United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
SYSTEMS COMMAND, San Diego, CA,
Employer
__________________________________________

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

Docket No. 06-856
Issued: February 26, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 6, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ August 2, 2005 merit decision concerning his entitlement to schedule
award compensation. 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 met his burden of proof to establish that he has more than
a 36 percent permanent impairment of his right arm, a 22 percent permanent impairment of his
left arm, and a 9 percent permanent impairment of his left leg due to his accepted cervical,
thoracic and lumbar conditions and more than a 10 percent permanent impairment of his right
arm due to his accepted carpal tunnel condition.
FACTUAL HISTORY
On May 13, 1998 appellant, then a 49-year-old aircraft sheet metal mechanic, filed a
traumatic injury claim (file number 13-1162978) alleging that he sustained injury to his neck and

back while helping a coworker lift an elevator part.1 He later indicated that his condition was
due to the performance of his work duties over a period of time. The Office accepted an
employment-related permanent aggravation of appellant’s preexisting cervical, thoracic and
lumbar degenerative disc disease and paid appropriate compensation for periods of disability.
The findings of nerve conduction testing obtained in February 2000 by Dr. Timothy
Armstrong, an attending Board-certified neurologist, showed evidence of bilateral radial, ulnar
and median compression at the wrist. The median compression at the wrist was moderate and
the remaining compressions were mild. The findings of electromyogram (EMG) testing obtained
at the same time showed no evidence of cervical root injury in either arm. On September 8, 2000
appellant underwent discectomy and fusion surgery at C4-5, C5-6 and C6-7 which was
authorized by the Office.2
In July 2000, appellant filed an occupational disease claim (file number 13-2007596)
alleging that he sustained injury to his arms due to the repetitive duties of his job. The Office
accepted that he sustained bilateral carpal tunnel syndrome and de Quervain’s tendinitis of the
left wrist.3
Appellant received treatment for his various medical conditions and in early 2001 his
attending physicians indicated that he was capable of performing limited-duty work. In
December 2000, Dr. William Devor, an attending Board-certified neurologist, performed nerve
conduction studies on appellant’s upper extremities. The test results were normal and Dr. Devor
indicated that the continuing sensory symptoms in appellant’s hands were “most likely secondary
to a persisting cervical myelopathy.” The results of magnetic resonance imaging (MRI) scan
testing obtained in early 2001 showed degenerative disc disease at various levels of the cervical,
thoracic and lumbar spines with the most significant results at C6-7, T6-7 and L3-4.
In July 2001, the Office referred appellant for further evaluation to Dr. Thomas R.
Dorsey, a Board-certified orthopedic surgeon, and Dr. Bruce Lasker, a Board-certified
neurologist. On August 13, 2001 Dr. Dorsey concluded that appellant continued to have
residuals of his employment injuries but could work four hours per day with limitations. He
recommended that appellant undergo carpal tunnel surgery in both wrists. On August 14, 2001
Dr. Lasker suggested that appellant undergo EMG and nerve conduction testing to further
evaluate his neurological condition. He also recommended limited-duty work for four hours per
day.
In May 2002, Dr. Armstrong performed EMG and nerve conduction testing of the upper
extremities and determined that the results were normal. He indicated that, despite these results,

1

Appellant’s job involved assembling, modifying and repairing aircraft parts and required lifting up to 45 pounds
and working in awkward positions. He sustained right elbow and shoulder strains due to an October 7, 1992
employment injury and in 1993 and 1996 he underwent right shoulder surgery which included decompression and
resection procedures.
2

Appellant was terminated for cause from the employing establishment effective September 8, 2000.

3

The Office doubled the two case records together.

2

appellant had a chronic cervical myelopathy secondary to cord compression from degenerative
disease which caused involuntary leg jerking.
On September 16, 2002 Dr. Peter Low, an attending Board-certified orthopedic surgeon,
performed an evaluation of appellant’s medical condition. He provided an extensive description
of appellant’s findings on examination and diagnostic testing. Dr. Low included findings for
range of motion testing for both shoulders and wrists, manual muscle testing for both arms and
grip strength testing for both hands. He stated that strength testing showed that appellant had 5/5
strength in his left arm, 3/4 strength in his right biceps and triceps, 4/5 strength in the other
muscles of his right arm, 4/5 strength in his left leg and 5/5 strength in his right leg.4 Dr. Low
indicated that appellant had reached maximum medical improvement and had permanent
impairment but he did not provide any calculation of permanent impairment.
On December 24, 2002 Dr. Leonard A. Simpson, a Board-certified orthopedic surgeon
and district medical director, evaluated the findings of Dr. Low. He concluded that, under the
relevant standards of the American Medical Association, Guides to the Evaluation of Permanent
Impairment, appellant had a 42 percent permanent impairment of his right arm, a 22 percent
permanent impairment of his left arm and a 9 percent permanent impairment of his left leg.
Dr. Simpson discussed all of appellant’s accepted conditions and summarized the findings of
examination and diagnostic testing. He noted that the records indicated bilateral wrist pain
greater on the left which apparently was maximized in the left thumb. Dr. Simpson reported that
there was no limitation of wrist range of motion and no left upper extremity weakness and stated:
“This reviewer would recommend grading the left thumb complaints a maximal
Grade 3 as per the [g]rading [s]cheme (Table 16-10, [p]age 482, fifth edition of
the [A.M.A.,] Guides). This would be pain and/or altered sensation that may
interfere with activities, or a 60 percent grade of a maximal 5 percent (branches of
the radial nerve), equivalent to a 3 percent impairment of the upper left extremity.
Pain involving the right upper extremity was not as intense, and would be graded
a maximal Grade 4 or a 25 percent grade of a maximal 5 percent (branches of the
radial nerve), equivalent to a 1.25 or rounded off the 1 percent impairment for
right wrist pain. In addition, there was evidence of mild right carpal tunnel
syndrome, and this would be assessed a maximal Grade 4 or a 25 percent grade of
a maximal 39 percent for the median nerve, equivalent to a rounded-off 10
percent impairment involving the right upper extremity…. The records do
indicate decreased range of motion of the right shoulder compared to the left with
abduction of 95/170, equivalent to a four percent impairment. Forward flexion of
170/170 would be equivalent to a zero percent impairment. Internal rotation of
65/60 would be equivalent to a two percent impairment. External rotation of
75/80 would be equivalent to a zero percent impairment. Extension of 20/30
would be equivalent to an additional one percent impairment for a total of seven
percent impairment for loss of shoulder range of motion. Right shoulder loss of
strength of 3-4/5 would be assessed a 6 percent impairment for a loss of flexion
power, a 2 percent impairment for loss of extension power, a 3 percent
4

Dr. Low also and indicated that appellant had a positive Phalen’s test on the right.

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impairment for loss of abduction power, a 2 percent impairment for loss of
adduction power, a 2 percent impairment for loss of internal rotations power, a 2
percent impairment for loss of external rotations power for a total of 17 percent
impairment for loss of shoulder strength. In addition, the records do indicate a
loss of grip strength on the left of approximately 43 percent, which would be
equivalent to a 20 percent impairment according to Table 16-34. The loss of grip
strength in the right major hand of greater than 61 percent would be assessed a 30
percent upper extremity impairment. One would utilize this larger value of 30
percent versus a 17 percent for loss of shoulder girdle strength in assessing the
right upper extremity due to weakness.
“The records do not indicate any right lower extremity weakness, but do indicate
4/5 weakness on the left compared to the right. One would utilize branches of L5
which is assessed a maximal 37 percent impairment as Table 15/18. A 4/5
weakness would be graded a maximal Grade 4 or a 25 percent motor deficit of
this 37 percent to arrive at a 9.25 or rounded off to 9 percent impairment for left
lower extremity weakness.”5
On January 6, 2004 appellant filed a schedule award claim for permanent impairment
related to his accepted employment injuries.
In February 2004, the Office requested that Dr. Simpson make two permanent
impairment evaluations, one for the impairment related to accepted cervical, thoracic and lumbar
injuries and one for the impairment related to appellant’s accepted bilateral carpal tunnel
syndrome.
On May 16, 2004 Dr. Simpson summarized the findings of his December 2002
impairment evaluation and stated, “In relationship to the bilateral carpal tunnel syndrome, these
records would indicate evidence of continued right carpal tunnel syndrome described as mild, but
no evidence of continued left carpal tunnel syndrome.” Dr. Simpson determined that, due to his
carpal tunnel condition, appellant had a 10 percent permanent impairment of his right arm and a
0 percent permanent impairment of his left arm. He indicated that on December 24, 2002 he had
found that appellant had a 42 percent impairment of his right arm and that the 42 percent
impairment included the 10 percent impairment attributable to his carpal tunnel condition.
Dr. Simpson stated that, if he separated the impairment of the right arm caused by the injuries
accepted in connection with appellant’s two claims, he would have a 10 percent impairment due
to his carpal tunnel condition and a 36 percent impairment due to his cervical, thoracic and
lumbar condition.6
In a May 28, 2004 decision, the Office granted appellant a schedule award (under case
number 13-200759, accepted for bilateral carpal tunnel syndrome) for a 10 percent impairment
5

Dr. Simpson then used the Combined Values Chart to combine the above-described impairments for each
extremity. A.M.A., Guides 604, Combined Values Chart.
6

Dr. Simpson noted that, under the Combined Values Chart, a 36 percent impairment combined with a 10 percent
impairment to equal a 42 percent impairment. A.M.A., Guides 604, Combined Values Chart.

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of his right arm. In another May 28, 2004 decision, the Office granted appellant a schedule
award (under case number 13-1162978, accepted for aggravation of cervical, thoracic and
lumbar disc disease) for a 36 percent impairment of his right arm, a 22 percent impairment of his
left arm and a 9 percent impairment of his left leg.
By decision dated and finalized August 2, 2005, the Office hearing representative
affirmed the May 28, 2004 schedule awards.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act7 and its
implementing regulation8 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.9
The A.M.A., Guides evaluates the permanent impairment caused by carpal tunnel
syndrome by determining whether such a condition falls within one of three categories discussed
in section 16.5d of Chapter 16.10 Under the first category, if there are positive clinical findings
of median nerve dysfunction and an electrical conduction delay, the condition is rated under the
standards found earlier in Chapter 16 for evaluating sensory or motor deficits due to peripheral
nerve disorders. Under the second category, if there is normal sensibility (evaluated by twopoint discrimination and Semmes-Weinstein monofilament testing) and normal opposition
strength with abnormal sensory and/or motor latencies or abnormal EMG testing of the thenar
muscles, an impairment rating not to exceed five percent of the upper extremity may be justified.
Under the third category, if there is normal sensibility, opposition strength and nerve conduction
studies, there is no objective basis for an impairment rating.11
The A.M.A., Guides provides that the evaluation of grip strength under Tables 16-31
through 16-34 should only be included in the calculation of an upper extremity impairment if
such a deficit has not been considered adequately by other impairment rating methods for the
upper extremity. An example of an impairment that would not be adequately considered by

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404 (1999).

9

Id.

10

See A.M.A., Guides 495.

11

Id.

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other rating methods would be loss of strength caused by a severe muscle tear that healed leaving
“a palpable muscle defect.”12
It is well established that proceedings under the Act are not adversarial in nature, and
while the claimant has the burden to establish entitlement to compensation, the Office shares
responsibility in the development of the evidence.13
ANALYSIS
In connection with a May 1998 claim, the Office accepted that appellant sustained an
employment-related permanent aggravation of his preexisting cervical, thoracic and lumbar
degenerative disc disease. In connection with a July 2000 claim, the Office accepted that
appellant sustained employment-related bilateral carpal tunnel syndrome. In two May 28, 2004
decisions, the Office granted appellant schedule awards for a 10 percent impairment of his right
arm due to his accepted carpal tunnel condition and for a 36 percent impairment of his right arm,
a 22 percent impairment of his left arm, and a 9 percent impairment of his left leg due to his
accepted cervical, thoracic and lumbar conditions.
The Office based its determination regarding schedule award entitlement on the
December 24, 2002 and May 14, 2004 reports of Dr. Simpson, a Board-certified orthopedic
surgeon who served as an Office district medical adviser. The Board finds, however, that
additional development of the medical evidence is necessary to properly evaluate the permanent
impairment of appellant’s extremities.
Dr. Simpson did not adequately explain how he derived his impairment rating due to
appellant’s carpal tunnel syndrome. It appears that he determined that appellant’s right carpal
tunnel condition fell within the first category discussed in section 16.5d of Chapter 16 of the
A.M.A., Guides, i.e., the category which provides that if there are positive clinical findings of
median nerve dysfunction and an electrical conduction delay, the condition is rated under the
standards found earlier in Chapter 16 for evaluating sensory or motor deficits due to peripheral
nerve disorders.14 He then applied the portion of Chapter 16 which deals with sensory and motor
deficits due to peripheral nerve injury and concluded that appellant had a 10 percent impairment
of the right arm due to peripheral sensory deficit.15 Although the findings of nerve conduction
testing obtained in February 2000 showed that the median nerve compression at the right wrist
was moderate and the median nerve compression at the left wrist was mild, the findings of nerve
conduction testing obtained in December 2000 and May 2002 showed normal results. It is not
12

A.M.A., Guides 508. If the rating physician determines that loss of strength should be rated separately in an
extremity that presents other impairments, “the impairment due to loss of strength could be combined with the other
impairments, only if based on unrelated etiologic or pathomechanical causes. Otherwise, the impairment ratings
based on objective anatomic findings take precedence.” (Emphasis in the original.) The A.M.A., Guides further
provides that decreased strength cannot be rated in the presence of decreased motion, painful conditions,
deformities, or absence of parts that prevent effective application of maximum force. Id.
13

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

14

See supra notes 10 and 11 and accompanying text.

15

A.M.A., Guides 482, 492, Tables 16-10, 16-15.

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clear why Dr. Simpson apparently concluded that appellant had an electrical conduction delay in
the right median nerve and he did not discuss whether appellant still had clinical signs of carpal
tunnel on the right.16 Therefore, additional evaluation is necessary to determine which of the
three categories in Chapter 16 appellant falls under for determination of his impairment due to
carpal tunnel syndrome.
Additional clarification is also required for evaluation of any impairment rating which
might be due to appellant for muscle weakness in the upper extremities. Dr. Simpson concluded
that the impairment of appellant’s upper extremity weakness should be determined by his grip
strength deficits and granted him a 30 percent impairment rating on the right and a 20 percent
impairment on the left. However, grip strength ratings should only be included in the calculation
of an upper extremity impairment if such a deficit has not been considered adequately by other
impairment rating methods for the upper extremity.17 The record also contains the results of
manual muscle testing for the upper extremities and it has not been explained why it would be
more appropriate to use grip strength testing to evaluate appellant’s upper extremity weakness in
the present case.18
The Board further notes that the evaluation of appellant’s upper and lower extremity
impairments is complicated by the fact that Dr. Simpson made his first evaluation of these
impairments in December 2002 and then made a determination in May 2004 about which aspect
of the December 2002 impairment calculation related to the accepted cervical, thoracic, and
lumbar conditions and which aspect of the December 2002 impairment calculations related to the
accepted bilateral carpal tunnel condition. As noted above, the Office shares in the responsibility
for development of the medical evidence and the circumstances of the present case require
additional evaluation of the permanent impairment of appellant’s extremities. Therefore, the
case should be remanded to the Office for further development of this matter to be followed by
an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision regarding the permanent
impairment of appellant’s extremities and the case must be remanded to the Office for further
development.

16

Moreover, if it were found that appellant had a nerve conduction delay on the right, it is not clear why it would
not be found that he also had such a delay on the left as the February 2000 nerve conduction testing showed median
compression on both the right and the left.
17

See supra note 12 and accompanying text.

18

A.M.A., Guides 510, Tables 16-35. The Board further notes that, if it were found that appellant’s carpal tunnel
syndrome should be evaluated under the standards for evaluating peripheral nerve deficits, such an impairment
would not ordinarily be added to any impairment for loss of muscle strength. See id. at 526, Table 17-2. In order to
include both classes of impairments, a physician would have to explain why the nature of appellant’s particular
condition warranted including both peripheral nerve and loss of muscle strength impairment ratings. The Board
notes that Dr. Simpson appears to have properly evaluated the impairment of appellant’s right arm due to limited
shoulder motion and the impairment of his left leg due to peripheral injury associated with the L5 nerve. See id. at
424-25, 476-77, 479, Tables 15-15, 15-16 and 15-18, Figures 16-40, 16-43 and 16-46.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
August 2, 2005 decision is set aside and the case remanded to the Office for further proceedings
consistent with this decision of the Board.
Issued: February 26, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., Appellant
and
U.S. POSTAL SERVICE, GREENVILLE
STATION, Wilmington, DE, Employer
__________________________________________

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

Docket No. 08-90
Issued: May 7, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 1, 2007 appellant filed a timely appeal from schedule award decisions of the
Office of Workers’ Compensation Programs dated October 24, 2006 and June 26, 2007.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award
determinations in this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she has more
than a 16 percent impairment of the right upper extremity and a 15 percent impairment of the left
upper extremity, for which she received schedule awards.
FACTUAL HISTORY
On January 17, 2002 the Office accepted that appellant, then a 37-year-old letter carrier,
sustained an employment-related lateral epicondylitis and tendinitis of the left upper extremity.
Appellant underwent an authorized acromioplasty with distal clavicle excision of the left upper
extremity on April 30, 2002 and returned to limited duty on September 3, 2002. On April 22,

2004 she filed an occupational disease claim for a right shoulder injury, and on February 9, 2005
the Office accepted that she sustained an employment-related sprain/strain of the right upper arm
and shoulder. Appellant underwent acromioplasty with distal clavicle excision of the right upper
extremity on July 15, 2005.
Appellant submitted an April 18, 2005 report in which Dr. David Weiss, an osteopath,
reviewed her medical history and noted her complaint of bilateral shoulder pain and stiffness on
a daily basis that waxed and waned. He advised that maximum medical improvement was
reached on April 18, 2005. Left shoulder examination demonstrated forward elevation of 170
degrees and abduction of 165 degrees. Dr. Weiss also provided manual muscle strength testing
results and diagnosed cumulative and repetitive trauma disorder, acromioclavicular arthropathy
with impingement to the left shoulder, chronic rotator cuff tendinitis to the left shoulder, status
post arthroscopic surgery with acromioplasty and distal clavicular excision to the left shoulder,
impingement syndrome to the right shoulder, and chronic rotator cuff tendinitis to the right
shoulder. He advised that in accordance with the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides)1
appellant had a seven percent right upper extremity impairment due to loss of shoulder motion
and pain. Regarding the left shoulder, under Figures 16-40 and 16-43 of the A.M.A., Guides,
appellant had one percent impairment for 170 degrees of shoulder flexion and one percent
impairment for 165 degrees of abduction. Dr. Weiss also found 15 percent impairment for left
shoulder resection acromioplasty and distal clavical excision under Table 16-27, and a painrelated impairment of 3 percent under Figure 18-1, to total a 20 percent left upper extremity
impairment.
On March 25, 2006 appellant submitted a schedule award claim and a January 24, 2006
report in which Dr. Weiss noted her complaint of daily right shoulder pain that waxed and waned
and advised that maximum medical improvement was reached on January 24, 2006. Dr. Weiss
provided examination findings for the right shoulder that included forward elevation of 170
degrees and manual muscle strength testing that he rated as supraspinatus at 4/5 and deltoid at
4/5. He additionally diagnosed acromioclavicular arthropathy with impingement to the right
shoulder and status post arthroscopic surgery with acromioplasty and right distal clavicular
excision to the right shoulder. Dr. Weiss advised that, under Table 16-27 of the A.M.A., Guides,
appellant had a 15 percent impairment for right shoulder resection acromioplasty and distal
clavical excision, and that under Tables 16-11 and 16-15 she had a 4 percent motor strength
deficit of the right supraspinatus and a 9 percent motor strength deficit of the right deltoid plus a
pain-related impairment of 3 percent under Figure 18-1, which he combined to yield a 29 percent
right upper extremity impairment.
The Office referred Dr. Weiss’ January 24, 2006 report to an Office medical adviser,
Dr. Morley Slutsky, Board-certified in occupational medicine, for review to determine an
impairment rating of appellant’s right upper extremity. In a report dated September 9, 2006,
Dr. Slutsky opined that maximum medical improvement was reached on January 24, 2006 and
found that, in accordance with Figure 16-40 of the A.M.A., Guides, appellant was entitled to a 1
percent impairment for 170 degrees of flexion, that under Table 16-35 she was entitled to a 6
1

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

2

percent impairment for strength deficit for abduction, and under Table 16-27 a 10 percent
impairment for a distal clavicle resection, which combined to equal a 16 percent right upper
extremity impairment. By decision dated October 24, 2006, appellant was granted a schedule
award for a 16 percent impairment of the right upper extremity, to run from January 24, 2006 to
January 8, 2007.
On June 4, 2007 appellant submitted a schedule award claim for her left shoulder, and
resubmitted Dr. Weiss’ April 18, 2005 report. The Office referred Dr. Weiss’ April 18, 2005
report to an Office medical adviser, Dr. Arnold T. Berman, Board-certified in orthopedic
surgery, for review regarding appellant’s left upper extremity. In a report dated June 13, 2007,
Dr. Berman noted his review of Dr. Weiss’ April 2005 report including his physical findings of
170 degrees of flexion and 165 degrees of abduction. He advised that maximum medical
improvement was reached on April 18, 2005 and that, in accordance with Table 16-27 of the
A.M.A., Guides, appellant would be entitled to 10 percent impairment for the left arthroplasty
with distal clavicle resection, a 1 percent impairment under Figure 16-40 for 170 degrees of
flexion, a 1 percent impairment for 165 degrees of abduction, and under Figure 18-1, a 3 percent
impairment for pain, stating that appellant had continued pain. Dr. Berman combined these
values to reach a 15 percent impairment of the left upper extremity. By decision dated June 26,
2007, appellant was granted a schedule award for a 15 percent impairment of the left upper
extremity, to run from January 9 to December 2, 2007.
LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act2 and section 10.404 of
the implementing federal regulations,3 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for 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., Guides4 has been adopted by the Office, and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.5
It is the claimant’s burden to establish that he or she sustained a permanent impairment of
a scheduled member or function as a result of an employment injury.6 Office procedures provide
that to support a schedule award, the file must contain competent medical evidence which shows
that the impairment has reached a permanent and fixed state and indicates the date on which this
occurred (“date of maximum medical improvement”), describes the impairment in sufficient
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

A.M.A., Guides, supra note 1.

5

See Joseph Lawrence, Jr., supra note 1; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287
(1989); Francis John Kilcoyne, 38 ECAB 168 (1986).
6

Tammy L. Meehan, 53 ECAB 229 (2001).

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detail to include, where applicable, the loss in degrees of active and passive motion of the
affected member or function, the amount of any atrophy or deformity, decreases in strength or
disturbance of sensation, or other pertinent description of the impairment, and the percentage of
impairment should be computed in accordance with the fifth edition of the A.M.A., Guides. The
procedures further provide that, after obtaining all necessary medical evidence, the file should be
routed to the Office medical adviser for opinion concerning the nature and percentage of
impairment, and the Office medical adviser should provide rationale for the percentage of
impairment specified.7
The standards for evaluating the percentage of impairment of extremities under the
A.M.A., Guides are based primarily on loss of range of motion. In determining the extent of loss
of motion, the specific functional impairments, such as loss of flexion or extension, should be
itemized and stated in terms of percentage loss of use of the member in accordance with the
figures and tables found in the A.M.A., Guides. However, all factors that prevent a limb from
functioning normally should be considered, together with the loss of motion, in evaluating the
degree of permanent impairment.8
Chapter 16 of the fifth edition of the A.M.A., Guides provides the framework for
assessing upper extremity impairments.9 Section 16.4 provides that in evaluating abnormal
motion both active and passive motion measurements are necessary to evaluate the joint motion
under the appropriate charts, and these should be added to obtain the total motion impairment.10
Section 16.8a provides that in a rare case, if the examiner believes the individual’s loss of
strength represents an impairing factor that has not been considered adequately by other
methods, the loss of strength may be rated separately. An example of such situation would be
loss of strength due to a severe muscle tear that healed leaving a palpable muscle defect.
Decreased strength cannot be rated in the presence of decreased motion, painful conditions,
deformities or absence of parts that prevent effective application of maximal force in the region
being evaluated.11 Section 16.4 provides that in evaluating abnormal motion both active and
passive motion measurements are necessary to evaluate the joint motion under the appropriate
charts, and these should be added to obtain the total motion impairment.12 Section 16.5b
provides that, when multiple impairments of the extremity are present, these are to be
combined.13 Section 18.3b provides that pain-related impairment should not be used if the
condition can be adequately rated under another section of the A.M.A., Guides. Office
procedures provide that, if the conventional impairment adequately encompasses the burden
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.6(b-d) (August 2002).
8

Robert V. Disalvatore, 54 ECAB 351 (2003).

9

A.M.A., Guides, supra note 1 at 433-521.

10

Id. at 451-52.

11

Id. at 508.

12

Id. at 451-52.

13

Id. at 481.

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produced by pain, the formal impairment rating is determined by the appropriate section of the
A.M.A., Guides. Section 18.3d, however, provides guidance on how a pain-related impairment
should be rated, noting that an award of up to three percent whole person impairment may be
granted if pain increases the burden of the employee’s condition.14 While the A.M.A., Guides,
provides for impairment to the individual member and to the whole person, the Act does not
provide for permanent impairment for the whole person.15
ANALYSIS
The Board finds this case is not in posture for decision as none of the medical reports
used to determine the schedule awards in this case comports with the A.M.A., Guides. The
Office referred Dr. Weiss’ April 18, 2005 and January 24, 2006 reports to Drs. Slutsky and
Berman to determine impairment ratings for appellant’s right and left upper extremities
respectively.16 In both his reports, Dr. Weiss found that appellant was entitled to 15 percent
impairment under Table 16-27 based on a shoulder resection arthroplasty and distal clavicle
resection. However, as found by both Office medical advisers, Table 16-27 provides that 10
percent impairment is found with a shoulder resection arthroplasty and distal clavicle resection.17
Dr. Berman utilized Dr. Weiss’ January 24, 2006 report for appellant’s left upper
extremity, and noted that appellant’s adduction, internal rotation and external rotation were
reported as normal. He agreed with Dr. Weiss that, under Figure 16-40, loss of left shoulder
motion of forward elevation (flexion) of 170 degrees yielded one percent impairment,18 and
under Figure 16-43, abduction of 165 degrees also yielded one percent impairment.19
Dr. Berman properly added each unit of motion to determine that appellant had a total two
percent impairment of the left upper extremity for loss of shoulder motion. But both Dr. Weiss
and Dr. Berman awarded an additional three percent for pain under Chapter 18 of the A.M.A.,
Guides. Examiners should not use Chapter 18 to rate pain-related impairments for any condition
that can be adequately rated on the basis of the body and organ impairment systems given in
other chapters of the A.M.A., Guides.20 In this case, neither appellant’s physician, Dr. Weiss,
nor the Office medical adviser, Dr. Berman, explained why appellant’s left shoulder condition
could not be adequately rated under Chapter 16 relevant to upper extremity impairments.21
14

Id. at 573, 588; see Richard B. Myles, 54 ECAB 379 (2003).

15

See Janae J. Triplette, 54 ECAB 792 (2003).

16

The Board notes that Dr. Weiss also provided an impairment rating for appellant’s right upper extremity in his
April 18, 2005 report. This was, however, prior to her right shoulder surgery on July 15, 2005. Dr. Weiss’
January 24, 2006 report is therefore more probative regarding an impairment rating for appellant’s right upper
extremity.
17

A.M.A., Guides, supra note 1 at 506.

18

Id. at 476.

19

Id. at 477.

20

Supra note 14.

21

See P.C., 58 ECAB ____ (Docket No. 07-410, issued May 31, 2007).

5

Regarding the right upper extremity, Dr. Weiss also reported that appellant had abnormal
flexion of 170 degrees but did not include this in his impairment rating. He also reported that he
performed manual muscle strength testing and reported that on the right supraspinatus
musculature was graded at 4/5 and deltoid at 4+/5 and advised that, under Tables 16-11 and 1615 of the A.M.A., Guides, appellant was entitled to motor impairments of four percent for the
supraspinatus strength deficit and nine percent for the deltoid deficit. Section 16.5b of the
A.M.A., Guides provides that Table 16-11 is not to be used for rating weakness that is not due to
a diagnosed injury of a specific nerve or nerves.22 Dr. Weiss merely advised that strength testing
for these muscles was 4/5 and did not identify a specific nerve injury. Dr. Slutsky, an Office
medical adviser, stated that both the deltoid and supraspinatus muscles aided in abduction and
found that, under Table 16-35 of the A.M.A., Guides, appellant would be entitled to a six percent
strength deficit. Section 16.8c of the A.M.A., Guides, however, provides that results of strength
testing should be reproducible on different occasions or by two or more trained observers.23
There is no evidence of record to show that this was done. Furthermore, section 16.7 of the
A.M.A., Guides provides that the criteria for arthroplasty impairment should be used only when
the other criteria have not adequately encompassed the extent of appellant’s impairment. The
evaluator must apply proper judgment to avoid any duplication of impairment ratings,24 and
section 16.8a provides that decreased strength cannot be rated in the presence of decreased
motion.25
The Office procedure manual provides that, after obtaining all necessary medical
evidence, the file should be routed to an Office medical adviser for an opinion concerning the
nature and percentage of impairment which should be computed in accordance with the fifth
edition of the A.M.A., Guides. The Office medical adviser should provide rationale for the
percentage of impairment specified, especially when more than one evaluation of the impairment
is present. If the impairment has not been correctly described or the percentage is not
reasonable, a new or supplemental evaluation should be obtained.26 In this case, Dr. Weiss did
not use Tables 16-11, 16-15 or 16-27 properly. Neither he nor Dr. Berman explained why
appellant’s pain could not be adequately rated on the basis of the impairment systems described
in Chapter 16, and Dr. Slutsky did not explain why application of Table 16-35 was justified. The
Board will therefore set aside the Office’s October 24, 2006 and June 26, 2007 schedule awards
and remand the case for further development. In addition to determining whether appellant is
entitled to an impairment due to loss of strength on manual muscle testing and pain, the Office
should determine whether motion impairments, derived separately, should be combined with
strength impairments and impairment for resection arthroplasty under Table 16-27. After such
further development as may be necessary, the Office shall issue an appropriate final decision on
appellant’s claim for schedule awards for her right and left upper extremities.
22

A.M.A., Guides, supra note 1 at 484 and 492.

23

Id. at 509.

24

Id. at 499.

25

Id. at 508.

26

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedules Awards & Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

6

CONCLUSION
The Board finds that this case is not in posture for decision because further development
of the medical evidence is warranted to determine the permanent impairment of appellant’s
upper extremities resulting from her employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 26, 2007 and October 24, 2006 are set aside and the case is
remanded to the Office for proceedings consistent with this opinion of the Board.
Issued: May 7, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.E., Appellant
and
DEPARTMENT OF COMMERCE,
NATIONAL OCEANIC ATMOSPHERIC
ADMINISTRATION, Seattle, WA, Employer
__________________________________________

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Appearances:
John Eiler Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-522
Issued: August 14, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 3, 2013 appellant, through his representative, filed a timely appeal from the
July 11, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP), which
determined his pay rate for compensation purposes. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of this pay rate decision.
ISSUE
The issue is whether OWCP properly determined appellant’s pay rate for compensation
purposes.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board.2 Following oral argument on March 1, 2011,
the Board found that it was not disputed that appellant received subsistence and quarters while at
sea.3 OWCP had a statutory obligation to include the value of that remuneration in kind if its
value could be estimated in money.4 The Board remanded the case for further development of
the value of subsistence and quarters provided to appellant while aboard the McArthur II for the
period in question:
“[OWCP] shall follow up on the employing establishment’s offer to estimate, as
best it can from meals cost data, the value of subsistence provided to appellant
while aboard ship if the cash allowance for onshore meals is not an acceptable
reflection of that value. If the employing establishment is unable to provide
further useful information, [it] must estimate a value for subsistence from other
[employing establishment] and sources as appears reasonable under the
circumstances and for quarters if there is a reasonable way to estimate its value in
money.”5
OWCP followed up on the employing establishment’s offer to estimate the value of
subsistence using meals cost data from appellant’s ship. It received the following response from
Dale C. North, a program analyst:
“[The employing establishment] has always maintained that base pay is the only
consideration when determining compensation for an OWCP claim. I had
requested below that [Department of Labor] check with our lead [employing
establishment] for pay purposes, the Military Sealift Command as they also
maintain that wage marine employees in the organization are paid by OWCP
based on the base salary of the mariner. [Appellant’s] claim is erroneous but
understandable from his point of view. Perhaps a discussion on this issue can be
arranged that can result in a standard practice for this organization with regards to
OWCP claims.”
2

Docket No. 10-1124 (issued April 8, 2011).

3

Appellant stated that he averaged 280 sea days a year.

4

When the ship was ashore and meals were not provided onboard, appellant received a subsistence allowance of
$6.00 for breakfast, $12.00 for lunch and $20.00 for dinner, according to the employing establishment’s Dale C.
North, a program analyst. Mr. North did not believe $38.00 a day should be used for appellant’s time at sea. He
offered to estimate the value of subsistence at sea from meals cost data, if that was what OWCP required.
The employing establishment’s Cecilia Collins was at a loss to calculate the value of appellant’s quarters at sea.
Ms. Collins advised that the employing establishment owned the research vessel, so there was no cost to the
employing establishment if an employee bunked aboard or not. She allowed, however, that it might be possible to
make a rough estimate of the value of subsistence based on meals cost data.
5

OWCP accepted that appellant, an engineer aboard the McArthur II, developed an aggravation of chronic
obstructive pulmonary disease in the performance of duty. The facts of this case as set forth in the Board’s prior
order are hereby incorporated by reference.

2

OWCP’s claims examiner held a conference with Mr. North on August 12, 2011.
Mr. North disagreed that subsistence and quarters should be included in appellant’s pay rate for
compensation purposes because he had spoken with the Military Sealift Command multiple
times about the issue over the years “and [Military Sealift Command] adamantly maintains that
only base pay should be included for compensation purposes.” The claims examiner explained
the law and offered an example from the Military Sealift Command where subsistence and
quarters was specifically included on a Form CA-7 claim for compensation.
Mr. North stated that he was frustrated because he believed that claimants had been paid
inconsistently, and he thought it should all be the same. The claims examiner agreed and
explained that the following regulations and procedures should make it so.
“I explained that in the example I had, [Military Sealift Command] listed S&Q at
$6.75 a day for a Wage Marine 9952-1500 in 2008. I asked if that was a fair
approximation of S&Q in Dec[ember] 2004. [Mr. North] [stated that] he thought
it was. He noted that he thought it was somewhere around $7.00. I asked if a
person’s salary would influence the value of S&Q. [Mr. North] [stated that] it
would not. The meals and lodging were available for everyone on ship.”
Mr. North confirmed that while appellant probably was not at sea for 280 days a year, he
probably was on ship that number of days. The claims examiner noted the parties’ agreement
that appellant’s pay rate would include the daily estimated value of $6.75 for subsistence and
quarters multiplied by appellant’s 280 days at sea, or days aboard ship.
In a decision dated August 12, 2011, OWCP determined a pay rate for compensation
purposes that included a value of subsistence and quarters.
On July 11, 2012 OWCP’s hearing representative affirmed. The hearing representative
found that OWCP properly applied section 8114(d)(2) of FECA to determine appellant’s pay rate
on the date disability began. Further, the hearing representative found that OWCP correctly
determined the value of subsistence and quarters to be $6.75 multiplied by the 280 days appellant
was aboard ship during the year prior to the date disability began.
On appeal, appellant’s representative objects that OWCP simply took Mr. North’s word
that $6.75 a day was a fair approximation of the value of subsistence and quarters. This was the
value of subsistence and quarters given for a Military Sealift Command able-bodied sailor in
Florida, and counsel provided OWCP with this information to demonstrate that the Military
Sealift Command could provide a figure for subsistence and quarters in workers’ compensation
cases. Counsel contends that OWCP’s use of this figure in appellant’s case is arbitrary and
capricious and set aside the July 11, 2012 decision on the grounds that it did not accurately
determine appellant’s pay rate. He believes OWCP should review the official payroll record
from the National Finance Center, a copy of which he provided to the Board, to determine the
pay rate when disability began.

3

LEGAL PRECEDENT
In computing monetary compensation for disability, the value of subsistence and
quarters, and of any other form of remuneration in kind for services if its value can be estimated
in money, is included as part of the pay.6
ANALYSIS
OWCP followed up on the employing establishment’s offer to estimate, as best it could
from meals cost data, the value of subsistence provided to appellant while aboard ship, if the
cash allowance for onshore meals was not an acceptable reflection of that value. When
Mr. North, the program analyst, declined at making that estimate, OWCP shared some
information provided by counsel. In another case, the Military Sealift Command estimated the
value of subsistence and quarters for an able-bodied sailor in Florida in 2008 to be $6.75 a day.
Mr. North confirmed that this was a fair approximation of appellant’s subsistence and quarters in
December 2004, when disability began.
This is not, as counsel argues, an arbitrary and capricious figure. This comes from the
Military Sealift Command, the lead employing establishment for pay purposes, according to
Mr. North. It reflects the value of subsistence and quarters of an employee who was, if not
exactly in appellant’s position, at least similarly situated. The figure is not perfect, but it does
offer a reasonable basis for increasing appellant’s pay rate under section 8114(e). The Board
finds that OWCP complied with the Board’s direction and has reasonably determined, under the
circumstances, appellant’s pay rate for compensation purposes.7
Counsel makes assumptions that are not based on established facts. It is not established,
for instance, that the value of subsistence and quarters for an officer is materially greater than
that for an able-bodied sailor. As Mr. North confirmed, an employee’s salary would not
influence that value. As the employing establishment’s Cecilia Collins explained, the employing
establishment owned the research vessel, so there was no cost to the government if an employee
bunked aboard or not. It would thus appear that there is no monetary value for the onboard
quarters the employing establishment provided, and that the $6.75 figure reflects the approximate
cost to the government of providing a day’s subsistence aboard ship. This is not to be confused
with the $38.00 cash allowance the government paid for obtaining subsistence away from the
ship in the private sector. Such a cash allowance is not remuneration in kind under section
8114(e).
6

5 U.S.C. § 8114(e). See Robert J. Lima, 55 ECAB 546 (2004) (finding that living quarters provided to the
employee, rather than a direct payment of money, was the type of “in kind” remuneration Congress intended to
include in the pay rate for compensation purposes); see also Helen S. Forman (Lawrence T. Forman), 39 ECAB
212, 216 (1987) (finding that the payment of school fees in money, as opposed to free tuition at a school operated by
the employing establishment, did not constitute remuneration “in kind).” Consistent with Lima and Forman, a cash
allowance for food or lodging, such as appellant received when unable to eat or sleep aboard ship, is not
remuneration in kind under Section 8114(e).
7

The Board concurs with the hearing representative’s finding that appellant’s pay rate is determined under
5 U.S.C. § 8114(d)(2), and is therefore defined by the average annual earnings of an employee of the same class
working substantially the whole immediately preceding year in the same or similar employment.

4

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly determined appellant’s pay rate for compensation
purposes.
ORDER
IT IS HEREBY ORDERED THAT the July 11, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 14, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 12-36
Issued: May 7, 2012

Case Submitted on the Record

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

JURISDICTION
On October 12, 2011 appellant filed a timely appeal from the September 19, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied her injury
claim. 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 sustained a left leg injury in the performance of duty on
April 8, 2010.

1
2

5 U.S.C. § 8101 et seq.

On October 31, 2011 the Board asked appellant to confirm by December 1, 2011 whether she desired oral
argument in Washington, DC, at her own expense. The Board informed her that, if her response was not received by
that date, it would decide her appeal on the record without oral argument. The Board received no response.

FACTUAL HISTORY
On April 4, 2011 appellant, then an 83-year-old distribution clerk, filed a traumatic injury
claim alleging that she sustained a left leg injury on April 8, 2010 while pushing a roller bench
with very heavy parcels on it. She stated that she felt a tear below her left knee and thought she
pulled a muscle. On April 29, 2010 Dr. Donald Irving King, Board-certified in family and
geriatric medicine, found that appellant had severe knee pain related to a ruptured popliteal cyst.
OWCP asked appellant to submit additional information, including a rationalized medical
opinion from her treating physician as to the cause of the diagnosed medical condition: “If your
physician is of the opinion that the diagnosed condition is caused by your employment
activity/incident, such an opinion must be supported with medical rationale.”
In a July 15, 2011 decision, OWCP denied appellant’s injury claim. It found that the
medical evidence did not establish that the claimed medical condition was related to the accepted
work-related incident. OWCP noted that Dr. King did not explain the cause of appellant’s knee
condition. As the medical evidence of record did not address the causation issue between the
diagnosed condition and appellant’s employment, it denied workers’ compensation benefits.
Appellant requested reconsideration and explained that all medical records from April 10,
2010 were presented. She indicated that all findings were enclosed in the records submitted: “It
shows more proof of evidence.”
In a September 19, 2011 decision, OWCP reviewed the merits of appellant’s case and
denied modification of its prior decision. It found that none of the medical reports provided a
history of her work injury, a definitive diagnosis and a detailed narrative explaining the
relationship between the conditions diagnosed and the accepted work incident.
On appeal, appellant argues that she pushed the bench and felt a tear in her left leg. She
did not think it was a serious injury. Appellant used sick leave. She adds: “Since I filed this
claim I am without funds from my workplace since May 2011 waiting for my case to complete.”
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.3 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of her claim. When an employee
claims that she sustained an injury in the performance of duty, she must submit sufficient
evidence to establish that she experienced a specific event, incident or exposure occurring at the
time, place and in the manner alleged. She must also establish that such event, incident or
exposure caused an injury.4

3

5 U.S.C. § 8102(a).

4

John J. Carlone, 41 ECAB 354 (1989).

2

Causal relationship is a medical issue,5 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,6 must be one of reasonable medical certainty,7
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.8
ANALYSIS
OWCP accepted that on April 8, 2010 appellant pushed a roller bench with very heavy
parcels on it. Appellant has therefore met her burden to establish that she experienced a specific
incident occurring at the time, place and in the manner alleged. The question for determination
is whether this incident caused an injury.
Dr. King, a specialist in family and geriatric medicine, found that appellant had a
ruptured popliteal cyst, but he did not attribute this medical condition to the April 8, 2010 work
incident. The Board notes that none of the medical evidence of record provides a considered
medical opinion detailing what happened on April 8, 2010 and explaining how that incident
caused or contributed to a ruptured popliteal cyst. Such a rationalized medical opinion is
necessary to establish the critical element of causal relationship.
The medical evidence lacks a physician’s rationalized opinion on whether there is a
causal relationship between the April 8, 2010 work incident, in which appellant pushed a roller
bench with very heavy parcels on it and the diagnosed ruptured popliteal cyst. The physician’s
opinion must be based on a complete factual and medical background, must be one of reasonable
medical certainty, and must be supported by sound medical reasoning explaining the nature of
the relationship between the diagnosed condition and the established work incident.
As appellant has not submitted such medical opinion evidence, she has not met her
burden of proof. The Board will affirm OWCP’s denial of her claim for workers’ compensation
benefits.
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.

5

Mary J. Briggs, 37 ECAB 578 (1986).

6

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

7

See Morris Scanlon, 11 ECAB 384, 385 (1960).

8

See William E. Enright, 31 ECAB 426, 430 (1980).

3

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a left leg injury in the performance of duty on April 8, 2010.
ORDER
IT IS HEREBY ORDERED THAT the September 19, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 7, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Louisville, KY, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0685
Issued: October 26, 2018

Case Submitted on the Record

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

JURISDICTION
On February 12, 2018 appellant, through counsel, filed a timely appeal from an October 4,
2017 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 the case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an aggravation of
preexisting bipolar disorder as a consequence of an accepted aggravation of cervical spondylosis
with myelopathy.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as presented in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On April 13, 2006 appellant, then a 47-year-old general supply specialist, filed a traumatic
injury claim (Form CA-1) alleging that he struck his head on a roll cage cross bar while climbing
onto a forklift that day at work, causing injuries to his head, neck, and shoulders. OWCP accepted
the claim for aggravation of cervical spondylosis with myelopathy. On January 22, 2007 appellant
underwent an authorized anterior cervical discectomy and fusion.4
Dr. Michael Casnellie, a Board-certified orthopedic surgeon, noted in an August 7, 2007
report that appellant had a prior history of anxiety, had recently been diagnosed with bipolar
disorder, and had a pituitary tumor removed. In a report dated December 2, 2013, Dr. Jason M.
Meckler, a Board-certified neurologist, diagnosed a recent traumatic brain injury sustained in a
fall, which resulted in cognitive dysfunction, anxiety, depression, and depression with
somatization.
In a letter dated January 13, 2015, counsel requested that the acceptance of appellant’s
claim be expanded to include aggravation of preexisting bipolar disorder. He submitted a report
dated December 30, 2014 from Dr. Frank Deland, a Board-certified psychiatrist. Dr. Deland
opined that he could not determine whether the accepted neck injury caused appellant’s bipolar
disorder, but that the stress of the injury and subsequent disability exacerbated or triggered his
underlying mood instability.
OWCP, by decision dated April 21, 2015 and affirmed by its hearing representative on
October 8, 2015, denied expansion of the acceptance of appellant’s claim as the evidence of record
was insufficient to establish that his psychiatric condition was caused or aggravated by the
accepted employment injuries.
On March 11, 2016 appellant appealed to the Board.5 By decision and order issued
October 26, 2016,6 the Board affirmed OWCP’s October 8, 2015 decision, finding that the medical
3

Docket No. 16-0811 (issued October 26, 2016).

4

On July 21, 2013 OWCP granted appellant a schedule award for four percent permanent impairment of the left
arm.
5

During the pendency of the prior appeal, appellant submitted a July 6, 2016 report from Michael Gilbert, a
physician assistant. Appellant also provided a report of cervical spine x-rays performed on May 15, 2015.
6

Supra note 3.

2

evidence of record contained insufficient rationale to establish causal relationship. The Board
explained that the need for medical rationale is particularly important where the medical record
indicates that appellant had a history of anxiety at the time of his employment injury and that he
had a subsequent, nonoccupational traumatic brain injury.
On June 9, 2017 appellant, through counsel, requested reconsideration. Counsel asserted
that additional medical evidence from Dr. Deland was sufficient to establish causal relationship.
In an April 11, 2017 report, Dr. Deland noted that he had been treating appellant for bipolar
disorder since May 2007. He explained that the stress of the accepted cervical spine injury caused
mood instability with periods of intense depression. Dr. Deland opined that the accepted
employment injury did not cause appellant’s bipolar disorder but “certainly had a negative impact
on his abilities to maintain a stable mood.” He asserted that, within reasonable probability,
appellant’s accepted injury “was very detrimental to his well-being and a proximate cause for his
mood instability that ultimately brought him to my attention.” Appellant displayed “easy
irritability, psychomotor agitation, grandiosity,” and pressured speech. His anxiety and manic
symptoms interfered with work and interpersonal relationships, which led to additional instability.
Dr. Deland concluded that appellant’s “mood instability during the time in question was in part
triggered by the previously mentioned injury and negatively impacted his ability to work.”
Counsel also provided a report indicating cervical spine x-rays performed on July 6, 2017
showed stable C4-5 and C5-6 anterior fusions. He also submitted a report dated July 6, 2017
signed by Michael Gilbert, a physician assistant.7
By decision dated October 4, 2017, OWCP denied modification of its prior decision,
finding that the additional medical evidence submitted on reconsideration was insufficient to
establish causal relationship between an aggravation of appellant’s bipolar disorder and the
accepted employment injury. It found that Dr. Deland’s April 11, 2017 report did not explain how
the accepted aggravation of cervical spondylosis with myelopathy aggravated appellant’s
preexisting bipolar disorder. OWCP further found that the x-ray report did not address the claimed
emotional condition, and that the physician assistant’s opinion was not competent medical
evidence.
LEGAL PRECEDENT
The claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, establishing causal relationship. The opinion must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship of the diagnosed condition and the specific employment factors or
employment injury.8

7

Counsel also submitted a duplicate copy of Mr. Gilbert’s July 6, 2016 report previously of record.

8
Charles W. Downey, 54 ECAB 421 (2003); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB
365 (1994).

3

Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.9 Neither the mere fact that a disease or condition
manifests itself during a period of employment, nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.10
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, The Law of Workers’ Compensation notes that, when the question
is whether compensability should be extended to a subsequent injury or aggravation related in
some way to the primary injury, the rules that come into play are essentially based upon the
concepts of direct and natural results and of the claimant’s own conduct as an independent
intervening cause. The basic rule is that a subsequent injury, whether an aggravation of the original
injury or a new and distinct injury, is compensable if it is the direct and natural result of a
compensable primary injury.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that the
diagnosed aggravation of his preexisting bipolar disorder was a consequence of the accepted
aggravation of cervical spondylosis with myelopathy.
Findings made in prior Board decisions are res judicata absent any further review by
OWCP under section 8128 of FECA.12 The Board will, therefore, not review the evidence
addressed in the prior appeal.
Pursuant to the present appeal, counsel provided a report dated April 11, 2017 from
Dr. Deland, a Board-certified psychiatrist. Dr. Deland opined that the stress of the accepted
aggravation of cervical spondylosis caused or triggered depression and mood instability. He noted
that the negative impact on appellant’s personal and professional relationships caused additional
instability. However, Dr. Deland did not explain how the accepted April 13, 2006 employment
injuries physiologically or psychologically caused the claimed aggravation of preexisting bipolar
disorder.13 The Board, therefore, finds that he provided insufficient rationale to establish a causal
relationship between appellant’s bipolar disorder and the accepted April 13, 2006 employment
injuries.
Appellant also submitted reports of cervical spine x-rays obtained on May 15, 2015 and
July 6, 2017. As these reports made no mention of the claimed aggravation of preexisting bipolar
9

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

Dennis M. Mascarenas, 49 ECAB 215 (1997).

11

Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation § 3.05 (2014); K.S., Docket No. 17-1583
(issued May 10, 2018).
12

See A.G., Docket No. 18-0281 (issued July 12, 2018).

13

See S.R., Docket No. 17-1118 (issued April 15, 2018).

4

disorder, it is irrelevant to the issue of causal relationship.14 Additionally, appellant provided
July 6, 2016 and July 6, 2017 reports from a physician assistant. This report was not countersigned
or reviewed by a physician. Therefore, it does not constitute probative medical evidence as
physician assistants are not considered physicians as defined under section 8102(2) of FECA.15
As set forth above, to establish a consequential injury the medical evidence must establish
that the consequentially claimed condition was a direct and natural result of a compensable primary
injury.16 The medical evidence submitted on reconsideration does not contain sufficient rationale
which explains how and why the accepted injury would cause the claimed psychiatric condition.
Thus, as appellant has not established a consequential aggravation of preexisting bipolar disorder,
he has failed to meet his burden of proof.17
On appeal, counsel contends that Dr. Deland’s April 11, 2017 report was sufficient to meet
appellant’s burden of proof to establish causal relationship. As set forth above, Dr. Deland did not
provide a rationalized opinion explaining how or why the accepted April 13, 2006 employment
injury would have aggravated appellant’s preexisting bipolar disorder.
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 established an aggravation of preexisting bipolar
disorder as a consequence of the accepted aggravation of cervical spondylosis with myelopathy.

14

See S.G., Docket No. 17-1054 (issued September 14, 2017).

15

As this report was not signed or countersigned by a physician, it does not constitute competent medical evidence
under FECA as physician assistants are not considered physicians as defined under section 8102(2) of FECA. E.T.,
Docket No. 17-0265 (issued May 25, 2018). See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses and physical therapists are not competent to render a medical opinion under
FECA); 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).
16

The Law of Workers’ Compensation § 3.05, supra note 11.

17

K.S., supra note 11.

5

ORDER
IT IS HEREBY ORDERED THAT the October 4, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 26, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
PHILADELPHIA VETERANS
ADMINISTRATION MEDICAL CENTER,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 17-1171
Issued: May 18, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 9, 2017 appellant filed a timely application for review from a March 8, 2017
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than
180 days elapsed from the last merit decision, dated May 4, 2016, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of appellant’s claim.

1

Appellant filed a timely request for oral argument. After exercising its discretion, by order dated October 12,
2017, the Board denied her request, finding that her arguments on appeal could be adequately addressed in a decision
based on a review of the case record. Order Denying Request for Oral Argument, Docket No. 17-1171 (issued
October 12, 2017).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 1, 2014 appellant, then a 50-year-old practical nurse, filed a traumatic injury claim
(Form CA-1) alleging that, on March 7, 2014, she sustained a left knee injury as a result of striking
her left knee against a keyboard bracket. On the reverse side of the claim form, appellant’s
supervisor indicated that the claimed injury occurred in the performance of duty and noted that
appellant did not stop work.
In a report dated August 27, 2014, Dr. Craig Rubenstein, Board-certified in emergency and
sports medicine, noted that appellant visited him in order to follow up on her right knee
osteoarthritis. He treated her with a steroid-lidocaine injection of the right knee.
On September 22, 2014 Dr. Charles L. Nelson, a Board-certified orthopedic surgeon, noted
that appellant had a six-month history of left knee pain after striking her knee on a broken keyboard
holder at work. He diagnosed her with knee pain, pain in the joint of the lower leg, and primary
localized osteoarthritis.
In a diagnostic report of September 22, 2014, Dr. Seth Glick, a Board-certified radiologist,
examined x-rays of appellant’s knees, and provided an impression of tricompartmental
osteoarthritis of the left knee along with chondrocalcinosis of the lateral meniscus.
In a diagnostic report dated February 9, 2015, Dr. Irene Darocha, a Board-certified
radiologist, examined the results of a magnetic resonance imaging (MRI) scan of appellant’s left
knee. She noted impressions of moderate-to-severe degenerative osteoarthritis; chronic-appearing
tear or injury of the medial meniscus with extensive degenerative signal of the lateral meniscus;
and mild degenerative joint disease laterally with moderate degeneration joint disease at the
patellofemoral articulation.3
By development letter dated March 25, 2015, OWCP advised appellant that when her
traumatic injury claim was first received, it appeared to be a minor injury that resulted in minimal
or no lost time from work. Because the employing establishment had not controverted
continuation of pay or the merits of the claim, payment of a limited amount of medical expenses
was administratively approved. However, because appellant had later filed a recurrence claim,
OWCP reopened the claim and considered the merits. It found that the evidence submitted was
insufficient to establish tricompartmental osteoarthritis causally related to the accepted March 7,
2014 employment injury. It advised appellant of the type of evidence necessary to establish her
3

On February 24, 2015 appellant filed a claim for recurrence of disability (Form CA-2a), alleging that her left knee
weakened and then buckled while walking to her car on January 18, 2015. She fell onto the sidewalk, causing injuries
to her left knee, left arm, and left hand. A record of conversation dated March 16, 2015 notes that OWCP’s claims
examiner informed appellant that the January 18, 2015 fall would be considered an intervening event, maybe
consequently related or unrelated to the incident of March 7, 2014. By letter dated March 20, 2015, an employing
establishment manager controverted appellant’s recurrence claim, contending that she fell at home on January 18,
2018, not on the employing establishment’s premises.

2

traumatic injury claim and attached a factual development questionnaire for her completion.
Appellant was afforded 30 days to submit the requested information.
Appellant subsequently submitted a diagnostic report dated February 23, 2015, wherein
Dr. Thomas R. Slattery, a Board-certified radiologist, examined an x-ray of appellant’s knees. He
provided an impression of tricompartmental osteoarthritis bilaterally, severe in the medial
compartments, more advanced on the right.
Also submitted was an operative report, indicating that appellant underwent total left knee
arthroplasty on March 18, 2015. The surgery was performed by Dr. Nelson, who noted findings
of severe primary osteoarthritis.4
In a narrative statement dated April 17, 2015, appellant described the events that led to her
left knee condition. She asserted that, on March 7, 2014, she struck her knee on a keyboard holder
mounted under her desk, which resulted in a “jolt” and temporary inability to bear weight.
Appellant banged her knee again, on the same piece of equipment, several days later.
By decision dated May 26, 2015, OWCP denied appellant’s traumatic injury claim. It
accepted that the March 7, 2014 incident occurred as alleged, but found that the medical evidence
of record was insufficient to establish a diagnosed condition causally related to the accepted
employment incident.
On August 25, 2015 appellant requested reconsideration of OWCP’s May 26, 2015
decision.
In a report dated August 6, 2015, Dr. Nelson related that appellant’s knee joint replacement
was medically necessary. He noted that she had presented to him in September 2014 after she had
hit her knee on a broken keyboard holder at work. Dr. Nelson diagnosed tricompartmental
osteoarthritis of the left knee with chondrocalcinosis of the medial meniscus. He explained that
the exact onset could not be determined as she presented to his office six months after the trauma
and her prior films were not available.
By decision dated November 18, 2015, OWCP determined that appellant was not entitled
to continuation of pay for any absence from work during the period March 8, 2014 and continuing
because the March 7, 2014 injury was not reported on a form approved by OWCP within 30 days
following the injury. By separate decision of the same date, OWCP reviewed the merits of
appellant’s claim, but denied modification of its May 26, 2015 decision. It found that the medical
evidence submitted was insufficient to establish a diagnosed medical condition causally related to
the accepted March 7, 2014 employment incident.5

4

Katherine A. Cummings, a certified physician assistant, had requested that OWCP authorize this surgery on
February 23, 2015.
5
The senior claims examiner noted that, because the initial traumatic injury claim had not been approved, there
was no need to discuss the January 18, 2015 fall which appellant alleged was a consequential injury. Also, because
the initial traumatic injury claim was not approved, no action would be taken on the Form CA-2a claim for a recurrence
of disability under this file number (File No. xxxxxx307).

3

On December 1, 2015 appellant requested a review of the written record before an OWCP
hearing representative. In a December 7, 2015 statement, appellant contended that she
immediately reported her March 7, 2014 injury to her supervisor. Appellant submitted a letter of
grievance dated November 27, 2015 and e-mail communications to support her contention that her
supervisor had delayed submission of her workers’ compensation claim.6 By decision dated
May 4, 2016, the hearing representative affirmed OWCP’s November 18, 2015 denial of
continuation of pay. He found that, because appellant’s claim for traumatic injury had been denied,
continuation of pay was not payable under any circumstances and the issue of whether the claim
was filed on an OWCP approved form within 30 days is moot.7
On December 13, 2016, appellant requested reconsideration of the May 4, 2016 hearing
representative’s decision. With her request, appellant attached statements dated September 16 and
November 12, 2016, in which she alleged that her supervisor acted in a racially discriminatory
manner toward her, and delayed her claim. She alleged that her supervisor had caused her claim
and request for continuation of pay to be denied, because she had delayed issuing the Form CA-1
for the claim. Appellant also submitted an e-mail from her supervisor dated September 24, 2016
stating that appellant’s Form CA-1 was completed on March 7, 2016 at 2:00 p.m.
In a letter dated September 28, 2016, another supervisor notified appellant that she had
only signed the claim form on April 30, 2014, and that claims are not submitted to the Department
of Labor until after the claimant signs the form.
By decision dated March 8, 2017, OWCP denied appellant’s request for reconsideration.
It noted that the May 4, 2016 hearing representative’s decision specifically found that, because
appellant’s traumatic injury claim had been denied, the issue of whether the claim for continuation
of pay was filed on an OWCP-approved form within 30 days was moot, and her claim for
continuation of pay was not payable under any circumstances. Thus, OWCP found that appellant’s
request for reconsideration did not include a relevant legal argument not previously considered
and the evidence submitted was cumulative and substantially similar to documentation already of
record.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
6

In a record of a conversation dated March 7, 2016, a hearing representative of OWCP’s Branch of Hearings and
Review informed appellant that it only had jurisdiction over OWCP’s denial of continuation of pay, since she had
already requested reconsideration of the denial of her traumatic injury claim. OWCP’s representative further noted
that there is no basis for payment of continuation of pay in a claim that has already been denied. He advised that to
have the denial of the claim overturned, appellant would have to pursue reconsideration. Appellant, however, stated
that she wanted a review of the written record to “punish” the employing establishment for failing to submit her claim.
The representative advised that he would proceed with the review of the written record.
7
The hearing representative noted, however, that even if the traumatic claim had been accepted, appellant would
not have been entitled to continuation of pay because it was not claimed on an OWCP approved form within 30 days
of the injury.

4

evidence not previously considered by OWCP.8 Section 10.608(b) of OWCP’s regulations provide
that when an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(3), OWCP will deny the application for reconsideration
without reopening the case for a review on the merits.9
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law, nor did she advance a new and relevant legal argument. With her December 13, 2016, request
for reconsideration, she submitted statements dated September 16 and November 12, 2016, in
which she alleged that her supervisor acted in a racially discriminatory manner toward her in that
the supervisor had delayed submitting the Form CA-1, causing her claim and request for
continuation of pay to be denied. Appellant also submitted an e-mail from her supervisor dated
September 24, 2016 stating that the Form CA-1 was completed on March 7 at 2:00 p.m., and a
letter dated September 28, 2016 in which another supervisor notified her that she had only signed
the claim form on April 30, 2014. Appellant previously raised these contentions with her request
for a review of the written record before an OWCP hearing representative. The hearing
representative considered appellant’s contentions, but found in the May 4, 2016 decision, that
continuation of pay was not payable under any circumstances and the issue of whether the claim
was filed on an OWCP-approved form within 30 days was moot. Thus, the evidence does not
contain a relevant legal argument not previously considered by OWCP.10
Furthermore, the evidence submitted on reconsideration is cumulative and substantially
similar to the grievance letter and e-mail communications submitted with her request for review
of the written record. The Board has held that evidence which is cumulative or duplicative of
material already in the case record is insufficient to warrant reopening a claim for merit review.11
Thus appellant has not submitted relevant and pertinent new evidence not previously considered
by OWCP.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.

8

20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).

9

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

10

Supra note 8.

11

A.F., Docket No. 11-1297 (issued December 20, 2011).

5

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated March 8, 2017 is affirmed.
Issued: May 18, 2018
Washington, DC

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

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

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

6


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

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

Docket No. 17-0538
Issued: June 27, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 10, 2017 appellant, through counsel, filed a timely appeal from a
November 7, 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 to consider the merits of this case.3
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the November 7, 2016 decision, OWCP received additional evidence.
However, the Board may only review evidence that was in the record at the time OWCP issued its final decision.
Thus, it is precluded from reviewing this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); M.B.,
Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R.
Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

ISSUE
The issue is whether appellant met her burden of proof to establish disability
commencing October 29, 2015 due to the accepted August 26, 2013 employment injuries.
On appeal counsel argues that OWCP erred in denying her claim for wage-loss
compensation.
FACTUAL HISTORY
On September 6, 2013 appellant, then a 59-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on August 26, 2013 she twisted her knee while stepping on a
hickory nut when getting out of the postal vehicle while in the performance of duty. She had
intermittent periods of disability until she stopped work on September 25, 2013.
OWCP accepted the claim for right knee lateral meniscus tear on October 29, 2013,
authorized right knee arthroscopic surgery, which occurred on January 10, 2014, and paid
appropriate wage-loss compensation.4 On February 10, 2014 it expanded the acceptance of
appellant’s claim to include aggravation of right knee osteoarthritis.
Appellant returned to work on May 27, 2014 for four hours per day with restrictions. On
December 19, 2014 OWCP approved a revision of the right knee joint and total right knee
arthroplasty surgery, which occurred on February 5, 2015. Appellant returned to full duty on
March 24, 2015.
In a November 23, 2015 report, Dr. Sara Vizcay, a treating Board-certified family
physician, related that appellant had complained of right knee pain and swelling and stated that
her recent right knee surgical intervention had been aggravated. Appellant’s physical
examination revealed right knee joint tenderness, swelling, crepitus, and positive valgus.
Diagnoses included depression due to pain and employment injuries, right knee medial meniscal
tear, and aggravation of postoperative knee replacement due to a new injury. Dr. Vizcay opined
that appellant was currently disabled from working due to her multiple employment injuries.
In work capacity evaluation forms (Form OWCP-5c) dated November 17 and 23, 2015,
Dr. Vizcay noted that appellant was unable to work at the present time and referenced her
narrative report. She reported that appellant was being seen by an orthopedic physician for a
possible right knee replacement and that she was currently totally disabled.
A nurse practitioner completed an OWCP-5c form on December 21, 2015 noting that
appellant was currently totally disabled. She further noted that the medication appellant was
prescribed decreased her attention span and increased sedation.

4

On December 8, 2014 OWCP granted appellant a schedule award for 10 percent permanent right leg
impairment.

2

On December 31, 2015 OWCP received a claim for wage-loss compensation (Form
CA-7) for the period October 29 to December 25, 2015.5
In a letter dated January 5, 2016, OWCP advised appellant of the evidence required to
establish her claim for wage-loss compensation. It noted that the record showed that she stopped
work on October 29, 2015 and had not returned. OWCP noted that she had also filed a new
injury claim for an incident occurring on July 20, 2015. It advised appellant as to the medical
and factual evidence required to establish that her disability on and after October 29, 2015 was
due to the accepted August 26, 2013 employment injury. OWCP afforded appellant 30 days to
provide the requested information.
On January 12, 2016 appellant submitted a Form CA-7 claiming wage-loss compensation
for the period December 26, 2015 to January 8, 2016.
On February 25 and April 14, 2016 Dr. Viczay related that appellant was totally disabled
in OWCP-5c forms. She noted appellant has severe right knee effusion and tendon tear.
By decision dated February 23, 2016, OWCP denied appellant’s claim for wage-loss
compensation for the period October 29, 2015 and continuing. It found her disability was due to
a new injury which she sustained on July 20, 2015 when she slipped on a wet floor injuring her
right knee.6
Following the February 23, 2016 decision denying her claim, appellant submitted a claim
for wage-loss compensation (Form CA-7) for the period January 9 to April 15, 2016.
In a letter dated March 2, 2016, counsel requested a telephonic hearing before an OWCP
hearing representative which was held on September 26, 2016.
Appellant retired from the employing establishment effective August 30, 2016.
On November 2, 2016 OWCP expanded acceptance of appellant’s claim to include
chronic pain syndrome.
By decision dated November 7, 2016, OWCP’s hearing representative affirmed the
February 23, 2016 decision. He noted that appellant’s claim had been accepted for right lateral
meniscal tear and subsequently expanded to include right leg/lower knee aggravation localized
primary osteoarthritis. The hearing representative discussed factual and medical evidence from
OWCP File No. xxxxxx219, in which appellant had filed a Form CA-1 alleging that she injured
her knee when she slipped and fell on a wet floor on July 15, 2015.

5

Appellant had previously filed a claim for a recurrence of disability (Form CA-2a) beginning July 21, 2015.
OWCP has not issued a decision on appellant’s claim for a recurrence of disability.
6

OWCP noted that appellant had filed a new injury claim which was assigned OWCP File No. xxxxxx219, but
that claim had been denied.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA7 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.8 For each period of
disability claimed, the employee has the burden of establishing that she was disabled for work as
a result of the accepted employment injury.9 Whether a particular injury causes an employee to
become disabled for work, and the duration of that disability, are medical issues that must be
proved by a preponderance of probative and reliable medical opinion evidence.10
Under FECA the term “disability” means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.11 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.12 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages he or she was receiving at
the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.13 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in her employment, she is entitled to compensation for any loss of wages.
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.14
ANALYSIS
Appellant’s claim was originally accepted for right knee lateral meniscus tear which was
subsequently expanded to include aggravation of lower leg right knee osteoarthritis. She filed
claims for wage-loss compensation on and after October 29, 2015 due to her accepted August 26,
2013 employment injury. By decision dated February 23, 2016, OWCP denied appellant’s claim
for wage-loss compensation. On November 2, 2016 it expanded the acceptance of appellant’s

7

5 U.S.C. §§ 8101 et seq.

8

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel A. Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
9

See Amelia S. Jefferson, id.; see also David H. Goss, 32 ECAB 24 (1980).

10

See Edward H. Horton, 41 ECAB 301 (1989).

11

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
12

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

13

Merle J. Marceau, 53 ECAB 197 (2001).

14

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

4

claim to include chronic pain. By decision dated November 8, 2016, an OWCP hearing
representative affirmed the denial of appellant’s wage-loss claim.
The Board notes that the hearing representative referenced evidence from the claim for a
July 20, 2015 knee injury under OWCP File No. xxxxxx219 due to a slip and fall. OWCP
procedures provide that cases should be doubled when a new injury is reported for an employee
who previously filed an injury claim for a similar condition and further indicates that the cases
should be doubled as soon as the need to do so becomes apparent.15 On remand, OWCP shall
combine OWCP File No. xxxxxx219 with the current OWCP File No. xxxxxx448. Following
this and any necessary further development, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 7, 2016 is set aside and remanded for further
proceedings consistent with this opinion.
Issued: June 27, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Doubling Case Files, Chapter 2.400.8(c)(1)
(February 2000). See T.M., Docket Nos. 09-1090 & 09-2226 (issued March 8, 2010).

5