United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND, Norfolk, VA, Employer
__________________________________________

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Appearances:
Capp P. Taylor, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1469
Issued: June 29, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 1, 2020 appellant, through his representative, filed a timely appeal from a
July 9, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant
to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of this case.

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.

ISSUE
The issue is whether appellant has met his burden of proof to establish more than 10 percent
permanent impairment of the right upper extremity for which he previously received a schedule
award.
FACTUAL HISTORY
On April 26, 2016 appellant, then a 58-year-old able seaman, filed a traumatic injury claim
(Form CA-1) alleging that on April 22, 2016 he sustained blunt trauma to his right arm and right
knee when he fell approximately two feet off a short ladder while dogging a watertight door in the
performance of duty. He stopped work on the date of injury and returned to full-time regular-duty
work with no restrictions on April 23, 2016. OWCP accepted appellant’s claim for right shoulder
labral tear.
On November 28, 2017 Dr. Kevin M. Kaplan, an attending Board-certified orthopedic
surgeon, performed authorized right shoulder arthroscopy with extensive debridement of labrum,
chondroplasty of the humeral head and glenoid, synovectomy, and arthroscopic biceps tenodesis.
OWCP paid appellant wage-loss compensation for intermittent periods of disability from
September 18, 2016 through March 31, 2018.3
In an April 30, 2018 medical report, Dr. Kaplan noted findings on examination of
appellant’s right shoulder. He reported full, active range of motion (ROM), five out of five
strength resisted abduction and resisted internal/external rotation, and intact sensation. Dr. Kaplan
provided impressions of improved right shoulder pain and right superior glenoid labrum lesion.
He related that appellant was five months status post right shoulder arthroscopy with glenohumeral
joint debridement and biceps tenodesis. Appellant was doing well and would be allowed to
advance himself to tolerance. Dr. Kaplan advised that appellant had reached maximum medical
improvement (MMI), and that he had zero percent permanent impairment according to the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).4
A March 21, 2019 report by Dr. Mark A. Seldes, a Board-certified family practitioner,
noted appellant’s history of injury on April 22, 2018 and related that, since that date, he had been
unable to work. He provided examination findings, including decreased ROM of the right
shoulder. Dr. Seldes opined that appellant reached MMI on the date of his evaluation. Utilizing
the diagnosis-based impairment (DBI) rating method found at Table 15-5 on page 402 of the sixth
edition of the A.M.A., Guides, Dr. Seldes noted that appellant had a class of diagnosis (CDX) of
1 with a default value of five percent for residual symptoms and consistent objective findings for
a diagnosis of right shoulder superior labrum anterior and posterior (SLAP) tear. He assigned a
grade modifier for functional history (GMFH) of 2 for pain and symptoms with normal activities
and use of medication to control symptoms. Dr. Seldes also assigned a grade modifier for physical
examination (GMPE) of 2 for moderate palpatory findings consistently documented and supported
3

Appellant retired from the employing establishment, effective March 31, 2018.

4

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

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by observed abnormalities. He indicated that a grade modifier for clinical studies (GMCS) was
not applicable because it was used to make the diagnosis. Dr. Seldes applied the net adjustment
formula (GMFH - CDX) + (GMPE - CDX) = (2 - 1) + (2 -1) = 2, which moved the default value
two spaces to the right resulting in a class 1, grade E or five percent permanent impairment of the
right upper extremity. He noted that, since appellant did not have normal ROM of his right
shoulder joint, the A.M.A., Guides allowed him to alternatively assess his impairment under Table
15-31 on page 475 as a stand-alone ROM impairment. Dr. Seldes found that, under Table 15-31,
appellant had 25 percent right upper extremity permanent impairment, noting that the greatest of
three measurements was used to calculate permanent impairment. He determined that 65 degrees
of flexion represented 9 percent permanent impairment, 15 degrees of extension, 0 degrees of
adduction, and 40 degrees of external rotation each represented 2 percent permanent impairment,
60 degrees of abduction represented 6 percent permanent impairment, and 10 degrees of internal
rotation represented 4 percent permanent impairment, for a total permanent impairment of 25
percent. Dr. Seldes opined that appellant had 25 percent permanent impairment of the right upper
extremity based on the ROM rating method, which was greater than the 5 percent permanent
impairment based on the DBI rating method.
On June 19, 2019 appellant filed a claim for a schedule award (Form CA-7).
On August 27, 2019 OWCP referred the medical evidence and SOAF to Dr. Jovito Estaris,
Board-certified in occupational and preventive medicine, serving as an OWCP district medical
adviser (DMA), to review the findings in the March 21, 2019 report by Dr. Seldes. In a
September 6, 2019 report, the DMA recommended that appellant undergo a second opinion
evaluation with a Board-certified orthopedic surgeon because there were inconsistencies between
the findings of Dr. Kaplan and Dr. Seldes regarding whether appellant had reached MMI and
sustained right shoulder ROM loss.
OWCP subsequently referred appellant, along with a statement of accepted facts and the
medical record, to Dr. Fady El-Bahri, a Board-certified orthopedic surgeon, for a second opinion
examination.
In an October 29, 2019 report, Dr. El-Bahri noted that on physical examination of the right
shoulder there was tenderness over biceps and supraspinatus tendons on palpation, a positive Neer
impingement test, and a moderate crepitation test. ROM measurements included 100 degrees of
flexion, 15 degrees of extension, 100 degrees of abduction, 10 degrees of adduction, 45 degrees of
internal rotation, and 7 degrees of external rotation. Dr. El-Bahri diagnosed right shoulder labral
tear and impingement syndrome. Utilizing the DBI rating method found at Table 15-5 on page
404 of the sixth edition of the A.M.A., Guides, he determined that appellant had a CDX of 1 for a
labral tear. Dr. El-Bahri assigned a grade modifier 1 for GMFH for pain and symptoms while
performing strenuous activities although appellant could perform activities of daily living
independently based on Table 15-7 on page 406. He assigned a grade modifier 1 for GMPE for
mildly restricted ROM under Table 15-8 on page 408. Dr. El-Bahri assigned a grade modifier 2
for GMCS as a magnetic resonance arthrogram (MRA) conﬁrmed a labral tear based on Table 159 on page 410. He applied the net adjustment formula (GMFH - CDX) + (GMPE - CDX) + (GMCS
- CDX) = (1- 1) + (1 - 1) + (2 - 1) = +1, which moved the default value one space to the right
resulting in a class 1, grade D or four percent permanent impairment of the right upper extremity.
Dr. El-Bahri also utilized the ROM rating method and provided three sets of measurements. He
found that, under Table 15-34 on page 475, 100 degrees of flexion yielded 3 percent permanent
3

impairment, 15 degrees of extension yielded 2 percent permanent impairment, 100 degrees of
abduction yielded 3 percent permanent impairment, 10 degrees of adduction yielded 1 percent
permanent impairment, 45 degrees of internal rotation yielded 2 percent permanent impairment,
and 70 degrees of external rotation yielded 0 percent permanent impairment, totaling 11 percent
permanent impairment. Referring to Table 15-34 on page 477, Dr. El-Bahri assigned a grade
modifier 1 for the 11 percent ROM impairment rating. He assigned a grade modifier 1 for GMFH
under Table 15-7 on page 406. Dr. El-Bahri found that no modification of the 11 percent
impairment rating was required in accordance with Table 15-36 on page 477. He concluded that
appellant had 11 percent right upper extremity permanent impairment based on the ROM rating
method as it was greater than the 4 percent permanent impairment rating under the DBI rating
method. Dr. El-Bahri determined that appellant reached MMI on the date of his impairment
evaluation.
On December 26, 2019 the DMA, Dr. Estaris, reviewed the medical record, including
Dr. El-Bahri’s October 29, 2019 findings. Utilizing the DBI rating method, under Table 15-5 on
page 404, he determined that a CDX of labral tear with biceps tendinitis with residual symptoms
and motion deficient represented a class 1 impairment with a default value of three percent. The
DMA assigned a grade modifier of 1 for GMFH due to pain over the right shoulder on increase
activity, under Table 15-7 on page 406. He assigned a grade modifier of 2 for GMPE due to tender
right shoulder with ROM deficits and weakness, under Table 15-8 on page 408. The DMA
assigned a grade modifier of 4 for GMCS as an MRA of the right shoulder showed labral lesion
and biceps tendinitis, under Table 15-9 on page 410. He applied the net adjustment formula
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) = (1 - 1) + (2 - 1) + (4 - 1) = 4, which moved
the default value two spaces to the right resulting in a class 1, grade E, five percent permanent
impairment of the right upper extremity. Additionally, the DMA utilized the ROM rating method
to determine permanent impairment to the right shoulder and found that, under Table 15-34 on
page 475, 100 degrees of flexion and 100 degrees of abduction each yielded three percent
permanent impairment, “20 degrees (15 rounded)” of extension and 10 degrees of adduction each
yielded 1 percent permanent impairment, 70 degrees of external rotation yielded 0 percent
permanent impairment, and “50 degrees (45 rounded)” of internal rotation yielded 2 percent
permanent impairment, resulting in 10 percent permanent impairment of the right upper extremity.
Utilizing Table 15-35 and Table 15-36 on page 477, the DMA assigned a grade modifier 1 for the
10 percent ROM impairment rating and a grade modifier 1 for functional history that resulted in
no change. He concluded that appellant had 10 percent right upper extremity permanent
impairment based on the ROM method as it yielded greater permanent impairment than the DBI
rating method. The DMA advised that he reached MMI on October 29, 2019, the date of
Dr. El-Bahri’s impairment evaluation. Further, he noted that the main discrepancy between his
and Dr. El-Bahri’s use of the ROM rating method was the assignment of an impairment rating for
loss of extension. The DMA indicated that Dr. El-Bahri found two percent permanent impairment
rating while Table 15-34 on page 475 indicated that two percent impairment rating was for 10
degrees of extension to 10 degrees of ﬂexion. The DMA noted that the measurement for extension
was “15 degrees which is rounded to 20 degrees,” and was closer to the one percent impairment
rating for loss of extension. The DMA related that his calculation reduced the total ROM
impairment rating to 10 percent permanent impairment of the right upper extremity. He also noted
that the main discrepancy between his and Dr. El-Bahri’s use of the DBI rating method was the
assignment of a grade modifier for GMCS. The DMA related that labral lesions with biceps tendon
pathology, under Table 15-9 on page 410, represented a grade modifier of 4 for GMCS, which

4

moved the default value two places to the right, resulting in a class 1, grade E or five percent
permanent impairment of the right upper extremity.
OWCP, by decision dated January 2, 2020, granted appellant a schedule award for 10
percent permanent impairment of the right arm. The period of the award ran for 31.2 weeks from
October 29, 2019 through June 3, 2020 and was based on the December 26, 2019 impairment
rating of OWCP’s DMA.
On June 16, 2020 appellant requested reconsideration. In support of his request, he
submitted an additional report dated January 29, 2020 from Dr. Seldes who reiterated his prior
diagnoses of severe glenoid labrum lesion in the right shoulder and left shoulder impingement
syndrome, consequential injury. Dr. Seldes also noted that appellant appeared to have adhesive
capsulitis in the right shoulder. He expressed his concern that he would soon develop frozen
shoulder. Dr. Seldes reviewed Dr. El-Bahri’s October 29, 2019 findings. He indicated that
Dr. El-Bahri’s ROM measurements were inconsistent with his own ROM measurements, which
he performed over three times. Dr. Seldes related that appellant reported to him that Dr. El-Bahri
only performed a ROM measurement one time. Therefore, he concluded that, since there were
inconsistencies in Dr. El-Bahri’s examination of appellant, which were relied upon by OWCP’s
DMA, appellant must undergo a referee examination.
On July 3, 2020 the DMA reviewed Dr. Seldes’ January 29, 2020 report. He noted that,
although Dr. Seldes provided ROM measurements for both shoulders, he did not provide an
impairment rating. The DMA reiterated his prior opinion that appellant had 10 percent permanent
impairment of the right upper extremity.
By decision dated July 9, 2020, OWCP denied modification of its January 2, 2020 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA5 and its implementing regulations6 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, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.7 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).8 The Board has approved the use

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

8
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6a (March 2017).

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by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.9
In determining impairment for the upper extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity
to be rated. With regard to the shoulder, the relevant portion of the arm for the present case,
reference is made to Table 15-5 (Shoulder Regional Grid) beginning on page 401. After the CDX
is determined from the Shoulder Regional Grid (including identification of a default grade value),
the net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A., Guides] caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)
***
“If the rating physician provided an assessment using the DBI method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.
“If the medical evidence of record is not sufficient for the DMA to render a rating
on ROM where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available
evidence.”11

9

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10

See A.M.A., Guides (6th ed.) 405-12. Table 15-5 also provides that, if motion loss is present for a claimant with
certain diagnosed conditions, permanent impairment may alternatively be assessed using Section 15.7 (ROM
impairment). Such a ROM assessment stands alone and is not combined with a DBI rating. Id. at 401-05, 475-78.
11

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

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OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing
rationale for the percentage of impairment specified.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than 10
percent permanent impairment of the right upper extremity for which he previously received a
schedule award.
In his December 26, 2019 report, the DMA properly calculated appellant’s right upper
extremity impairment in accordance with the sixth edition of the A.M.A., Guides. Utilizing the
DBI rating method, under Table 15-5, page 404, he found that appellant’s diagnosis of labral tear
with biceps tendinitis with residual symptoms and motion deficient represented a CDX of 1
impairment, thereby warranting a default value of three percent permanent impairment. The DMA
applied a GMFH of 1 under Table 15-7, page 406, a GMPE of 2 under Table 15-8, page 408, and
a GMCS of 4 under Table 15-9, page 410. He applied the net adjustment formula (GMFH - CDX)
+ (GMPE - CDX) + (GMCS - CDX) = (1 - 1) + (2 - 1) + (4 - 1) = 4, which moved the default value
two spaces to the right resulting in a class 1, grade E or five percent permanent impairment of the
right upper extremity. He also utilized the ROM rating method to determine permanent
impairment to the right shoulder. Utilizing Table 15-34, page 475, he determined that 100 degrees
of flexion and 100 degrees of abduction each yielded 3 percent permanent impairment, 20 degrees
(15 degrees rounded up) of extension and 10 degrees of adduction each yielded 1 percent
permanent impairment, 70 degrees of external rotation yielded 0 percent permanent impairment,
and “50 degrees (45 rounded)” of internal rotation yielded 2percent permanent impairment,
resulting in 10 percent permanent impairment of the right upper extremity. Utilizing Table 15-35
and Table 15-36 on page 477, the DMA assigned a grade modifier 1 for the 10 percent ROM
impairment rating and a GMFH of 1 that resulted in no change. He concluded that appellant had
10 percent right upper extremity permanent impairment under the ROM method as it resulted in
greater impairment than the DBI rating method. The Board finds that the DMA correctly
concluded that the total permanent impairment of appellant’s right upper extremity was 10 percent.
The case record contains reports of Dr. Seldes, an attending physician, and Dr. El-Bahri,
an OWCP referral physician, but the Board finds that their impairment rating analyses are of little
probative value because neither physician adequately explained how his calculations were
conducted in accordance with the standards of the sixth edition of the A.M.A., Guides.13 The
DMA properly identified the deficiencies in both physicians’ impairment rating analyses.
Regarding Dr. Seldes’ March 21, 2019 report in which he opined that appellant had 25 percent
permanent impairment of the right upper extremity based on the ROM rating method, the DMA
explained that his findings were inconsistent with the findings of Dr. Kaplan, an attending
12

See supra note 7 at Chapter 2.808.6(f) (March 2017); see D.J., Docket No. 19-0352 (issued July 24, 2020).

13
See J.H., Docket No. 19-0395 (issued August 10, 2020); N.A., Docket No. 19-0248 (issued May 17, 2019); James
Kennedy, Jr., 40 ECAB 620, 626 (1989) (an opinion which is not based upon the standards adopted by OWCP and
approved by the Board as appropriate for evaluating schedule losses is of little probative value in determining the
extent of a claimant’s permanent impairment).

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physician, who opined that appellant had zero percent permanent impairment of the right upper
extremity, as to whether appellant had reached MMI and sustained right shoulder ROM loss. He,
thus, recommended a second opinion impairment evaluation. The DMA subsequently reviewed
Dr. Seldes’ January 29, 2020 report and correctly noted that the physician did not offer an
impairment rating.
Regarding Dr. El-Bahri’s October 29, 2019 report, the DMA explained that Dr. El-Bahri
improperly found that appellant had two percent permanent impairment of the right upper
extremity for 15 degrees of extension under the ROM rating method as 2 percent impairment rating
under Table 15-34, page 475, applied to 10 degrees of extension to 10 degrees of ﬂexion. He
rounded up the 15 degrees of extension to 20 degrees of extension, which he determined was closer
to one percent impairment rating for loss of extension. The DMA advised that the one percent
impairment rating for loss of extension reduced the total ROM impairment rating to 10 percent
permanent impairment of the right upper extremity. Regarding the determination of right upper
extremity permanent impairment under the DBI rating method, he explained that Dr. El-Bahri
improperly assigned a grade modifier 2 for GMCS. The DMA noted that labral lesions with biceps
tendon pathology, under Table 15-9 on page 410, warranted a GMCS of 4, which moved the
default value two places to the right, resulting in a class 1, grade E or five percent permanent
impairment of the right upper extremity.
The Board finds that the DMA properly applied the A.M.A., Guides to find that appellant
had no more than 10 percent permanent impairment of the right upper extremity for which he
previously received schedule award compensation. Dr. Estaris’ report is detailed, well
rationalized, and based on a proper factual background and, thus, his opinion represents the weight
of the medical evidence.14 As such, the Board finds that appellant has not met his burden of proof
to establish greater right upper extremity permanent impairment than what was previously
awarded.
Appellant may request a schedule award or increased 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 his burden of proof to establish more than 10
percent permanent impairment of the right upper extremity for which he previously received a
schedule award.

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Id.

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ORDER
IT IS HEREBY ORDERED THAT the July 9, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 29, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, PLAZA STATION,
Pasadena, CA, Employer
__________________________________________

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

Docket No. 06-1620
Issued: February 28, 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 July 10, 2006 appellant filed a timely appeal from an August 11, 2005 merit decision
of the Office of Workers’ Compensation Programs determining her wage-earning capacity and a
May 11, 2006 hearing representative’s decision affirming the wage-earning capacity
determination and addressing her pay rate for compensation purposes. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the appeal.
ISSUES
The issues are: (1) whether the Office properly reduced appellant’s compensation to zero
effective September 14, 2004 on the grounds that her actual earnings as a video coding systems
technician fairly and reasonably represented her wage-earning capacity; and (2) whether the
Office properly determined her pay rate for compensation purposes for the period August 7,
2000 to September 14, 2004.

FACTUAL HISTORY
On January 25, 2001 appellant, then a 43-year-old window clerk, filed an occupational
disease claim alleging that she sustained a neck and right elbow condition due to factors of her
federal employment. Her supervisor indicated on the claim form that she stopped work on
April 7, 2000 for personal reasons. The Office accepted the claim for cervical and right shoulder
strain.1
The Office paid appellant’s compensation for disability beginning August 7, 2000 based
on her pay rate in effect on March 10, 2000. In an internal memorandum dated June 13, 2002,
the Office noted that appellant claimed compensation beginning March 10, 2000 but the medical
evidence was insufficient to establish entitlement to compensation prior to August 7, 2000. The
Office determined that appellant would be paid compensation based on her March 10, 2000 pay
rate of $39,515.00 a year, or $759.90 per week, to prevent a possible overpayment of
compensation. The Office noted that it would owe appellant additional compensation based on
her August 7, 2000 pay rate of $39,869.00 per year if she did not establish entitlement to
compensation beginning March 10, 2000.
On February 20, 2004 the employing establishment offered appellant a position as a
modified mail processing clerk working in the video coding systems unit at the same grade and
step as her current date-of-injury position. In a report dated February 25, 2004, her attending
physician, Dr. David W.P. Huang, a Board-certified orthopedic surgeon, opined that she “should
be able to perform her job as described.”
On September 14, 2004 appellant returned to work as a video coding systems technician
with wages of $43,644.00 per year. In a letter dated September 28, 2004, the Office informed
appellant that it was reducing her compensation to zero as her actual earnings of $855.69 per
week as a video coding systems technician equaled her earnings in her date-of-injury position.
In a report dated March 7, 2005, Dr. Huang diagnosed a cervical spine sprain. On
April 18, 2005 he noted that appellant related that working the night shift aggravated her neck,
shoulder and upper back conditions because she slept poorly. Dr. Huang stated: “If possible,
[she] should have her working hours moved to the day shift.”
On December 15, 2005 the Office informed appellant of its preliminary determination
that an overpayment in the amount of $5,622.23 existed because she received compensation for
total disability from August 7 to November 4, 2000 while also receiving paid leave from the
employing establishment.2 The Office noted that it paid appellant compensation from August 7,
2000 through September 13, 2004 based on pay rate date of March 10, 2000, with an annual
salary of $39,515.00 or $759.90 per week. The Office found that it should have paid appellant
1

By decision dated August 8, 2001, the Office denied appellant’s claim after finding that the medical evidence
was insufficient to establish that the claimed condition was due to factors of her federal employment. In a decision
dated May 21, 2002, an Office hearing representative reversed the August 8, 2001 decision and accepted the claim
for cervical and right shoulder strain.
2

The Office noted that it excluded from its overpayment calculations 24 hours from October 10 to 13, 2000 and 6
hours from November 3 to 4, 2000 when appellant was on leave without pay.

2

based on her salary of $39,869.00 or $766.71 per week, which was in effective the date disability
began on August 7, 2000. The Office calculated the amount owed her for the period August 7,
2000 through September 13, 2004 using the correct pay rate, $1,070.30 and subtracted this
amount from the overpayment of $6,692,62 to find a total overpayment of $5,622.23. Appellant
requested a telephone conference on the overpayment on January 14, 2005.3
By decision dated August 11, 2005, the Office reduced appellant’s compensation to zero
effective September 14, 2004 based on its finding that her actual earnings as a video coding
systems technician fairly and reasonably represented her wage-earning capacity. The Office
noted that her actual earnings as a video coding systems technician met or exceeded that of her
job held on the date of injury. The Office found that the updated weekly pay rate for the job
appellant held on August 7, 2000, the date disability began, was $855.69, which equaled her
current actual earnings in her present position.
On September 6, 2005 appellant requested an oral hearing on the August 11, 2005 wageearning capacity determination. She contended that the Office erroneously paid her only
75 percent of her lost wages and that the employing establishment failed to allow her to return to
work for four years. Appellant calculated the amount of money that she lost because she did not
earn annual leave, sick leave, get a tax refund or have funds put in a retirement fund. She also
argued that she should work the day rather than the night shift due to health concerns.4
At the hearing, held on February 22, 2006, appellant confirmed that she received the
same wages in her current job as in her date-of-injury position. She argued that she was
erroneously compensated for only 75 percent of her lost salary. Appellant argued that the
employing establishment wrongly failed to provide her work. She also raised issues regarding
the preliminary finding of an overpayment of compensation.
By decision dated May 11, 2006, the Office hearing representative affirmed the
August 11, 2006 decision. She found that the Office properly reduced appellant’s compensation
to zero based on her actual earnings. The hearing representative further found that appellant
received compensation based on an inaccurate pay rate but that this was remedied by the Office
offsetting the amount owed because of the pay rate error from an overpayment that existed
because she received compensation from the Office and leave from the employing establishment.
LEGAL PRECEDENT -- ISSUE 1
Section 8115(a) of the Federal Employees’ Compensation Act5 provides that, in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by her actual earnings if her actual earnings fairly and reasonably represent her
wage-earning capacity.6 Generally, wages actually earned are the best measure of a wage3

The record does not contain a final overpayment decision.

4

In an October 28, 2005 report, Dr. Huang opined that appellant could continue working modified duties.

5

5 U.S.C. §§ 8101-8193.

6

5 U.S.C. § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

3

earning capacity and in the absence of showing that they do not fairly and reasonably represent
the injured employee’s wage-earning capacity, must be accepted as such a measure.7 The
formula for determining loss of wage-earning capacity based on actual earnings, developed in the
Albert C. Shadrick decision,8 has been codified at 20 C.F.R. § 10.403. The Office calculates an
employee’s wage-earning capacity in terms of percentage by dividing the employee’s earnings
by the current pay rate for the date-of-injury job.9 Office procedures provide that a
determination regarding whether actual earnings fairly and reasonably represent wage-earning
capacity should be made after an employee has been working in a given position for more than
60 days.10
ANALYSIS -- ISSUE 1
The Board finds that appellant’s actual earnings as a video coding systems technician
fairly and reasonably represent her wage-earning capacity. On February 20, 2004 the employing
establishment offered her the position of modified mail processing clerk in the video coding
systems unit. Appellant’s attending physician, Dr. Huang, opined on February 25, 2004 that she
could perform the duties of the offered job. She returned to work on September 14, 2004 and
continued working in the position through August 11, 2005, the date the Office issued its formal
loss of wage-earning capacity determination. Appellant worked in the position for more than
60 days and there is no evidence that the position was seasonal, temporary or make-shift work
designed for her particular needs.11 On April 18, 2005 Dr. Huang noted that appellant reported
increased symptoms in her neck, shoulder and upper back because of difficulty sleeping. He
opined that she should work the day shift “if possible.” Dr. Huang’s finding that appellant
“should” work the day shift is equivocal in nature and appears based on appellant’s complaints
rather than an independent finding by the physician; consequently, it is of diminished probative
value.12 As there is no probative evidence that appellant’s wages in her position did not fairly
and reasonably represent her wage-earning capacity, they must be accepted as the best measure
of her wage-earning capacity.13
As appellant’s actual earnings in her video coding specialist position fairly and
reasonably represent her wage-earning capacity, the Board must determine whether the Office
7

Lottie M. Williams, 56 ECAB ___ (Docket No. 04-1001, issued February 3, 2005).

8

Albert C. Shadrick, 5 ECAB 376 (1953).

9

20 C.F.R. § 10.403(c).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (December 1993).
11

Elbert Hicks, 49 ECAB 283 (1998); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Determining Wage-Earning Capacity, Chapter 2.814.7(a) (July 1997).
12

Kathy A. Kelley, 55 ECAB 206 (2004) (medical opinions that are speculative or equivocal in character have
little probative value); Earl David Seale, 49 ECAB 152 (1997) (a physician’s report is of little probative value when
based on a claimant’s belief rather than a doctor’s independent judgment).
13

See Loni J. Cleveland, supra note 6.

4

properly calculated her wage-earning capacity based on her actual earnings. The Board finds
that the Office properly found that appellant had no loss of wage-earning capacity based on her
actual earnings. Appellant’s current weekly earnings of $855.69 per week equaled the current
weekly wages of her position on August 7, 2000, the date disability began. Therefore, she had
no loss of wage-earning capacity under the Shadrick formula.
LEGAL PRECEDENT -- ISSUE 2
Section 8105(a) of the Act provides: “If the disability is total, the United States shall pay
the employee during the disability monthly monetary compensation equal to 66 2/3 percent of
[her] monthly pay, which is known as [her] basic compensation for total disability.”14 Section
8110(b) of the Act provides that total disability compensation will equal three fourths of an
employee’s monthly pay when the employee has one or more dependents.15 Pay rate for
compensation purposes is defined in section 8101(4) as the monthly pay at the time of injury, the
time disability begins or the time disability recurs, if the recurrence is more than six months after
returning to full-time work, whichever is greater.16
ANALYSIS -- ISSUE 2
The Office accepted that appellant sustained cervical and right shoulder strain. Appellant
requested compensation for disability beginning March 10, 2000. Pay rate for compensation
purposes is defined in section 8101(4) as the monthly pay at the time of injury, the time disability
begins or the time disability recurs, if the recurrence is more than six months after returning to
full-time work, whichever is greater.17 The Office paid appellant compensation for disability due
to her employment injury beginning August 7, 2000. The Office indicated that it used the pay
rate in effect on March 10, 2000 in order to prevent an overpayment of compensation if she
subsequently established entitlement to disability compensation beginning that date. The Office
acknowledged that it would owe appellant additional compensation based on the pay rate in
effect on August 7, 2000 if she did not establish entitlement to compensation for disability
beginning March 10, 2000. Appellant did not establish entitlement to compensation prior to
August 7, 2000 and thus the Office should have paid her based on a pay rate of $766.71 per
week, the date disability began.
The hearing representative, in her May 11, 2006 decision, found that the Office owed
appellant compensation because it paid her at an inaccurate pay rate. She found, however, that
the Office corrected the error by subtracting the amount owed to appellant because she received
compensation at an inaccurate pay rate from the overpayment that existed because she received
compensation for total disability from August 7 to November 2, 2000 while also receiving leave
from the employing establishment. Such an offset is not allowed, however, as it permits an
unrestricted recovery of the offset portion of the overpayment without regard to the factors set
14

5 U.S.C. § 8105(a).

15

5 U.S.C. § 8110(b).

16

5 U.S.C. §§ 8101(4); 8114; see also 20 C.F.R. § 10.5(s).

17

Id.

5

forth for considering waiver in the Office’s regulations, which denies administrative due process
with respect to the amount offset.18 The decision will be, therefore, set aside and remanded for
further development.
Appellant argued that the Office erred in paying her only 75 percent of her salary. She
also contended that she lost retirement and leave earnings. Section 8110(b) of the Act provides
that total disability compensation will equal three fourths of an employee’s monthly pay when
the employee has one or more dependents.19 Neither the Office nor the Board has the authority
to enlarge the terms of the Act or to make an award of benefits under any terms other than those
specified in the statute.20
CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation to zero
effective September 14, 2004 on the grounds that her actual earnings as a video coding systems
technician fairly and reasonably represented her wage-earning capacity. The Board further finds
that the Office improperly determined appellant’s pay rate for compensation purposes for the
period August 7, 2000 to September 14, 2004.

18

See Michael A. Grossman, 51 ECAB 673 (2000).

19

Supra note 15.

20

Danny E. Haley, 56 ECAB ___ (Docket No. 04-853, issued March 18, 2005).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 11, 2006 is affirmed in part, set aside in part and the case is
remanded for further proceedings consistent with this decision of the Board. The decision dated
August 11, 2005 is affirmed.
Issued: February 28, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Douglas, GA, Employer
__________________________________________

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

Docket No. 14-1947
Issued: January 7, 2015

Case Submitted on the Record

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

JURISDICTION
On September 8, 2014 appellant timely appealed the August 28, 2014 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP) which denied reconsideration. The
latest merit decision regarding appellant’s claim for a schedule award is dated March 1, 2013,
which is more than 180 days prior to the filing of the instant appeal. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly declined to reopen appellant’s case for merit review
under 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193 (2006).

FACTUAL HISTORY
This case was previously before the Board.2 Appellant, a 59-year-old former city carrier,
has an accepted claim for bilateral carpal tunnel syndrome, which arose on or about
April 22, 1992.3 When the case was last before the Board, OWCP granted an October 27, 2011
schedule award for four percent impairment of each upper extremity, for a total of eight percent.
The Board set aside the October 27, 2011 award because of deficiencies in the district medical
adviser’s (DMA) September 15, 2011 impairment rating. The case was remanded to OWCP for
further development. The Board’s August 10, 2012 decision is incorporated herein by reference.
On August 30, 2012 the DMA reviewed appellant’s file and calculated two percent
bilateral upper extremity impairment under Table 15-23, A.M.A., Guides 449 (6th ed. 2008).
On December 12, 2012 OWCP granted a schedule award for two percent impairment of
each upper extremity, for a total of four percent. It further advised that because appellant had
already received payment for a total of eight percent impairment of the upper extremities, an
overpayment existed, which would be addressed in a separate decision.
On December 19, 2012 appellant requested reconsideration. He did not submit any
additional evidence at the time, but instead requested authorization for further evaluation.4
On January 17, 2013 OWCP instructed appellant to arrange for the submission of an
impairment rating under the A.M.A., Guides (6th ed. 2008).5 It further advised that his physician
could submit his fee for the evaluation using the appropriate form (HCFA-1500). Appellant was
afforded 30 days to submit additional evidence; however, no evidence was received within the
allotted time.
By decision dated March 1, 2013, OWCP denied modification of the December 12, 2012
schedule award.
Appellant subsequently advised OWCP that the physician he selected to provide an
impairment rating was unfamiliar with the sixth edition of the A.M.A., Guides (2008). He also
did not know of anyone who could provide an impairment rating under the sixth edition of the
A.M.A., Guides.
On April 10, 2013 OWCP advised appellant that it would schedule him for a second
opinion evaluation and impairment rating under the A.M.A., Guides (6th ed. 2008). It later

2

Docket No. 12-653 (issued August 10, 2012).

3

Appellant underwent bilateral carpal tunnel releases in 1992 and retired from federal service in October 2001.
His retirement was due to unrelated cervical and lumbar conditions. Appellant later accepted part-time employment
at a hardware store.
4

OWCP ultimately approved appellant’s request for an evaluation by a Dr. Kenneth DePersio.

5

OWCP also provided copies of the DMA’s September 15, 2011 and August 30, 2012 reports.

2

advised appellant that he would first have to file a new schedule award claim (Form CA-7)
before referral for a second opinion.
On April 17, 2013 OWCP made a preliminary finding of overpayment in the amount of
$4,433.20. The amount represented the difference between the October 27, 2011 and
December 12, 2012 schedule awards. OWCP determined that appellant was without fault in the
creation of overpayment.
Appellant requested a prerecoupment hearing, which was held on October 22, 2013. He
also submitted an overpayment recovery questionnaire, along with banking records and tax
returns.
By decision dated January 24, 2014, the hearing representative affirmed the fact and
amount of the overpayment. She also found that appellant was without fault in creating the
overpayment. Based on appellant’s reported income and expenses, the hearing representative
found that recovery of the overpayment would defeat the purpose of FECA. Accordingly, she
granted waiver of recovery of the $4,433.20 overpayment.
On July 14, 2014 appellant requested that OWCP award an additional six percent based
on the June 10, 2014 rating from Dr. Richard M. Blecha, a Board-certified orthopedic surgeon,
who found five percent impairment of each upper extremity under Table 15-23, A.M.A., Guides
449 (6th ed. 2008).
In a decision dated August 1, 2014, OWCP found that appellant’s July 14, 2014 request
was untimely and that he failed to present clear evidence of error. The senior claims examiner
noted that appellant “sent in a letter requesting an additional schedule award but did not provide
any evidence the 2013 decision was issued in error....”
On August 5, 2014 appellant filed a claim (Form CA-7) for an additional schedule award.
In an August 6, 2014 letter, he stated that he was not asking for reconsideration, but additional
compensation based on Dr. Blecha’s June 10, 2014 impairment rating under the A.M.A., Guides
(6th ed. 2008).
In an August 11, 2014 letter, OWCP advised appellant that it would not process his
recent claim (CA-7) for an additional schedule award in light of the August 1, 2014 decision. It
further advised that the next course of action would be to follow the appeal rights issued with the
August 1, 2014 decision.
By decision dated August 28, 2014, OWCP found that appellant’s request for
reconsideration, which was received on August 11, 2014, was untimely. It also found that
appellant’s August 6, 2014 letter failed to provide evidence to support that the March 1, 2013
decision was erroneous.

3

LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.6 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.7 One such limitation is that the application for
reconsideration must be received by OWCP within one year of the date of the decision for which
review is sought.8 When a request for reconsideration is untimely, OWCP will undertake a
limited review to determine whether the application presents clear evidence of error on the part
of OWCP in its most recent merit decision.9
A claim for an additional schedule award is not time-dependent like a request for
reconsideration of a prior award. If a claimant sustains increased impairment at a later date
which is due to work-related factors, an additional award will be payable if supported by the
medical evidence.10 In this case, the original award is undisturbed and the new award has its
own date of maximum medical improvement (MMI), percent of impairment, and period of
award.11 This may occur if the claimant sustains additional impairment due to the original work
factors with no intervening or additional exposure to those same work factors.12

6

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
7

20 C.F.R. § 10.607 (2014).

8

Id. at § 10.607(a). The one-year period begins on the date of the original decision, and an application for
reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought for
merit decisions issued on or after August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (October 2011). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the “received date” in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
9

20 C.F.R. § 10.607(b). To establish clear evidence of error, a claimant must submit evidence relevant to the
issue that was decided by OWCP. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive,
precise, and explicit and it must be apparent on its face that OWCP committed an error. See Leona N. Travis, 43
ECAB 227 (1991). It is not enough to merely show that the evidence could be construed to produce a contrary
conclusion. Id. Evidence that does not raise a substantial question concerning the correctness of OWCP’s decision
is insufficient to establish clear evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). The evidence
submitted must not only be of sufficient probative value to create a conflict in medical opinion or establish a clear
procedural error, but must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision. Thankamma Mathews, 44
ECAB 765, 770 (1993).
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.9b (February 2013).
11

Id.

12

Id.

4

ANALYSIS
On August 5, 2014 appellant filed a claim (Form CA-7) for an additional schedule award.
OWCP previously granted an award for two percent impairment of each upper extremity, for a
total of four percent. The December 12, 2012 schedule award was based on the DMA’s
August 30, 2012 finding of two percent bilateral upper extremity impairment under Table 15-23,
A.M.A., Guides 449 (6th ed. 2008). The August 5, 2014 claim for an additional schedule award
is premised on Dr. Blecha’s June 10, 2014 finding of five percent impairment of each upper
extremity based on Table 15-23, A.M.A., Guides 449 (6th ed. 2008).
In an August 6, 2014 letter, appellant stated that he was not asking for reconsideration,
but instead was seeking additional compensation based on Dr. Blecha’s June 10, 2014 rating.
After numerous failed attempts, appellant had finally secured a current rating under the A.M.A.,
Guides (6th ed. 2008). Contrary to appellant’s request in his August 6, 2014 letter, OWCP
evaluated appellant’s latest filing as a request for reconsideration of the March 1, 2013 decision
which denied modification of the December 12, 2012 schedule award. In so doing, OWCP
determined that appellant’s August 6, 2014 correspondence was untimely, and that he failed to
present clear evidence of error with respect to the March 1, 2013 decision. The August 28, 2014
decision failed to mention Dr. Blecha’s June 10, 2014 impairment rating. Additionally, OWCP
did not refer Dr. Blecha’s findings to the DMA for review.
The Board finds that OWCP erred in treating appellant’s August 6, 2014 correspondence
as a request for reconsideration. Appellant had already filed a new CA-7 on August 5, 2014 and
clearly indicated that he was seeking additional compensation based on Dr. Blecha’s June 10,
2014 impairment rating. OWCP failed to consider the latest CA-7, as well as Dr. Blecha’s
rating, which ostensibly supports an additional award. Consequently, the August 28, 2014
nonmerit decision shall be set aside, and the case remanded for further development.
On remand, OWCP should refer the case file, including Dr. Blecha’s June 10, 2014
report, to the DMA for review.13 After it has developed the case record consistent with the
Board’s directive, a de novo decision shall be issued regarding appellant’s August 5, 2014 claim
for an additional schedule award.
CONCLUSION
The case is not in posture for decision.

13

Id. at Chapter 2.808.6e and f.

5

ORDER
IT IS HEREBY ORDERED THAT the August 28, 2014 decision of the Office of
Workers’ Compensation Programs is set aside, and the case remanded for further consideration
consistent with this decision.
Issued: January 7, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION
WILLIAM J. HUGHES TECHNICAL CENTER,
Atlantic City, NJ, Employer
__________________________________________

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

Docket No. 19-1810
Issued: September 9, 2020

Case Submitted on the Record

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

JURISDICTION
On August 27, 2019 appellant filed a timely appeal from an August 14, 2019 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.

1
The Board notes that following the August 14, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $86,254.00, for which he was not at fault, for the
period September 22, 2016 through January 6, 2018 as he received schedule award compensation
to which he was not entitled; and (2) whether OWCP properly denied waiver of recovery of the
overpayment.
FACTUAL HISTORY
On October 24, 2012 appellant, then a 58-year-old construction representative, filed a
traumatic injury claim alleging that on October 22, 2012 he experienced pain in his low back and
right leg when he slipped on a hole in the sidewalk while in the performance of duty. He stopped
work on October 24, 2012. OWCP accepted the claim, which had been assigned OWCP File No.
xxxxxx475, for lumbosacral radiculitis on the right side. It subsequently expanded acceptance of
the claim to include a right shoulder sprain and right rotator cuff tear.
OWCP previously had accepted that appellant sustained a lumbosacral strain and internal
derangement of the right knee due to a June 1, 1995 employment injury, assigned File No.
xxxxxx701. It also had accepted that he sustained neck and shoulder sprains, a tear of the right
medial meniscus, a right knee sprain, and a left knee contusion due to a May 8, 1997 employment
injury, assigned File No. xxxxxx543. OWCP combined File No. xxxxxx701 into Master File No.
xxxxxx543. Under File No. xxxxxx701, by decision dated February 13, 2004, OWCP granted
appellant a schedule award for 37 percent permanent impairment of the right lower extremity,
based upon his total right knee replacement.3
By decision dated June 25, 2015, OWCP terminated appellant’s entitlement to wage-loss
compensation effective that date as he had no further disability causally related to his October 22,
2012 employment injury.4

3

By decision dated February 7, 2003, the Board affirmed in part January 31 and May 16, 2002 OWCP decisions
issued under File No. xxxxxx701 finding that appellant had no permanent impairment of the left lower extremity, but
set aside the decisions regarding the extent of permanent impairment of the right lower extremity. Docket No. 022065 (issued February 7, 2003). The Board found that OWCP had properly determined the extent of his right lower
extremity impairment due to his knee condition, but that a conflict in medical opinion existed regarding the extent of
any permanent impairment of the right lower extremity originating from his back condition. By decision dated
June 23, 2003, OWCP granted appellant a schedule award for an additional eight percent permanent impairment of
the right lower extremity, for a total right lower extremity impairment of 37 percent, due to his total right knee
replacement. By decision dated December 15, 2003, an OWCP hearing representative vacated the June 23, 2003
decision and remanded the case for further development of the medical evidence. In decisions dated February 13,
2004 and February 1, 2005, OWCP found that appellant had no more than 37 percent permanent impairment of the
right lower extremity for which he received schedule award compensation. By decision dated April 6, 2015, it denied
his request for reconsideration of the merits under 5 U.S.C. § 8128(a).
4

By decision dated April 5, 2016, OWCP granted appellant a schedule award for 15 percent permanent impairment
of the right upper extremity. It noted that he had 12 percent permanent impairment of the right upper extremity under
the current claim and 3 percent permanent impairment under OWCP File No. xxxxxxx441, for a total permanent
impairment of 15 percent. The period of the award ran for 46.8 weeks from August 19, 2015 to July 11, 2016.

2

On April 25, 2016 appellant filed a claim for a schedule award (Form CA-7).
In a report dated September 22, 2016, Dr. Samy F. Bishai, an orthopedic surgeon, opined
that appellant had 24 percent permanent impairment of the right upper extremity due to a loss of
range of motion of the shoulder and 24 percent permanent impairment of the right lower extremity
due to radiculopathy at the L5 and S1 nerve root under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5
On January 19, 2017 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as
a district medical adviser (DMA), noted that appellant was status post a lumbar interbody fusion
at L4-5, a decompressive laminectomy at L3 through L5, and lumbar interbody fusion at L3
through S1. For the right lower extremity, he applied the provisions of The Guides Newsletter,
Rating Spinal Nerve Impairment Using the Sixth Edition (July/August 2009), to find that appellant
had 16 percent permanent impairment due to pain and motor weakness from L5 radiculopathy on
the right, and 10 percent permanent impairment due to pain and motor weakness from S1
radiculopathy, for a total right lower extremity impairment of 24 percent due to lumbar
radiculopathy after utilizing the Combined Values Chart.
By decision dated February 27, 2017, OWCP granted appellant a schedule award for 24
percent permanent impairment of the right lower extremity. The period of the award ran for 69.12
weeks from September 22, 2016 to January 18, 2018 at a weekly compensation rate of $1,262.50.
On November 5, 2018 appellant filed a Form CA-7 claim for an increased schedule award.
He submitted an October 11, 2018 impairment evaluation from Dr. Mark A. Seldes, Boardcertified in family practice, in support of his request. Dr. Seldes found that appellant had an
additional 28 percent permanent impairment of the right upper extremity.
On February 21, 2019 Dr. David I. Krohn, a Board-certified internist serving as a DMA,
reviewed Dr. Seldes’ report and advised that appellant had no more than the previously awarded
24 percent permanent impairment of the right lower extremity. He further found no additional
right upper extremity impairment.6
In a July 11, 2019 memorandum, OWCP noted that appellant had received multiple
schedule awards for the right upper and lower extremities under different OWCP file numbers. It
noted that he had received a schedule award for 24 percent of the right lower extremity under File
No. xxxxxx475 and 37 percent permanent impairment of the right lower extremity under File No.
xxxxxx701. OWCP found that it had erred in paying appellant 24 percent permanent impairment
of the right lower extremity impairment under File No. xxxxxx475 as he had previously received

5

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

6

In a supplemental report dated March 12, 2019, Dr. Seldes again found an additional 28 percent permanent
impairment of the right upper extremity, for a total impairment of 43 percent. On June 28, 2019 Dr. Krohn found 32
percent permanent impairment of the right upper extremity.

3

a schedule award for 37 percent permanent impairment of the right lower extremity under File No.
xxxxxx701.7
On July 11, 2019 OWCP informed appellant of its preliminary determination that he had
received an $86,254.00 overpayment of schedule award compensation for the period
September 22, 2016 to January 6, 2018. It found that it had previously paid him a schedule award
for 37 percent permanent impairment of the right lower extremity under OWCP File No.
xxxxxx701 and thus had erred in paying him an additional schedule award for 24 percent
permanent impairment of the right lower extremity under OWCP File No. xxxxxx475. OWCP
further advised appellant of its preliminary finding that he was without fault in the creation of the
overpayment of schedule award compensation. It requested that he complete an enclosed
overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
documents. Additionally, OWCP notified appellant that, within 30 days of the date of the letter,
he could request a telephone conference, a final decision based on the written evidence, or a
prerecoupment hearing. No response was received by OWCP.
By decision dated August 14, 2019, OWCP found that appellant had received an
overpayment of schedule award compensation in the amount of $86,254.00 for the period
September 22, 2016 to January 6, 2018. It determined that he was without fault in the creation of
the overpayment, but denied waiver of recovery of the overpayment, noting that he had not
responded to its preliminary overpayment determination. OWCP found that appellant should
forward payment for the entire amount to repay the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.8 Section 8129(a) of FECA provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.9
If a claimant receives a schedule award and the medical evidence does not support the
degree of permanent impairment awarded, an overpayment may be created.10 OWCP’s procedures
provide that claims for an increased schedule award based on the same edition of the A.M.A.,
Guides are subject to overpayment.11 If a claimant requests an increased schedule award due to a
belief that his or her medical condition has deteriorated since the original award has been issued,
7

OWCP advised that File No. xxxxxx543 was a subsidiary of File No. xxxxxx701; however, File No. xxxxxx701
is a subsidiary of File No. xxxxxx543.
8

5 U.S.C. § 8102(a).

9

Id. at § 8129(a).

10

R.S., Docket No. 20-0311 (issued July 8, 2020); J.C., Docket No. 09-1526 (issued June 1, 2010).

11
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.9(e) (February 2013).

4

and additional development is undertaken to address this claim for an increased schedule award, a
new schedule award decision should be issued that addresses and substantiates the newly
determined impairment rating. If a lesser degree of impairment than previously awarded is
substantiated, an overpayment thereafter is appropriate.12
ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly determined that appellant had received an
overpayment of compensation in the amount of $86.254.00 for the period September 22, 2016 to
January 6, 2018, as it failed to resolve the issue of the extent of his right lower extremity
impairment. OWCP paid appellant a schedule award for 37 percent permanent impairment of the
right lower extremity under File No. xxxxxx701, a subsidiary of Master File No. xxxxxx543, based
upon his right knee condition. Under these file numbers OWCP accepted lumbosacral strain,
internal derangement of the right knee, a neck and shoulder sprain, a tear of the right medial
meniscus, right knee sprain, and a left knee contusion.
Appellant subsequently requested a schedule award under OWCP File No. xxxxxx745,
accepted for right lumbosacral radiculitis, right shoulder sprain, and a right rotator cuff tear. In a
report dated September 22, 2016, Dr. Bishai opined that appellant had 24 percent permanent
impairment of the right lower extremity due to radiculopathy at the L5 and S1 nerve root.
Dr. Harris, a DMA, applied the provisions of The Guides Newsletter and concurred with his
finding of 24 percent permanent impairment of the right lower extremity.
By decision dated February 27, 2017, OWCP paid appellant a schedule award for 24
percent permanent impairment under OWCP File No. xxxxxx475.
OWCP thereafter determined that appellant was not entitled to the schedule award for 24
percent permanent impairment issued under File No. xxxxxx745 as he had previously received a
right lower extremity award for a greater percentage of impairment. It thus found that the entire
amount of the schedule award that he had received for the 24 percent permanent impairment under
File No. xxxxxx475 constituted an overpayment of schedule award compensation.
The Board finds that OWCP had not adequately supported its determination that appellant
received an $86,254.00 overpayment of compensation. OWCP failed to consider that the right
lower extremity ratings were not based on the same accepted conditions. It failed to request that
a DMA compare the prior award and the current award to determine whether it was based on the
same accepted conditions. Before the amount of overpayment can be determined, the evidence
must clearly establish the degree of permanent impairment.13
The Board has previously held that simply comparing the prior percentage of permanent
impairment awarded to the current impairment for the same member is not always sufficient to
deny an increased schedule award claim.14 The issue is not whether the current permanent
12

Id.

13

Supra note 10 at Chapter 2.808.9(e) (February 2013).

14

See P.M., Docket No. 18-1215 (issued June 18, 2020).

5

impairment rating is greater than the prior impairment ratings, but whether it duplicates in whole
or in part the prior impairment rating.15
As the schedule award issue has not been properly considered, the Board finds that the
overpayment issues cannot be addressed.16 Therefore, the August 14, 2019 decision is reversed.17
CONCLUSION
The Board finds that OWCP has not established fact of overpayment.18
ORDER
IT IS HEREBY ORDERED THAT the August 14, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 9, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

15

Id.; Richard Saldibar, 51 ECAB 585 (2000).

16

Id.

17

Upon return of the case file, OWCP should consider administratively combining the present claim file with
Master File No. xxxxxx543 and its subsidiary File No. xxxxxx701.
18

In light of the Board’s disposition of the first issue, the issue of waiver of recovery is moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
U.S. POSTAL SERVICE, WATSON
COMMUNITY STATION, Arlington, TX,
Employer
__________________________________________

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

Docket No. 20-1425
Issued: July 15, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 13, 2020 appellant filed a timely appeal from a June 1, 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.
ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On October 25, 2019 appellant, then a 51-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she experienced bilateral foot pain causally related to
1

5 U.S.C. § 8101 et seq.

factors of her federal employment, including constant standing and walking. She noted that she
first became aware of her condition and its relation to her federal employment on
October 19, 2019. On the reverse side of the claim form an employing establishment supervisor,
T.A., controverted the claim. She noted that appellant’s duties include pulling packages and letters
at the window for customers, but that she does not carry mail or drive postal vehicles. Appellant
did not stop work.
In a November 1, 2019 letter of controversion, B.S., a health and resource management
specialist for the employing establishment, informed OWCP that it had no medical documentation
to support that the injury occurred as alleged, nor was there a medical condition diagnosed in
connection with the injury or event. B.S. noted that appellant claimed that her feet were hurting
due to constant standing and walking, but alleged that her duties required only intermittent standing
and walking.
In an initial evaluation report dated October 30, 2019, Dr. Christopher Mann, an
occupational medicine specialist, noted that appellant reported that she had worked as a city carrier
for 18 years. He indicated that she described her job duties as including landing on her feet
repeatedly while entering and exiting her postal vehicle; walking and standing for prolonged
periods of time on uneven surfaces for more than 8 hours per day; climbing stairs; squatting
repeatedly to pick up packages; standing on one spot casing mail for more than 90 minutes per
day; lifting/carrying mail trays and containers; and pushing/pulling all-purpose containers and wire
cages. While performing these duties on October 19, 2019, appellant experienced an insidious
onset of bilateral foot and ankle edema. She related that, as her workday progressed, her feet and
ankles would start swelling, and she would have difficulty ambulating on concrete floors for long
periods of time. Appellant denied any prior history of trauma to her feet, but did relate a history
of various prior work injuries to her neck, right shoulder, and left hand. On physical examination
of the feet and ankles Dr. Mann observed tenderness to palpation and edema over the plantar fascia
in the area of the heels and arches, as well as tenderness in the area of the metatarsals and toes. He
diagnosed bilateral plantar fibromatosis and metatarsalgia and primary osteoarthritis of the ankles
and feet. Dr. Mann recommended that appellant continue working regular limited duty and start a
course of physical therapy.
In November 11, 2019 reports of x-rays of the feet, Dr. Nicholas Iwasko, a Board-certified
musculoskeletal radiologist, recorded impressions of bilateral inferior calcaneal spurring
compatible with chronic plantar fasciitis, hallux valgus of the great toe, posterior calcaneal
enthesopathy, soft tissue swelling lateral to the fifth metatarsophalangeal joint and small focal
erosion within the lateral aspect of the fifth metatarsal head. In x-ray reports of the ankles of even
date, he recorded impressions of bilateral inferior calcaneal spurring compatible with chronic
plantar fasciitis, posterior calcaneal enthesopathy, and talonavicular osteoarthritis.
In a November 19, 2019 development letter, OWCP advised appellant of the deficiencies
of her claim. It requested that she submit additional factual and medical evidence and provided a
questionnaire for her completion. In a separate letter of even date, OWCP also requested additional
information from the employing establishment. It afforded both parties 30 days to respond.
In November 25, 2019 reports, Dr. Iwasko evaluated magnetic resonance imaging (MRI)
scans of the feet and ankles. He recorded impressions of mild Achilles tendinopathy, various areas

2

of edema, joint effusions and tenosynovitis, and calcaneal bone spurring of the ankles. On the
right Dr. Iwasko noted findings compatible with chronic plantar fasciitis, but without any acute
plantar fasciitis changes, while on the left, he noted acute and chronic plantar fasciitis with plantar
fascial thickening and edema. He also noted impressions of various joint effusions, periarticular
edema, plantar muscle irritation, and arthritic changes of the feet. Dr. Iwasko commented that
rheumatoid arthritis, other inflammatory arthritides, or gout could have this appearance. He also
recorded impressions of focal bone irritation or erosion of the first and fifth metatarsal heads of
the right foot and the third through fifth metatarsals of the left foot, which he indicated suggested
an inflammatory arthritis.
By decision dated January 30, 2020, OWCP denied appellant’s claim, finding that the
evidence was insufficient to establish that the employment injury or event(s) occurred as she
alleged. Consequently, it concluded that the requirements had not been met to establish an injury
as defined by FECA.
In a February 10, 2020 narrative report, Dr. Mann clarified that his office incorrectly
indicated that appellant had been working regular duties. He had advised his office that she was
working limited duty with a 15-pound lifting restriction from prior work injuries, but was still
required to be on her feet for most of the workday, two to four hours at a time, on hard concrete
that was sometimes covered with rubber mats. Dr. Mann noted that diagnostic examinations
clearly showed signs of significant digression in appellant’s interarticular surfaces of both ankles,
and that the November 25, 2019 MRI scans were consistent with osteophytic changes manifested
from prolonged standing and walking activity for multiple hours per day. He opined that body
habitus, along with carrying weights and engaging in regular pivoting, turning, and twisting on the
feet, causes microtrauma to the joint surfaces that over time manifests as osteoarthritic changes
around the joints. Dr. Mann further opined that prolonged periods of standing, carrying and/or
walking activity on hard floors would directly contribute to strain across the plantar fascia and
inflammation in between the articular surfaces of the ankle and forefoot. He diagnosed an onset
of bilateral plantar fibromatosis and early onset of primary osteoarthritis of the feet and ankles as
a result of constant and long-term repetitive standing and walking activities.
On March 9, 2020 appellant requested reconsideration.
In support of her request, appellant submitted a response of even date to OWCP’s
development questionnaire, relating that she began her employment in February 2001 as a letter
carrier. In August 2019, she was placed on limited duty as a lobby director, which involved
prolonged standing on concrete floors and walking to retrieve customer packages and letters.
Appellant alleged that her feet and ankles became painful, especially in the area of her heels, which
made it difficult for her to stand and walk. She denied any prior foot problems or hobbies or
activities other than her duties with the employing establishment.
By decision dated June 1, 2020, OWCP modified its January 30, 2020 decision, finding
that the evidence of record was sufficient to establish factors of employment and diagnosed
conditions. However, the claim remained denied, as the evidence of record was insufficient to
establish a causal relationship between appellant’s feet and ankle conditions and the accepted
factors of her federal employment.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including 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
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
casually related to the identified employment factors.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 The opinion of the physician must be based upon a complete factual
and medical background, must be one of reasonable medical certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors.8
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.9

2

Supra note 1.

3

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.W., Docket No. 20-0767 (issued January 13, 2021); L.D., Docket No. 19-1301 (issued January 29, 2020); S.C.,
Docket No. 18-1242 (issued March 13, 2019).
7

I.J., Docket No. 19-1343 (issued February 26, 2020); T.H., 59 ECAB 388 (2008); Robert G. Morris, 48 ECAB
238 (1996).
8

D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018).

9
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); R.D.,
Docket No. 18-1551 (issued March 1, 2019).

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ANALYSIS
The Board finds that this case is not in posture for decision.
In his February 10, 2020 narrative report, Dr. Mann diagnosed an onset of bilateral plantar
fibromatosis and early onset of primary osteoarthritis of the ankles and feet. He attributed these
conditions to long-term repetitive standing and walking activities, which he found had contributed
to strain across the plantar fascia and inflammation between the articular surfaces of the ankle and
forefoot. Dr. Mann also noted that body habitus and carrying weights, while engaging in various
movements causes microtrauma to the joint surfaces, which over time manifests as osteoarthritic
changes around the joints.
The Board finds that, while it is not fully rationalized and insufficient to establish the claim,
Dr. Mann’s February 10, 2020 report provides a mechanism of injury, references objective
diagnostic reports, and supports that appellant’s diagnosed conditions are causally related due to
the accepted employment factors. Accordingly, this report is sufficient to require OWCP to further
develop the medical evidence.10
It is well established that proceedings under FECA are not adversarial in nature and, while
the claimant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.11
The Board will, therefore, remand the case for further development of the medical
evidence. On remand, OWCP shall prepare a statement of accepted facts and obtain a rationalized
opinion from a physician in the appropriate field of medicine as to whether the accepted work
factors caused or aggravated appellant’s diagnosed medical conditions. If the physician opines
that the diagnosed conditions are not causally related to the accepted employment factors, he or
she must explain with rationale how or why their opinion differs from that of Dr. Mann. Following
this and other such further development as deemed necessary, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

10
E.P., Docket No. 19-1703 (issued April 16, 2021); C.W., Docket No. 19-0322 (issued July 18, 2019); X.V.,
Docket No. 18-1360 (issued April 12, 2019); D.W., Docket No. 17-1884 (issued November 8, 2018); John J. Carlone,
41 ECAB 354 (1989).
11
E.P., id.; C.W., id.; X.V., id.; S.W., Docket No. 18-0119 (issued October 5, 2018); William J. Cantrell, 34 ECAB
1233 (1993).

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ORDER
IT IS HEREBY ORDERED THAT the June 1, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: July 15, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Montclair, NJ, Employer
__________________________________________

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

Docket No. 06-1182
Issued: March 28, 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 April 24, 2006 appellant filed a timely appeal from the April 3, 2006 merit decision of
the Office of Workers’ Compensation Programs, which affirmed the termination of her wageloss compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of this termination.
ISSUE
The issue is whether the Office has met its burden of proof to establish that disability
causally related to the July 14, 1999 employment injury ceased by October 2, 2005.
FACTUAL HISTORY
On July 14, 1999 appellant, then a 39-year-old retail clerk, injured her left arm in the
performance of duty: “Door was shut on my arm by Supervisor Russell Boone.” The Office
accepted her claim for left elbow contusion and paid compensation for disability on the periodic
rolls.

On September 24, 2003 Dr. Philip H. Lewis, a Board-certified orthopedic surgeon and
Office referral physician, reported that appellant had an unresolved left ulnar neuropathy
resulting from the July 14, 1999 incident at work. He found, however, that she “can do her
regular duties as a retail clerk” within specified restrictions.
Dr. Ganga R. Sharma, the attending physician, examined appellant on January 16, 2004.
He released her to return to work with restrictions for four hours a day for the first two weeks.
The Office found a conflict and referred appellant, together with the medical record and a
statement of accepted facts, to Dr. Robert Dennis, a Board-certified orthopedic surgeon, for
resolution. On September 2, 2004 Dr. Dennis related appellant’s history, medical treatment and
current complaints. He detailed his findings on physical examination and reviewed medical
records. Dr. Dennis responded to Office questions as follows:
“In my opinion, this condition [the accepted left elbow contusion] should have
totally resolved by this time. Soft tissue contusions of an arm do not give rise to
the type of long-term disability that has been identified in this case. After
evaluating [appellant] carefully, I have found no exception to this impression. In
other words, [appellant] has, in my opinion based on today’s examination and the
information I have reviewed, resolved her orthopedic condition at this point.”
***
“There is a wide gap between her current subjective complaints and her physical
findings. I do not comment on what has happened before, but I do feel based on
the information that is contained in this report, that [appellant] has at this point
fully recovered. The conditions accepted regard to contusion of the elbow,
radiculopathy and even the transient neuropathy of the ulnar nerve of the left arm,
I can understand were related to the July 14, 1999 injury. I do not argue with that
finding. I do feel that this soft tissue contusion and whatever other complaints
and findings that were previously identified have now resolved.
“In my opinion the patient can return to full duty. I went over some of the details
of her job. I find no reason that she could not perform such duties. I have no
doubt that she will have continuing subjective complaints. I cannot and though I
have tried, to substantiate such vague diffuse nonorganic complaints to any
current ongoing condition or exacerbation or aggravation of any prior condition
that may have existed in the past.
“The patient can, in my opinion, based on her current examination, return to her
former duties. I can find no justification or indication for further treatment nor do
I believe that any treatment would resolve her subjective complaints. I find no
objective organic complaints that require further treatment at this time.”
On December 14, 2004 Dr. Sharma reported that he followed appellant on a regular basis
and that she remained under the care of a neurologist. He stated that pain in the left elbow and
shoulder persisted with radiation to the arm and hand. Dr. Sharma diagnosed post-traumatic
cervical radiculopathy, left; post-traumatic ulnar neuropathy, left and secondary depression. He
2

described her prognosis as guarded. Dr. Sharma completed a work capacity evaluation showing
physical restrictions.
In a decision dated September 28, 2005, the Office terminated appellant’s compensation
effective October 2, 2005. The Office found that Dr. Dennis’ opinion represented the weight of
the medical opinion evidence.
In a decision dated April 3, 2006, an Office hearing representative affirmed the
termination of compensation for wage loss, finding that the weight of the medical evidence
established that appellant was no longer disabled from her date-of-injury position due to
residuals of the July 14, 1999 work injury. The hearing representative reversed the termination
of medical benefits, however, because appellant had an unresolved left ulnar neuropathy directly
related to the accepted employment injury that required surgical intervention.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.1 After it has determined that an employee has disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the
employment.2
When there exist opposing medical reports of virtually equal weight and rationale, and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.3
ANALYSIS
A conflict arose between appellant’s physician, Dr. Sharma, and the Office referral
physician, Dr. Lewis, on the nature and extent of the restrictions appellant required to return to
her date-of-injury position as a retail clerk. Both physicians agreed that appellant could return to
work with restrictions, although Dr. Lewis reported that she “can do her regular duties as a retail
clerk” with restrictions.
The Office properly referred the case to an impartial medical specialist, Dr. Dennis. The
Office provided Dr. Dennis with the case record and a statement of accepted facts so he could
base his opinion on a proper factual and medical history. Dr. Dennis offered a comprehensive
and detailed report, and he supported his opinion with medical rationale. He noted that soft1

Harold S. McGough, 36 ECAB 332 (1984).

2

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).
3

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980); see 5 U.S.C. § 8123(a) (if there
is disagreement between the physician making the examination for the United States and the physician of the
employee, the Office shall appoint a third physician who shall make an examination).

3

tissue contusions of an arm do not give rise to the type of long-term disability identified in this
case. After evaluating appellant carefully, Dr. Dennis reported unequivocally, and to a
reasonable degree of medical certainty, that appellant had fully recovered from her July 14, 1999
injury. He also reported that appellant could return to full duty. Dr. Dennis tried but could not
medically substantiate her vague, diffuse and nonorganic complaints.
The Board finds that Dr. Dennis’ opinion is based on a proper background and is
sufficiently well reasoned that it constitutes the weight of the medical evidence, justifying the
termination of compensation for disability causally related to the July 14, 1999 employment
injury. The Board notes that Dr. Sharma submitted a later report on appellant’s restrictions, but
because he was on one side of the conflict that Dr. Dennis resolved, this later report does not
create a second conflict.4 The Board will affirm the Office’s April 3, 2006 decision.
Appellant argues on appeal that the hearing representative illogically found that she could
return to work without restrictions while having an active medical condition directly related to
her accepted employment injury requiring surgery. The Board agrees that the hearing
representative’s finding of continuing residuals appears at odds with the opinion of the impartial
medical specialist, but this is not the issue on appeal. The only adverse decision on appeal is the
denial of compensation for wage loss. The Office met its burden of proof to terminate
compensation for disability.
Appellant also argues that, for Dr. Dennis’ opinion to carry the weight of the evidence,
the position of retail clerk must be described in sufficient detail. But where the impartial medical
specialist can find no residuals of the accepted employment injury, the details of the date-ofinjury position become moot. There is no basis for seeking a supplemental report from
Dr. Dennis addressing whether appellant’s July 14, 1999 employment injury disables her in any
way from performing the duties of her date-of-injury position. He has already explained that the
July 14, 1999 employment injury has resolved.
CONCLUSION
The Board finds that the Office has met its burden of proof to establish that disability
causally related to the July 14, 1999 employment injury ceased by October 2, 2005.

4

Dorothy Sidwell, 41 ECAB 857, 874 (1990).

4

ORDER
IT IS HEREBY ORDERED THAT the April 3, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 28, 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

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