Dr. Elkowitz diagnosed muscle spasms, based upon x-rays and Dr. Freeman
diagnosed cervical and lumbar strain and sprain. These reports have little probative value
however as they lack a rationalized opinion explaining how the established employment
incidents caused the diagnosed medical conditions.14 This deficiency reduces the probative
value of these physician’s opinions such that their reports are insufficient to satisfy appellant’s
burden of proof.
The Board has held the fact that a condition manifests itself or worsens during a period of
employment15 or that work activities produce symptoms revelatory of an underlying condition16
does not raise an inference of causal relationship between a claimed condition and employment
factors.
The Board finds that appellant has not established that she sustained an injury in the
performance of duty on June 18, 2007.
CONCLUSION
The Board finds that appellant established that the employment incident occurred as
alleged but the medical evidence of record is insufficient to demonstrate that the established
incident caused a medically-diagnosed condition.

14

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value). See also Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52
ECAB 332 (2001).
15

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).

16

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

6

ORDER
IT IS HEREBY ORDERED THAT January 2, 2009 and July 9, 2008 decisions of the
Office of Workers’ Compensation Programs are modified in part and affirmed in part.
Issued: March 23, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


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

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

Docket No. 13-27
Issued: April 11, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 3, 2012 appellant filed a timely appeal from a September 25, 2012 decision
of the Office of Workers’ Compensation Programs (OWCP) which terminated his compensation
benefits. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate of appellant’s wage-loss
compensation and medical benefits effective September 21, 2012.
FACTUAL HISTORY
On June 12, 2000 appellant, then a 51-year-old letter carrier, filed a traumatic injury
claim alleging an aggravation of degenerative disc disease that day while pushing a hamper of

1

5 U.S.C. §§ 8101-8193.

parcels. OWCP accepted his claim for lumbar strain and aggravation of lumbar degenerative
disc disease. Appellant returned to full-time limited duty and stopped in October 2005.
From September 20, 2000 to January 9, 2006 for low back pain, appellant came under the
treatment of Dr. Randall W. Armstrong, a Board-certified orthopedic surgeon, who noted a
history of chronic back pain beginning in 1983 with work-related back injuries 1991, 1997, 1998
and 2000. Dr. Armstrong diagnosed probable symptomatic facet arthropathy at L3-4,
symptomatic degenerative disc disease at L3-4, rule out longstanding facet fracture on the right,
possible lower lumbar pars defect and three-level disc desiccation at L3-4, L4-5 and L5-S1. He
treated appellant conservatively with bilateral nerve blocks. On September 12, 2005 appellant
presented with severe back pain and reported that he was unable to perform his job. In a duty
status report dated September 12, 2005, Dr. Armstrong noted that appellant was totally disabled.
On January 9, 2006 he released appellant to limited-duty work for two hours a day. A magnetic
resonance imaging (MRI) scan of the lumbar spine dated August 4, 2000 revealed moderate disc
bulging at L3-4 with spondylolisthesis and mild degenerative changes at T11-12 and L4-5 and
L5-S1. An April 20, 2005 MRI scan of the lumbar spine revealed L3-4 advanced degenerative
disc disease with canal stenosis and neural foraminal narrowing and asymmetric degenerative
disc changes at L4-5. A computerized tomography of the lumbar spine dated September 10,
2001 revealed degeneration of L3-4 disc protrusion, L3-4 central spinal stenosis, degeneration of
L4-5 disc with disc protrusion and degeneration of L5-S1 disc with disc protrusion. On
September 14, 2005 appellant had a lumbar myelogram that revealed moderate-to-severe
degenerative disc disease at L3-4 and spinal stenosis at L3-4.
On January 11, 2006 appellant was offered a light-duty position as a carrier for two hours
a day. On January 12, 2006 he accepted the position and returned to work. On May 5, 2006
Dr. Armstrong increased appellant’s work hours to four a day and continued his physical
restrictions.2
On March 26, 2009 OWCP referred appellant to Dr. Aubrey A. Swartz, a Board-certified
orthopedic surgeon, for a second opinion.3 In an April 27, 2009 report, Dr. Swartz noted that
physical examination revealed normal range of motion of the lumbar spine, equal reflexes in the
lower extremities, intact sensation and negative straight leg raises. He noted extensive multilevel
degenerative changes, spondylolisthesis at L3-4, foraminal stenosis, spinal stenosis, degeneration
at L4-5 with a small left paracentral disc protrusion, degeneration at L5-S1, disc protrusion and
degeneration at L3-4 and chronic central spinal stenosis. Dr. Swartz noted that the degenerative
pathology antedated the 2000 work injury. He found that the 2000 work injury caused an
increase in pain, but appellant was already having pain in the lower extremities and there was no
evidence to support material changes resulting from the 2000 work injury. Dr. Swartz opined
2

In a report of investigation of workers’ compensation fraud, the U.S. Postal Service, Office of the Inspector
General noted that appellant was investigated from June 8 to July 14, 2006 for possible malingering and exceeding
his physical limitations. The investigation findings revealed that appellant may be malingering. Upon completion
of his two-hour day, he moved with normal gait and without discomfort, driving 30 minutes to a second opinion
appointment.
3

Dr. Swartz previously saw appellant in 2007 for a right knee condition that was developed in a separate claim
File No. xxxxxx876. The termination of benefits presently before the Board pertains only to appellant’s accepted
low back conditions.

2

that appellant had substantial age-related low back degenerative changes. He opined that
appellant sustained a temporary aggravation of his degenerative disease that had ceased by the
time of his examination. Dr. Swartz recommended Celebrex but advised that appellant would
not need surgery or physical therapy. He stated that it was unlikely that appellant had residuals
of his 2000 injury nine years later. Dr. Swartz found extensive age-related changes to the low
back and lumbar spine. In a work capacity evaluation, he noted that appellant could return to
work full time with restrictions.
In a May 28, 2009 letter, OWCP requested that Dr. Armstrong review the report of
Dr. Swartz and provide a response. In a June 10, 2009 report, Dr. Armstrong reviewed
Dr. Swartz’s report and noted that for the most part he agreed with the findings therein. He
noted that appellant could work eight hours a day with modest restrictions.
On June 30, 2009 OWCP offered appellant a full-time light-duty modified assignment as
a city carrier subject to the restrictions set forth by Dr. Swartz and Dr. Armstrong. Appellant
accepted the position.
On September 4, 2009 OWCP issued a notice of proposed termination of wage-loss
benefits based on Dr. Swartz’s report.
Appellant submitted a September 2, 2009 report from Dr. Armstrong, who noted that he
returned to work and worked for one hour before having back pain while casing mail.
Dr. Armstrong advised that appellant’s job position needed to be clarified as to specific tasks to
be performed. He released appellant to his express mail job for four hours a day. In a
September 3, 2009 report, Dr. Armstrong noted that appellant reported being let go because the
employing establishment was unable to accommodate his physical restrictions. Appellant was
released to modified duty for four hours a day.
By decision dated October 16, 2009, OWCP terminated appellant’s wage-loss benefits,
effective October 25, 2009, based on Dr. Swartz’s report.
In a December 21, 2009 letter to OWCP, appellant acknowledged that his benefits were
terminated on October 25, 2009 but he continued to receive wage-loss compensation from
OWCP. He sought clarification of his entitlement to compensation benefits.
In a letter dated January 20, 2010, OWCP advised appellant that his wage-loss benefits
were terminated October 16, 2009. After the decision issued, the employing establishment
withdrew the job offer at eight hours a day and noted that it could not accommodate his work
restrictions of four hours a day. As it could not accommodate his work restrictions, OWCP
determined that appellant was entitled to wage-loss compensation.4

4

On January 20, 2010 OWCP referred appellant for vocational rehabilitation. In a vocational rehabilitation
closure report dated September 20, 2011, the counselor noted that two goal positions were selected, receptionist and
accounting clerk. Appellant received 90 days of job placement services but did not obtain employment and
vocational rehabilitation ended on September 21, 2011.

3

Appellant submitted a report from Dr. Armstrong dated October 26, 2010 which noted
that appellant was involved in a motor vehicle accident on October 25, 2010 when his car was
struck from behind and pushed 60 feet. He had back and leg pain since that time. Dr. Armstrong
noted that x-rays did not reveal a fracture but the accident aggravated his back pathology. In a
November 21, 2011 report, he noted that appellant recently had a right knee replaced and had not
worked in two years. Dr. Armstrong diagnosed thoracic or lumbosacral neuritis or radiculitis,
radicular syndrome and lumbosacral spondylosis.
OWCP referred appellant to Dr. Swartz for a second opinion. In an December 8, 2011
report, Dr. Swartz noted that examination revealed normal range of motion of the lumbar spine,
reflexes were absent in the lower extremities, sensation was intact, motor function was normal
with negative straight leg raises bilaterally. He noted extensive multilevel degenerative changes,
spondylolisthesis at L3-4, foraminal stenosis, spinal stenosis, degeneration at L4-5 with a small
left paracentral disc protrusion, degeneration at L5-S1, disc protrusion and degeneration at L3-4
disc with disc protrusion and chronic central spinal stenosis. Dr. Swartz stated that the 2000
work injury caused an increase in pain but there was no evidence to support that there were
material changes due to the 2000 work injury. Appellant was also involved in a motor vehicle
accident on October 25, 2010 which caused increased back and leg symptoms. Dr. Swartz
opined that appellant had substantial age-related degenerative changes in his low back that were
not related to the 2000 work injury. Appellant’s low back strain had resolved and there was no
evidence of material change or structural changes in the lumbar spine based on the 2000 work
injury.5 In a work capacity evaluation dated December 17, 2011, Dr. Swartz noted that appellant
was able to work full time with restrictions.
On August 16, 2012 OWCP issued a notice of proposed termination of compensation and
medical benefits for the accepted low back conditions based on Dr. Swartz’s report.
Appellant submitted a September 11, 2012 statement and disagreed with the proposed
termination of benefits. He contended that he had residuals of the aggravation of degenerative
disc disease and was unable to lift heavy objects without pain. With regard to the positions of
accounting clerk and receptionist, appellant found it hard to find a job, the pay in the positions
was lower than in his prior employment and he could not type quickly.
By decision dated September 25, 2012, OWCP terminated appellant’s wage-loss and
medical benefits effective September 21, 2012. It found that Dr. Swartz’s report represented the
weight of medical opinion and established that appellant had no continuing residuals of his
accepted lumbar injuries.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.6 After it has determined that an employee has disability causally
5

Dr. Swartz also opined that appellant’s employment did permanently aggravate his bilateral knee condition. The
knee condition is not before the Board on the present appeal. See supra note 3.
6

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

4

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.7 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability. To terminate authorization for medical treatment, OWCP must establish that a
claimant no longer has residuals of an employment-related condition, which requires further
medical treatment.8
ANALYSIS
OWCP accepted appellant’s claim for work-related lumbosacral strain and an aggravation
of lumbosacral degenerative disc disease from the June 12, 2000 work injury. It referred him to
Dr. Swartz for a second opinion evaluation.
In a December 8, 2011 report, Dr. Swartz provided an extensive review of appellant’s
accepted conditions, medical history and reported examination findings. There were no clinical
findings of any residuals or disability causally related to the accepted low back injury of
June 12, 2000. Dr. Swartz noted a normal range of motion of the lumbar spine, reflexes were
equal in the lower extremities and symmetrical, sensation was intact and motor function was
normal. He diagnosed extensive multilevel degenerative changes, spondylolisthesis at L3-4,
foraminal stenosis, spinal stenosis, degeneration at L4-5 with a small left paracentral disc
protrusion, degeneration at L5-S1, disc protrusion and degeneration at L3-4 disc with disc
protrusion and chronic central spinal stenosis. Dr. Swartz found that appellant had substantial
age-related degenerative changes in his low back but there was no evidence of structural or
material change to the lumbar spine due to the 2000 work injury. He opined that appellant’s
accepted injury represented a temporary aggravation that had resolved. Dr. Swartz explained
that appellant’s current symptoms were due to age-related degenerative changes. He opined that
appellant had no work-related residuals and required no further treatment. In a work capacity
evaluation dated December 17, 2011, Dr. Swartz noted that appellant was able to work full time
with restrictions.
The Board finds that Dr. Swartz’s report represents the weight of the medical evidence.
OWCP properly relied on his opinion to terminate appellant’s compensation benefits on
September 21, 2011. Dr. Swartz’s opinion is based on proper factual and medical history as he
reviewed a statement of accepted facts and appellant’s prior medical treatment and test results.
He provided comprehensive findings on examination in support of his opinion that the accepted
work-related conditions had resolved and that appellant’s continuing symptoms were due to a
degenerative condition that was no longer aggravated by the accepted injury. Dr. Swartz
reported no basis on which to find that appellant had any continuing residuals of his accepted
lumbosacral strain and aggravation of lumbosacral degenerative disc disease. There is no

7

Mary A. Lowe, 52 ECAB 223 (2001).

8

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

5

contemporaneous medical evidence of equal weight supporting appellant’s claim for continuing
residuals of the accepted lumbar conditions.9
Appellant disagreed with the termination of benefits, noting that he continued to have
residuals of the aggravation of degenerative disc disease. With regards to the vocational
rehabilitation positions of accounting clerk and receptionist it was hard to find a job, the pay was
lower and he could not type quickly. As noted, the issue of whether appellant has continuing
low back conditions causally related to his 2000 work injury is a medical issue which must be
addressed by a physician. Appellant did not submit additional medical evidence.
On appeal, appellant asserted that he requested a change of physician which was
improperly denied and the most recent report from Dr. Armstrong supports continuing residuals
of his work injury. In a November 21, 2011 report, Dr. Armstrong noted appellant’s complaints
of low back pain and diagnosed thoracic or lumbosacral neuritis or radiculitis, radicular
syndrome and lumbosacral spondylosis. The Board notes that he provided diagnoses for
conditions not accepted as related to the 2000 work injury. Dr. Armstrong noted that appellant
had not worked in two years. He did not address how the nonaccepted back conditions were
related to the 2000 work injury.10
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 has met its burden of proof to terminate benefits.

9

As noted, supra notes 3 and 5, this decision pertains only to appellant’s accepted lumbar conditions due to the
June 12, 2000 work injury.
10

See G.A., Docket No. 09-2153 (issued June 10, 2010) (for conditions not accepted by OWCP as being
employment related, it is the employee’s burden to provide rationalized medical evidence sufficient to establish
causal relation).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 25, 2012 is affirmed.
Issued: April 11, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., 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. 10-1720
Issued: April 13, 2011

Case Submitted on the Record

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

JURISDICTION
On June 15, 2010 appellant filed a timely appeal from a January 19, 2010 decision of the
Office of Workers’ Compensation Programs regarding a schedule award and a May 21, 2010
decision regarding an abandonment of hearing. 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.
ISSUES
The issues are: (1) whether appellant established that he sustained more than a 51
percent permanent impairment of the right lower extremity and a 57 percent impairment of the
left lower extremity, for which he received schedule awards; and (2) whether the Office properly
found that appellant abandoned his request for a telephonic hearing.
On appeal, appellant asserted that he did not call in to the scheduled hearing as he did not
receive the notice of the hearing.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. By decision and order issued April 9,
2003, the Board affirmed a June 24, 2002 decision of the Office granting additional schedule
awards for a 28 percent impairment of the right lower extremity for a total of 51 percent, and an
additional 15 percent impairment of the left lower extremity for a total of 57 percent. The law
and the facts of the case as set forth in the Board’s prior decision are incorporated by reference.
2

In an August 13, 2007 report, Dr. Nasim A. Rana, an attending Board-certified
orthopedic surgeon, diagnosed severe osteoarthritis of the right knee with flexion contracture.
He noted that appellant underwent total left knee arthroplasty and now required a total right knee
arthroplasty. Dr. Rana opined that appellant’s bilateral knee conditions continued to be causally
related to accepted bilateral meniscal tears and patellar chondromalacia. On October 31, 2007
He performed a total right knee replacement, approved by the Office. Dr. Rana submitted
periodic reports through May 2008 finding a good range of right knee motion with excellent
alignment.
On October 14, 2009 appellant claimed an additional schedule award. In an October 29,
2009 letter, the Office advised him to submit an impairment evaluation from his attending
physician utilizing the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter, A.M.A., Guides).
Appellant submitted a November 19, 2009 impairment evaluation by Dr. Robert
Snowden, an attending Board-certified orthopedic surgeon, who noted that both knees were
stable and well aligned, without significant effusion. He did not require knee supports and was
able to walk well and exercise moderately. Dr. Snowden found full extension of both knees,
active flexion of 125 degrees on the right and 130 degrees on the left. The left patella was
surgically absent. Dr. Snowden opined that appellant remained at maximum medical
improvement with no change needed in the impairment rating of either knee.
The Office asked an Office medical adviser to review the medical record and provide an
impairment rating according to the sixth edition of the A.M.A., Guides. In a December 21, 2009
report, an Office medical adviser reviewed the record and found that appellant had reached
maximum medical improvement as of November 19, 2009. He characterized appellant’s range
of knee motion as excellent. Referring generally to the sixth edition of the A.M.A., Guides, the
medical adviser opined that there was no basis for an additional schedule award for impairment
of either lower extremity.
By decision dated January 19, 2010, the Office denied appellant’s claim for an additional
schedule award on the grounds that the medical evidence did not establish impairment greater
than the 51 percent previously awarded for impairment of the right leg and 57 percent for
impairment of the left leg. It found that Dr. Snowden and the Office medical adviser opined that
appellant did not have any additional impairment of either leg.

2

Docket No. 02-2017 (issued April 9, 2003).

2

In a February 3, 2010 letter, appellant requested an oral hearing. In a March 31, 2010
letter, the Office’s Branch of Hearings and Review notified appellant that a telephonic hearing
was scheduled for May, 6, 2010 at 10:15 a.m. Eastern Time. It instructed him to call the
provided toll-free number a few minutes before the hearing time and enter the pass code to gain
access to the conference call. The notice was mailed to appellant’s address of record. Appellant
did not participate in the telephonic hearing.
By decision dated May 21, 2010, the Office’s Branch of Hearings and Review found that
appellant abandoned his requested hearing. The decision noted that the telephone hearing was
scheduled for May 6, 2010, but he failed to appear as instructed. It found that there was no
evidence that appellant contacted the Office either prior or subsequent to the scheduled hearing
to explain his failure to participate. Based on these facts, the Office concluded that appellant
abandoned his oral hearing request.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of the Act provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. The Act,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such determination is a matter which rests in the sound
discretion of the Office. For consistent results and to ensure equal justice, the Board has
authorized the use of a single set of tables so that there may be uniform standards applicable to all
claimants. The A.M.A., Guides has been adopted by the Office as a standard for evaluation of
schedule losses and the Board has concurred in such adoption.3 For schedule awards after May 1,
2009, the impairment is evaluated under the sixth edition of the A.M.A., Guides, published in
2008.4
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).5 Under the sixth edition, the evaluator identifies 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).6 The net
adjustment formula is (GMFH-CDX) + (GMPE - DCX) + (GMCS- CDX).

3

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
5

A.M.A., Guides (6th ed. 2008), page 3, section 1.3, “The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.”
6

A.M.A., Guides (6th ed. 2008), pp. 494-531.

3

ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained bilateral knee injuries and conditions
resulting in bilateral total arthroplasties. Appellant received schedule awards for a 51 percent
impairment of the right lower extremity and a 57 percent impairment of the left lower extremity.
He claimed an additional schedule award on October 14, 2009. Appellant submitted a
November 19, 2009 impairment evaluation by Dr. Snowden, an attending Board-certified
orthopedic surgeon, who opined that appellant did not have any additional impairment of either
lower extremity.
The Office then asked an Office medical adviser to provide an updated impairment rating
according to the sixth edition of the A.M.A., Guides. In a December 21, 2009 report, an Office
medical adviser reviewed the record and found no basis for an additional schedule award.
Although he referred generally to the sixth edition of the A.M.A., Guides, he did not cite to any
specific table, figure or rating scheme. The medical adviser did not provide sufficient
explanation of the evidence to establish that there was no additional impairment. This lack of
rationale is contrary to the Office’s procedures, which state that the Office medical adviser
should provide rationale for the percentage of impairment specified.7 As the medical adviser did
not do so, the January 19, 2010 decision will be set aside and the case remanded to obtain a
supplemental report from the medical adviser. After such further development as the Office
deems necessary, it should issue an appropriate decision regarding appellant’s claim of a
schedule award for additional impairment of the left and right lower extremities.
As the case will be remanded to the Office for further development on the schedule
award issue, the second issue regarding whether the Office properly found that appellant
abandoned a hearing is moot.
CONCLUSION
The Board finds that the case is not in posture for a decision regarding as to appellant’s
permanent impairment of the right and left lower extremities. The case will be remanded for
further development on this issue. The Board further finds that the issue of whether appellant
abandoned his request for a hearing is moot.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.6d(1) (January 2010).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 21 and January 19, 2010 are set aside and the case remanded
for further development consistent with this decision.
Issued: April 13, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5