United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT ADMINISTRATION,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 12-1665
Issued: February 13, 2013

Case Submitted on the Record

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

JURISDICTION
On July 31, 2012 appellant filed a timely appeal from a March 12, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP) regarding his schedule award claim.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 the claim.
ISSUE
The issue is whether appellant has more than a two percent permanent impairment of the
right lower extremity, for which he received a schedule award.

1

The record contains a March 19, 2012 decision, which is a duplicative of the March 12, 2012 decision.

2

5 U.S.C. § 8101-8193.

FACTUAL HISTORY
On April 10, 2007 appellant, then a 40-year-old criminal investigator, filed a traumatic
injury claim alleging that his right knee was injured in the performance of duty on April 4, 2007.
OWCP accepted the claim for right knee sprain, lateral collateral ligament. The claim was later
expanded to include a right knee meniscus tear, for which appellant underwent an authorized
partial medial meniscectomy on July 13, 2007.
On March 31, 2009 appellant requested a schedule award. In letters dated January 21 and
April 21, 2010, OWCP informed him of the medical evidence necessary to determine an
impairment under the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) and requested that appellant submit new
and/or revised medical documentation from his treating physician. In several letters, appellant
informed OWCP that the physician who performed his surgery would not cooperate or complete
paperwork because of an outstanding balance for his surgery.
On May 20, 2010 OWCP received a May 6, 2010 partial report from Dr. James C.
Murphy, a Board-certified orthopedic surgeon, which noted the history of injury, appellant’s
medical course and current complaints.
On June 24, 2010 appellant again requested a schedule award. To further consider the
extent of his impairment, OWCP referred him to Dr. Stuart J. Gordon, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In an August 4, 2010 report, Dr. Gordon
opined that appellant had two percent impairment of the right lower extremity causally related to
the work injury. He opined that appellant had reached maximum medical improvement.
Dr. Gordon opined that, under Table 16-3 of the A.M.A., Guides, appellant’s meniscal pathology
of the knee was class 1. He indicated that appellant had functional, physical and clinical studies
modifiers of 1 which resulted in a net adjustment of zero. Dr. Gordon concluded that appellant
had grade C or two percent impairment for medial meniscus tear.
In an August 30, 2010 report, an OWCP medical adviser reviewed Dr. Gordon’s
August 4, 2010 report and opined that the date of maximum medical improvement was July 13,
2008, approximately one year after surgery. He noted the range of motion method of evaluation
was not applicable in this case. The medical adviser found that appellant had one percent
impairment of the right lower extremity. Under Table 16-3, he found that appellant had class 1
rating with default score of two percent lower extremity impairment for partial medial
meniscectomy. Under Table 16-6, the medical adviser found grade modifier 0 for functional
history and under Table 16-7, grade modifier 0 for physical examination. He noted that, under
Table 16-8, there was no grade modifier for clinical studies as they were used to confirm the
diagnostic severity. The medical adviser found net adjustment of -2, which translated to grade A
or 1 percent lower extremity impairment.
By decision dated September 28, 2010, OWCP awarded appellant one percent right lower
extremity impairment. The period of the award ran 2.88 weeks for the period July 13 to
August 2, 2008.

2

On October 25, 2010 appellant requested an oral hearing before an OWCP hearing
representative, which was held on March 29, 2011. He testified that Dr. Murphy had
recommended additional surgery along with a reduction in his activities that affect his knee.
Dr. Murphy’s May 27, 2010 attending physician’s report (Form CA-20) was submitted.
In an April 7, 2011 report, Dr. Murphy noted that appellant’s condition had worsened.
He stated that while appellant was definitely at two percent impairment rating he was very close
to but not quite at three percent impairment. Dr. Murphy indicated that appellant’s medial
meniscus was mostly excised and, while he could do his job, there would be discomfort with a
lot of stooping, squatting or stairs and long distance running would be a problem.
By decision dated June 10, 2011, an OWCP hearing representative affirmed the
September 28, 2010 decision. On December 6, 2011 OWCP received appellant’s request for
reconsideration. In an October 27, 2011 report, Dr. Murphy opined that appellant had three
percent impairment for class 1 meniscal injury with chondromalacia. Under Table 16-3, he
assigned class 1 to appellant’s meniscal injury with partial removal medially. A grade modifier
of 1 was assigned for functional history due to reduced functional activity with stairs, walking
and running. A grade modifier of 2 was assigned for physical examination because of palpable
crepitation of the patellofemoral joint with range of motion and positive compression test with
difficulty getting up from squatting position. A grade modifier of 2 was assigned for clinical
studies. Dr. Murphy stated that this gave appellant three percent impairment for grade E value
for class 1 meniscal injury with chondromalacia.
On March 1, 2012 an OWCP medical adviser opined that appellant reached maximum
medical improvement on August 30, 2010. He reviewed Dr. Murphy’s October 27, 2011 report
and found under Table 16-3 that appellant had class 1 rating for partial medial or lateral
meniscectomy which had default lower extremity rating of two percent impairment. Under
Table 16-6, a grade modifier of 0 was assigned for functional history as opposed to Dr. Murphy’s
grade modifier of 1 as the objective evidence and clinical examination did not support appellant
had antalgic gait. Under Table 16-7, a grade modifier of 1 was assigned for physical
examination as opposed to Dr. Murphy’s grade modifier of 2 as Dr. Murphy did not report any
findings of atrophy, range of motion deficits or alignment deformity or instability. Under Table
16-8, a grade modifier for clinical studies was found to be inapplicable as the clinical studies
were used to confirm the diagnostic severity. Thus, the medical adviser concluded that appellant
had functional history grade modifier 0, physical examination grade modifier 1 and grade
modifier for clinical studies not applicable. He found a net adjustment of -1, which translated to
grade B or 2 percent lower extremity impairment.
In a letter of March 5, 2012, OWCP vacated its June 10, 2011 decision. It noted that
appellant was entitled to two percent permanent impairment of the right lower extremity based
on the opinion of its medical adviser. Since he had already received one percent impairment of
the right leg from the September 28, 2010 decision, appellant was entitled to receive an
additional one percent impairment of the right lower extremity.
By decision dated March 12, 2012, OWCP granted appellant an additional one percent
impairment of the right lower extremity. The period of the award ran from August 3 to 23, 2008
for 2.88 weeks.

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LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations3 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. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.4 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. The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).7 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Evidence (GMPE) and Clinical
Studies (GMCS).8 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX).9
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 an OWCP medical
adviser providing rationale for the percentage of impairment specified.10
ANALYSIS
The sixth edition of the A.M.A., Guides provides that lower extremity impairments are to
be classified by diagnosis. The classification is then adjusted by grade modifiers according to
the formula noted above.11 Appellant’s accepted diagnosed condition was right knee sprain,
3

20 C.F.R. § 10.404.

4

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

5

Ronald R. Kraynak, 53 ECAB 130 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700.2 and Exhibit 1 (January 2010).
7

A.M.A., Guides 3-6 (6th ed. 2008).

8

Id. at 494-531.

9

Id. at 521.

10

See Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.808.6(d) (August 2002).

11

Supra notes 8 and 9.

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lateral collateral ligament and right knee meniscus tear. He underwent authorized arthroscopic
surgery for partial medial meniscectomy on July 13, 2007. By decision dated September 28,
2010, OWCP awarded appellant one percent impairment of the right leg and he later claimed an
increased schedule award. By decision dated March 19, 2012, it awarded him an additional one
percent impairment of the right lower extremity, for a total impairment of two percent by
according determinative weight to its medical adviser.
The Board finds that OWCP properly relied on the opinion of its medical adviser in
determining that appellant had a total two percent right lower extremity impairment.
Dr. Murphy, appellant’s physician, opined that appellant had three percent impairment
for class 1 meniscal injury with chondromalacia while the medical adviser opined that appellant
had two percent lower extremity impairment for the same diagnosis. Under Table 16-3, he
assigned class 1 to appellant’s meniscal injury with partial medial meniscectomy, which the
medical adviser agreed. However, the medical adviser disagreed with Dr. Murphy’s assignment
of grade modifiers. Under Table 16-6, Dr. Murphy assigned grade modifier of 1 for functional
history due to reduced functional activity with stairs, walking and running. The medical adviser
opined that appellant had grade modifier 0 for functional history as Table 16-6 refers to antalgic
gait and the objective and clinical evidence did not support that appellant had an antalgic gait.
Under Table 16-7, Dr. Murphy assigned grade modifier of 2 for physical examination because of
palpable crepitation of the patellofemoral joint with range of motion and positive compression
test with difficulty getting up from squatting position. The medical adviser properly noted that
Dr. Murphy did not report any findings of atrophy, range of motion deficits or alignment
deformity or instability and assigned a grade 1 modifier for physical examination. While
Dr. Murphy assigned a grade modifier 2 for clinical studies, the medical adviser properly
explained that under Table 16-8 this was inapplicable as the clinical studies were used to confirm
the diagnostic severity.12 Thus, the weight of the medical evidence rests with the medical
adviser who provided rationale and concluded that appellant had functional history grade
modifier 0, physical examination grade modifier 1 and a grade modifier for clinical studies was
not applicable. Under the net adjustment formula, (GMFH - CDX) (0-1) + (GMPE - CDX)
(1-1) + (GMCS - CDX) (N/A) results in a net adjustment of -1, which translates to grade B or
two percent lower extremity impairment for partial medial meniscectomy.
Appellant had previously received a schedule award based on a permanent impairment to
the right lower extremity of one percent. When a current impairment duplicates a prior
impairment, the schedule award benefits are reduced by the period of compensation paid under
the schedule award for an earlier injury.13 Since the current impairment for the right leg is two
percent and appellant was previously paid for one percent impairment, he is entitled to an
additional award of one percent for a total award of two percent impairment. The Board finds
that OWCP properly awarded an additional schedule award of one percent in this case.

12

See A.M.A., Guides 520, 521 (if a particular criterion was used to determine impairment class, it may not be
used again to determine the grade).
13

T.S., Docket No. 09-1308 (issued December 22, 2009); 20 C.F.R. § 10.404(c).

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Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than a two percent permanent impairment of
the right lower extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the March 12, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 13, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Napa Valley, CA, Employer
__________________________________________

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Appearances:
Mark Coby, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1981
Issued: February 1, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 24, 2007 appellant filed a timely appeal from a June 11, 2007 merit decision by a
hearing representative of the Office of Workers’ Compensation Programs that affirmed a
schedule award for 15 percent permanent impairment of the left kidney. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award issue.
ISSUE
The issue is whether appellant has more than 15 percent permanent impairment of his left
kidney, for which he received a schedule award.
FACTUAL HISTORY
On January 5, 2005 appellant, then a 56-year-old rural route carrier, sustained abdominal
injuries in a motor vehicle accident while delivering mail on January 4, 2005. He stated that his
spleen and left kidney were removed after his accident. Appellant was treated at Queen of the
Valley Hospital on the date of his injury and stopped work effective January 5, 2005. He
returned to modified-duty work for four hours per day on April 25, 2005 and gradually increased

his work load until he returned to full-time, full-duty work as of January 4, 2006. By
correspondence dated January 7, 2005, the employing establishment confirmed that appellant’s
spleen and one kidney were removed secondary to the injuries he sustained in the motor vehicle
accident. On January 12, 2005 the Office accepted appellant’s claim for complete disruption of
kidney parenchyma and massive disruption of the spleen.
In a January 4, 2005 emergency room report, Dr. Faramarz Mottalei, a Board-certified
emergency medicine specialist, noted the history of injury. He explained that appellant was
thrown against his steering wheel and sustained left flank injuries. Dr. Mottalei noted that
appellant’s left flank and abdomen were tender to palpation and diagnosed high speed motor
vehicle accident, acute surgical abdomen, hemoperitoneum, ruptured left kidney with
retroperitoneal hematoma and splenic laceration or fracture. Also on January 4, 2005
Dr. Thomas A. Hildreth, a Board-certified urologist, noted that a computerized tomography (CT)
scan revealed evidence of a large left retroperitoneal hematoma with a large left kidney injury
and that appellant also had significant injury to his spleen. He stated that appellant’s left kidney
was fragmented in three or four pieces. Dr. Hildreth recommended that appellant’s left kidney
be removed after his splenectomy. He diagnosed motor vehicle accident with apparent left-sided
abdominal or flank trauma and lacerated ruptured left kidney. In a January 4, 2005 CT scan
report, Dr. Daniel H. Bunnell, a Board-certified radiologist, noted finding splenic lacerations
with hemoperitoneum, complex severe left renal lacerations and a large retroperitoneal
hematoma.
On January 4, 2005 Dr. John P. Loftus, a general and vascular surgeon and
anesthesiologist, performed a splenectomy and left nephrectomy, diagnosing traumatic injury to
the spleen and left kidney.1 In a report dated the same day, he noted that appellant was traveling
at a slow speed but was struck by a motor vehicle traveling at a high speed. Dr. Loftus
diagnosed left kidney injury with significant parenchymal changes as well as possible disruption
of the left renal artery and large retroperitoneal hematoma and splenic injury.
In a March 28, 2005 progress note, Dr. Loftus reported that appellant was recovering well
from his splenectomy and nephrectomy. On June 20, 2005 he noted that appellant complained of
numb sensations from his left shoulder and thorax to his left leg. Appellant sustained multiple
left-sided rib fractures in the January 4, 2005 motor vehicle accident and did have a “nicely
healing abdominal incision.” Dr. Loftus stated: “I am unable to correlate his symptoms to any
physiologic or anatomic abnormalities.” In a July 25, 2005 note, he stated that appellant could
increase his work activity as tolerated. In an October 17, 2005 report, Dr. Loftus advised that
appellant had developed chronic back pain and left flank pain. He stated that appellant needed a
primary care physician to direct his care for his nontrauma conditions.
On January 9, 2006 appellant filed a claim for a schedule award.
On March 30, 2006 the Office referred appellant to Dr. Sergio Court, a nephrologist and
Board-certified internist, for a second opinion examination regarding permanent impairment of
the left kidney. In a May 2, 2005 report, he noted appellant’s history of injury and subsequent
splenectomy and left nephrectomy, as well as his chief complaint of residual back pain.
1

The Office subsequently authorized the removal of the spleen and kidney.

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Dr. Court noted that appellant reported that he was asymptomatic at work and experienced back
pain in the evenings. He diagnosed post-traumatic injuries after a motor vehicle accident, status
post splenectomy and left nephrectomy, as well as unrelated history of sciatica. Dr. Court
concluded: “It is considerably possible that [appellant’s] backaches could be related to, or at
least aggravated by, his work injury.” In a work capacity evaluation prepared the same day, he
advised that appellant could work eight hours per day with lifting restrictions.
In a June 13, 2006 follow-up report, Dr. Court advised that appellant experienced the
complete and permanent loss of his left kidney on January 4, 2005. He stated that the “global
degree of impairment due to this loss is 10 percent.” Dr. Court did not indicate whether he
applied the American Medical Association, Guides to the Evaluation of Permanent Impairment,
fifth edition (A.M.A., Guides). He also noted that appellant reached maximum medical
improvement on January 4, 2006.
On August 11, 2006 the Office requested that its medical adviser provide an opinion
concerning appellant’s degree of permanent impairment due to functional loss of use of the left
kidney.
In a September 20, 2006 report, the Office medical adviser noted that appellant
underwent a splenectomy and left nephrectomy secondary to injuries sustained in a work-related
motor vehicle accident. She determined that appellant had 15 percent permanent impairment due
to loss of kidney function. The medical adviser explained that, pursuant to the A.M.A., Guides,
page 146, Table 7-1, Class 1, loss of kidney function warranted a 14 percent whole person
impairment rating. She applied an Office formula for converting whole person impairment to
impairment of a schedule member to arrive at a total of 15 percent permanent impairment due to
loss of kidney function. The medical adviser noted: “This impairment is based on function.
There is actual 100 percent loss of one kidney, but the remaining kidney can compensate for the
functional loss of the other.”
On November 13, 2006 the Office granted appellant a schedule award for 15 percent
permanent impairment for functional loss of use of the left kidney, equivalent to 23 weeks of
compensation.
On December 12, 2006 appellant requested an oral hearing which was held on
March 21, 2007. At the hearing, he contended that the Office should expand the list of
compensable schedule members to include the spleen. Appellant also asserted that the Office
erred in granting a schedule award for 15 percent impairment due to loss of kidney function. He
argued that the Office should have granted him a schedule award for 100 percent loss of one
kidney, or 156 weeks of compensation.
By decision dated June 11, 2007, the hearing representative affirmed the Office’s
schedule award determination. The hearing representative found that the Office properly applied
the formulas in the A.M.A., Guides to determine that appellant was entitled to a schedule award
for 15 percent permanent impairment due to loss of use of the left kidney. The hearing
representative also found that appellant was not entitled to a schedule award for impairment of
the spleen.

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LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 sets 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. No schedule award is payable for a member, function or organ of the body that is not
specified in the Act or the implementing regulation.4 The Act identifies members as the arm,
leg, hand, foot, thumb and finger, functions as loss of hearing and loss of vision and organs to
include the eye. Section 8107(c)(22) of the Act provides for payment of compensation for
permanent loss of “any other important external or internal organ of the body as determined by
the Secretary [of Labor].”5 The Secretary of Labor has made such a determination and, pursuant
to the authority granted in section 8107(c)(22), added the breast, kidney, larynx, lung, penis,
testicle, tongue, ovary, uterus/cervix and vulva/vagina to the schedule.6 The schedule provides
that total loss of a kidney entitles a claimant to 156 weeks of compensation.7
However, the Act does not specify the manner in which the percentage of loss for a
schedule member 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. The A.M.A., Guides has been
adopted by the implementing regulations as the appropriate standard for evaluating schedule
losses.8
ANALYSIS
The Board finds that appellant has established that he has 100 percent impairment of his
left kidney. The Office accepted that he sustained complete disruption of kidney parenchyma as
well as massive disruption of the spleen. The Office authorized, and appellant underwent, a left
nephrectomy, or complete removal of the left kidney as a consequence of the injuries he
sustained due to his accepted employment-related motor vehicle accident.
The Office referred appellant to Dr. Court for a second opinion regarding permanent
impairment. In a report dated June 13, 2006, he opined that appellant’s “global degree of
impairment due to this loss is 10 percent” but never explained how he arrived at that figure.
Dr. Court did not specify whether he used the A.M.A., Guides in determining appellant’s degree
of permanent impairment and did not explain what method he used to rate appellant’s
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Paul A. Zoltek, 56 ECAB 325 (2005).

5

5 U.S.C. § 8107(c)(22).

6

20 C.F.R. § 10.404(a).

7

Id.

8

See id.

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impairment.9 Thereafter, the Office requested an opinion from its medical adviser concerning
appellant’s degree of permanent impairment secondary to his left nephrectomy and related to his
employment injury. She found that appellant had 15 percent permanent impairment due to loss
of kidney function. Applying the A.M.A., Guides, page 146, Table 7-1, the medical adviser
concluded that appellant had 100 percent loss of the function of his left kidney but that “the
remaining kidney can compensate for the functional loss of the other.” She recommended that
the Office grant appellant a schedule award for 15 percent loss of kidney function, noting the
Office’s formula for converting whole person impairment to an impairment rating for a lost
organ.10
The Board notes that the compensation schedule provides 156 weeks of compensation for
total loss of a kidney.11 The record clearly establishes that appellant lost his left kidney due to
his employment injury when it was removed during surgery. In Paul A. Zoltek,12 the employee
had a kidney surgically removed due to an employment injury. The Board found that he
sustained total loss of his kidney for which he was entitled to the 156 weeks of compensation.
Although the Office applied a formula in its procedures to convert the whole person impairment
listed in the A.M.A., Guides to impairment of a schedule member, the Board has held that the
formula does not apply when there is a total loss of the member.13 In this case, appellant
underwent a complete removal of his left kidney and is entitled to the maximum 156 weeks of
compensation for complete loss of the kidney. On remand, the Office should amend the
schedule award determination to reflect the total loss of the left kidney and award the appropriate
schedule award benefit.14
CONCLUSION
The Board finds that as appellant has a total loss of his left kidney he is entitled to 156
weeks of compensation for total loss of function of that kidney.

9

The Board notes that, while section 7.3 on page 145 of the A.M.A., Guides provides that an individual with only
one functioning kidney has a 10 percent impairment of the whole person, the Act does not authorize schedule
awards for permanent impairment of “the whole person.” D.H., 58 ECAB ___ (Docket No. 06-2160, issued
February 12, 2007).
10

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(c)(2)
(March 2005).
11

20 C.F.R. § 10.404(a).

12

Zoltek, supra note 4.

13

See Marilyn S. Freeland, 57 ECAB ___ (Docket No. 06-563, issued June 7, 2006).

14

Appellant, before the hearing representative, asserted entitlement to a schedule award for impairment of the
spleen. On appeal, his counsel acknowledges that Board precedent supports the hearing representative’s finding
with regard to the spleen. See Thomas E. Stubbs, 40 ECAB 647 (1989) (as the spleen is not a bodily organ specified
in the Act or the regulations, appellant is not entitled to a schedule award for any permanent impairment of the
spleen).

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ORDER
IT IS HEREBY ORDERED THAT the June 11, 2007 and November 13, 2006
decisions of the Office of Workers’ Compensation Programs are hereby set aside and remanded
for further development and an appropriate disposition consistent with this decision of the Board.
Issued: February 1, 2008
Washington, DC

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

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

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

6


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

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0335
Issued: July 26, 2017

Case Submitted on the Record

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

JURISDICTION
On November 30, 2016 appellant, through counsel, filed a timely appeal from an
August 19, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established more than two percent permanent
impairment of his left upper extremity, for which he previously received a schedule award.
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.

FACTUAL HISTORY
On September 23, 2009 appellant, then a 51-year-old letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that, on September 18, 2009, he sprained his left wrist when
he slipped on wet leaves and fell down in the performance of duty. He did not stop work.
OWCP accepted his claim for left wrist sprain and left cubital tunnel syndrome.
On November 7, 2009 appellant stopped work and filed various claims for wage-loss
compensation (Form CA-7) as of that date. OWCP paid disability compensation benefits on the
Appellant underwent authorized
supplemental rolls commencing November 7, 2009.3
decompression of the ulnar nerve, anterior transposition of ulnar nerve, and posterior splint
application on January 26, 2011. On May 23, 2013 he returned to full-time modified duty.4
On September 21, 2015 appellant filed a claim for a schedule award (Form CA-7).
In support of his schedule award claim, appellant submitted a May 19, 2015 report from
Dr. Nicholas Diamond, a physiatrist. Dr. Diamond referenced appellant’s September 18, 2009
employment injury and reviewed his medical history. He related appellant’s complaints of left
elbow pain and stiffness and left hand numbness and tingling. Dr. Diamond reported that
appellant had a QuickDASH score of 63 involving the left upper extremity. Upon examination
of appellant’s left elbow, Dr. Diamond observed olecranon tenderness and medial epicondyle
tenderness. Tinel’s sign was positive. Range of motion (ROM) testing was full. Upon
examination of appellant’s left wrist, Dr. Diamond observed palmar tenderness over the ulnar
aspect. Cervical compression and Finkelstein tests were positive. Dr. Diamond noted that ROM
testing was performed three times. He reported decreased ROM with flexion to 60 degrees with
pain, palmar-flexion to 60 degrees with pain, radial deviation of 20 degrees, and ulnar deviation
of 20 degrees. Sensory examination revealed a perceived decreased sensation over the left ulnar
and median nerves. Dr. Diamond diagnosed post-traumatic left elbow contusion/sprain, posttraumatic left ulnar nerve neuropathy at the elbow, status post left cubital tunnel ulnar nerve
decompression and transportation of ulnar nerve with post-splint application, post-traumatic left
wrist/hand contusion with left dorsal wrist hamate fracture, and post-traumatic left carpal tunnel
syndrome. He opined that the work-related injury of September 18, 2009 was the competent
producing factor for appellant’s subjective and objective findings.
Referring to the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (6th ed. 2009), Table 15-23, page 449, Dr. Diamond reported that
appellant had six percent permanent impairment for left elbow ulnar nerve entrapment
neuropathy. He related grade modifiers of one for test findings, three for functional history, and
two for physical examination, which resulted in five percent impairment, increased to six percent
due to the 63 QuickDASH score. Dr. Diamond also noted a diagnosis for left elbow median
3

OWCP paid compensation benefits on the periodic rolls effective July 3, 2011.

4

On September 30, 2013 OWCP terminated appellant’s wage-loss compensation benefits based on his actual
wages as a modified letter carrier. It determined that his current wages exceeded the current wages of the job he
held when injured and, accordingly, he was no longer entitled to wage-loss compensation benefits.

2

nerve entrapment and reported grade modifiers of one for test findings, two for physical
examination, and three for functional history. After applying the net adjustment formula, he
calculated three percent permanent impairment rating. Dr. Diamond also referred to Table 15-3,
page 396, for appellant’s left hamate wrist fracture. He indicated grade modifiers of three for
functional history and two for physical examination and applied the net adjustment formula,
which resulted in a left upper extremity permanent impairment of five percent. Dr. Diamond
reported a date of maximum medical improvement (MMI) of May 19, 2015. He concluded that
appellant had a total left upper extremity permanent impairment of 14 percent.
Dr. Mark Avart, an orthopedic surgeon, indicated in a September 24, 2015 note that he
reviewed Dr. Diamond’s impairment rating report and agreed with his finding that appellant had
a 14 percent permanent impairment of the left upper extremity.
In an October 19, 2015 report, Dr. Morley Slutsky, a Board-certified occupational
medicine specialist and an OWCP medical adviser, reviewed Dr. Diamond’s report and the
statement of accepted facts and referenced appellant’s accepted conditions of left wrist sprain
and left ulnar nerve lesion. He noted that Dr. Diamond provided an impairment rating for the
accepted conditions of wrist sprain and lesion of the left ulnar nerve, as well as the nonaccepted
conditions of left hamate fracture and left carpal tunnel syndrome. Dr. Slutsky explained that,
since the two later diagnoses were not accepted conditions, he would not address them in his
report. He reported a date of MMI of May 19, 2015. Dr. Diamond referenced Table 15-23, page
449, and assigned a diagnosis of left cubital tunnel syndrome. He indicated grade modifiers of
one for clinical studies, one for functional history, and one for physical examination, which
resulted in an adjustment of one after applying the net adjustment formula. Dr. Diamond
concluded that appellant had two percent permanent impairment of the left upper extremity. He
referenced Appendix 15-B, page 488, and noted that conduction block was not present per the
A.M.A., Guides criteria. Dr. Slutsky also noted that, as Dr. Diamond had not found a left wrist
sprain, there was no impairment rating for this condition.
Dr. Avart examined appellant again and in a November 12, 2015 progress note related his
complaints of continued left elbow pain and chronic cubital tunnel syndrome post-traumatic from
work and chronic weakness. Upon physical examination, Dr. Avart observed decreased grip
strength with mild tingling and parethesias into the small finger of the left hand. He also
reported medial epicondylitis with pain radiating into the medial forearm.
In a decision dated February 9, 2016, OWCP granted appellant a schedule award for two
percent permanent impairment of his left upper extremity.
On February 18, 2016 appellant, through counsel, requested a hearing before an OWCP
hearing representative. A hearing was held on June 14, 2016. Counsel was present. Appellant
indicated that he started work as a letter carrier for the employing establishment in May 1999.
He described the September 18, 2009 employment injury and the medical treatment he had
received as a result of his employment injury. Counsel related a request for appellant’s claim to
be expanded to include the conditions of left dorsal wrist hamate fracture and left carpal tunnel
syndrome. She noted that an October 20, 2009 left wrist computerized tomography (CT) scan
showed the fracture. Counsel asserted that Dr. Diamond found a left ulnar nerve impairment
rating to be a total of six percent and noted that Dr. Slutsky had not examined appellant. She

3

alleged that, at the very least, a conflict of medical opinion evidence existed between
Dr. Diamond and Dr. Slutsky regarding appellant’s impairment rating and should be referred for
an impartial medical examination.
Appellant submitted a July 14, 2015 progress note by Dr. Avart who related appellant’s
complaints of persistent left elbow pain. Upon physical examination, he observed left elbow
medial epicondylitis with pain radiating along the ulnar forearm with a minimal Tinel’s present.
Grip strength was decreased. Dr. Avart reported paresthesias in the small and ring finger on the
left hand. Muscle strength was 4/5. He recommended that appellant work with restricted use of
the left arm.
By decision dated August 19, 2016, an OWCP hearing representative affirmed the
schedule award decision. He determined that because Dr. Diamond incorrectly included a
diagnosis of left hamate fracture in his impairment rating, OWCP properly based its schedule
award decision on Dr. Slutsky’s impairment rating report.5
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement FECA program with the Director of OWCP.6 Section 8107 of
FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use
of specified members, functions, and organs of the body.7 FECA, however, does not specify the
manner by which the percentage loss of a member, function, or organ shall be determined. To
ensure consistent results and equal justice under the law, good administrative practice requires
the use of uniform standards applicable to all claimants. Through its implementing regulations,
OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.8
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A., Guides issued a 52-page document entitled “Clarifications and
Corrections, Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document
included various changes to the original text, intended to serve as an erratum/supplement to the
first printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated
into the second printing of the sixth edition.

5

The hearing representative also denied expanding appellant’s claim to include a left hamate fracture. She noted
that an October 20, 2009 CT scan indicated that a fracture was questionable, and there was insufficient medical
evidence to establish an additional condition.
6

See 20 C.F.R. §§ 1.1-1.4.

7

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
8

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

4

5 U.S.C.

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).9 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.10
Section 8123(a) provides that, if there is a disagreement between the physician making
the examination for the United States and the physician of the employee, the Secretary shall
appoint a third physician who shall make an examination.11 The implementing regulations state
that, if a conflict exists between the medical opinion of the employee’s physician and the medical
opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint
a third physician to make an examination. This is called a referee examination and OWCP will
select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.12 In situations where 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 rationale and based upon
a proper factual background, must be given special weight.13
ANALYSIS
The issue on appeal is whether appellant has more than two percent permanent
impairment of his left upper extremity, for which he previously received a schedule award. The
accepted conditions in this case are left wrist sprain and left cubital tunnel syndrome.
The Board finds that this case is not in posture for decision.
Regarding the accepted condition of left cubital tunnel syndrome, the Board notes that
Dr. Diamond rated appellant for left elbow ulnar nerve entrapment neuropathy, and left elbow
median nerve entrapment. He related various grade modifiers ranging from one for clinical
studies, to two and three for physical examination, and functional history. Dr. Slutsky, however,
assigned the diagnosis of left cubital tunnel syndrome, and related grade modifiers of one for
each of clinical studies, functional history, and physical examination. The opinions of record are
in conflict as to the modifier degree to be applied to the impairment values. The Board therefore

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
10

Isidoro Rivera, 12 ECAB 348 (1961).

11

5 U.S.C. § 8123(a).

12

20 C.F.R. § 10.321.

13

F.C., Docket No. 14-0560 (issued November 12, 2015).

5

finds a conflict in medical opinion as to the extent of permanent impairment to appellant’s left
upper extremity caused by his accepted injury.14
Regarding the accepted condition of left wrist sprain, appellant’s treating physician,
Dr. Diamond, noted the accepted conditions and provided ROM findings for appellant’s left
wrist. However, Dr. Slutsky, OWCP’s medical adviser, related that Dr. Diamond had not found
residuals of a left wrist strain.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the diagnosis-based
impairment (DBI) or the ROM methodology when assessing the extent of permanent impairment
for schedule award purposes.15 The purpose of the use of uniform standards is to ensure
consistent results and to ensure equal justice under the law to all claimants.16 In T.H., the Board
concluded that OWCP physicians were at odds over the proper methodology for rating upper
extremity impairment, having observed attending physicians, evaluating physicians, second
opinion physicians, impartial medical examiners, and district medical advisers use both DBI and
ROM methodologies interchangeably without any consistent basis. Furthermore, the Board has
observed that physicians interchangeably cited to language in the first printing or the second
printing when justifying use of either ROM or DBI methodology. Because OWCP’s own
physicians were inconsistent in the application of the A.M.A., Guides, the Board found that
OWCP could no longer ensure consistent results and equal justice under the law for all
claimants.17
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the August 19, 2016 decision of OWCP.
Utilizing a consistent method for calculating permanent impairment for upper extremities to be
applied uniformly, and after such other development as may be deemed necessary, OWCP shall
issue a de novo decision on appellant’s claim for an upper extremity schedule award.
CONCLUSION
The Board finds that this case is not in posture for decision.

14

D.G., Docket No. 10-2267 (issued August 24, 2011). The Board found a conflict in medical opinion between
appellant’s treating physician and OWCP’s district medical adviser regarding the degree of permanent impairment
based upon assignment of differing grade modifiers.
15

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

16

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

17

Supra note 15.

6

ORDER
IT IS HEREBY ORDERED THAT the August 19, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision
Issued: July 26, 2017
Washington, DC

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

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

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

7


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

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

Docket No. 08-1737
Issued: January 2, 2009

Case Submitted on the Record

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

JURISDICTION
On May 29, 2008 appellant filed a timely appeal from Office of Workers’ Compensation
Programs’ merit decisions dated November 13, 2007 and May 6, 2008. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that her
claimed bilateral carpal tunnel condition was causally related to her employment.
FACTUAL HISTORY
On August 9, 2007 appellant, a 34-year-old city carrier, filed a Form CA-2, claim for
benefits, alleging that she developed a bilateral carpal tunnel condition causally related to factors
of her employment.
In a July 24, 2007 report, Dr. Diane E. Counce, a specialist in neurology, indicated that the
results of electrodiagnostic testing demonstrated that appellant had moderately severe bilateral

carpal tunnel syndrome. A July 30, 2007 form report, not signed by a physician, also advised that
appellant had bilateral carpal tunnel syndrome.
On September 10, 2007 the Office advised appellant that it required additional factual and
medical evidence to determine whether she was eligible for compensation benefits. It asked
appellant to submit a comprehensive medical report from her treating physician describing her
symptoms and the medical reasons for her condition and an opinion as to whether her claimed
condition was causally related to factors of her federal employment. The Office requested that
appellant submit the additional evidence within 30 days.
In a report dated August 7, 2007, Dr. David Ostrowski, Board-certified in orthopedic
surgery, noted that appellant had complaints of bilateral hand pain, numbness, tingling, with
radiation up the arms. He noted that appellant had experienced symptoms intermittently which had
gotten progressively worse, with more pain on the right side. Dr. Ostrowski stated that appellant
had severe pain at night with numbness and tingling during the day, which occurred with nearly all
types of activity. He stated findings on examination and diagnosed bilateral carpal tunnel
syndrome. Dr. Ostrowski recommended that appellant undergo surgery for bilateral carpal tunnel
endoscopic releases.
Dr. Ostrowski performed right and left carpal tunnel endoscopic releases on
September 11, 2007.
In a September 28, 2007 statement, appellant stated:
“My job duties as a city carrier begin at 7:30 a.m. I go to the route case and begin
to case the flats first. I hold 18 pieces of flats in my left arm and case with my right
hand. I case four to six feet of flats on a day’s average. I begin to case ½ to 1 inch
letters. I am required to hold four to five letters in my hand while I am casing
letters. I case mail for about an hour and a half. I then get my buggy and take it up
to my case and then I begin to pull the route down and place it in two foot trays. I
pick up the tray and put in the buggy to push out to the mail vehicle. I usually pull
down two to four trays of mail, depending on how much mail I have on any given
day. Some days there are marriage mail and box holders, which increases more
repeated motion of the hand/wrist and arm movement. I push my buggy to get
letters on my way [to] load the vehicle. After I load my cased mail and letters, I
route my spars and route parcels. While I am on the route I am constantly moving
my hands to pull cased and letter mail to place in mailboxes along with parcels and
accountable mail for about six and ½ hours a day. I usually work about 36 to 40
hours a week. I have been a city carrier for eight years and seven months. I also do
some letter distribution and boxing mail two to three hours a week if I am needed.
During these hours I have moved my hand/wrist, fingers and arms in the same
motions on a daily basis.”
In a Form CA-17 dated October 4, 2007, Dr. Ostrowski released appellant to return to work
with restrictions as of October 8, 2007.

2

By decision dated November 13, 2007, the Office denied appellant’s claim, finding that she
failed to submit sufficient medical evidence to establish that she sustained a bilateral carpal tunnel
condition in the performance of duty.
By letter dated November 26, 2007, appellant’s attorney requested an oral hearing, which
was held on March 10, 2008. Appellant did not submit any additional medical evidence.
By decision dated May 6, 2008, an Office hearing representative affirmed the
November 13, 2007 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.2 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.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized
medical evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, 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
identified by the claimant.4

1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

Id.

3

The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.5
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor is
her own belief that her condition was caused, precipitated or aggravated by her employment
sufficient to establish causal relationship.6 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
The Board finds that appellant has failed to submit sufficient medical evidence which
relates her claimed a bilateral carpal tunnel condition to factors of her federal employment. For
this reason, she has not discharged her burden of proof to establish her claim that her condition
was sustained in the performance of duty.
Appellant submitted reports from Drs. Counce and Ostrowski. However, the reports of
these physicians did not provide a probative, rationalized medical opinion that the claimed
condition was causally related to employment factors. The weight of medical opinion is
determined by the opportunity for and thoroughness of examination, the accuracy and
completeness of physician’s knowledge of the facts of the case, the medical history provided the
care of analysis manifested and the medical rationale expressed in support of stated conclusions.7
Dr. Counce diagnosed moderately severe bilateral carpal tunnel syndrome in her July 24, 2007
report, as did Dr. Ostrowski, who related that appellant had experienced worsening intermittent
symptoms of hand and wrist pain, numbness and tingling. In order to ameliorate this condition, he
performed carpal tunnel endoscopic release procedures on appellant’s left and right wrists.
However, neither Dr. Counce nor Dr. Ostrowski provided a probative, rationalized medical opinion
regarding whether appellant’s bilateral carpal tunnel condition was causally related to employment
factors.
The reports from Drs. Counce and Ostrowski did not describe appellant’s job duties or
explain the medical process through which such duties would have been competent to cause the
claimed condition. These reports, therefore, are of limited probative value as they do not contain
sufficient medical rationale explaining how or why appellant’s claimed bilateral carpal tunnel
condition was caused by or related to factors of her federal employment. Appellant therefore
failed to provide a rationalized, probative medical opinion relating her current condition to any
factors of her employment. Accordingly, she failed to submit medical evidence sufficient to
establish that she claimed bilateral carpal tunnel condition was causally related to her
employment.

5

See Joe T. Williams, 44 ECAB 518, 521 (1993).

6

Id.

7

See Anna C. Leanza, 48 ECAB 115 (1996).

4

The Office advised appellant of the evidence required to establish her claim; however,
she failed to submit such evidence. Appellant submitted her own statements expressing her
belief that her medical condition was caused by her employment, but she did not submit the
necessary rationalized medical evidence establishing causal relationship. Consequently, she has
not met her burden of proof in establishing that she sustained a bilateral carpal tunnel condition in
the performance of duty.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof in establish that her
claimed bilateral carpal tunnel condition was sustained in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the May 6, 2008 and November 13, 2007 decisions
of the Office of Workers’ Compensation Programs be affirmed.
Issued: January 2, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
U.S. POSTAL SERVICE, HEADQUARTERS,
Washington, DC, Employer
__________________________________________

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

Docket No. 07-1275
Issued: November 1, 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 11, 2007 appellant filed a timely appeal of the March 27, 2007 merit decision of
the Office of Workers’ Compensation Programs which found that she received an overpayment
of compensation in the amount of $1,522.18. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d),
the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant received an overpayment in the amount of
$1,522.18; (2) whether the Office properly denied waiver of the overpayment; and (3) whether
the Office properly required repayment of the overpayment by deducting $150.00 every four
weeks from appellant’s continuing compensation.

FACTUAL HISTORY
On July 23, 1991 the Office accepted that appellant, then a 41-year-old senior secretary,
sustained an employment-related dysthymic disorder.1 She was placed on the periodic roll. A
Form CA-7 claim indicated that appellant was not enrolled in optional life insurance.
Correspondence from the Office of Personnel Management (OPM) indicated that, beginning on
June 20, 1990, appellant received a government disability retirement annuity with basic life
insurance deductions. On December 2, 1991 she elected compensation under the Federal
Employees’ Compensation Act benefits, with no change in life insurance benefits.2
An Office computation worksheet dated January 20, 2006 indicates that deductions for
appellant’s basic life insurance premiums for January 1, 1992 to December 25, 2004 totaled
$2,138.78 but that the deductions were not made; deductions for optional life insurance were
incorrectly made for the period August 23, 1992 to January 21, 2006, totaling $448.60; and basic
life insurance for the period December 26, 2004 to January 21, 2006 was entered under the
incorrect code for a total overdeduction of $168.00. By adding the overdeductions of $448.60
and $168.00 to equal $616.60 and subtracting this from the underdeduction of $2,138.78, the
Office found an overpayment in the amount of $1,522.18 had been created. On January 20, 2006
the Office began deducting basic life insurance premiums only from appellant’s continuing
compensation.
On February 22, 2007 the Office issued a preliminary finding that an overpayment in
compensation in the amount of $1,522.18 had been created. The Office explained that the
overpayment resulted because premiums for basic life insurance had not been properly deducted
from appellant’s wage-loss compensation for the period June 20, 1990 to January 21, 2006.
Appellant was provided with an overpayment questionnaire and given instruction on appropriate
responses to the preliminary finding. She was given 30 days to respond.
On March 27, 2007 the Office finalized the overpayment decision. The Office found that
appellant was not at fault in the creation of the overpayment but noted that she had not responded
to the preliminary overpayment finding and thus she was not entitled to waiver. The Office
ordered repayment by deduction $150.00 every four weeks from her continuing compensation.3
LEGAL PRECEDENT -- ISSUE 1
The Act 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.4
When an overpayment has been made to an individual because of an error of fact or law,
1

Appellant stopped work on March 29, 1991 and retired on disability.

2

5 U.S.C. §§ 8101-8193.

3

On appeal, appellant submitted financial information to the Board. However, as this material was not before the
Office at the time of the March 27, 2007 decision, it may not be reviewed for the first time on appeal. See 20 C.F.R.
§ 501.2(c).
4

5 U.S.C. § 8102(a).

2

adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.5
Under the Federal Employees’ Group Life Insurance Program (FEGLI), most civilian
employees of the Federal Government are eligible to participate in basic life insurance and one
or more of the options.6 The coverage for basic life insurance is effective unless waived7 and the
premiums for basic and optional life coverage are withheld from the employee’s pay.8 At
separation from the employing establishment, the FEGLI insurance will either terminate or be
continued under “compensationer” status. If the compensationer chooses to continue basic and
optional life insurance coverage, the schedule of deductions made will be used to withhold
premiums from his or her compensation payments.9 When an underwithholding of life insurance
premiums occurs, the entire amount is deemed an overpayment of compensation because the
Office must pay the full premium to the OPM upon discovery of the error.10 Office procedures
provide that, in order to be eligible for optional life insurance, a claimant must also be enrolled in
basic life insurance coverage.11
ANALYSIS -- ISSUE 1
The record supports that for the period June 20, 19990 to January 21, 2006 the Office
either did not make deductions or made incorrect deductions for appellant’s basic life insurance
coverage and made inappropriate deductions for optional life insurance. Office procedures
provide that, in order to be eligible for optional life insurance, a claimant must also be enrolled in
basic life insurance coverage.12 The numerous computer printouts contained in the case record
indicate that, while deductions were made for optional life insurance, none were made for basic
life insurance. An Office computation worksheet noted that deductions for appellant’s basic life
insurance premiums for the period beginning January 1, 1992 to December 25, 2004 totaled
$2,138.78, but were not made from her compensation; deductions for optional life insurance
were incorrectly made for the period August 23, 1992 to January 21, 2006, totaling $448.60; and
basic life insurance for the period December 26, 2004 to January 21, 2006 was entered under the
incorrect code for a total overdeduction of $168.00. By adding the overdeductions of $448.60
and $168.00 to equal $616.60 and subtracting this from the underdeduction of $2,138.78, the

5

5 U.S.C. § 8129(a).

6

5 U.S.C. § 8702(a); 5 C.F.R. § 870.201.

7

5 U.S.C. § 8702(b); 5 C.F.R. § 870.204(a).

8

5 U.S.C. § 8707.

9

5 U.S.C. § 8706(b); 20 C.F.R. § 870.401.

10

5 U.S.C. § 8707(d); Keith H. Mapes, 56 ECAB ____ (Docket No. 03-1747, issued October 20, 2004).

11

Federal (FECA) Procedure Manual, Part 5 -- Benefit Payments, Life Insurance, Chapter 5.401.4(a)
(August 2004).
12

Id.

3

Board finds that the Office properly determined that an overpayment in compensation in the
amount of $1,522.18 had been created.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.”13 Section 10.438 of the Office regulations provides:
“(a) [T]he individual who received the overpayment is responsible for providing
information about income, expenses and assets as specified by [the Office]. This
information is needed to determine whether or not recovery on an overpayment
would defeat the purpose of the Act or be against equity and good conscience….14
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver….”15
ANALYSIS -- ISSUE 2
As the Office found appellant without fault in the creation of the overpayment in
compensation, waiver must be considered and repayment is still required unless adjustment or
recovery of the overpayment would defeat the purpose of the Act or be against equity and good
conscience.16 Appellant, however, had the responsibility to provide financial information to the
Office.17
The Office clearly explained the importance of providing the requested financial
information and advised appellant that it would deny waiver if she failed to furnish the requested
financial information within 30 days. Appellant did not respond with a completed overpayment
questionnaire or otherwise submit financial information supporting her income and expenses. As
a result, the Office did not have the necessary financial information to determine if recovery of
the overpayment would defeat the purpose of the Act or if recovery would be against equity and
13

5 U.S.C. § 8129.

14

Recovery of an overpayment will defeat the purpose of the Act if such recovery would cause hardship to a
currently or formerly entitled beneficiary because: (a) the beneficiary from whom the Office seeks recovery needs
substantially all of his or her current income (including compensation benefits) to meet current or ordinary and
necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified amount as determined [by the
Office] from data furnished by the Bureau of Labor Statistics. 20 C.F.R. § 10.436. Recovery of an overpayment is
considered to be against equity and good conscience when an individual who received an overpayment would
experience severe financial hardship attempting to repay the debt; and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes his or her position
for the worse. Id. at § 10.437.
15

20 C.F.R. § 10.438.

16

Supra note 12.

17

Supra note 13.

4

good conscience. As appellant did not submit the financial information required under section
10.438 of the Office regulations, which was necessary to determine her eligibility for waiver, the
Office properly denied waiver of recovery of the overpayment in compensation in the amount of
$1,522.18.18
LEGAL PRECEDENT -- ISSUE 3
The Office’s implementing regulation provides that, if an overpayment of compensation
has been made to an individual entitled to further payments and no refund is made, the Office
shall decrease later payments of compensation, taking into account the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.19
ANALYSIS -- ISSUE 3
As noted, appellant did not submit an overpayment recovery questionnaire or other
financial information that the Office requested prior to the final March 27, 2007 overpayment
decision. The overpaid individual is responsible for providing information about income,
expenses and assets as specified by the Office.20 When an individual fails to provide requested
financial information, the Office should follow minimum collection guidelines designed to
collect the debt promptly and in full.21 The Board finds that there is no evidence of record to
show that a recovery rate of $150.00 every 28 days was unreasonable. Appellant has not shown
that the Office improperly required withholding $150.00 from her continuing compensation
payments every 28 days.22 While she argued that she had timely submitted the requested
financial information to the Office and submitted additional evidence to the Board, the case
record forwarded to the Board does not contain this material. The Board may not consider the
evidence submitted with her appeal as its review of the case is limited to the evidence of record
which was before the Office at the time of its final decision.23
CONCLUSION
The Board finds that an overpayment of $1,522.18, occurred because the Office
neglected to deduct proper premiums for basic life insurance and overdeducted premiums for
optional life insurance from appellant’s continuing compensation. The Board further finds that
the Office properly denied waiver of the overpayment and did not abuse its discretion in setting
the rate of recovery at $150.00 each compensation period.
18

Id.

19

20 C.F.R. § 10.441(a).

20

Supra note 13.

21

Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Part 6 -- Debt Management,
Chapter 6.200.4(c)(2) (September 1994).
22

On April 6, 2007 appellant submitted an incomplete overpayment recovery questionnaire.

23

20 C.F.R. § 501.2(c).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 27, 2007 be affirmed.
Issued: November 1, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Antonio, TX, Employer
__________________________________________

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

Docket No. 15-0885
Issued: July 21, 2015

Case Submitted on the Record

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

JURISDICTION
On March 13, 2015 appellant filed a timely appeal from a February 26, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective September 11, 2014 as he no longer had any
residuals causally related to his accepted employment-related injuries.
FACTUAL HISTORY
On March 11, 2011 appellant, then a 52-year-old mail processor, filed an occupational
disease claim and claim for compensation alleging that his degenerative joint disease and left
1

5 U.S.C. § 8101 et seq.

knee pain were caused or aggravated by walking on the cement floor at work. He first became
aware of his knee conditions on February 23, 2011 and that they were caused or aggravated by
his employment on March 10, 2011. Appellant stopped work on January 17, 2012. OWCP
accepted the conditions of bilateral internal knee derangement, left posterior meniscus tear, and
right lateral meniscus tear. It paid benefits including benefits for January 17, 2012 left knee
arthroscopic partial medial and lateral meniscectomies and a July 23, 2012 right knee
arthroscopic surgery. Appellant received compensation on the periodic compensation rolls as of
January 17, 2012. On January 25, 2013 he returned to light-duty work on a full-time basis.
In order to determine appellant’s current condition and to ascertain whether he continued
to suffer residuals from his accepted conditions, OWCP referred him, a copy of his medical
records, a statement of accepted facts, and a list of questions to Dr. James E. Butler, a Boardcertified orthopedic surgeon, for a second opinion examination. In an April 30, 2013 report,
Dr. Butler noted appellant’s history of injury and reviewed his medical records. He conducted a
physical examination and reported that the current objective findings on examination included:
normal bilateral knee range of motion; intact sensation and strength bilaterally of the lower
extremities; negative varus/valgus, McMurray’s test, Lachman, and posterior drawer tests
bilaterally; and mild bilateral knee crepitation. Dr. Butler opined that appellant’s work injury
had resolved with no disabling residuals six months postsurgery and recommended no further
medical treatment. He stated that the April 30, 2013 functional capacity evaluation demonstrated
that appellant could meet the job duties of a mail processor/clerk, which were classified as light
work. Dr. Butler opined that appellant met the overall physical demands of a mail processor. As
his bilateral knee examination was essentially normal with no significant abnormalities, appellant
could return to work in his unrestricted full-duty position.
OWCP forwarded Dr. Butler’s report on June 7, 2013 to appellant’s treating physicians
for comment. Dr. Helo Chen, a Board-certified internist, reviewed Dr. Butler’s report and,
although he signed the form noting his agreement with Dr. Butler’s assessment that appellant’s
work injuries had resolved, in his written report of June 20, 2013 he restricted appellant to only
six hours a day.
OWCP found a conflict of medical opinion as to appellant’s work capacity and referred
her, a copy of his medical records, a statement of accepted facts and a list of questions to Dr. Rex
Wilcox, a Board-certified orthopedic surgeon, for an impartial medical opinion.2 In a
November 27, 2013 report, Dr. Wilcox stated that appellant was evaluated on July 13, 2013. He
noted the history of the injury and that appellant had returned to work with restrictions.
Dr. Wilcox also presented his review of the medical record and presented findings on
musculoskeletal and neurological examination. He diagnosed medial meniscus tear old; left
knee, current medial meniscus tear; right knee, current lateral meniscus tear; bilateral knees with
degenerative joint disease as well as torn medial lateral meniscus. Dr. Wilcox stated that there
were no objective findings of pain and no swelling or other physical signs of problems with
either knee. He stated that there was objective evidence that the accepted work-related
conditions had improved since the date of injury as there was no swelling, no instability, good
2

Appellant subsequently filed a claim for wage-loss compensation for the period May 23 to August 25, 2013,
which OWCP denied by decision dated November 25, 2013.

2

range of motion, and good strength. Dr. Wilcox noted that appellant had some soreness about
the knees, especially when he was standing or walking on his legs for more than two hours at a
time. He opined that the accepted conditions had resolved. Dr. Wilcox noted that appellant also
had degenerative changes in his knees and the residual soreness was likely due to the preexisting
arthritic changes. He stated that appellant had surgery on both of his knees for torn menisci
bilaterally and was left with degenerative changes in his knees that were likely the source of his
persistent complaints of pain. Dr. Wilcox noted that appellant was working as a clerk, standing
for two hours a day and sitting for six hours and he did not believe that this level of activity
should change based on his examination. In his December 9, 2013 work capacity evaluation,
Dr. Wilcox opined that appellant could perform his usual job with permanent restrictions on
sitting, walking, standing, twisting, squatting, kneeling, and climbing. He noted that the
restrictions were related to degenerative changes in the knees.
On December 31, 2013 OWCP requested clarification from Dr. Wilcox concerning his
report. In a February 26, 2014 report, Dr. Wilcox stated that appellant was working as a clerk,
standing two hours a day and sitting six hours a day, and that he was able to do work at this
level. He indicated that appellant has degenerative arthritis in his knees, which limited him from
doing extremely physical work, and that the April 30, 2012 functional capacity study by
Dr. Butler confirmed those findings. Dr. Wilcox also noted that appellant was at his baseline.
He stated that appellant’s work injuries had ceased/resolved. Dr. Wilcox noted that appellant
had injuries caused by the accepted work injuries to the cartilage in his knees and continued to
have arthritic changes, which caused pain and limitations. He opined that appellant was able to
perform full-duty work as a clerk.
OWCP received a February 21, 2014 request for physical therapy from Dr. Chen, copies
of diagnostic testing dated April 29, 2014, and documentation of appellant’s medical
appointments.
On July 15, 2014 OWCP issued a notice of proposed termination of medical benefits and
wage-loss compensation. It found that Dr. Wilcox’s impartial opinion established that
appellant’s accepted conditions had resolved and he no longer had any residuals of his accepted
work-related medical conditions or continued disability from work. The restrictions for his work
were related solely to remaining degenerative arthritis not work related. Appellant was provided
30 days in which to submit additional evidence or argument.
OWCP received previous diagnostic testing dated May 19, 2011, July 18 and
September 5, 2012, and April 29, 2014, as well as documents including statements to the Equal
Employment Opportunity (EEO) Commission, a request for notification of absence, return to
work medical clearance certification from Dr. Chen, a picture of overflow of trays on a top rack
and job offers dated January 25 and August 16, 2013.
In a May 29, 2014 report, Dr. Chen noted improvement in appellant’s bilateral knee
flexion and extension, but stated that the effects of the work injury persisted and pain and
disability from the injury limited appellant’s activities of daily living. He noted that appellant
returned to modified duty on April 23, 2014. Dr. Chen opined that appellant continued to suffer
from disability due to injuries sustained from his work-related accident.

3

In an August 8, 2014 progress note, Dr. Chen noted appellant’s knee pain was stable as
long as he was not doing lots of climbing or walking. In an August 8, 2014 report, he noted
review of Dr. Wilcox’s report and disagreed that appellant could perform the essential parts of
the job duties and physical requirements in the proposed job recommendations as indicated on
OWCP-5c form dated February 26, 2014. Dr. Chen stated that appellant required further
rehabilitation treatment prior to returning to full-duty work. He stated that appellant continued to
experience pain in his knees which varied in intensity. Dr. Chen also noted that appellant’s
medications could affect his ability to work. He opined that appellant was unable to return to
work at full capacity at this time and that returning him to full duty would be premature and
cause further degeneration of his knees. Dr. Chen recommended a reevaluation to determine
appellant’s work limitations.
By decision dated September 11, 2014, OWCP terminated appellant’s entitlement to
wage-loss and medical compensation benefits effective September 11, 2014. It found the weight
of the medical evidence of file was represented by the impartial opinion of Dr. Wilcox and
established that appellant no longer had any residuals related to his accepted work-related
medical conditions.
On October 8, 2014 OWCP received appellant’s October 1, 2014 request for
reconsideration. Evidence received in support of the reconsideration included appellant’s
discussion of the evidence and allegations that the employing establishment discriminated,
harassed, and retaliated against him, and that the Department of Labor erred in denying his
compensation claims, a September 18, 2014 letter from Office of Personnel Management
regarding Federal Employees’ Retirement System (FERS) retirement payments, an October 2,
2014 e-mail to talk to DOL regarding assistance, a September 8, 2014 request for a copy of his
file, and a June 9, 2014 return to work medical clearance certification for modified duty from
Dr. Chen.
By decision dated February 26, 2015, OWCP denied modification of its termination
decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
her employment, OWCP may not terminate compensation without establishing that the disability
had ceased or that it was no longer related to the employment.3 OWCP’s burden of proof
includes the necessity of furnishing rationalized medical opinion evidence based on a proper
factual and medical background.4 Furthermore, the right to medical benefits for an accepted
condition is not limited to the period of entitlement for disability. To terminate authorization for

3

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

4

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

4

medical treatment, OWCP must establish that a claimant no longer has residuals of an
employment-related condition that requires further medical treatment.5
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.6 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.7 In situations where 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.8
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for bilateral internal knee derangement; other tear of
medial meniscus of the left knee; and right knee tear of lateral meniscus. It eventually retained
him on the periodic compensation rolls and paid compensation and medical benefits, including
January 17, 2012 left knee arthroscopic partial medial and lateral meniscectomies, and a July 23,
2012 right knee arthroscopic surgery.
OWCP found that termination of appellant’s
compensation and medical benefits were justified based on the impartial medical opinion of
Dr. Wilcox.
In order to determine appellant’s current condition and to ascertain whether he continued
to suffer residuals from his accepted conditions, OWCP had referred appellant to Dr. Butler, a
Board-certified orthopedic surgeon, for a second opinion examination. In an April 30, 2013
report, Dr. Butler opined that appellant’s work injury had resolved with no disabling residuals.
He further opined that the functional capacity evaluation findings and his examination supported
that appellant could return to work in his usual position full-duty unrestricted. On June 20, 2013
Dr. Chen reviewed Dr. Butler’s report and although he signed a form indicating his agreement
that appellant’s work-related injuries had resolved with no disabling residuals, he later wrote in
his narrative report that appellant could only work six hours a day. OWCP found a conflict in
medical opinion requiring resolution through an impartial medical examiner. It referred
appellant to Dr. Wilcox to resolve the conflict.
The Board finds that OWCP properly relied on the well-rationalized November 27, 2013
report of Dr. Wilcox. Dr. Wilcox found that the work-related conditions had resolved and the
degenerative changes in his knees and residual soreness were a result of appellant’s preexisting
5

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

6

5 U.S.C. § 8123(a).

7

20 C.F.R. § 10.321.

8

Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

5

arthritic changes. Further, he found that the accepted employment-related conditions had
resolved and appellant could perform his usual job with permanent restrictions due to the
degenerative changes in his knees. OWCP requested clarification and in his February 26, 2014
report, Dr. Wilcox advised that appellant was at his base line working as clerk, which entailed
two hours a day standing and sitting six hours a day. He reiterated that appellant’s work injuries
had resolved and he was able to do full-duty work as a clerk. Dr. Wilcox further opined that
although appellant did have injuries to the cartilage in his knees, the arthritic changes in his
knees caused pain and limitations.
In his May 29, 2014 report, Dr. Chen opined that appellant continued to suffer from
disability due to injuries sustained from his work-related accident. In his August 8, 2014 report,
he reviewed Dr. Wilcox’s report and noted that Dr. Wilcox had indicated that appellant had
injuries to the cartilage in his knees. Dr. Chen stated that this condition was causally related to
appellant’s accepted work injury and had not ceased. He opined that appellant was unable to
return to full-duty capacity as it would cause further degeneration of his knees and appellant
required further rehabilitation treatment prior to returning to full-duty work. As Dr. Chen was
one of the physicians to have created the conflict, his report is insufficient to overcome the
weight afforded Dr. Wilcox’s report. Reports from a physician, who was on one side of the
medical conflict that an impartial specialist resolved, are generally insufficient to overcome the
weight accorded the opinion of the impartial physician or to create a new conflict.9 The Board
finds that as Dr. Wilcox provided a comprehensive, well-rationalized opinion in which he
provided physical examination findings, his opinion is entitled to the special weight accorded an
impartial medical examiner and constitutes the weight of the medical evidence.10
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective September 11, 2014.

9

See Jaja K. Asaramo, 55 ECAB 200 (2004).

10

See L.B., Docket No. 14-1794 (issued January 7, 2015).

6

ORDER
IT IS HEREBY ORDERED THAT the February 26, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 21, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, TAYLORSVILLE
POST OFFICE, Taylorsville, MS, Employer
__________________________________________

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

Docket No. 20-0659
Issued: September 21, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On February 3, 2020 appellant filed a timely appeal from a January 9, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted November 19, 2019 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 9, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On November 20, 2019 appellant, then a 43-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 19, 2019 she sustained a left shoulder condition
when pulling down mail from a shelf of a case while in the performance of duty. She stopped
work on the date of the alleged injury.
The employing establishment properly executed an authorization for examination and/or
treatment (Form CA-16) on November 20, 2019. The Form CA-16 noted appellant’s history of a
left shoulder injury on November 19, 2019.
In a note dated November 20, 2019, Sharon Scruggs, a certified family nurse practitioner,
related that appellant was seen on that date and that she would be released to return to work pending
a follow-up appointment on November 25, 2019.
In a development letter dated December 2, 2019, OWCP advised appellant that additional
medical evidence was necessary to establish her claim. It indicated that the evidence it received
had been signed by a nurse practitioner; however, it explained that medical evidence must be
submitted by a qualified physician, and that nurse practitioners and physical therapists are not
considered qualified physicians under FECA unless their medical reports are counter-signed by a
physician. Appellant was also advised that pain was a symptom, not a valid diagnosis. OWCP
informed appellant of the medical evidence necessary to establish her claim and afforded 30 days
for appellant to respond.
OWCP subsequently received additional evidence. In a November 20, 2019 attending
physician’s report (Part B of the Form CA-16), Ms. Scruggs listed a diagnosis of left shoulder
pain. In a separate report of the same date, she reviewed appellant’s history of injury, conducted
a physical examination, and diagnosed left shoulder pain.
In a follow-up report dated November 25, 2019, Ms. Scruggs noted that appellant’s left
shoulder pain improved on rest. She noted a diagnosis of left shoulder pain. In a note dated
November 25, 2019, Ms. Scruggs stated that she had seen appellant on that date and that she was
unable to return to work until further notice.
In a duty status report (Form CA-17) dated December 5, 2019, Billy R. Windham, a
certified nurse practitioner, noted clinical findings of left supraspinatus tendinitis and
recommended work restrictions.
OWCP also received a December 5, 2019 work status form report by Mr. Windham, which
noted appellant’s work restrictions and a physical/occupational therapy order of the same date,
also signed by Mr. Windham.
By letter dated December 11, 2019, the employing establishment controverted appellant’s
claim. It noted that she had not submitted medical evidence containing a signature from a qualified
physician and that the work restrictions of December 5, 2019 were inconsistent with appellant’s
claimed injury.

2

On December 17, 2019 Kayla Spradley, a physical therapist, reported that she had
conducted therapeutic exercise to treat appellant’s left supraspinatus sprain.
In a work status report form dated January 6, 2020, Mr. Windham related that appellant
had no work restrictions and could resume regular-duty work immediately.
By decision dated January 9, 2020, OWCP accepted that the November 19, 2019
employment incident had occurred, as alleged. However, it denied the claim, finding that the
medical evidence of record was insufficient to establish a diagnosed medical condition causally
related to the accepted employment incident. Thus, appellant had not met the requirements to
establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period 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 determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.6 The second component is whether the employment incident caused a personal injury.7
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident.8

3

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

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

B.P., Docket No. 16-1549 (issued January 18, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

7

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

8

M.O., Docket No. 19-1398 (issued August 13, 2020); J.L., Docket No. 18-1804 (issued April 12, 2019).

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted November 19, 2019 employment incident.
In support of her claim, appellant submitted reports, work excuse notes, duty status reports,
and records of physical therapy dated from November 20, 2019 through January 6, 2020 signed
by a physical therapist and/or nurse practitioners. The Board has held that medical reports signed
solely by a nurse practitioner or a physical therapist are of no probative value, as such healthcare
providers are not considered physicians as defined under FECA, and therefore are not competent
to provide a medical opinion.9 Consequently, these reports will not suffice for purposes of
establishing entitlement to FECA benefits.
As appellant has not submitted rationalized medical evidence from a qualified physician
establishing a diagnosed medical condition causally related to the accepted November 19, 2019
employment incident, the Board finds that she has not met her burden of proof.10
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted November 19, 2019 employment incident.

9
5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law);
see David P. Sawchuk 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurse practitioners,
and physical therapists are not competent to render a medical opinion under FECA). See also D.H., Docket No. 180072 (issued January 21, 2020) (physical therapists are not considered physicians under FECA); S.J., Docket No. 170783, n.2 (issued April 9, 2018) (nurse practitioners are not considered physicians under FECA).
10

The Board notes that the case record contains an authorization for examination and/or treatment (Form CA-16)
dated November 20, 2019. A properly completed Form CA-16 authorization may constitute a contract for payment
of medical expenses to a medical facility or physician, when properly executed. The form creates a contractual
obligation, which does not involve the employee directly, to pay for the cost of the examination or treatment regardless
of the action taken on the claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days
from the date of issuance, unless terminated earlier by OWCP. 20 C.F.R. § 10.300(c); P.R., Docket No. 18-0737
(issued November 2, 2018); N.M., Docket No. 17-1655 (issued January 24, 2018); Tracy P. Spillane, 54 ECAB
608 (2003).

4

ORDER
IT IS HEREBY ORDERED THAT the January 9, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 21, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5