United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Salisbury, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1163
Issued: March 30, 2022

Case Submitted on the Record

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

JURISDICTION
On April 16, 2021 appellant filed a timely appeal from a December 14, 2020 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. 2
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective December 3, 2020, as she no longer had
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 14, 2020 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.

disability or residuals causally related to her accepted February 21, 2006 employment injury;
(2) whether appellant has established that she had continuing disability or residuals on or after
December 3, 2020 causally related to her accepted February 21, 2006 employment injury.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On March 22, 2006 appellant, then a 41-year-old nursing assistant, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome (CTS)
due to factors of her federal employment, including pushing, pulling, transporting, and lifting
patients. She noted that she first became aware of her condition and its relationship to her federal
employment on February 21, 2006. Appellant underwent a right carpal tunnel release on
July 12, 2006. OWCP accepted appellant’s claim for bilateral CTS on January 15, 2009.
On July 22, 2020 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a series of questions, for a second opinion examination and evaluation with
Dr. Chason Hayes, a Board-certified orthopedic surgeon. It requested that Dr. Hayes evaluate
whether appellant continued to have residuals or disability due to the accepted February 21, 2006
employment injury.
In an August 19, 2020 report, Dr. Hayes discussed appellant’s factual and medical history
and reported his findings on physical examination. He noted that appellant had last undergone an
electromyogram/nerve conduction velocity (EMG/NCV) study on October 10, 2014, which was
consistent with severe bilateral peripheral polyneuropathy, probably related to her insulin dependent diabetes. On physical examination Dr. Hayes observed that appellant’s wrists had no
abnormal findings, that her scar was well healed, she had no swelling, and full range of motion.
He also observed that she was uncooperative with the sensory examination. Dr. Hayes opined that
appellant’s work-related CTS had resolved following surgery and that she had no residuals. He
further opined that appellant was capable of working her date -of-injury position. Dr. Hayes
explained that appellant had residuals from unrelated medical conditions such as cervical
radiculopathy and peripheral neuropathy from diabetes, but that, with regard to the accepted work
condition, there was no medical contraindication to her returning to full-duty employment.
On October 23, 2020 OWCP issued a notice proposing to terminate appellant’s wage-loss
compensation and medical benefits based on Dr. Hayes’ opinion that the February 21, 2006
accepted condition had ceased without residuals or disability. It afforded her 30 days to submit
additional evidence of argument challenging the proposed termination.
In a response dated November 11, 2020, appellant replied to OWCP’s notice of proposed
termination, stating that she did not understand why her claim was being terminated when she still
had medical problems. In an attached letter dated March 5, 2020, Dr. Katherine Butler, an
3

Docket No. 10-1201 (issued January 4, 2011); Docket No. 09-2166 (issued May 12, 2010); Docket No. 07-1559
(issued November 7, 2007).

2

orthopedic surgeon, opined that appellant had recurrent bilateral CTS, noting that she had
previously been treated by another physician for bilateral CTS due to repetitive work activities.
She explained that appellant’s recurrence was likely due to scar tissue formation at the surgical
site and, therefore, could be considered related to her initial injury. In a letter dated June 24, 2020,
Dr. Butler explained that she had begun seeing appellant as a patient in 2020. She diagnosed
bilateral carpal tunnel syndrome, noting that it was supported by physical examination, NCV
studies, and medical reports. Dr. Butler stated that appellant’s symptoms appeared to be consistent
and that she had reached maximum medical improvement (MMI). She noted that appellant had
previously undergone bilateral CTS surgery, but continued to have numbness, burning, pain, and
weakness in her hands, which prevented her from returning to employment. Dr. Butler opined that
it was reasonable to assume, based on documentation, that appellant had bilateral CTS attributable
to work and that she has been persistently unable to return to work due to this injury.
In a letter dated July 15, 2020, Dr. Benjamin Ott, a Board-certified family practitioner,
opined that appellant had chronic bilateral CTS due to repetitive work activities in her federal
employment as of February 21, 2006. He explained that her persistent symptoms were likely due
to scar tissue formation related to previous treatment and that she was permanently disabled from
all occupations due to this injury.
Appellant also attached a progress report from Dr. William Mason, a Board-certified
orthopedic surgeon, dated November 29, 2006, in which he opined she was unable to work.
In a note dated November 27, 2020, Dr. Ott indicated that he had seen appellant regularly
every three to four months since prior to 2011. He noted that he regularly discussed her ongoing
issues with CTS and nerve damage at her appointments, including in 2019 and 2020.
By decision dated December 2, 2020, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective December 3, 2020, based on Dr. Hayes’ second
opinion report.
On December 10, 2020 appellant requested reconsideration.
submitted an EMG/NCV study dated March 3, 2020.

With her request, she

By decision dated December 14, 2020, OWCP denied modification the of the December 2,
2020 decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.4 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to

4

See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

3

the employment. 5 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.7 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective December 3, 2020.
In his August 19, 2020 report, Dr. Hayes discussed appellant’s factual and medical history
and reported the findings of his physical examination. On physical examination of appellant’s
wrists, he observed normal findings, including that appellant’s scar was well healed, she had no
swelling, and full range of motion. Dr. Hayes opined that appellant’s work-related CTS had
resolved after surgery and that she had no residuals. He related that he had reviewed appellant’s
October 10, 2014 EMG study, which he related was consistent with severe bilateral peripheral
polyneuropathy. While he opined that this finding was “probably” related to appellant insulindependent diabetes, Dr. Hayes offered no rationale in support of his opinion. His opinion regarding
the cause of appellant’s severe bilateral peripheral polyneuropathy was speculative in nature. The
Board has held that speculative and equivocal medical opinions regarding causal relationship have
no probative value. 9 The Board also notes that, while Dr. Hayes found that the 2014 EMG revealed
severe bilateral median nerve studies, he did not obtain further diagnostic studies to confirm
whether appellant’s condition had resolved. Dr. Hayes concluded that appellant had residuals from
unrelated medical conditions such as cervical radiculopathy and peripheral neuropathy from
diabetes, but he offered no medical rationale, supported by objective findings, regarding the cause
of appellant’s continued residuals. The Board has held that a medical opinion is of limited
probative value if it contains a conclusion regarding a given medical matter, which is unsupported
by medical rationale. 10

5

See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L.
Minor, 37 ECAB 541 (1986).
6

See R.P., supra note 4; Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

See R.P., supra note 4; Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued
August 5, 2009). Furman G. Peake, 41 ECAB 361, 364 (1990).
8

See R.P., supra note 4; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002);
Furman G. Peake, id.
9

M.G., Docket No. 21-0747 (issued October 15, 2021).

10

See P.C., Docket No. 20-0371 (issued January 26, 2021); L.G., Docket No. 19-0142 (issued August 8, 2019);
E.R., Docket No. 15-1046 (issued November 12, 2015); C.M., Docket No. 14-0088 (issued April 18, 2014).

4

As Dr. Hayes’ August 19, 2020 report was insufficiently rationalized and of diminished
probative medical value in establishing that appellant’s accepted bilateral carpal tunnel conditions
had resolved, OWCP improperly determined that it constituted the weight of the medical evidence.
The Board therefore finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits.11
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective December 3, 2020.
ORDER
IT IS HEREBY ORDERED THAT the December 14, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 30, 2022
Washington, DC

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

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

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

11

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

5


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

)
)
)
)
)
)
)
)

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

Docket No. 19-1486
Issued: January 17, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 1, 2019 appellant filed a timely appeal from an April 8, 2019 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 met his burden of proof to establish an injury in the
performance of duty on July 20, 2018, as alleged.
FACTUAL HISTORY
On August 10, 2018 appellant, then a 22-year-old sales and services/distribution associate,
filed a traumatic injury claim (Form CA-1) alleging that on July 20, 2018 he sustained injuries to
his head, right upper jaw (maxilla), and both knees when he fell while in the performance of duty.
1

5 U.S.C. § 8101 et seq.

On the reverse side of the claim form the employing establishment indicated that appellant stopped
work on July 20, 2018 and received medical treatment that same day.
In an August 5, 2018 note, Dr. Marianna Vinokur, a neurology resident, indicated that
appellant could return to work as of August 7, 2018.
In an August 10, 2018 statement, appellant recounted that on July 20, 2018 he fell and hit
his head and face on the work floor. He stated that he came out of the bathroom that morning and
did not remember how, but fell and injured his head and face. The impact damaged appellant’s
tooth and caused an avulsion. Appellant further stated that the only thing he recalled was waking
up in the ambulance on the way to the hospital.
In an August 22, 2018 statement, C.S., a customer service manager, indicated that on
July 20, 2018 appellant was involved in an incident at the employing establishment. He stated that
according to appellant and witnesses, appellant was walking on the workroom floor when he went
into a seizure and fell to the floor. C.S. further stated that upon falling, appellant sustained injuries
to his face and mouth when he struck the concrete floor. Paramedics were immediately summoned
and he was taken to the hospital.
In an August 22, 2018 letter, the employing establishment challenged appellant’s claim. It
noted that he failed to produce medical documentation stating how the injury was causally related
to his employment. The employing establishment further noted that appellant exited the bathroom
and fell to the floor on his face, and did not strike anything on the way to hitting the floor.
Additionally, it noted that he had a medical seizure causing him to fall to the floor.
In an August 23, 2018 development letter, OWCP explained that the evidence received to
date was insufficient to establish entitlement to FECA benefits. It noted there was no diagnosis of
any condition resulting from appellant’s injury. OWCP advised him of the type of medical
evidence necessary to support a claim for benefits. It also requested that appellant complete a
factual questionnaire regarding his alleged injury, and provide a detailed description as to how the
injury occurred. OWCP also requested that he provide statements from any persons who witnessed
the injury or had immediate knowledge of it. It afforded appellant 30 days to submit the requested
factual and medical evidence.
In a September 12, 2018 response, appellant stated that the last thing he remembered was
leaving the bathroom and waking up in an ambulance outside the employing establishment. He
further stated that lifting was not the cause of his injury, and all he remembered was falling on his
face and the impact causing him to lose a tooth and break a bone in his face (upper lip). As to
statements from individuals who witnessed the injury or had immediate knowledge of it, appellant
responded “Not applicable.” He also described the treatment he received on July 20, 2018 and
follow up with his primary care physician and dentist. Lastly, appellant stated that he had no
similar disabilities or symptoms before the injury.
By decision dated October 3, 2018, OWCP denied appellant’s claim, finding that he failed
to submit any medical evidence containing a diagnosis in connection with the accepted July 20,
2018 employment incident. It concluded, therefore, that the requirements had not been met to
establish the medical component of fact of injury.

2

On November 1, 2018 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. In an attached letter, he indicated that he was submitting
evidence from a treating neurologist. Appellant also stated that he had fallen to the floor at work
and hit his face, head, and body. He further indicated that he was unsure “if the ground caused his
seizure” when he fell, but was sure that the impact with the workroom cement floor was
responsible for his broken jaw and tooth extraction.
At the February 26, 2019 hearing, appellant testified that when he exited the restroom at
work, he hit a crack in the cement floor and tripped and fell, and subsequently hit his face on the
floor. He further testified that he was diagnosed with a seizure, which he believed was a result of
the fall and hitting his face on the floor. Appellant did not believe he had a seizure before he fell,
and the seizure did not cause him to fall. He also testified that he had never had a seizure before
July 20, 2018, had not previously been diagnosed with any conditions that would cause a seizure,
and had no prior history of fainting. Appellant further testified that he did not believe he hit
anything as he fell down to the cement floor.
OWCP also received medical evidence, which included a July 20, 2018 emergency
department discharge summary, which noted that appellant was seen by Dr. Brent T. Rau, Boardcertified in emergency medicine, for possible seizure. Dr. Rau’s diagnoses included tooth avulsion
and seizure. Appellant was referred to the dental clinic for his tooth avulsion and fracture. He
was also advised to follow up with his primary care physician and a neurologist for continued
evaluation of the seizure(s).
A July 20, 2018 computerized tomography (CT) scan of appellant’s facial bones revealed
a fracture at the maxilla on the right with loosening of the right maxillary canine tooth.
Dr. Troy Desai, a Board-certified neurologist, interpreted appellant’s August 8, 2018
electroencephalogram (EEG) as normal in the awake and drowsy state.
An August 13, 2018 after visit summary noted that Dr. James Jones, Board-certified in
family medicine, saw appellant that day for “new onset seizure and dental trauma.”
In a September 26, 2018 attending physician’s report (Form CA-20), Dr. Jones noted a
July 20, 2018 date of injury with no specific history of injury, noting instead “N/A.” He diagnosed
new onset seizure and a tooth avulsion. Dr. Jones’ physical findings included dental trauma, and
he noted that appellant would need surgery in the future. He similarly noted “N/A” with respect
to the cause of appellant’s diagnoses. In the remarks section of the form report, Dr. Jones
commented “seizure D/O -- resolved.” He advised that appellant was released to resume his full
duties effective August 14, 2018.
OWCP also received an article regarding whether hitting one’s head can cause seizures or
other problems.
By decision dated April 8, 2019, OWCP’s hearing representative affirmed the October 3,
2018 decision as modified. She found that Dr. Jones’ diagnoses of seizure and tooth avulsion were
sufficient to establish the medical component of fact of injury. However, the hearing
representative denied appellant’s claim, finding that he failed to establish that the injury occurred
in the performance of duty. She found that appellant collapsed during a seizure and did not strike
3

any furniture or items on the floor. Therefore, the hearing representative determined that appellant
was injured due to an idiopathic fall, which was not compensable under FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,3 that an injury was sustained in the performance of duty, as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
The phrase “sustained while in the performance of duty” has been interpreted by the Board
to be the equivalent of the commonly found prerequisite in workers’ compensation law of “arising
out of and in the course of employment.”6 The phrase “in the course of employment” is recognized
as relating to the work situation and, more particularly, relating to elements of time, place, and
circumstance.7 To arise in the course of employment, an injury must occur: (1) at a time when
the employee may reasonably be stated to be engaged in the master’s business; (2) at a place where
he or she may reasonably be expected to be in connection with his or her employment; and
(3) while he or she was reasonably fulfilling the duties of his or her employment or engaged in
doing something incidental thereto.8 This alone is insufficient to establish entitlement to benefits
for compensability. The concomitant requirement of an injury “arising out of the employment”
must be shown, and this encompasses not only the work setting, but also a causal concept, the
requirement being that the employment caused the injury.9
It is a well-settled principle of workers’ compensation law and the Board has so held that
an injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology causes
2

Id.

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

See M.T., Docket No. 17-1695 (issued May 15, 2018); S.F., Docket No. 09-2172 (issued August 23, 2010);
Valerie C. Boward, 50 ECAB 126 (1998).
7

L.B., Docket No. 19-0765 (issued August 20, 2019); G.R., Docket No. 16-0544 (issued June 15, 2017); Cheryl
Bowman, 51 ECAB 519 (2000).
8

A.S., Docket No. 18-1381 (issued April 8, 2019); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Mary
Keszler, 38 ECAB 735, 739 (1987).
9
D.C., Docket No. 18-1216 (issued February 8, 2019); R.B., Docket No. 16-1071 (issued December 14, 2016);
Eugene G. Chin, 39 ECAB 598 (1988).

4

an employee to collapse and to suffer injury upon striking the immediate supporting surface, and
there is no intervention or contribution by any hazard or special condition of employment -- is not
within coverage of FECA.10 Such an injury does not arise out of a risk connected with the
employment and is, therefore, not compensable. However, as the Board has made equally clear,
the fact that the cause of a particular fall cannot be ascertained or that the reason it occurred cannot
be explained, does not establish that it was due to an idiopathic condition.11
This follows from the general rule that an injury occurring while in the performance of
duty is compensable unless the injury is established to be within an exception to such general
rule.12 OWCP has the burden of proof to submit medical evidence showing the existence of a
personal, nonoccupational pathology if it chooses to make a finding that a given fall is idiopathic
in nature.13 If the record does not establish that the particular fall was due to an idiopathic
condition, it must be considered as merely an unexplained fall, one which is distinguishable from
a fall in which it is definitely proved that a physical condition preexisted and caused the fall.14
An injury resulting from an idiopathic fall may still be compensable if some job
circumstance or working condition intervenes in contributing to the incident or injury, such as, if
an employee, instead of falling directly to the floor, strikes a part of his body against a wall, a piece
of equipment, furniture, machinery, or some similar object. Appellant has the burden of
establishing that he or she struck an object connected with their employment during the course of
the idiopathic fall.15
ANALYSIS
The Board finds that the case is not in posture for decision.
In determining whether appellant’s injury occurred in the performance of duty, the Board
must first consider factors to determine whether the July 20, 2018 incident was caused by an
idiopathic fall. Factors to be considered include whether there is evidence of a predisposed
condition that caused appellant to collapse, whether there were any intervening circumstances or
conditions that contributed to his fall, and whether appellant struck any part of his body against a
wall, piece of equipment, furniture, or similar object as he fell.16

10

H.B., Docket No. 18-0278 (issued June 20, 2018); Carol A. Lyles, 57 ECAB (2005).

11

H.B., id.; M.M., Docket No. 08-1510 (issued November 25, 2008).

12

P.N., Docket No. 17-1283 (issued April 5, 2018); Dora Ward, 43 ECAB 767 (1992).

13
A.B., Docket No. 17-1689 (issued December 4, 2018); P.P., Docket No. 15-0522 (issued June 1, 2016); see also
Jennifer Atkerson, 55 ECAB 317 (2004).
14

P.N., supra note 12; John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988).

15

Robert J. Choate, 39 ECAB 103 (1987); Sharon I. Erdmann, 38 ECAB 589 (1987).

16

Supra note 13.

5

OWCP received an August 22, 2018 statement from C.S. providing that, according to
appellant and witnesses, appellant went into a seizure and fell to the ground. It also received a
letter of even date from the employing establishment controverting the claim, providing that a
medical seizure was the cause of appellant’s injuries. OWCP, in an August 23, 2018 development
letter, requested additional factual information with regard the July 20, 2018 incident. However,
the development letter made no mention of appellant’s seizure and did not seek any additional
evidence concerning the circumstances surrounding it. In its October 3, 2018 decision, OWCP
accepted that appellant’s injury occurred as described, but initially denied his claim because he did
not submit medical evidence containing a diagnosis in connection with his injury. It subsequently
determined in its April 8, 2019 merit decision that appellant’s seizure was caused by a personal,
nonoccupational pathology.
OWCP’s procedures provide that it should obtain evidence from the injured employee,
supervisors, witnesses, and the attending physician showing that a fall was due to an idiopathic
condition or an unknown cause.17 Here, despite it receiving evidence suggesting that appellant’s
fall may have been idiopathic in nature, OWCP’s August 23, 2018 development letter did not seek
any additional factual or medical evidence from appellant demonstrating that his seizure was
caused by a personal, nonoccupational pathology. Moreover, Dr. James’ August 13, 2018 medical
note and September 26, 2018 Form CA-20 diagnosing a new onset of seizure supports appellant’s
contention that he had no history of seizures or fainting prior to the July 20, 2018 incident.
Although appellant surmised that the seizure occurred as a result of striking his head/face
on the workroom floor, the hearing representative relied on the August 22, 2018 statement from
C.S. in finding that appellant had a seizure, which precipitated his fall. The Board finds that
OWCP did not sufficiently develop the evidence regarding whether appellant suffered an
idiopathic or unexplained fall.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter.
While appellant has the burden of proof to establish entitlement to compensation, OWCP shares
the responsibility in the development of the evidence to see that justice is done.18 Once it
undertakes development of the record, it must do a complete job in procuring medical evidence
that will resolve the relevant issues in the case.19
OWCP has the burden of proof to submit medical evidence showing the existence of a
personal, nonoccupational pathology if it chooses to make a finding that a given fall is idiopathic
in nature. The deficiencies in the evidence of record, as noted herein, should be addressed so that
an informed determination can be made regarding whether appellant was in the performance of
duty at the time of his injury and, if so, whether there was any resulting disability. Following this
and other such development as deemed necessary, OWCP shall issue a de novo decision.

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.9(b) (August 1992);

18

S.S., Docket No. 18-0397 (issued January 15, 2019); D.G., Docket No. 15-0702 (issued August 27, 2015);
Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).
19

S.S., id.; Richard F. Williams, 55 ECAB 343, 346 (2004).

6

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 8, 2019 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further action consistent with
this decision.
Issued: January 17, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.A., claiming as widow of D.A., Appellant,
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 14-629
Issued: December 16, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

On January 17, 2014 appellant filed an appeal for review of a December 23, 2013
overpayment decision of the Office of Workers’ Compensation Programs (OWCP). The appeal
was docketed as No. 14-629.
The Board has duly considered the matter and finds that the December 23, 2013
overpayment decision by OWCP made insufficient findings of fact and statement of reasons
pertaining to the overpayment found of $66,562.58.1 Appellant, the employee’s widow, filed a
claim for survivor benefits. The basis for fact of injury, as stated in the November 4, 2013
preliminary overpayment, was “we deducted a total of $60,982.41 for Social Security offset. We
were supposed to deduct $125,970.23.” Appellant was advised to refer to enclosed financial
worksheets. The final overpayment decision did not further clarify the factual basis for the
determination or the amount.
The Board has noted that, in overpayment situations, it is essential that OWCP provide
the recipient of compensation with a clear statement showing how the overpayment was
calculated.2 The Board finds that OWCP did not adequately explain how fact and amount of the
1

See 20 C.F.R. § 10.126; P.G., Docket No. 14-430 (issued August 1, 2014).

2

See Teresa A. Ripley, 56 ECAB 528 (2005).

overpayment were determined. For this reason, the December 23, 2013 decision will be set aside
and the case remanded for further action consistent with this order.
IT IS HEREBY ORDERED THAT the December 23, 2013 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
conforming to this order.
Issued: December 16, 2014
Washington, DC

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

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-0136
Issued: March 28, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 2, 2020 appellant filed a timely appeal from an October 8, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 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
On November 2, 2020 appellant also filed an appeal from a purported October 1, 2020 decision of OWCP.
However, the October 1, 2020 document is a proposed termination notice rather than a final decision of OWCP. The
only final adverse decision over which the Board may exercise jurisdiction is the October 8, 2020 merit decision. See
20 C.F.R. §§ 501.2(c) and 501.3.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 8, 2020 decision, appellant submitted additional evidence to OWCP
and on appeal to the Board. 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 f inal decision. Evidence not before
OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is
precluded from reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On April 24, 2013 appellant, then a 31-year-old automation clerk, filed a traumatic injury
claim (Form CA-1) alleging that on April 14, 2013 she sustained an injury to her neck and back
area when she engaged in reaching and lifting duties while in the performance of duty.5 She
stopped work on April 22, 2013. OWCP accepted that appellant sustained aggravation of
preexisting cervical spondylosis and paid appellant wage-loss compensation for disability from
work commencing April 22, 2013 on the supplemental rolls and commencing December 15, 2013
on the periodic rolls.
On January 15, 2015 appellant filed a claim for compensation (Form CA-7) for a schedule
award due to her accepted April 14, 2013 employment injury. In support of her claim, she
submitted an October 28, 2014 report in which Dr. Jonathan Nissanoff, a Board-certified
orthopedic surgeon, determined that she had a 30 percent “combined whole person impairment
rating.”
By decision dated March 11, 2015, OWCP denied appellant’s claim for a schedule award.
By decision dated October 22, 2015, OWCP denied modification of the March 11, 2015
decision. On April 7, 2016 appellant requested reconsideration and submitted additional evidence.
By decision dated April 14, 2016, OWCP denied her request for reconsideration of the merits of
her claim pursuant to 5 U.S.C. § 8128(a).

4

Docket No. 15-1437 (issued May 9, 2016).

5

Based on the description of injury, appellant’s claim was converted to an occupational disease claim (Form CA-2)
because the employment activities occurred over a period longer than one workday or shift. A traumatic injury refers
to injury caused by a specific event or incident or series of incidents occurring within a single workday or work shift,
whereas an occupational disease refers to an injury produced by employment over a period longer than a single workday
or shift. 20 C.F.R. §§ 10.5(q), (ee), respectively; R.V., Docket No. 18-1037 (issued March 26, 2019); Brady L. Fowler,
44 ECAB 343, 351 (1992).

2

Appellant also appealed to the Board and, by decision dated May 9, 2016, 6 the Board
affirmed the decision. 7
In a July 25, 2018 report, Dr. Kamshad Raiszadeh, a Board-certified orthopedic surgeon,
determined that appellant had zero percent permanent impairment of the upper extremities
stemming from the cervical spine. He noted that, although an electromyogram/nerve conduction
velocity (EMG/NCV) study suggested mild carpal tunnel syndrome and an ulnar condition, there
was no frank neurologic evidence of either condition upon which to rate a diagnosis-based
impairment. Dr. Raiszadeh referenced symptoms of pain in appellant’s wrists and found one
percent permanent impairment of each upper extremity due to the reported symptoms by utilizing
Table 15-2 (Wrist Regional Guide) on page 395 of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).8
In an October 22, 2018 report, Dr. David M. Kupfer, a Board-certified orthopedic surgeon,
indicated that appellant had a history of bilateral carpal tunnel syndrome and left ulnar neuropathy.
A February 15, 2019 EMG/NCV study found no sensory or motor findings emanating from the
cervical spine. The study revealed mild findings in the ulnar and median nerves.
On April 17, 2019 OWCP referred appellant’s medical record to Dr. Herbert White, a
Board-certified orthopedic surgeon serving as an OWCP district medical adviser (DMA). It
requested an opinion on permanent impairment utilizing The Guides Newsletter, Rating Spinal
Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter),
which is a supplemental publication of the sixth edition of the A.M.A., Guides. In an April 22,
2019 report, Dr. White discussed the diagnostic testing of record and opined that there was no
evidence of compression of the cervical spine. He concluded that, under The Guides Newsletter,
there was no spinal nerve root abnormality that would result in a ratable upper extremity
impairment.
On May 7, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and series of questions, for a second opinion examination and evaluation with Dr. Jon P.
Kelly, a Board-certified orthopedic surgeon. It requested an opinion on permanent impairment
utilizing The Guides Newsletter. In a July 17, 2019 report, Dr. Kelly discussed appellant’s factual
and medical history and reported the findings of the physical examination he conducted on that
date. He noted atypical and equivocal medical findings without regard to any true ulnar or carpal
tunnel condition. Dr. Kelly reported that appellant exhibited normal upper extremity sensory and
motor findings. 9 He indicated that she had subjective complaints of possible radicular symptoms
of the upper extremities, but advised that the diagnostic testing of record, including a magnetic
6

Supra note 4.

7

Appellant also appealed January 2 and 27 and June 8, 2015 merit decisions of OWCP, which the Board affirmed
in its May 9, 2016 decision, but the subject matters of these decisions are not currently before the Board.
8

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

9

Dr. Kelly indicated that appellant had reached maximum medical improvement (MMI) by the date of his
examination.

3

resonance imaging (MRI) scan of the cervical spine, did not demonstrate evidence of neural
impingement. Dr. Kelly determined that, therefore, appellant did not have a ratable permanent
impairment of the upper extremities under the sixth edition of the A.M.A., Guides and The Guides
Newsletter.
On August 28, 2019 OWCP again referred appellant’s case to Dr. White in his capacity as
a DMA. In a September 10, 2019 report, Dr. White found that she did not have a ratable permanent
impairment of the upper extremities. He expressed his agreement with the conclusions of
Dr. Kelly.
By decision dated September 16, 2019, OWCP denied appellant’s schedule award claim,
finding that she did not meet her burden of proof to establish permanent impairment of a scheduled
member or function of the body.
On October 14, 2019 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. During the hearing, held on February 12, 2020, she
argued that she had permanent impairment of her upper extremities due to bilateral carpal tunnel
syndrome and a cubital tunnel condition.
Appellant submitted additional medical evidence, including September 19 and 30, 2019
reports from Dr. Kupfer who diagnosed cervical disc disorder with radiculopathy, history of
bilateral carpal tunnel syndrome, and left ulnar radiculopathy at the cubital tunnel with intermittent
ulnar nerve subluxation.
By decision dated April 28, 2020, OWCP’s hearing representative affirmed the
September 16, 2019 decision, finding that appellant failed to establish an upper extremity
impairment emanating from the cervical spine.
On July 10, 2020 appellant requested reconsideration of the April 28, 2020 decision.
Appellant submitted additional medical evidence, including May 19 and June 4, 2020
reports from Dr. Enass Rickards, a Board-certified orthopedic surgeon. In these reports,
Dr. Rickards diagnosed bilateral carpal tunnel syndrome and left ulnar nerve lesion. A June 1,
2020 EMG/NCV study showed a left ulnar neuropathy with conduction block between the elbow
and wrist.
On July 16, 2000 OWCP referred appellant, along with an updated SOAF and a series of
questions, for a second opinion examination and evaluation with Dr. William P. Curran, a Boardcertified orthopedic surgeon. It requested that he provide an opinion on whether she continued to
have residuals of her accepted April 22, 2013 employment injury.
In a September 1, 2020 report, Dr. Curran discussed appellant’s factual and medical history
and reported the findings of the physical examination he conducted on that date. He noted that the
cervical compression test he conducted was negative and that she did not exhibit spasms in her
cervical spine. The Phalen’s test was positive in both wrists. Dr. Curran diagnosed, inter alia,
cervical strain, and clinical and electrical evidence of left cubital tunnel syndrome. He opined that

4

the June 1, 2020 EMG/NCV study of appellant’s upper extremities was negative for bilateral
carpal tunnel syndrome and he found no objective findings of the accepted condition of cervical
spondylosis. Dr. Curran noted that the most recent cervical MRI scan, dated March 8, 2019, was
entirely within normal limits. He found evidence of a left cubital tunnel syndrome, which caused
numbness, tingling, and weakness of digits four and five of the left hand , but indicated that this
was a nonindustrial condition. Dr. Curran advised that appellant had reached MMI.
By decision dated October 8, 2020, OWCP denied modification of the April 28, 2020
decision.
LEGAL PRECEDENT
The schedule award provisions of FECA 10 and its implementing regulations11 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, OWCP has adopted the A.M.A., Guides as
the uniform standard applicable to all claimants. 12 As of May 1, 2009, the sixth edition of the
A.M.A., Guides is used to calculate schedule awards. 13
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole. 14 However, a
schedule award is permissible where the employment-related spinal condition affects the upper
and/or lower extremities. 15 The sixth edition of the A.M.A., Guides (2009) provides a specific
methodology for rating spinal nerve extremity impairment in The Guides Newsletter, which is a
supplemental publication of the sixth edition of the A.M.A., Guides. It was designed for situations
where a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded
ratings for the spine. The FECA-approved methodology is premised on evidence of radiculopathy
affecting the upper and/or lower extremities. The appropriate tables for rating spinal nerve
extremity impairment are incorporated in the Federal (FECA) Procedure Manual. 16

10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

12

Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); id. at Chapter 3.700.2 and Exhibit 1 (January 2010).
14

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see A.G., Docket No. 18-0815 (issued January 24, 2019);
Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).
15

Supra note 13 at Chapter 2.808.5c(3) (March 2017).

16

Supra note 13 at Chapter 3.700, Exhibit 4 (January 2010).

5

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
In his July 17, 2019 report, Dr. Kelly discussed appellant’s factual and medical history and
reported the findings of the physical examination he conducted on that date. He noted atypical
and equivocal medical findings without regard to any true ulnar o r carpal tunnel condition.
Dr. Kelly reported that appellant exhibited normal upper extremity sensory and motor findings.
He indicated that she had subjective complaints of possible radicular symptoms of the upper
extremities, but advised that the diagnostic testing of record, including an MRI scan of the cervical
spine, did not demonstrate evidence of neural impingement. Dr. Kelly determined that, therefore,
appellant did not have a ratable permanent impairment of the upper extremities under the sixth
edition of the A.M.A., Guides. Moreover, Dr. White, a DMA, found in a September 10, 2019
report that she did not have a ratable permanent impairment of the upper extremities. Dr. White
expressed his agreement with the conclusions of Dr. Kelly.17
Appellant has not submitted probative medical evidence establishing ratable permanent
impairment of the upper extremities. The Board has held that an opinion on permanent impairment
is of little probative value if it is not derived in accordance with the standards adopted by OWCP
and approved by the Board as appropriate for evaluating schedule losses. 18
Appellant submitted a July 25, 2018 report from Dr. Raiszadeh who referenced symptoms
of pain in her wrists and found one percent permanent impairment of each upper extremity due to
the reported symptoms by utilizing Table 15-2 on page 395 of the sixth edition of the A.M.A.,
Guides.19 However, OWCP has not accepted an employment-related wrist condition. Moreover,
Dr. Raiszadeh’s report is of little probative value because he has not adequately explained how the
employment-related conditions resulted in a ratable impairment under the A.M.A., Guides.20 In
addition, he acknowledged in the same report that appellant had zero percent permanent
impairment of the upper extremities stemming from her cervical spine. Dr. Raiszadeh also noted
that, although an EMG/NCV study suggested mild carpal tunnel syndrome and an ulnar co ndition,
there was no frank neurologic evidence of either condition upon which to rate a diagnosis -based
impairment. The Board notes that neither of these conditions has been accepted by OWCP.
The Board finds that OWCP properly relied on the opinion of Dr. Kelly, an OWCP referral
physician, in denying appellant’s schedule award claim. Dr. Kelly’s comprehensive and well-

17
The Board notes that Dr. Curran, an OWCP referral physician, indicated in a September 1, 2020 report that he
found no objective findings of the accepted condition of cervical spondylosis. OWCP did not ask him to comment on
permanent impairment.
18

See N.A., Docket No. 19-0248 (issued May 17, 2019); James Kennedy, Jr., 40 ECAB 620, 626 (1989).

19

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

20

See supra note 19.

6

rationalized July 17, 2019 report constitutes the most recent assessment of her upper extremity
impairment and represents the weight of the medical evidence with respect to the matter.
Appellant may request a schedule award at any time 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 not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the October 8, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 28, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, COON RAPIDS POST
OFFICE, Coon Rapids, MN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-434
Issued: August 20, 2009

Case Submitted on the Record

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

JURISDICTION
On December 1, 2008 appellant filed a timely appeal from a November 17, 2008
nonmerit decision of the Office of Workers’ Compensation Programs denying her request for
reconsideration. As more than one year has elapsed between the filing of this appeal and the last
merit decision, the Board lacks jurisdiction to review the merits of this case.1 Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the November 17, 2008
nonmerit decision.
ISSUE
The issue is whether the Office properly denied appellant’s request for further merit
review of her claim under 5 U.S.C. § 8128.

1

20 C.F.R. §§ 501.2(c) and 501.3.

FACTUAL HISTORY
On October 16, 2003 appellant, then a 44-year-old letter carrier technician, filed a claim
for an injury occurring on October 14, 2003 when she sustained pain in her lower back extending
down her right leg when she picked up an oversized parcel to place in a hamper. The Office
accepted her claim for lumbar strain and lumbago.
On July 14, 2006 appellant filed a claim for a schedule award. In an impairment
evaluation dated August 21, 2006, Dr. Olaniyi Kuku, Board-certified in preventive medicine,
found that she had a 44 percent permanent impairment of the whole person. On November 12,
2006 an Office medical adviser reviewed Dr. Kuku’s report and determined that appellant had a
four percent permanent impairment of the right lower extremity and a two percent permanent
impairment of the left lower extremity. By decision dated December 27, 2006, the Office
granted appellant a schedule award for a four percent permanent impairment of the right lower
extremity and a two percent permanent impairment of the left lower extremity.
On February 9, 2007 appellant requested an oral hearing. In a decision dated March 9,
2007, the Office denied her hearing request as it was untimely. It further considered appellant’s
hearing request and found that the pertinent issue could be equally well addressed through the
reconsideration process.
On December 26, 2007 appellant requested reconsideration of the schedule award
decision. She resubmitted Dr. Kuku’s August 21, 2006 impairment evaluation. Appellant
maintained that Dr. Kuku explained his impairment rating. She also noted that she continued to
receive medical treatment. Appellant submitted medical reports from Dr. Thomas G. Cohn, a
Board-certified physiatrist, and reports from physical therapists and nurses relevant to her
medical treatment during the period 2006 through 2008. She also described her pain and
limitations and asked about obtaining disability compensation.2
By decision dated November 17, 2008, the Office denied appellant’s request for
reconsideration on the grounds that she did not clearly identify her reasons for requesting
reconsideration and did not submit relevant evidence or arguments not previously considered. It
informed appellant that, if she was claiming an increased schedule award due to her employment
injury she should submit a Form CA-7 when she reached maximum medical improvement,
which was usually at the end of medical treatment.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,3 the Office’s regulations provide that a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
2

The record indicates that appellant received medical treatment from physical therapists, nurses and Dr. Cohn,
during the period 2006 through 2008.
3

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that “[t]he Secretary of Labor may review an
award for or against payment of compensation at any time on her own motion or on application.”

2

relevant legal argument not previously considered by the Office; or (3) submit relevant and
pertinent new evidence not previously considered by the Office.4 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.5 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.6
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.7 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.8 While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.9
ANALYSIS
The Office accepted that appellant sustained a lumbar strain and lumbago due to an
October 14, 2003 work injury. On December 27, 2006 it granted appellant a schedule award for
a four percent permanent impairment of the right lower extremity and a two percent permanent
impairment of the left lower extremity.
On December 26, 2007 appellant requested reconsideration of the schedule award
determination. She resubmitted a medical report dated August 21, 2006 from Dr. Kuku.
Evidence which repeats or duplicates evidence already in the case record, however, has no
evidentiary value and does not constitute a basis for reopening a case.10
Appellant generally argued that Dr. Kuku explained his impairment finding. She has not,
however, raised any specific argument showing how the Office erred in its December 27 2006
schedule award decision. Consequently, appellant’s argument does not have a reasonable color
of validity such that it would warrant reopening her case for merit review.11
Appellant further submitted medical reports from Dr. Cohn and reports from nurses and
physical therapists pertinent to her treatment from 2006 through 2008. The reports, however, do
not address the relevant issue of whether she has more than a four percent permanent impairment
4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.607(a).

6

20 C.F.R. § 10.608(b).

7

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

8

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

9

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

10

Richard Yadron, 57 ECAB 207 (2005).

11

Elaine M. Borghini, 57 ECAB 549 (2006).

3

of the right lower extremity and a two percent permanent impairment of the left lower extremity.
Evidence that does not address the particular issue involved does not warrant reopening a case
for merit review.12
On appeal, appellant argues that she reached maximum medical improvement on
August 21, 2006. She asserted that she received medical treatment due to pain and contended
that the Office should have considered the amount of care that she had received subsequent to its
December 2006 decision. The relevant issue, however, is whether appellant submitted new and
relevant evidence not previously considered, demonstrated that the Office erroneously applied or
interpreted a specific point of law, or advanced a relevant legal argument not previously
considered by the Office. As she did not meet any of the necessary regulatory requirements, she
is not entitled to further merit review.13
CONCLUSION
The Board finds that the Office properly denied appellant’s request for further merit
review of her claim under 5 U.S.C. § 8128.

12

Freddie Mosley, 54 ECAB 255 (2002).

13

Appellant may seek an increased schedule award if she submits evidence showing that she sustained an
increased impairment due to her work injury. A claim for an increased schedule award may be based on new
exposure or on medical evidence indicating the progression of an employment-related condition, without new
exposure to employment factors, has resulted in a greater permanent impairment than previously calculated.
Rose V. Ford, 55 ECAB 449 (2004); Linda T. Brown, 51 ECAB 115 (1999).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 17, 2008 is affirmed.
Issued: August 20, 2009
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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 10-1021
Issued: June 2, 2010

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 April 9, 2009 appellant filed an appeal from a March 12, 2009 schedule award
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3(e), the Board has jurisdiction over the schedule award claim.
ISSUE
The issue is whether appellant has more than three percent permanent impairment of the
left lower extremity.
FACTUAL HISTORY
On April 17, 2004 appellant, then a 34-year-old letter carrier, pulled a hamper of
magazines at work and injured his low back. The Office accepted lumbar strain, lumbar disc
protrusion and retrograde ejaculation. Appellant returned to a light-duty position. He received
compensation benefits for periods of disability.

Appellant was initially treated by Dr. Forrest Burke, a Board-certified orthopedic
surgeon, who diagnosed discogenic low back pain which developed after lifting a mail hamper at
work. Magnetic resonance imaging (MRI) scans of the lumbar spine dated May 26, 2004 and
February 16, 2005 revealed left paracentral disc protrusion at L5-S1. Appellant came under the
treatment of Dr. James R. Rappaport, a Board-certified orthopedic surgeon, for treatment of back
pain and left leg weakness that occurred after the work-related lifting incident. Dr. Rappaport
diagnosed L5-S1 disc herniation with left S1 radiculitis versus radiculopathy and L5-S1
spondylosis with mild discogenic low back pain. On March 14, 2005 he performed a
microscopic laminotomy, foraminotomy and discectomy at left L5-S1 and diagnosed herniated
lumbar disc, lumbar radiculitis and low back pain. Dr. Rappaport noted that appellant continued
to have discogenic pain at L5-S1 and left lumbar radiculitis postoperatively and recommended a
total disc replacement. On October 11, 2005 he performed a total disc replacement at L5-S1 and
diagnosed internal disc derangement at L5-S1 and chronic low back pain. In reports dated
December 21, 2005 and March 22, 2006, Dr. Rappaport noted appellant’s complaints of
symptoms consistent with retrograde ejaculation which was a possible side effect of the surgery.
He returned appellant to work on December 26, 2006 and noted that he reached maximum
medical improvement on March 22, 2006. On June 20, 2006 Dr. Rappaport performed an
excisional biopsy of the skin lesion at the site of the surgery.
On October 27, 2006 the Office referred appellant to Dr. Aubrey A. Swartz, a Boardcertified orthopedic surgeon, for a determination of whether he had residuals of his accepted
conditions and a rating of any permanent impairment. Dr. Swartz was requested to use the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).1
In a November 10, 2006 report, Dr. Swartz reviewed a history of appellant’s work-related
condition and medical treatment. On physical examination, there was no tenderness or spasm in
the lumbar spine, absent left Achilles reflex, intact sensation in both lower extremities and pain
with straight leg raises. Dr. Swartz diagnosed status post two operations in the lumbar spine,
microlumbar discectomy at L5-S1 and total disc prosthesis replacement at L5-S1. He opined
that appellant had residuals of his work injury and his symptoms never completely improved
following surgery. Dr. Swartz opined that appellant reached maximum medical improvement
and could return to work full time with permanent restrictions on lifting, bending and sitting.
On January 18, 2007 appellant filed a claim for a schedule award.2
On February 12, 2007 the Office referred appellant back to Dr. Swartz for a
determination of permanent impairment. In a March 8, 2007 report, Dr. Swartz noted findings
on examinations of positive patellar reflexes, absent Achilles reflexes, intact sensation in both
lower extremities and intact motor function. He advised maximum medical improvement
occurred on October 11, 2006. Dr. Swartz found no neurological or nerve root involvement,
1

A.M.A., Guides (5th ed. 2001).

2

Appellant also claimed a schedule award for penis impairment. The Office developed this matter and, on
March 12, 2009, granted him a schedule award for 18 percent permanent impairment of the penis. Appellant
appealed this decision. The appeal of this matter is proceeding separately to adjudication.

2

some pain, no weakness, active movement against gravity with full resistance, atrophy of the left
thigh and retrograde ejaculation.
On April 13, 2007 an Office medical adviser, recommended that Dr. Swartz clarify his
opinion regarding whether appellant’s lower extremity symptoms were bilateral and whether he
had atrophy.
In a November 14, 2007 report, Dr. Swartz listed findings upon physical examination that
included an absent left Achilles reflex, normal motor function in the bilateral extremities and
intact sensation in both lower extremities. He noted sciatic radiculopathy on the left with
neurological involvement in the left S1 nerve root, moderate pain and discomfort, no weakness
and .5 centimeters of atrophy of the left thigh and left calf. Dr. Swartz recommended nerve
conduction studies. On December 5, 2007 he advised that electrodiagnostic studies were
obtained on November 30, 2007 and revealed no abnormalities of the lower extremities and no
evidence of lumbar radiculopathy.
On November 28, 2008 the Office requested that he reevaluate appellant. In a
February 2, 2009 report, Dr. Swartz advised that he examined appellant again on
January 13, 2009. He noted sciatic radiculopathy on the left with neurological involvement in
the left S1 nerve root, moderate pain and discomfort, no weakness and .5 centimeters of atrophy
of the left thigh and left calf.
In a report dated February 16, 2009, an Office medical adviser found that appellant
sustained a three percent impairment of the left lower extremity. The medical adviser explained
that the impairment involved the S1 nerve root and that appellant had a Grade 3 sensory deficit.3
The medical adviser noted that there was no involvement of the right leg. The medical adviser
noted maximum medical improvement occurred on March 8, 2007.
On March 12, 2009 the Office granted appellant a schedule award for three percent
permanent impairment of the left lower extremity. The period of the award impairment was
from March 8 to May 7, 2007.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be

3

See A.M.A., Guides 424, Table 15-15 and 15-18.

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

3

uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.6
ANALYSIS
The Office accepted that appellant sustained a lumbar strain, lumbar disc protrusion and
later expanded the claim to include retrograde ejaculation due to his April 17, 2004 employment
injury. He underwent an L5-S1 microdiscectomy on March 14, 2005, and an anterior total disc
replacement of L5-S1 on October 11, 2005. He filed a claim for a schedule award. The Office
determined that appellant was entitled to a schedule award for three percent permanent
impairment of the left lower extremity.
The Board finds that appellant has no more than three percent permanent impairment of
the left lower extremity.
The Office referred appellant to Dr. Swartz for on opinion as to the extent of any
impairment of the lower extremities causally related to the accepted injury. In a report dated
March 8, 2007, Dr. Swartz noted examination findings of positive patellar reflexes, absent
Achilles reflexes, intact sensation in both lower extremities and intact motor function and no
tenderness or spasm in the lumbar spine. He diagnosed status post two operations in the lumbar
spine, microlumbar discectomy at L5-S1 and total disc prosthesis replacement at L5-S1.
Dr. Swartz noted no neurological or nerve root involvement, some pain, no weakness, active
movement against gravity with full resistance, atrophy of the left thigh and retrograde
ejaculation. The Office requested clarification from Dr. Swartz regarding whether appellant’s
lower extremity symptoms were bilateral and whether there was atrophy present. In reports
dated November 14, 2007 and February 2, 2009, Dr. Swartz noted findings of an absent left
Achilles reflex, normal motor function in the bilateral extremities and intact sensation in both
lower extremities. He noted sciatic radiculopathy on the left with neurological involvement in
the left S1 nerve root, with moderate pain and discomfort, no weakness and .5 centimeters of
atrophy of the left thigh and left calf.
On February 6, 2009 an Office medical adviser reviewed Dr. Swartz’s report. He found
that, under the A.M.A., Guides, appellant had a three percent impairment of the left leg.
Dr. Swartz identified sensory impairment of the S1 nerve root. The medical adviser determined
that appellant had three percent impairment for sensory deficit or pain in the distribution of the
S1 nerve root, under Tables 15-15 and 15-18 of the A.M.A., Guides.7 He noted the records
revealed moderate pain radiating down the left leg. Under Table 15-18, the maximum loss for
sensory deficit or pain involving the S1 nerve root is five percent.8 Under Table 15-15, appellant
was classified as Grade 3, for pain or altered sensation that may interfere with activity, or a 60
percent sensory deficit.9 The procedure set forth in Table 15-15 directs that the sensory nerve
6

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

7

A.M.A., Guides 424.

8

Id. at 424, Figure 15-18.

9

Id. at 424, Figure 15-15.

4

deficit 60 percent, be multiplied by the maximum impairment value for the S1 nerve, 5 percent.
This yielded three percent impairment for sensory deficit in the S1 nerve distribution. The Board
finds that the Office medical adviser properly applied the A.M.A., Guides to find three percent
impairment of the left leg due to sensory impairment in the S1 nerve root distribution. The
medical adviser noted that there was no documented involvement or symptomology of the right
lower extremity that warranted an impairment rating. The record revealed no left lower
extremity weakness or strength loss. Moreover, a finding of atrophy of .5 centimeters for the left
thigh and .5 centimeters for the left calf did not yield a ratable impairment.10 The medical
adviser noted maximum medical improvement occurred on March 8, 2007. This evaluation
conforms to the A.M.A., Guides and establishes three percent impairment of the left leg.
On appeal, appellant asserts that he has more than three percent impairment. He noted
that he experienced pain and numbness in the left foot, was unable to participate in physical
activities that he enjoyed prior to his injury and his quality of life had been diminished. While
appellant has an accepted lumbar strain, lumbar disc protrusion with retrograde ejaculation, he
may be rated for impairment only as it affects his lower extremities.11 There is no additional
evidence which establishes greater impairment than that granted by the Office. With regard to
appellant’s assertion that he is unable to participate in activities he enjoyed prior to his injury and
that his quality of life has been diminished, the Board notes that the amount payable pursuant to
a schedule award does not take into account the effect that the impairment has on employment
opportunities, wage-earning capacity, sports, hobbies or other lifestyle activities.12 Under the
schedule award provisions, Congress has specified a maximum number of weeks of
compensation payable for permanent impairment of the leg. Since appellant was rated as having
three percent impairment to his left leg, he is entitled to three percent of 288 weeks or 8.64
weeks of compensation, the amount paid by the Office.
CONCLUSION
The Board finds that appellant has no more than three percent permanent impairment of
the left lower extremity.

10

Id. at 530, Table 17-6. This table provides that atrophy of 0.9 centimeters or less yields no permanent
impairment.
11

See Guiseppe Aversa, 55 ECAB 164 (2003).

12

Ruben Franco, 54 ECAB 496 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 12, 2009 is affirmed.
Issued: June 2, 2010
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

6