United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
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DEPARTMENT OF THE ARMY, CALIFORNIA )
NATIONAL GUARD, Fresno, CA, Employer
)
__________________________________________ )
J.G., Appellant

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

Docket No. 08-2155
Issued: July 28, 2009

Case Submitted on the Record

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

JURISDICTION
On July 31, 2008 appellant timely appealed the July 16, 2008 merit decision of the Office
of Workers’ Compensation Programs, which denied modification of a March 28, 2008 decision
terminating wage-loss compensation and medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether the Office properly terminated appellant’s wage-loss compensation
and medical benefits effective March 31, 2008.
FACTUAL HISTORY
Appellant, a 60-year-old former automotive worker, has an accepted claim for low back
strain and disc herniation at L4-5, which arose on August 20, 1992.1 He stopped work the day of

1

Appellant injured his back while working on a motor vehicle.

his injury and voluntarily resigned from his position effective October 5, 1992.2 On April 7,
1995 appellant underwent an Office-approved L5-S1 microdiscectomy. Following surgery the
Office paid him wage-loss compensation for temporary total disability. Effective March 3, 1996,
it reduced him compensation based on his ability to earn weekly wages of $200.00 in the
selected position of apartment house manager or hotel/motel clerk.3
In September 1997 appellant advised the Office that he had recently begun working as a
rental agent for a private-sector equipment rental company. He continued to work as an
equipment rental agent/manager for approximately seven years. In October 2004 appellant
informed the Office that he had been working as a truck driver since August 2004, with average
monthly earnings of $1,200.00. Periodic financial disclosure statements (Form EN1032)
indicated that, as recently as September 8, 2007, appellant continued to work as a long-haul
trucker.
Dr. James A. Critchlow, a family practitioner, saw appellant every three to four months
regarding his low back condition. Appellant’s treatment records cover a three-and-a-half-year
period dating back to January 2005.4 Dr. Critchlow routinely prescribed pain medication
(Darvocet-N) and a muscle relaxant (Soma) for appellant’s chronic low back pain. Appellant
essentially returned to him whenever he needed his prescriptions refilled. In calendar year 2005,
Dr. Critchlow saw appellant on four occasions. His January 4, 2005 treatment notes indicated
that appellant had been on Darvocet-N and Soma for seven to eight years. Dr. Critchlow also
noted that appellant had returned a little early for his refills because “his job [kept] him out of
town” and this was a convenient time for him. He appears not to have examined appellant at that
time, but to have simply refilled his prescription. Dr. Critchlow saw appellant again on
May 10, 2005. He noted that appellant had chronic low back pain following a 1995
L4-5 discectomy and had been on Darvocet-N and Soma for the past 10 years.5 Dr. Critchlow
again refilled appellant’s prescriptions. However, other than checking appellant’s blood
pressure, he appears not to have conducted a physical examination.
In his August 11, 2005 treatment notes, Dr. Critchlow indicated that appellant had
returned for a refill of his prescriptions. He reported that appellant had an initial back injury on
August 20, 1992, which was treated conservatively. Dr. Critchlow also noted that appellant

2

Appellant’s resignation was unrelated to his August 20, 1992 employment injury. In fact, his decision to resign
predated his employment injury. Although appellant originally planned to resign effective August 22, 1992, the
effective date of the resignation was postponed until after appellant exhausted his entitlement to continuation of pay.
Beginning October 5, 1992, the Office paid appellant wage-loss compensation for temporary total disability.
3

A similar loss of wage-earning capacity (LWEC) determination had been in effect since December 11, 1994.
However, the previous LWEC determination was suspended following appellant’s April 1995 surgery.
4

It is not entirely clear from the record when appellant began treating with Dr. Critchlow. The earliest record of
his treatment is dated January 4, 2005. However, the treatment notes for that particular date suggest that it was not
the first time Dr. Critchlow had seen appellant.
5

Dr. Critchlow was mistaken as to which lumbar vertebra had been operated on in 1995. The April 7, 1995
microdiscectomy was at the L5-S1 level, not L4-5 as reported by him.

2

“underwent a dis[c]ectomy in 1994” and “[had] been permanently disabled since.”6 He stated
that appellant had been on a lot of pain medications over the years and that he had weaned
himself down to his current medications, Soma and Darvocet-N, which Dr. Critchlow renewed
for another three-month period. When Dr. Critchlow next saw appellant on December 2, 2005,
he noted that appellant had chronic low back pain. He reported that appellant was injured on
August 20, 1992 and in “1994 he had an L4-5 dis[c]ectomy,” which gave him no relief.
Dr. Critchlow further stated that appellant “[had] been permanently disabled now for 11 or 12
years.” He again renewed appellant’s prescriptions, apparently without benefit of a physical
examination.
In 2006 Dr. Critchlow saw appellant on three occasions. His May 1, 2006 treatment
notes indicated that appellant had chronic low back pain. Dr. Critchlow again reported that
appellant had an L4-5 discectomy. Appellant reportedly told him that he had been “totally
disabled since 1992.” Dr. Critchlow did not report any specific findings on physical
examination.
He renewed appellant’s prescriptions for another three-month period.
Dr. Critchlow next saw appellant on September 11, 2006. He completed an “employee’s work
status report,” indicating that appellant was “permanently disabled.” The form report noted an
August 20, 1992 date of injury, but did not include a diagnosis or identify any specific physical
limitations. Dr. Critchlow noted that appellant was on Darvocet-N and Soma, and that those
prescriptions were being refilled for a three-month period. His accompanying treatment notes
indicated that appellant was “permanently disabled from back pain requiring two surgeries for
about 12 to 14 years.” (Emphasis added.)
In his December 6, 2006 treatment notes, Dr. Critchlow reported that appellant had a
herniated disc at L4-5 back in 1992 while he was in California where he was in the National
Guard. He further noted that appellant was eventually operated on, but this resulted in no
improvement. Dr. Critchlow also reported that appellant “was totally disabled in 1994 by the ...
Department of Labor.” Appellant reportedly told Dr. Critchlow that the Federal Government did
not settle workers’ compensation cases, and just continued paying him disability and taking care
of his medications and office visits. Despite having last seen appellant on September 11, 2006,
Dr. Critchlow reported that it had been almost seven months since appellant’s last visit. The
December 6, 2006 treatment notes indicated that appellant’s previously authorized three-month
supply of medications lasted approximately seven months. Dr. Critchlow surmised that appellant
was “not having to take [his medication] all the time.” He again renewed appellant’s
prescriptions for Darvocet-N and Soma.
Dr. Critchlow’s May 8, 2007 treatment notes indicated that appellant had “been disabled
since 1992 and 1994 from back injuries sustained at work.” (Emphasis added.) He also noted
that appellant had undergone a laminectomy and had been on Darvocet-N and Soma now for
about 12 to 14 years. Dr. Critchlow stated that he last saw appellant on December 6, 2006, at
which time he gave him a three-month supply of medications. This latest refill lasted appellant
five months. Dr. Critchlow noted that he reportedly played around with his medications and
tried not to take them at times. Appellant advised him that he was having more problems at
6

Dr. Critchlow was apparently unaware that appellant had been regularly employed since August 1997. He also
seems to have forgotten that appellant informed him that he was employed during the January 4, 2005 Office visit.

3

night because he could not get comfortable and sleep.
prescriptions for another three-month period.

Dr. Critchlow refilled appellant’s

Dr. Carl W. Huff, a Board-certified orthopedic surgeon and Office referral physician,
examined appellant on August 14, 2007. He reviewed appellant’s employment history, noting,
among other things, that appellant was currently employed as a long-haul trucker. Dr. Huff also
reviewed various medical records, including the April 7, 1995 operative report, postsurgical
follow-up treatment records and several lumbar imaging studies taken within a five-month period
following surgery. He also obtained recent x-rays of the lumbar spine and pelvis, and he
administered a bilateral lower extremity electromyography (EMG) and nerve conduction study.
The x-rays and nerve conduction study were essentially normal. The EMG showed
chronic bilateral L5 radiculopathy, but no indication of an active process. After reviewing
appellant’s history, medical records, objective studies and conducting a physical and
neurological examination, Dr. Huff’s final impression was “postop[erative] status partial left
lumbar laminectomy/microdis[c]ectomy at L5-S1” and “chronic low back pain.” He indicated
that there were no residuals of the accepted condition of L4-5 disc herniation. Dr. Huff further
indicated that appellant did not have any current work restrictions as a result of his previously
accepted condition. He explained that postoperative lumbar imaging scans in 1995 showed no
residual nerve root compression or herniation of the disc. However, while appellant’s recent
EMG revealed L5 radiculopathy bilaterally, Dr. Huff stated that this was the result of the original
old nerve injury that warranted surgery in 1995, and there was no current indication of a
continuing active process. He further noted that approximately eight months following surgery,
appellant’s surgeon, Dr. John T. Bonner, had not imposed any limitations on work activity.
Dr. Huff indicated that the expected outcome following a simple microdiscectomy was
that appellant would return to his preinjury level of work activity. He explained that appellant’s
employment history corroborated the fact that he should not have work restrictions. Dr. Huff
commented that appellant had worked continuously from 1997 through the present time and that
his current job was as a long-haul truck driver. According to him, appellant did not indicate any
difficulty with this job or a need to be off work for treatment due to back symptoms. As such,
Dr. Huff concluded that appellant required no further medical treatment.
Dr. Critchlow renewed appellant’s prescription again on September 20, 2007. At that
time, he reported that appellant had been “disabled since 1992 from a back injury sustained at
work.” Dr. Critchlow also noted that appellant had undergone a laminectomy, but continued to
experience pain. He reiterated that appellant had been on medication for about 12 to 14 years.
On February 25, 2008 the Office advised appellant that it proposed to terminate all
benefits based on Dr. Huff’s August 14, 2007 report. It afforded appellant 30 days to submit
additional evidence or argument in response to the proposed termination.
The Office received March 4, 2008 treatment notes from Dr. Critchlow who indicated
that appellant had been permanently disabled since 1994. He also reported that appellant had
been on Darvocet-N and Soma for years. Dr. Critchlow noted that appellant was recently
evaluated at the request of the Department of Labor. He commented that x-rays had already

4

been obtained, but that a lumbar magnetic resonance imaging (MRI) scan was also requested.
Dr. Critchlow indicated that he would schedule appellant for an MRI scan.
In a decision dated March 28, 2008, the Office terminated appellant’s wage-loss
compensation and medical benefits effective March 31, 2008.
On April 14, 2008 appellant requested reconsideration. He submitted the results of an
April 3, 2008 lumbar MRI scan. The Office also received Dr. Critchlow’s April 14, 2008
treatment notes, which discussed appellant’s latest MRI scan results.
According to
Dr. Critchlow, the recent scan “did not show that much.”
By decision dated July 16, 2008, the Office denied modification of the March 28, 2008
decision terminating benefits.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.7 Having determined that an employee has a disability
causally related to his federal employment, the Office may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.8
The right to medical benefits for an accepted condition is not limited to the period of entitlement
to compensation for disability.9 To terminate authorization for medical treatment, the Office
must establish that appellant no longer has residuals of an employment-related condition which
require further medical treatment.10
ANALYSIS
Appellant’s treating physician, Dr. Critchlow, regularly dispensed pain medication and
muscle relaxants, apparently without benefit of objective studies, imaging studies or physical
examination findings.
Moreover, Dr. Critchlow’s treatment notes are fraught with
inconsistencies and inaccurate information. He has consistently misstated the details of
appellant’s April 7, 1995 surgery and has mistakenly referenced multiple back injuries and
multiple surgeries. Dr. Critchlow has also exhibited difficulty in keeping track of specific dates
when he saw appellant. But the most glaring deficiency in his treatment records is the omission
of appellant’s recent employment history. With the exception of his January 4, 2005 treatment
notes which included a vague reference to him having a job, Dr. Critchlow makes no mention of
appellant’s work as an equipment rental agent/manager and long-haul trucker. Despite
appellant’s regular employment history of more than a decade’s duration, Dr. Critchlow has
consistently described him as permanently disabled. The treatment notes do not provide a clear
basis for Dr. Critchlow’s opinion on disability. Furthermore, appellant has not provided any
7

Curtis Hall, 45 ECAB 316 (1994).

8

Jason C. Armstrong, 40 ECAB 907 (1989).

9

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

10

Calvin S. Mays, 39 ECAB 993 (1988).

5

explanation in support of an ongoing nexus between appellant’s August 20, 1992 employment
injury and his subjective complaints of chronic low back pain. Accordingly, Dr. Critchlow’s
treatment records are of limited probative value in determining the extent of any employmentrelated residuals.
The Board finds that the Office properly relied on Dr. Huff’s August 14, 2007 report as a
basis for terminating appellant’s wage-loss compensation and medical benefits.11 Dr. Huff found
that appellant no longer had residuals of his accepted condition of L4-5 disc herniation. He also
indicated that appellant did not require any work restrictions or further medical treatment.
Dr. Huff based his opinion on a thorough review of appellant’s history and medical records, as
well as his own physical examination and recently obtained x-rays and objective studies. The
paucity of objective evidence in conjunction with appellant’s postsurgical employment history
supports Dr. Huff’s conclusion that appellant no longer has residuals of his August 20, 1992
employment-related back injury.
CONCLUSION
The Office properly terminated appellant’s wage-loss compensation and medical benefits
effective March 31, 2008.
ORDER
IT IS HEREBY ORDERED THAT the July 16, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 28, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

11

A wage-earning capacity determination remains in effect until it is properly modified. See Katherine T.
Kreger, 55 ECAB 633 (2004). The medical evidence in this case shows a material change in the nature and extent
of the employment-related condition, warranting a modification of the wage-earning capacity determination.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Philadelphia, PA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-0581
Issued: June 8, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On January 16, 2015 appellant, through counsel, timely appealed from an October 7,
2014 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
ISSUE
The issue is whether appellant has met her burden of proof to establish total disability on
or after July 26, 2008 due to her accepted bilateral upper extremity condition.

1
2

5 U.S.C. § 8101 et seq.

The case record provided to the Board includes evidence received after OWCP issued its October 7, 2014
decision. However, the Board is precluded from considering evidence that was not in the case record at the time
OWCP rendered its final decision. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
This case has previously been before the Board.3 Appellant, a 60-year-old mail
processing clerk, sustained several employment-related upper extremity injuries between 2006
and 2008. Her accepted conditions include a January 9, 2006 left wrist sprain (OWCP File No.
xxxxxx698), bilateral carpal tunnel syndrome, which arose on or about December 18, 2006
(OWCP File No. xxxxxx519), and an August 6, 2008 aggravation of bilateral carpal tunnel
syndrome (OWCP File No. xxxxxx177).4
Beginning February 2008, appellant went from working full-time regular duty, to
working six hours limited duty, to four hours limited duty until July 26, 2008, when she stopped
work entirely.5 The employing establishment represented that prior to the July 26, 2008 work
stoppage, she had been assigned part-time (four hours) work casing letters weighing 12 ounces
or less to a distribution case. It further noted that appellant was not required to case more than
12 inches high. On at least one occasion, appellant reportedly advised the employing
establishment that casing mail was a little uncomfortable. In response, it claimed to have
allowed her to take more frequent breaks.6
Dr. Scott M. Fried, a Board-certified orthopedic surgeon, excused appellant from all work
effective July 26, 2008 due to her bilateral upper extremity condition. A month prior, he had
reported that her part-time (four hours), limited-duty casing responsibilities exacerbated her
underlying condition.7 Dr. Fried also noted that repetitive reading exacerbated appellant’s
condition. He recommended a modified assignment that allowed her to avoid significant
repetitive activities. Dr. Fried specifically noted that appellant needed to “come off ... casing.”
He recommended that she be assigned to “tape repair mail.” Dr. Fried further noted that if the
employing establishment could not accommodate appellant’s latest limitations, she may well
need to be removed from work entirely.
Under OWCP File No. xxxxxx519, OWCP paid appellant four hours of lost wages per
day for the period June 11 through July 26, 2008. Although she claimed temporary total
disability following her July 26, 2008 work stoppage, it compensated her for only two hours of
lost wages per day, effective July 31, 2008.

3

Docket No. 12-1342 (issued June 11, 2013).

4

All three upper extremity injury claims have been combined under OWCP File No. xxxxxx519 (Master).

5

Appellant filed her claim for bilateral carpal tunnel syndrome on July 12, 2008, just two weeks prior to her
July 26, 2008 work stoppage. OWCP selected August 6, 2008 as the “date-of-injury” regarding her accepted
“aggravation” of bilateral carpal tunnel syndrome. The Board notes, however, that appellant had last performed
work on July 26, 2008 and had filed her (Form CA-2) on July 12, 2008.
6

The above-noted information was reported on the back of appellant’s June 10, 2009 notice of recurrence (Form
CA-2a). OWCP subsequently incorporated the information in its June 24, 2011 statement of accepted facts (SOAF).
Additionally, the June 24, 2011 SOAF characterized appellant’s duties as “repetitive,” and noted that she had not
returned to work since July 2008.
7

Dr. Fried had advised against casing mail as early as October 1, 2007.

2

The award for partial disability was based on the opinion of Dr. Robert F. Draper Jr., a
Board-certified orthopedic surgeon and OWCP-referral physician. He had examined appellant
on April 29, 2010 and found that, at the time of her July 2008 work stoppage, she would have
been capable of performing six hours of limited-duty work. However, when Dr. Draper
reexamined her in August 2011, he believed that she would have been capable of performing her
July 26, 2008 modified duties on a full-time basis. Despite Dr. Draper’s latest finding, OWCP
continued to pay appellant wage-loss compensation for partial disability (two hours per day).
When the case was last on appeal, the Board found that the issue regarding the extent of
appellant’s wage-loss compensation for temporary total disability was not in posture for
decision. At that time counsel urged the Board to declare a conflict in medical opinion and
remand the case for an impartial medical evaluation. The Board did not find a conflict because
neither appellant’s physician, nor OWCP’s referral physician “provided a particularly wellreasoned opinion regarding appellant’s ability to work on or after July 26, 2008.” The Board
further noted that Dr. Draper twice examined appellant and offered conflicting findings, with no
attempt to reconcile his differing opinions. Under the circumstances, the Board found OWCP’s
development of the record deficient, and therefore, set aside the March 21, 2012 decision. The
Board remanded the case to OWCP for further medical development, with specific instructions
to refer appellant to another second opinion specialist for an opinion regarding the existence and
extent of any employment-related disability on or after July 26, 2008.8
On remand, OWCP referred appellant to Dr. Robert A. Smith, a Board-certified
orthopedic surgeon. Dr. Smith examined appellant on July 12, 2013 and noted that her claim
was accepted for bilateral carpal tunnel syndrome. He reported that appellant had a relatively
benign examination with regard to her hands and wrists. Dr. Smith did not think she had any
tendinitis based on the current physical examination. He further noted that from an objective
standpoint, there did not appear to be much in the way of residual findings of the hands to
suggest a significant or severe nerve entrapment condition. According to Dr. Smith, appellant’s
prognosis was good and she was not totally disabled. He advised that she could certainly work
in a situation where there was not heavy repetitive hand use over a long period of time.
Dr. Smith further noted that if appellant’s duties were varied and limited to 20 pounds of lifting,
then she could immediately return to gainful employment. He opined that total disability would
have ceased within 30 days of July 26, 2008. Dr. Smith also provided a work capacity
evaluation (Form OWCP-5c). He noted that appellant was unable to perform her regular duties,
but she could work full time with a two-hour restriction on repetitive wrist movements, and an
eight-hour, 20-pound limit on pushing, pulling, and lifting.
Appellant’s physician, Dr. Fried, provided results from August 1 and September 19, 2013
examinations. On both occasions, he reported that appellant remained symptomatic and was
unable to return to her regular work activities.
In September 2013, OWCP sought clarification from Dr. Smith regarding whether
appellant’s condition worsened on July 26, 2008 to the point that she became totally disabled. It
8

The facts and circumstances outlined in the Board’s June 11, 2013 decision are incorporated herein by
reference.

3

provided him a copy of its June 24, 2011 SOAF, which noted that she had been working four
hours per day prior to July 26, 2008.
In a supplemental report dated September 20, 2013, Dr. Smith noted that although
appellant’s duties were repetitive in nature, they did not seem to be of such intensity to aggravate
what appeared to be relatively mild carpal tunnel syndrome. He explained that based on his
recent examination, which was essentially normal, he did not consider her to be totally disabled
or to have experienced a worsening of her accepted condition as of July 26, 2008. Dr. Smith
further explained that although the electromyography (EMG) showed nerve entrapment, there
was little correlation between the test results and the actual clinical findings on physical
examination. In conclusion, he opined that if appellant has carpal tunnel syndrome, it is
relatively mild and may have been temporarily aggravated on occasion. Dr. Smith reiterated that
there did not appear to be evidence of a worsening of her condition given the lack of atrophy in
the median nerve distribution and the fact that she never required surgical intervention.
In a September 30, 2013 decision, OWCP found that Dr. Smith’s opinion established that
appellant’s work-related condition had not worsened to the point where she was unable to
perform her light-duty position in July 2008. Consequently, it denied wage-loss compensation
for temporary total disability.9
Appellant requested a hearing, which was held on June 11, 2014.
OWCP received additional medical evidence, including follow-up examination reports
from Dr. Fried. When he reexamined appellant on November 14, 2013, Dr. Fried reported that
she remained symptomatic, limited, and unable to return to her regular work activities. In a
March 27, 2014 follow-up report, he noted that OWCP recently approved his request for right
carpal tunnel chemoneurolysis to destruct her diseased peripheral nerve. Dr. Fried recommended
that appellant remain off work until the April 22, 2014 procedure. He also noted that her most
recent work capacity evaluation did not even bare out sedentary work capabilities, noting that
she was unable to perform simple grasping or lifting. Dr. Fried further noted that appellant was
unable to key more than 48 seconds before stopping due to pain. He was hopeful that the
upcoming chemoneurolysis procedure would improve her capabilities.
According to Dr. Fried, the April 22, 2014 right carpal tunnel chemoneurolysis revealed,
inter alia, perineural scarring and flexor tenosynovitis, which was consistent with carpal tunnel
and compression neuropathy.
In a July 24, 2014 report, Dr. Fried noted that appellant reported a severe flare-up of the
right carpal tunnel, with shooting pain from the right volar wrist into the palm and up through the
arm, with tingling and numbness in the middle three digits. Additionally, appellant’s thumb was
reportedly sore again. She also complained of burning in the ulnar hand. The pain was constant
and had reached level 10 over the past week. Dr. Fried noted that appellant was frustrated and
upset because she initially experienced some benefit from the procedure, but now her condition
had really flared-up, despite appellant having been careful and continuing with her treatment.
9

OWCP further advised that appellant remained entitled to medical benefits and wage-loss compensation for
partial disability (two hours).

4

Presently, appellant felt no benefit from the chemoneurolysis procedure, and she wanted to move
forward with surgery. Dr. Fried noted that appellant was currently out of work due to her
injuries and could not return to her regular work activities.
In an October 7, 2014 decision, the hearing representative affirmed OWCP’s
September 30, 2013 decision. She similarly relied on Dr. Smith’s second opinion examination to
find that appellant had not established a material worsening or total disability due to her
December 18, 2006 accepted work injury. The hearing representative further found that the
additional medical records reiterated prior reports and offered no new reasoned opinion
supporting a recurrence of disability.10
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.11 Recurrence of disability also means an inability to work that takes place
when a light-duty assignment made specifically to accommodate an employee’s physical
limitations due to her work-related injury or illness is withdrawn or when the physical
requirements of such an assignment are altered so that they exceed her established physical
limitations.12 Generally, a withdrawal of a light-duty assignment would constitute a recurrence
of disability where the evidence established continuing injury-related disability for regular
duty.13
Absent a change or withdrawal of a light-duty assignment, a recurrence of disability
following a return to light duty may be established by showing a change in the nature and extent
of the injury-related condition such that the employee could no longer perform the light-duty
assignment.14
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of establishing that the recurrence is causally related to
the original injury.15 This burden includes the necessity of furnishing evidence from a qualified
physician who concludes that the condition is causally related to the employment injury.16 The
10

Although the hearing representative mentioned that OWCP had referred appellant to Dr. Thompson for a new
second opinion examination, she did not consider Dr. Thompson’s August 15, 2014 findings in her denial of the
pending claim. Additionally, she did not mention that in September 2014 OWCP had declared a conflict in medical
opinion between Dr. Fried and Dr. Thompson.
11

20 C.F.R. § 10.5(x).

12

Id.

13

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(4) (June 2013).

14

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

15

20 C.F.R. § 10.104(b); see supra note 13 at Chapter 2.1500.5 and 2.1500.6.

16

See S.S., 59 ECAB 315, 318-19 (2008).

5

physician’s opinion must be based on a complete and accurate factual and medical history and
supported by sound medical reasoning.17
ANALYSIS
The Board finds that this case is not in posture for decision. On July 12, 2008 appellant
filed a claim for carpal tunnel syndrome, noting that she first became aware of her employmentrelated condition on December 18, 2006. When she filed her July 12, 2008 claim she had been
working part time, four hours a day. Appellant stopped work altogether in July 2008.
OWCP ultimately accepted appellant’s claim for bilateral carpal tunnel syndrome in
January 2009 and in August 2009 she received a lump-sum payment for her wage loss for partial
disability (four hours) during the accepted period of June 11 through July 26, 2008. The
contemporaneous medical evidence demonstrated an ability to return to part-time work as a mail
processing clerk on or after July 26, 2008. Appellant worked six hours a day and was paid wageloss compensation for two hours per day beginning July 31, 2008, and continued to do so at least
through October 7, 2014 when the hearing representative issued the decision currently on appeal.
The hearing representative’s October 7, 2014 decision affirming OWCP’s denial of
appellant’s claim for total disability on or after July 26, 2008 is based on Dr. Smith’s
September 20, 2013 supplemental second opinion medical report. Dr. Smith had explained that
the recent examination was essentially normal and, after a review of the SOAF and the medical
record, he determined that any disability would have concluded 30 days after July 28, 2008. He
did not consider appellant to be totally disabled or to have experienced a worsening of her
accepted condition as of July 26, 2008. In his supplemental report on September 20, 2013,
Dr. Smith reiterated that she was no longer disabled, and that there would have been no disability
after July 26, 2008.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden to establish entitlement to compensation. However, OWCP
shares responsibility in the development of the evidence to see that justice is done.18 As a second
opinion physician, Dr. Smith failed to provide a sufficiently well-reasoned opinion explaining
why appellant would not have been disabled after July 2008. In his first report, he claimed that
she would have been disabled for at least 30 days, whereas in his September 2008 report, he
found that there would have been no disability. Further, Dr. Smith failed to explain how he
could make this finding in 2013 for disability that was alleged to have occurred in 2008. His
medical opinion also is not consistent with the fact that she continued to be paid partial wageloss compensation through July 2008 when appellant stopped work.
Once OWCP 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 Based upon the
17

Id. at 319.

18

William J. Cantrell, 34 ECAB 1223 (1983).

19

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

6

medical evidence of record, it failed to meet its obligation and further development is necessary
in view of Dr. Smith’s opinion.
On remand, OWCP shall request further rationale from Dr. Smith regarding the existence
and extent of any employment-related disability on or after July 26, 2008. Should Dr. Smith be
unable to provide such rationale, it should send appellant to another independent medical
examination. After OWCP has developed the medical record consistent with this decision, it
shall issue a de novo decision regarding her eligibility for wage-loss compensation for temporary
total disability beginning July 26, 2008.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 7, 2014 decision of the Office of
Workers’ Compensation is set aside, and the case is remanded for further action consistent with
this decision.
Issued: June 8, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
El Paso, TX, Employer
__________________________________________

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Appearances:
Steven E. Brown, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-423
Issued: July 10, 2012

Case Submitted on the Record

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

JURISDICTION
On December 1, 2011 appellant filed a timely appeal from a November 8, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on July 18, 2004.
FACTUAL HISTORY
This case has previously been before the Board. On August 6, 2009 the Board set aside
OWCP’s February 13 and September 23, 2008 merit decisions on the grounds that OWCP failed
1

5 U.S.C. § 8101 et seq.

to notify appellant’s then-counsel of a July 19, 2007 referee examination with Dr. Marc T.
Taylor, a Board-certified otolaryngologist. The Board thereafter found that Dr. Taylor’s
corresponding medical report was rendered insufficient to resolve the conflict in medical opinion
and directed OWCP to refer the case to another independent medical specialist.2 The facts of the
case as set forth in the Board’s prior decision are hereby incorporated by reference. Facts
germane to the present appeal will be set forth as appropriate.
On July 18, 2004 appellant, then a 49-year-old immigration inspector, filed a traumatic
injury claim alleging that he experienced binaural hearing loss and tinnitus during a weapons
qualification course on June 22, 2004. He began his employment in 1996 and was required to
participate in weapons qualification courses at least four times annually and wear hearing
protection.3
A June 30, 2004 audiogram exhibited the following decibel (dBA) losses at frequencies
of 500, 1,000, 2,000 and 3,000 Hertz (Hz): 60, 60, 55 and 60 for the right ear and 55, 60, 60 and
65 for the left ear. At the same frequency levels, an August 9, 2004 audiogram showed losses of
55, 50, 55 and 55 dBA for the right ear and 50, 55, 55 and 55 dBA for the left ear. In July 6 and
August 11, 2005 reports, Dr. Gary Nanez, a Board-certified otolaryngologist, diagnosed mild
sensorineural hearing loss secondary to work-related acoustic trauma.
In a December 22, 2005 second opinion examiner’s report, Dr. Twana L. Sparks, an
otolaryngologist, diagnosed nonindustrial functional hearing loss. Although audiometric
findings obtained on December 22, 2005 exhibited dBA losses of 65, 60, 65 and 60 for the right
ear and 65, 60, 75 and 80 for the left ear at 500, 1,000, 2,000 and 3,000 Hz, she commented that
these results were unreliable as appellant’s pure-tone averages conflicted with his bilateral 15dBA speech reception thresholds. Further testing revealed half-word answers to spondees.
Subsequent February 6 and 20, 2006 reports from audiologists showed that otoacoustic
emissions and auditory brainstem responses were within normal limits.
OWCP determined that a conflict in medical opinion existed between Dr. Nanez and
Dr. Sparks as to whether appellant had hearing loss as a result of his federal employment. After
the Board’s August 6, 2009 decision, OWCP referred the case to Dr. Richard B. Dawson, a
Board-certified otolaryngologist, for a referee examination.
In a July 9, 2011 report, Dr. Dawson examined appellant and observed considerable
tympanosclerosis of the eardrums. Tympanometric measurements were normal while an
audiogram conducted on July 5, 2011 demonstrated dBA losses of 40, 45, 50 and 40 for the right
ear and 40, 55, 50 and 50 for the left ear at 500, 1,000, 2,000 and 3,000 Hz. Dr. Dawson pointed
out that the speech reception threshold scores of 35 and 40 dBA for the right and left ear,
respectively, were not within 6 dBA of the corresponding pure-tone averages. Following review
of the November 17, 2005 statement of accepted facts and medical file, he indicated that the
December 22, 2005 audiometric results were similarly problematic and that the 2006
audiological records displayed normal auditory brainstem responses. In light of these
2

Docket No. 09-141 (issued August 6, 2009).

3

The foregoing information was incorporated into the November 17, 2005 statement of accepted facts.

2

inconsistencies, Dr. Dawson concluded that appellant did not sustain a noise-induced hearing
impairment on the job.
On September 6, 2011 OWCP’s medical adviser reviewed and agreed with Dr. Dawson’s
opinion.
Appellant submitted May 11, 2009 and May 23, 2011 progress notes from audiologists
diagnosing binaural sensorineural hearing loss and subjective tinnitus. A May 23, 2011
audiogram, which was not certified by a physician, showed dBA losses of 50, 50, 60 and 60 for
the right ear and 50, 55, 65 and 65 for the left ear at 500, 1,000, 2,000 and 3,000 Hz.
By decision dated November 8, 2011, OWCP denied appellant’s claim, finding that the
evidence did not sufficiently establish that he sustained a binaural hearing condition due to the
accepted June 22, 2004 employment incident.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his claim by the weight of reliable, probative and substantial evidence,4
including that he is an “employee” within the meaning of FECA and that he filed his claim
within the applicable time limitation.5 The employee must also establish that he sustained an
injury in the performance of duty as alleged and that his disability for work, if any, was causally
related to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.7
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

5

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

6

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

T.H., 59 ECAB 388 (2008).

3

rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.8
If there is a conflict in medical opinion between the employee’s physician and the
physician making the examination for the United States, OWCP shall appoint a third physician,
known as a referee physician or impartial medical specialist, to make what is called a referee
examination.9 Where OWCP has referred appellant to a referee physician to resolve a conflict,
the referee’s opinion, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.10
ANALYSIS
The case record supports that appellant participated in a weapons qualification course on
June 22, 2004. After finding that a conflict in medical opinion existed concerning whether a
binaural hearing impairment resulted from this accepted employment incident, OWCP referred
the case to Dr. Dawson for a referee examination. Appellant thereafter provided additional
medical evidence.
The Board finds that Dr. Dawson’s July 9, 2011 report is entitled to special weight
because his opinion on causal relationship was well rationalized and based on a proper factual
and medical history. The referee physician reviewed the November 17, 2005 statement of
accepted facts and medical file, conducted a thorough physical examination, and obtained an
updated July 5, 2011 audiogram. Dr. Dawson observed key discrepancies, including inconsistent
pure tone averages and speech reception threshold scores in multiple audiograms and findings of
normal auditory brainstem responses almost two years later in 2006.11 Based on examination
findings and testing discrepancies, he concluded that appellant did not sustain an employmentrelated hearing condition. Dr. Dawson reported no basis on which to attribute appellant’s
hearing loss to the June 22, 2004 work incident.
Thereafter, appellant did not furnish sufficient medical evidence to overcome the special
weight afforded to Dr. Dawson’s opinion. The May 11, 2009 and May 23, 2011 progress notes
as well as the May 23, 2011 audiogram cannot constitute qualified medical opinion because an
audiologist is not a physician for the purposes of FECA.12 Consequently, the Board finds that
OWCP properly denied appellant’s traumatic injury claim.
Appellant contends on appeal that the November 8, 2011 decision is contrary to fact and
law. The Board has already addressed the deficiencies of his claim. Appellant may submit new
8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

9

See 5 U.S.C. § 8123(a); 20 C.F.R. § 10.321.

10

L.W., 59 ECAB 471 (2007); James P. Roberts, 31 ECAB 1010 (1980).

11

See Luis M. Villaneuva, 54 ECAB 666 (2003) (medical evidence in which physicians comment on inconsistent
audiometric testing does not establish causal relationship).
12

T.B., Docket No. 09-1504 (issued April 12, 2010). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949)
(medical opinion, in general, can only be given by a qualified physician); 5 U.S.C. § 8101(2).

4

evidence or argument as part of a formal written request for reconsideration to OWCP within one
year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through
10.607.
CONCLUSION
The Board finds that appellant did not sustain a traumatic injury in the performance of
duty on July 18, 2004.
ORDER
IT IS HEREBY ORDERED THAT the November 8, 2011 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: July 10, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rahway, NJ, Employer
__________________________________________

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

Docket No. 12-415
Issued: July 12, 2012

Case Submitted on the Record

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

JURISDICTION
On December 21, 2011 appellant’s counsel timely appealed the October 5, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which affirmed the denial
of a schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the schedule award
claim.
ISSUE
The issue is whether appellant has a ratable impairment of the left upper extremity due to
her accepted cervical condition.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
Appellant, a 56-year-old former letter carrier, has an accepted claim for cervical and
lumbar sprains, which arose on August 18, 1997.2 On November 2, 2009 she filed a claim for a
schedule award (Form CA-7). In a report dated August 10, 2009, Dr. Arthur F. Becan, Jr., an
orthopedic surgeon, found 25 percent impairment of the left upper extremity pursuant to the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (2008).3 The district medical adviser (DMA) reviewed the case on January 21, 2010
and disagreed with Dr. Becan’s impairment rating. The DMA did not find evidence of residual
sensory or motor deficits attributable to cervical or lumbar radiculopathy.4
By decision dated January 28, 2010, OWCP denied the schedule award claim.
In a June 15, 2010 supplemental report, Dr. Becan reaffirmed his original impairment
rating, noting that his finding was supported by an electrodiagnostic study, a cervical magnetic
resonance imaging (MRI) scan and recent physical examination findings.
In a January 28, 2010 decision, the Branch of Hearings and Review set aside the
January 28, 2010 decision. The hearing representative found the DMA’s January 21, 2010 report
insufficient to outweigh or create a conflict with Dr. Becan’s impairment rating.5 Accordingly,
he remanded the case and instructed OWCP to refer appellant for a second-opinion examination.
Dr. Peter A. Feinstein, a Board-certified orthopedic surgeon and OWCP referral
physician, examined appellant on August 27, 2010. He found that her lumbar condition had
resolved. Appellant had made a full and complete recovery. With respect to her cervical
condition, Dr. Feinstein noted that she had an area of muscle spasm in the right trapezius and
cervical musculature junction, which was her only significant positive finding. As such,
appellant did not qualify for an impairment of the cervical spine. Dr. Feinstein found zero
percent whole body impairment.
OWCP issued a September 7, 2010 decision denying appellant’s claim for a schedule
award.
By decision dated February 10, 2011, the Branch of Hearings and Review set aside the
September 7, 2010 decision. The hearing representative found Dr. Feinstein’s report deficient.
2

Appellant was operating a postal service long life vehicle (LLV) when another motorist rear-ended her vehicle.
She had previously fractured her right (distal) fibula in an October 22, 1996 employment incident (xxxxxx781).
3

Dr. Becan referenced Table 15-21, Peripheral Nerve Impairment (UEI), A.M.A., Guides 436-44 (6th ed. 2008).
His rating was based on motor/strength deficits affecting the left biceps, triceps and deltoid muscles. Dr. Becan also
found 13 percent impairment of the right lower extremity. However, the lower extremity impairment stemmed from
appellant’s 1996 right ankle fracture (xx-xxxx781), and was not the result of her August 18, 1997 lumbar sprain
(xxxxxx959).
4

Dr. Becan noted that an August 23, 2001 electromyography (EMG) revealed left-sided cervical radiculopathy at
C6-7 and right-sided lower cervical radiculitis. The DMA, however, was not persuaded by this study.
5

The hearing representative specifically noted that, while the DMA pointed out inconsistencies in the physical
findings, he failed to supply measurements, citations or calculations to support his opinion.

2

She noted that Dr. Feinstein had not specifically addressed whether appellant’s cervical muscle
spasms were employment related and whether the spasms caused any upper extremity
impairment under the A.M.A., Guides (6th ed. 2008).
In a February 21, 2011 supplemental report, Dr. Feinstein stated that there was no
category under the A.M.A., Guides (6th ed. 2008) referable to disability ratings for a single
isolated muscle spasm. He further noted that appellant’s loss of range of motion (ROM) in the
cervical spine was not a ratable condition, but simply a subjective response on her part when
asked to raise her arm. Dr. Feinstein also indicated that her muscle spasm and her change in
ROM with lifting overhead were not residuals of her accepted injury, but were degenerative
changes and age related.
In a report dated March 14, 2011, Dr. Christopher R. Brigham, an OWCP medical
adviser, noted that Dr. Feinstein was correct that there was no specific diagnosis category
relative to cervical muscle spasm that would warrant assignment of impairment. His colleague at
Impairment Resources, Dr. Craig M. Uejo, previously served as DMA. Dr. Uejo authored the
January 21, 2010 report the hearing representative found deficient, thus, precipitating the referral
to Dr. Feinstein. Dr. Brigham further noted that consideration of the cervical spine as it relates to
upper extremity impairment should be based on neurological compromise but in this instance
there was no evidence to support such a rating. He concluded there was no impairment relative
to the cervical spine condition.
On March 15, 2011 OWCP issued a decision denying appellant’s schedule award claim.
The Branch of Hearings and Review affirmed the denial by decision dated October 5, 2011.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.6 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the American Medical Association, Guides to the
Evaluation of Permanent Impairment as the appropriate standard for evaluating schedule losses.7
Effective May 1, 2009, schedule awards are determined in accordance with the sixth edition of
the A.M.A., Guides (2008).8
No schedule award is payable for a member, function or organ of the body that is not
specified in FECA or the implementing regulations.9 Neither FECA nor the regulations provide
6

5 U.S.C. § 8107(c).

7

20 C.F.R. § 10.404.

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.6a (January 2010).
9

W.C., 59 ECAB 372, 374-75 (2008); Anna V. Burke, 57 ECAB 521, 523-24 (2006).

3

for the payment of a schedule award for the permanent loss of use of the back/spine or the body
as a whole.10 However, a schedule award is permissible where the employment-related back
condition affects the upper and/or lower extremities.11
FECA provides that, if there is disagreement between the physician making the
examination for OWCP and the employee’s physician, OWCP shall appoint a third physician
who shall make an examination.12 For a conflict to arise the opposing physicians’ viewpoints
must be of “virtually equal weight and rationale.”13 Where OWCP has referred the employee to
an impartial medical examiner to resolve a conflict in the medical evidence, the opinion of such a
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.14
ANALYSIS
On appeal, counsel argued that there is a conflict in medical opinion and the case should
be remanded for referral to an impartial medical examiner. The Board finds that currently there
is an unresolved conflict in medical opinion. Appellant’s physician, Dr. Becan, found that she
had left upper extremity impairment attributable to her August 18, 1997 cervical injury.
Dr. Feinstein, an OWCP referral physician, found no evidence of impairment. Dr. Becan
supported his August 10, 2009 impairment rating by reference to his physical examination, as
well as prior cervical MRI scan findings and an August 23, 2001 EMG that revealed cervical
radiculopathy. Dr. Feinstein noted the 2001 EMG results and characterized appellant’s July 1,
2001 cervical MRI scan as “essentially normal.” Based on his August 27, 2010 physical
examination, he noted that the only positive finding relative to appellant’s cervical spine was
muscle spasm. Dr. Feinstein explained that a muscle spasm by itself did not represent a ratable
impairment under the A.M.A., Guides (6th ed. 2008). Dr. Brigham concurred that appellant did
not have impairment attributable to her cervical and lumbar spine injuries. Accordingly, the
Board finds there is an unresolved conflict in medical opinion regarding the existence and extent
of any upper extremity impairment attributable to her cervical sprain.
The sixth edition of the A.M.A., Guides (2008) provides a specific methodology for
rating spinal nerve extremity impairment.15 It was designed for situations where a particular
jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the

10

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6a(3).
12

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994). The DMA, acting on
behalf of OWCP, may create a conflict in medical opinion. 20 C.F.R. § 10.321(b).
13

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

14

Gary R. Sieber, 46 ECAB 215, 225 (1994).

15

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

4

spine.16 The impairment is premised on evidence of radiculopathy affecting the upper and/or
lower extremities.17
On remand, OWCP should refer appellant to an impartial medical examiner for
evaluation and an impairment rating consistent with the above-noted methodology for
determining spinal nerve extremity impairment under FECA. After such further medical
development as OWCP deems necessary, a de novo decision shall be issued.
CONCLUSION
The case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the October 5, 2011 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: July 12, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

16

Id.

17

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.R., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT
COMMAND, Fort Buchanan, PR, Employer
__________________________________________
Appearances:
Carlos R. Rivera, Sr., for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-0851
Issued: January 29, 2021

Case Submitted on the Record

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

On March 6, 2020 appellant, through his representative, filed a timely appeal from a
September 27, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
The Clerk of the Appellate Boards assigned Docket No. 20-0851.
The issues on appeal before the Board relate to OWCP’s September 27, 2019 finding of an
overpayment of wage-loss compensation benefits in the amount of $21,587.70 for the period
June 1, 1995 through August 18, 2018, for which he was without fault, due to appellant’s alleged
concurrent receipt of Federal Employees’ Compensation Act2 (FECA) wage-loss compensation
and Social Security Administration (SSA) age-related retirement benefits without an appropriate
offset for benefits attributable to the Federal Employees Retirement System (FERS). OWCP also
1

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

5 U.S.C. § 8101 et seq.

denied waiver of recovery of the overpayment and required repayment of $333.20 every 28 days
from continuing compensation benefits.
The Board finds that OWCP failed to properly develop the underlying issue of what portion
of appellant’s SSA age-related retirement benefits were attributable to federal employment.3
OWCP’s procedures provide that an overpayment occurs when FECA compensation is not
reduced by the FERS/FECA offset amount. Since the SSA will not report an offset amount until
after SSA benefits are received, an overpayment will almost always occur and will need to be
calculated for each period in which the offset amount was not withheld from compensation.4 The
offset provision of 5 U.S.C. § 8116(d)(2) and applicable regulations apply to SSA age-related
retirement benefits that are attributable to federal service.5 FECA Bulletin No. 97-09 provides that
FECA benefits have to be adjusted for the FERS portion of SSA age-related retirement benefits
because the portion of the SSA benefit earned as a federal employee is part of the FERS retirement
package, and the receipt of FECA benefits and federal retirement concurrently is a prohibited dual
benefit.6 In identifying the fact and amount of an overpayment of compensation following a
claimant’s receipt of SSA age-related retirement benefits, the Board has observed that OWCP uses
a FERS Offset Calculation Worksheet.7 This calculation worksheet is sent to SSA and the
completed form is returned to OWCP setting forth purported SSA calculations as to the effective
date and rate of SSA benefits without FERS and the effective date and rate of SSA benefits with
FERS.8 Following receipt of the purported SSA calculations, a preliminary determination of
overpayment is issued if a prohibited dual benefit was received.9
The Board has observed, however, that not all federal employees are enrolled in FERS.
Some FECA claimants are enrolled in another retirement program, such as the Civil Service
Retirement System (CSRS). Other federal employees are not entitled to be enrolled in a federal
retirement program. Therefore, OWCP’s procedures with regard to requesting offset information
are not applicable to all recipients of FECA compensation and SSA age-related retirement benefits.
The information solicited on the FERS Offset Calculation Worksheet that OWCP sends to
SSA is not applicable to non-FERS claimants and does not establish either the fact or amount of
an overpayment.

3

J.L., Docket No. 19-1806 (issued July 29, 2020).

4

Federal (FECA) Procedure Manual, Part 6 -- Debt Management -- Identifying and Calculating an Overpayment,
Chapter 6.200.1 (h), (September 2018).
5

See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).

6

FECA Bulletin No. 97-09 (February 3, 1997).

7

Id.

8

Id.

9

Supra note 2.

2

In the present case, a notification of personnel action form (SF-50), dated February 1, 1990,
indicates that appellant’s retirement plan was Federal Insurance Contributions Act (FICA), not
FERS.
Herein, the evidence of record does not establish that appellant was enrolled in FERS. As
OWCP has not established that appellant received SSA age-related retirement benefits, based on
his federal service, concurrently with FECA disability compensation from OWCP, without proper
offset, it has not established that he received an overpayment of compensation The Board therefore
finds that the September 27, 2019 decision must be reversed.
IT IS HEREBY ORDERED THAT the September 27, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: January 29, 2021
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

3


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

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

Docket No. 06-1935
Issued: January 4, 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 August 17, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ September 6, 2005 and May 17, 2006 merit decisions concerning the
termination of her compensation and her claim for continuing compensation benefits. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation effective September 1, 2004 on the grounds that she had no residuals of her
May 25, 2004 employment injury after that date; and (2) whether she met her burden of proof to
establish that she had reflex sympathetic dystrophy (RSD), complex regional pain syndrome or
any other medical condition after September 1, 2004 which was related to the May 25, 2004
employment injury.

FACTUAL HISTORY
On June 1, 2004 appellant, then a 38-year-old mail carrier, filed a traumatic injury claim
alleging that she sustained a left arm injury on May 25, 2004 when a heavy tub of mail she was
pulling shifted to the left and pulled on her left arm.1 She stopped work on May 26, 2004 and
returned to her regular work for the employing establishment on June 1, 2004.
Appellant stopped work for part of her work shift on June 9, 2004 but she returned to
work the next day in a limited-duty position with restrictions recommended by Dr. Berent J.
Krumm, her attending Board-certified family practitioner,2 who diagnosed left shoulder strain
and tendinitis.
The Office accepted that appellant sustained left shoulder tendinitis and paid
compensation for medical treatment.
The findings of the July 13, 2004 electromyogram (EMG) and nerve conduction testing
of appellant’s arms revealed normal results other than evidence of mild, early carpal tunnel
syndrome of the left arm. The results of the July 30, 2004 magnetic resonance imaging (MRI)
scan revealed mildly increased signal intensity in the critical zone of the left rotator cuff
consistent with tendinitis.
In an August 4, 2004 report, Dr. Daniel D. Weed, an attending Board-certified orthopedic
surgeon, indicated that appellant’s MRI scan was unremarkable and stated: “There is some
rotator cuff tendinitis but I think it is mild.” Dr. Weed indicated that appellant discussed a color
change in her left hand and fingers, as she “broke all the bloods vessels.” He indicated that this
did not make any sense and that he thought she was describing some type of color change that
could be a sympathetic response. Dr. Weed stated that appellant could be developing RSD and
complex regional pain syndrome and stated: “More evidence to that is the fact that she still
wears her sling and she pads her sling to protect her left arm from any type of bumping or
contact. Dr. Weed indicated that he would keep appellant on restrictions and see her in a month.
In an August 31, 2004 report, Dr. Weed indicated that he had an extensive discussion
with appellant’s case manager regarding her condition. He concluded that she had been coached
with respect to the manner in which she described her condition during examinations. He stated:
“Taking that into consideration [appellant’s] examination has always been normal and it is only
her subjective symptoms that even remind me that this could be RSD.”
In a September 1, 2004 report, Dr. Weed stated that appellant came into his office with
her left arm extended at the elbow, abducted at the shoulder and extended at the wrist. He noted:
“This is a very unusual position and [appellant] holds it in that position the whole
time that I am in there. I can take her through a complete range of motion and I
1

Appellant estimated that the tub weighed at least 40 pounds but stated that she could not know the actual weight
of the tub without weighing it.
2

Appellant received the same pay in her limited-duty job as she did in her date-of-injury job.

2

can do a complete examination and her examination is basically normal.
[Appellant] does have some very mild swelling of her hand but it is mild.
“From an orthopedic standpoint [appellant] has nothing anatomically or
organically wrong.
“[Appellant] does have swelling but that certainly does not constitute RSD. If she
had RSD I would not expect her to come in here with an abducted shoulder,
extended elbow or extended wrist. That just does not make sense.
“The only [thing] that makes sense is [appellant] wants to make an impression on
me and it made the wrong impression. It makes me realize that [she] is trying to
manipulate the entire situation.
“There are certainly no color changes that are consistent with RSD. There is no
sweating consistent with RSD. That mild amount of sweating does not concern
me at all. From my standpoint I have nothing further to offer orthopedically and I
see no reason to keep [appellant] on any restrictions. I will release her to full duty
and I will see her back as needed.”
In a September 1, 2004 note, Dr. Weed stated that appellant could return to full duty on
September 2, 2004. In a September 14, 2004 note, he stated after the examination of
September 1, 2004, that he did not believe that she had any orthopedic or medical condition
resulting from the accepted work injury of left shoulder tendinitis. Dr. Weed noted that he had
released appellant to full duty without restrictions and stated: “It is my opinion that the accepted
work-related injury of shoulder tendinitis, date of injury May 25, 2004, has resolved.”3
By decision dated September 15, 2004, the Office terminated appellant’s disability and
medical benefits compensation effective September 1, 2004. It found that the opinion of
Dr. Weed showed that she had no residuals of her May 25, 2004 employment injury after that
date.
Appellant alleged that she continued to have disability after September 1, 2004 due to
RSD and complex regional pain syndrome which were related to her May 25, 2004 employment
injury.
In a September 16, 2004 report, Dr. Jay G. Robinson, an attending Board-certified
neurologist, stated that appellant presented with complaints of excruciating pain in the left arm
with virtually any activity. He stated that a full sensory examination could not be performed on
her left arm due to pain complaints but that her sensation was otherwise intact. Dr. Robinson
stated that appellant wondered whether she had RSD and noted, “I think it is a possibility but as I
told her it is very difficult to prove this diagnosis one way or the other. He stated that her left
arm did not appear discolored or particularly swollen, but that she did have some symptoms
associated with RSD including paresthesias, cold intolerance, swelling and inability to use the
3

The record also contains a September 2, 2004 report in which Dr. Krumm stated that appellant complained of
left arm pain, paresthesias and swelling.

3

arm. Dr. Robinson stated that sometimes RSD would occur “in the setting of an apparently
innocuous injury.”4
In a report dated June 6, 2005, Dr. Gabor B. Racz, an attending Board-certified
anesthesiologist, stated that appellant reported that she had left neck and arm pain since
May 2004 when her left hand was trapped on the handle of a 98-pound tub of mail and jerked her
left arm to the ground. He noted that she held her left arm in a neutral position flexed at the
elbow and diagnosed sympathetically maintained pain of the left upper extremity, left biceps
tendon sheath pain and left suprascapular neuritis.
By decision dated September 6, 2005, the Office affirmed its September 15, 2004
decision. It found that its original termination was proper and that appellant had not submitted
sufficient medical evidence to show that she had RSD, complex regional pain syndrome or any
other medical condition after September 1, 2004 which was related to the May 25, 2004
employment injury.
Appellant submitted a December 14, 2005 report in which Dr. Racz discussed her
medical treatment and posited that she had RSD and complex regional pain syndrome which
responded in the short-term to sympathetic blocks. Dr. Racz stated: “To deny her care is simply
not medically reasonable.” He indicated that he had a great deal of experience with diagnosing
RSD, complex regional pain syndrome.
By decision dated May 17, 2006, the Office affirmed its September 6, 2005 decision.
LEGAL PRECEDENT -- ISSUE 1
Under the Federal Employees’ Compensation Act,5 once the Office has accepted a claim
it has the burden of justifying termination or modification of compensation benefits.6 The Office
may not terminate compensation without establishing that the disability ceased or that it was no
longer related to the employment.7 The Office’s burden of proof includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.8
According to Office procedure, it is not necessary for the Office to issue a pretermination
notice for termination of disability compensation when a claimant is not on the periodic rolls and
it is not necessary to issue a pretermination notice for termination of medical benefits

4

The record contains reports from early 2005 in which Dr. Robinson indicated that appellant continued to suffer
with and have difficulties with RSD. It does not appear that he provided a diagnosis that she actually had this
condition.
5

5 U.S.C. §§ 8101-8193.

6

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

7

Id.

8

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

4

compensation when an attending physician indicates that further medical treatment is not
necessary.9
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained left shoulder tendinitis on May 25, 2004. It
terminated her future disability and medical benefits compensation effective September 1, 2004
finding that the opinion of Dr. Weed, an attending Board-certified orthopedic surgeon, showed
that she had no residuals of her May 25, 2004 employment injury after that date.
The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Weed. The opinion of Dr. Weed establishes that appellant had
no residuals of her May 25, 2004 employment injury after September 1, 2004.
In September 1 and 14, 2004 reports, Dr. Weed concluded that the left shoulder tendinitis
that appellant sustained on May 25, 2004 had resolved and that she had no residuals of that
condition after September 1, 2004. He determined that she could return to full duty without
restrictions on September 2, 2004. Dr. Weed stated that despite having some mild swelling of
appellant’s left hand when he examined her on September 1, 2004 appellant’s examination
findings were essentially normal, including range of motion findings which showed no limitation
of the left arm. He indicated that she presented in a “very unusual position” with her left arm
extended at the elbow, abducted at the shoulder and extended at the wrist. Dr. Weed stated that
he did not feel appellant had RSD or complex regional pain syndrome given the position she was
able to hold her arm and the lack of appropriate color changes and sweating of the skin.
The Board has carefully reviewed the opinion of Dr. Weed and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Weed’s opinion is based on a proper factual and medical
history and he provided medical rationale for his opinion by explaining that appellant’s
extremely limited findings on examination did not show that she had any remaining signs of the
May 25, 2004 employment injury which caused left shoulder tendinitis. He considered whether
appellant had other conditions affecting the left arm, such as RSD or complex regional pain
syndrome, but concluded that those conditions could not be supported by her symptoms.10
The Office did not issue a pretermination notice before terminating appellant’s disability
and medical benefits compensation, but issuance of such a notice was not necessary because
appellant was not on the periodic rolls. Dr. Weed determined that further medical treatment was
not necessary.11

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.6a-d(1) (March 1997).

10

The record also contains a September 2, 2004 report in which Dr. Krumm, an attending Board-certified family
practitioner, stated that appellant complained of left arm pain, paresthesias and swelling, but he provided no
indication that these symptoms were related to the May 25, 2004 employment injury.
11

See supra note 9 and accompanying text.

5

For these reasons, the Office properly terminated appellant’s compensation effective
September 1, 2004.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation benefits shifts to appellant. In
order to prevail, appellant must establish by the weight of the reliable, probative and substantial
evidence that she had a employment-related disability which continued after termination of
compensation benefits.12 The Board has held that a medical opinion not fortified by medical
rationale is of little probative value.13 Medical evidence which does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.14
ANALYSIS -- ISSUE 2
After the Office’s September 15, 2004 decision terminating appellant’s compensation
effective September 1, 2004, appellant submitted additional medical evidence which she felt
showed that she was entitled to compensation after September 1, 2004 due to residuals of her
May 25, 2004 employment injury. She claimed that she continued to have disabling and
complex regional pain syndrome due to the May 25, 2004 employment injury. Given that the
Board has found that the Office properly relied on the opinion of Dr. Weed in terminating
appellant’s compensation effective September 1, 2004, the burden shifts to appellant to establish
that she is entitled to compensation after that date.
The Board has reviewed the additional evidence submitted by appellant and notes that it
is not of sufficient probative value to establish that he had residuals of her May 25, 2004
employment injury after September 1, 2004. The evidence does not show that she had RSD,
complex regional pain syndrome or any other medical condition after September 1, 2004 which
was related to the May 25, 2004 employment injury.
Appellant submitted a September 16, 2004 report in which Dr. Robinson, an attending
Board-certified neurologist, addressed her question regarding whether she had RSD.
Dr. Robinson stated that she had some symptoms associated with RSD including paresthesias,
cold intolerance, swelling and inability to use the arm, but noted that her left arm did not appear
discolored or particularly swollen. He ultimately concluded that he could not provide an opinion
on the matter because “it is very difficult to prove this diagnosis one way or the other.”
Dr. Robinson’s reports would not support appellant’s claim as he provided no opinion that she

12

Wentworth M. Murray, 7 ECAB 570, 572 (1955).

13

See George Randolph Taylor, 6 ECAB 986, 988 (1954).

14

See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988).

6

had disabling RSD or complex regional pain syndrome and did not indicate that she had any
employment-related condition.15
In a June 6, 2005 report, Dr. Racz, an attending Board-certified anesthesiologist,
diagnosed sympathetically maintained pain of the left upper extremity, left biceps tendon sheath
pain and left suprascapular neuritis. However, he provided no indication that these conditions
were employment related. In a December 14, 2005 report, Dr. Racz posited that appellant had
RSD and complex regional pain syndrome which responded in the short-term to sympathetic
blocks. Although he indicated that to “deny her care is simply not medically reasonable” he did
not provide a clear indication that the diagnosed conditions were related to appellant’s
employment.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation effective September 1, 2004 on the grounds that she had no residuals of her
May 25, 2004 employment injury after that date. The Board further finds that appellant did not
meet her burden of proof to establish that she had RSD, complex regional pain syndrome or any
other medical condition after September 1, 2004 which was related to the May 25, 2004
employment injury.

15

See supra note 14 and accompanying text. The record contains reports from early 2005 in which Dr. Robinson
indicated that appellant continued to suffer with and have difficulties with RSD, but it does not appear that he
provided a diagnosis that she actually had this condition.

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
May 17, 2006 and September 6, 2005 decisions are affirmed.
Issued: January 4, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Waterford, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1264
Issued: August 26, 2015

Case Submitted on the Record

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

JURISDICTION
On May 20, 2015 appellant filed a timely appeal from a March 25, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has more than four percent permanent impairment of the
right upper extremity, for which she received a schedule award.
FACTUAL HISTORY
On January 15, 2014 appellant, then a 64-year-old rural carrier, filed a traumatic injury
claim alleging that on January 14, 2014 she fractured her right elbow and dislocated her right

1

5 U.S.C. § 8101 et seq.

arm when she slipped on ice while exiting her delivery vehicle. OWCP accepted the claim for a
closed dislocation of the right elbow.
In a progress note dated March 3, 2013, a physical therapist measured flexion of 140
degrees and extension of 8 degrees.
Appellant resumed her regular employment on March 12, 2014.
An April 1, 2014 x-ray of the elbow revealed a “[s]table examination of the elbow with
fracture fragments anterior to the distal humerus and radial to the proximal radial diaphysis.”
On April 23, 2014 appellant filed a claim for a schedule award. By letter dated May 2,
2014, OWCP requested that she submit an impairment evaluation from an attending physician
addressing the extent of any permanent impairment in accordance with the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).
In a report dated May 13, 2014, Dr. Nvjot S. Kohli, a Board-certified orthopedic surgeon,
diagnosed status post elbow dislocation and radial head fracture. On examination he found
reduced motion and that appellant was “neurovascularly intact.” An x-ray revealed a radial head
fragment anteriorly. Dr. Kohli stated, “[Appellant] has … an acceptable range of motion. She
still lacks terminal extension and terminal flexion and has pain at the end ranges. We are going
to go ahead and give [appellant] end of healing and a PPD [permanent partial disability] of 10
[percent] given the fractures and dislocation, persistent pain and decreased motion.”
On March 2, 2015 an OWCP medical adviser reviewed Dr. Kohli’s May 13, 2014 report
and found that it was not sufficient to support a schedule award as he did not calculate the
impairment rating using the A.M.A., Guides. He noted that measurements from a March 3, 2014
physical therapy appointment revealed elbow range of motion from 8 to 140 degrees, which
constituted mildly reduced motion under Table 15-33 on page 474 of the A.M.A., Guides. The
medical adviser discussed the x-ray findings of a radial head fragment without symptoms of
catching and locking. He determined that appellant did not have instability or a neurovascular
condition. The medical adviser identified the diagnosis-based impairment as an elbow fracture
with residual symptoms under Table 15-4 on page 399, noting that the A.M.A., Guides did not
provide a rating for a reduced and stable elbow dislocation. He applied a grade modifier of two
for functional history due to appellant’s pain with range of motion, which moved the default
value of three percent over one place for a total right upper extremity impairment of four percent.
The medical adviser opined that she had reached maximum medical improvement on
May 13, 2014.
By decision dated March 25, 2015, OWCP granted appellant a schedule award for a four
percent permanent impairment of the right upper extremity. The period of the award ran for
12.48 weeks from May 13 to August 8, 2014.

2

LEGAL PRECEDENT
The schedule award provision of FECA,2 and its implementing federal regulations,3 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.4 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.5
The sixth edition requires identifying the impairment Class of Diagnosis (CDX)
condition, 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-CDX) + (GMCS-CDX).
ANALYSIS
OWCP accepted appellant’s claim for a closed dislocation of the right elbow. On
April 23, 2014 appellant filed a claim for a schedule award.
On May 13, 2014 Dr. Kohli diagnosed status post elbow dislocation and radial head
fracture. He found that appellant was intact neurovascularly but did not have full flexion and
extension. A radial head fragment anteriorly was noted by x-ray. Dr. Kohli determined that
appellant had 10 percent permanent impairment due to her fracture and dislocation as a result of
reduced motion and pain. He did not, however, refer to the A.M.A., Guides in reaching his
impairment determination. As Dr. Kohli did not provide an impairment rating based on the sixth
edition of the A.M.A., Guides, the Board finds his opinion is of diminished probative value.7
An OWCP medical adviser reviewed Dr. Kohli’s report and applied the provisions of the
A.M.A., Guides to his findings. He identified the diagnosis as a class 1 elbow fracture, which
yielded a default value of three percent impairment. The medical adviser properly noted that the
A.M.A., Guides did not provide an impairment rating for a stable elbow dislocation. He found
that a physical therapist measured range of motion of the elbow from 8 to 140 degrees on
March 3, 2014, which constituted a mild impairment under Table 33 on page 474 of the A.M.A.,
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id. at § 10.404(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
6

A.M.A., Guides 494-531.

7

See Richard A. Neidert, 57 ECAB 474 (2006) (an attending physician’s report is of little probative value where
the A.M.A., Guides are not properly followed).

3

Guides. The Board finds that the medical adviser properly applied a grade modifier of two for
functional history, which moved the default value one place to the right for a total right upper
extremity impairment of four percent. The Board finds no probative medical evidence
establishing a greater degree of impairment.8
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 a four percent permanent impairment of
the right upper extremity, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the March 25, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 26, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8

See M.P., Docket No. 15-383 (issued July 1, 2015).

4