United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
U.S. POSTAL SERVICE, MILILANI STATION
POST OFFICE, Mililani, HI, Employer
__________________________________________

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

Docket No. 20-0601
Issued: December 14, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On January 24, 2020 appellant filed a timely appeal from a December 12, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 12, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish more than three
percent permanent impairment of his left lower extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
On February 27, 2012 appellant, then a 53-year-old distribution clerk, filed a traumatic
injury claim (Form CA-1) alleging that he injured his shoulder and back while in the performance
of duty. He explained that he was cut off by another employee while he was pushing heavy
equipment and had difficulty stopping his momentum. On the reverse side of the claim form the
employing establishment indicated that appellant was injured in the performance of duty and had
stopped work on February 27, 2012. On March 22, 2012 OWCP accepted the claim for an
unspecified disorder of bursae and tendons in the right shoulder region and a sprain of the lumbar
region of the back.3 Appellant returned to modified-duty work on April 21, 2012. On February 1,
2013 he stopped work again and underwent right rotator cuff surgery. Appellant returned to
modified-duty work on October 15, 2013 and full-time regular-duty work on January 24, 2014.
On February 19, 2016 he stopped work again and underwent an arthroscopy, acromioplasty, and
right rotator cuff repair and returned to modified-duty work on June 14, 2016.
On September 4, 2017 appellant filed a claim for a schedule award (Form CA-7).
In a development letter dated September 26, 2017, OWCP requested that appellant submit
a permanent impairment evaluation from his attending physician in accordance with the standards
of the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).4 It afforded him 30 days to submit the requested evidence.
An October 27, 2017 medical report from Dr. Lan Nguyen, Board-certified in occupational
medicine, indicated that appellant presented with intermittent lower back pain and left leg pain
from twisting his back in an awkward position at work when he tried to halt two rolling cages.
Dr. Nguyen reviewed appellant’s history of medical treatment and diagnostic imaging and
indicated that he was currently working a sedentary job and had reached maximum medical
improvement (MMI). Appellant’s physical examination revealed normal results. Dr. Nguyen
diagnosed lumbar radiculopathy and indicated that appellantpossibly had a permanent impairment.

3

Under subsidiary claim OWCP File No. xxxxxx384, OWCP accepted a left shoulder and upper arm
acromioclavicular sprain and granted appellant a schedule award for 11 percent permanent impairment of the left
upper extremity. It administratively combined OWCP File No. xxxxxx384 with the present claim, with the latter
serving as the master file. Under OWCP File No. xxxxxx906, OWCP accepted an unspecified rotator cuff tear or
rupture of the right shoulder and granted appellant a schedule award for a nine percent permanent impairment of the
right upper extremity (shoulder). Its April 3, 2018 statement of accepted facts (SOAF) indicated that OWCP
administratively combined OWCP File No. xxxxxx906 with the present claim, with the latter serving as the master
file; however, the record indicates that they are not combined.
4

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

2

She suggested that he obtain an impairment rating of his low back from another physician and
indicated that appellant could continue working full-time sedentary duty.
In a letter dated October 30, 2017, appellant noted that Dr. Nguyen had requested that a
permanent impairment rating be provided by another physician.
OWCP prepared a statement of accepted facts (SOAF) on April 3, 2018, which noted that
the accepted conditions in appellant’s claim were right shoulder disorder of bursae and tendons,
and lumbar sprain.
In a report dated May 8, 2018, Dr. Neelesh Fernandes, Board-certified in physical medicine
and rehabilitation, acting as OWCP’s second opinion physician, reviewed the SOAF, appellant’s
medical record, and his history of injury. He indicated that appellant presented with intermittent
right anterior shoulder pain and intermittent left lower lumbar spine pain. Appellant stated that his
lumbar pain worsened with lifting heavy objects and sitting for over an hour and was alleviated by
rest and ice. He noted that he experienced associated numbness and tingling in his left posterior
thigh, calf, and lateral foot. Physical examination of appellant’s lower extremities revealed a 30
percent decrease in light touch and pin prick sensations in the left L5 distribution in comparison
to the right side. Reflex was absent in the bilateral medial hamstring, and manual muscle testing
revealed 4/5 strength in the left extensor hallucis longus, flexor hallucis longus, and gastrocnemius.
The straight leg test was positive on the right, and atrophy of the left gastrocnemius was noted.
The left lower lumbar paraspinals were tender upon palpation, and appellant had a mild antalgic
gait. Dr. Fernandes indicated that appellant’s MMI was April 28, 2018, which was the date of
appellant’s examination.
Referencing The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the
Sixth Edition (July/August 2009) (The Guides Newsletter), Dr. Fernandes indicated that
appellant’s left L5 lumbar radiculopathy caused moderate sensory deficit, which fell under the
class of diagnosis (CDX) of 1 in the Proposed Table 2 Spinal Nerve Impairment: Lower Extremity
Impairments, with the default value of three percent permanent impairment. Dr. Fernandes
assigned grade modifier for functional history (GMFH) of 1, did not assign a grade modifier for
physical examination (GMPE), and assigned a grade modifier for clinical studies (GMCS) of 3.
He found a net adjustment of two and calculated five percent left lower extremity permanent
impairment for sensory deficit. Dr. Fernandes indicated that appellant’s left L5 lumbar
radiculopathy had mild motor deficit, which fell under the CDX of 1 in the Proposed Table 2, with
the default value of five percent permanent impairment. He used the same grade modifiers and
net adjustment and calculated nine percent left lower extremity permanent impairment for motor
deficit. Dr. Fernandes calculated a total final left lower extremity permanent impairment rating of
14 percent.
A May 30, 2018 letter from Dr. Peter Lum, Board-certified in physical medicine and
rehabilitation, indicated that appellant reached MMI either on September 19, 2016 or on April 24,
2017 and could return to work full time in a sedentary position with the restriction of lifting no
more than 10 pounds.
In an August 23, 2018 medical report, Dr. Michael Katz, a Board-certified orthopedic
surgeon serving as a district medical adviser (DMA), indicated that he reviewed a SOAF,

3

appellant’s medical record and history of injury, and the second opinion medical report from
Dr. Fernandes. He indicated that Dr. Fernandes’ findings of mild motor deficit and moderate
sensory deficit in appellant’s left lower extremity were not supported by findings of other
physicians, for example, Dr. Nguyen’s finding that appellant had normal lower extremity motor
deficit examination findings. The DMA recommended a new second opinion impairment
evaluation.
In medical reports and work status notes dated October 26, 2018 and January 25, April 19,
July 17, and October 2, 2019, Dr. Stella Tadaki, Board-certified in internal medicine, noted her
review of appellant’s history of injury and diagnostic imaging. She noted that a September 10,
2016 magnetic resonance imaging (MRI) scan of appellant’s lumbar spine revealed multilevel
degenerative changes of the spine, worst at the L5-S1 level with chronic grade 1 anterolisthesis
contributing to severe bilateral neural foraminal narrowing, likely impinging the exiting bilateral
L5 nerve roots. Dr. Tadaki reported that appellant presented with intermittent lower back pain and
associated intermittent left leg pain, he had difficulty with a heel toe walk and that his gait was
normal.
In an August 5, 2019 report, Dr. Wei Chin Chen, a Board-certified orthopedic surgeon
serving as a second opinion physician, indicated that he reviewed a SOAF, appellant’s history of
injury, and the medical record. He noted that appellant complained left lower extremity
radiculopathy and axial lumbar pain. Physical examination of appellant’s lumbar spine revealed
tenderness to palpation along the midline of the lumbosacral region. There was decreased
sensation to light touch in appellant’s left lateral dorsal foot and the posterior aspect of his foot
and decreased sensation in his hallux interphalangeal joint, large toe, and distal of his left side.
Appellant also had decreased sensory loss to the lateral dorsal aspect of his left foot. His knee
flexion was 5/5 on the right and 4+/5 on the left, dorsiflexion was 5/5 on the right and 4+ /5 on the
left, and his extensor hallucis longus was 5/5 on the right and 4+/5 on the right. Appellant also
had positive Faber and straight leg tests on the left. Dr. Chen opined that his subjective complaints
of left lower extremity radiculopathy were consistent with the previous magnetic resonance
imaging (MRI) scans of his lumbar spine.
Dr. Chen indicated that appellant had reached MMI on the date of his examination of
August 5, 2019. He indicated that appellant had sensory deficits along his superficial peroneal
nerve distribution, which corresponded to his L5-S1 distribution. Using the A.M.A., Guides Table
16-12 on page 534, Dr. Chen assigned appellant’s superficial peroneal and sural nerve sensory
deficits as a CDX of 1, Grade C. He assigned a GMFH of 0, a GMPE of 3, and a GMCS of 0.
Dr. Chen calculated that appellant sustained three percent left lower extremity permanent
impairment of the superficial peroneal nerve and three percent left lower extremity impairment of
the sural nerve, totaling six percent left lower extremity impairment. He indicated that, if
radiculopathy was not accepted by OWCP, then appellant would have zero percent impairment
under this method.
Dr. Chen recalculated appellant’s lower extremity impairment using The Guides
Newsletter, noting that it was unclear as to whether OWCP had accepted lumbar radiculopathy or
just a lumbar sprain. He indicated that the left L5 nerve root experienced moderate sensory loss
and assigned CDX of 1, Grade C under Proposed Table 2. Dr. Chen noted that the grade modifiers
were the same as in his first method, equaling three percent left lower extremity impairment. He

4

classified appellant’s L5 motor deficiency using Table 16-11 on page 533 of the A.M.A., Guides,
as severity 1 because he had a 4/5 motor strength, which corresponded to five percent impairment,
and equaled a total of five percent impairment with the same modifiers. Dr. Chen classified both
appellant’s S1 moderate sensory changes and his mild motor loss as a CDX of 1, Grade C, which
equaled two percent and three percent total impairment, respectively, when the same grade
modifiers were applied. He calculated a total of 13 percent left lower extremity impairment, and
indicated that this was the most accurate evaluation of appellant’s impairment due to his lumbar
sprain with radiculopathy. In an addendum to his report, Dr. Chen provided his The Guides
Newsletter impairment calculations, which indicated that he calculated two percent impairment
due to the left L5 moderate sensory deficit, zero percent impairment due to the left L5 mild motor
deficit, one percent impairment of the left S1 moderate sensory deficit, and zero percent
impairment of the left S1 mild motor deficit, totaling three percent lower extremity impairment.
In a SOAF dated October 2, 2019, OWCP noted that the claim was accepted for disorder
of bursae and tendons in the right shoulder region, lumbar sprain, and left-sided lumbar
radiculopathy.
In an October 8, 2019 report, the DMA indicated that he again reviewed a SOAF and
appellant’s medical records, including Dr. Chen’s IME report. He determined that additional
clarification from Dr. Chen was needed because his left lower extremity impairment calculations
from his narrative report and addendum were contradictory. The DMA noted that Dr. Chen’s
calculations for the L5 and S1 nerve root moderate sensory deficit and mild motor deficit as a CDX
1, grade A impairment resulted in a total left lower extremity impairment of 3 percent, while he
alternatively rated the same impairments as CDX 1, grade C, which resulted in 13 percent
permanent impairment.
On October 15, 2019 OWCP requested clarification from the Dr. Chen. It asked Dr. Chen
to review the SOAF and the DMA’s October 8, 2019 report and identify which permanent
impairment rating applied.
In an October 24, 2019 supplemental report, Dr. Chen indicated that he reviewed the
DMA’s October 8, 2019 report and related that appellant sustained three percent left lower
extremity permanent impairment, as he had explained in his August 23, 2019 report.
By decision dated December 12, 2019, OWCP granted appellant a schedule award for three
percent permanent impairment of the left lower extremity. The award ran for 8.64 weeks from
October 3 through December 2, 2019. OWCP noted that the left lower extremity schedule award
payments for three percent permanent impairment commenced October 3, 2019 as he had been
receiving schedule award compensation on a weekly basis for a finding of nine percent right upper
extremity permanent impairment for a prior schedule award.

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LEGAL PRECEDENT
The schedule award provisions of FECA5 and its implementing federal regulations6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. FECA
however does not specify the manner in which the percentage of loss of a member shall be
determined. OWCP evaluates the degree of permanent impairment according to the standards set
forth in the specified edition of the A.M.A., Guides, published in 2009.7 The Board has approved
OWCP’s use of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.8
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole.9 Furthermore, the
back is specifically excluded from the definition of organ under FECA.10 The sixth edition of the
A.M.A., Guides does not provide a separate mechanism for rating spinal nerve injuries as
impairments of the extremities. Recognizing that FECA allows ratings for extremities and
precludes ratings for the spine, The Guides Newsletter offers an approach to rate spinal nerve
impairments consistent with sixth edition methodology. For peripheral nerve impairments to the
upper or lower extremities resulting from spinal injuries, OWCP procedures indicate that The
Guides Newsletter is to be applied.11 The Board has recognized the adoption of this methodology
for rating extremity impairment, including the use of The Guides Newsletter, as proper in order to
provide a uniform standard applicable to each claimant for a schedule award for extremity
impairment originating in the spine.12
ANALYSIS
The Board finds that this is case is not in posture for decision.
OWCP prepared a SOAF on April 3, 2018 which only noted appellant’s accepted lumbar
condition as lumbar sprain. In a May 8, 2018 report, OWCP’s second opinion examiner,
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also id. at Chapter 3.700.2 and Exhibit 1 (January 2010).
8

See M.G., Docket No. 19-1627 (issued April 17, 2020).

9
5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see B.W., Docket No. 18-1415 (issued March 8, 2019); J.M.,
Docket No. 18-0856 (issued November 27, 2018); N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).
10

See id. at § 8101(19); T.M., Docket No. 19-1126 (issued September 22, 2020); Francesco C. Veneziani, 48 ECAB
572 (1997).
11

Supra note 7 at Chapter 3.700

12

A.H., Docket No. 19-1788 (issued March 17, 2020).

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Dr. Fernandes, provided an impairment rating for appellant’s left lower extremity. Upon
reviewing Dr. Fernandes’ report, the DMA, Dr. Katz, indicated that another second opinion
evaluation was needed to resolve contradictions between findings made by Dr. Fernandes and
previous medical evidence of record.
In an August 5, 2019 report, Dr. Chen, acting as OWCP’s second opinion physician,
provided a permanent impairment rating for appellant’s left lower extremity in which he explained
that it was unclear as to whether appellant’s lumbar radiculopathy was an accepted condition. He
therefore offered alternative left lower extremity permanent impairment ratings of 3 and 13
percent. OWCP thereafter prepared a new SOAF, noting that lumbar radiculopathy was an
accepted condition and on October 15, 2019 OWCP requested clarification from Dr. Chen
regarding appellant’s left lower extremity permanent impairment. In an October 24, 2019
supplemental report, Dr. Chen reiterated that appellant sustained three percent total left lower
extremity impairment, but without noting the new SOAF and without providing further medical
rationale explaining why appellant’s accepted lumbar radiculopathy resulted in the lower rating.
OWCP procedures provide that, when OWCP undertakes to develop the evidence by
referring the case to an office-selected physician, it has an obligation to seek clarification from its
physician upon receiving a report that did not adequately address the issues that OWCP sought to
develop. As such, the claims examiner should seek clarification from the referral physician and
request a supplemental report to clarify specifically-noted discrepancies or inadequacies in the
initial second opinion report. If the second opinion physician does not respond, or does not provide
a sufficient response after being asked, the claims examiner should request scheduling with another
second opinion physician.13
The Board finds that in this case OWCP did prepare a new SOAF and asked that Dr. Chen
clarify his prior reports. However, Dr. Chen reissued his finding of three percent permanent
impairment of the left lower extremity without apparent review of the new SOAF and without
rationale.14 As Dr. Chen’s response was insufficiently rationalized, OWCP should have referred
appellant for another second opinion evaluation.
On remand OWCP shall refer appellant and the October 2, 2019 SOAF to another second
opinion physician to determine appellant’s permanent impairment of his left lower extremity.
Following this and any such further development as may be deemed necessary, OWCP shall issue
a de novo decision.
CONCLUSION
The Board finds that this is case is not in posture for decision.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.810.9(b)(6)j (June 2015).
14

See J.D., Docket No. 19-0527 (issued September 5 2019).

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ORDER
IT IS HEREBY ORDERED THAT the December 12, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: December 14, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Miami, FL, Employer
__________________________________________

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

Docket No. 12-988
Issued: February 22, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 4, 2012 appellant, through his attorney, filed a timely appeal from a January 4,
2012 decision of the Office of Workers’ Compensation Programs (OWCP) which affirmed a
June 9, 2011 decision denying an additional schedule award. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has more than five percent impairment of the right and left
arms and two percent impairment of the left leg for which he received a schedule award.
FACTUAL HISTORY
This case has previously been before the Board. In an October 29, 2004 order, the Board
remanded appellant’s case to OWCP to combine file number xxxxxx924 and file number
1

5 U.S.C. §§ 8101-8193.

xxxxxx539 pertaining to his request for a schedule award.2 In a September 16, 2005 decision,3
the Board affirmed OWCP’s decision dated December 6, 2004 which found that appellant had a
five percent impairment of the right arm.4 Appellant appealed his claim to the Board and the
Board issued a February 27, 2008 order noting OWCP failed to consolidated file number
xxxxxx924 and file number xxxxxx539 and issue a schedule award determination for the upper
and lower extremities. The Board remanded the matter and instructed OWCP to combine the
files and issue a merit decision on appellant’s request for a schedule award. The facts and
circumstances of the case as set forth in the Board’s prior decisions are incorporated herein by
reference.
OWCP referred appellant to a second opinion physician for a determination as to his
impairment to the upper and lower extremities. In an April 8, 2008 report, Dr. William
Dinenberg, a Board-certified orthopedic surgeon, diagnosed bilateral carpal tunnel syndrome and
cervical, thoracic and lumbar spine sprain. Dr. Dinenberg opined that, under the fifth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides), appellant had 21 percent impairment of the right and left arms and 2 percent impairment
of the right and left legs. In a May 28, 2008 report, OWCP’s medical adviser reviewed the
medical evidence and Dr. Dinenberg’s April 8, 2008 report and opined that appellant had five
percent impairment of the right and left upper extremity due to bilateral carpal tunnel syndrome
release surgery.
In a June 17, 2008 decision, OWCP granted appellant a schedule award for five percent
impairment of the left arm. Appellant requested an oral hearing and submitted additional
medical evidence. In a decision dated October 21, 2008, OWCP’s hearing representative set
aside the June 17, 2008 decision and remanded the matter for further medical development. The
hearing representative determined that OWCP failed to issue a schedule award decision
addressing the upper and lower extremity impairment. In a report dated December 12, 2008,
OWCP’s medical adviser opined that appellant sustained five percent impairment to the right and
left arms and no impairment of the legs.
In a decision dated February 13, 2009, OWCP found that appellant had no impairment of
the legs and five percent impairment to each arm for which he was previously granted schedule
awards. Appellant requested an oral hearing. In a May 1, 2009 decision, OWCP’s hearing
representative set aside the February 13, 2009 decision and remanded the matter for further
medical development. The hearing representative instructed OWCP to refer appellant for a

2

Docket No. 04-1346 (issued October 29, 2004).

3

Docket No. 05-1184 (issued September 16, 2005).

4

OWCP accepted appellant’s 1998 occupational disease claim for bilateral carpal tunnel syndrome and
authorized surgical releases which were performed on June 21 and October 5, 1999. File number xxxxxx539.
Appellant filed a separate claim for a February 28, 1996 traumatic injury which was accepted for sprain of the
cervical, thoracic and lumbar spine, file number xxxxxx924. In a February 27, 2008 order, the Board found that
OWCP failed to consolidated file number xxxxxx924 and file number xxxxxx539 and issue a schedule award
determination for the upper and lower extremities. The Board instructed it to combine the files and issue a merit
decision on appellant’s request for a schedule award. Docket No. 07-1889 (issued February 27, 2008).

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second opinion to determine if he developed radiculopathy as a result of his work duties and to
provide an impairment rating for impairment due to accepted work-related conditions.
OWCP referred appellant to Dr. Daryl Miller, a Board-certified orthopedic surgeon. On
June 25, 2009 Dr. Miller noted findings and opined that, under the sixth edition of the A.M.A.,
Guides,5 appellant had sensory deficit of uncertain etiology bilaterally at C5-6 for 7 percent
impairment of the right and left arms, 15 percent impairment bilaterally for motor impairment for
the right and left arms due to C5-6 deficit6 and 1 percent impairment for loss of function due to
L5-S1 deficit on the left side.7 On August 27, 2009 OWCP’s medical adviser opined that
appellant had five percent impairment of the right and left upper extremity due to bilateral carpal
tunnel syndrome release surgery. However, he indicated that Dr. Miller incorrectly found
impairment for C5-6 and L5-S1 conditions that were not accepted conditions. The medical
adviser opined that appellant no additional permanent impairment. OWCP requested Dr. Miller
to provide a supplemental report addressing whether the 1996 injury aggravated the accepted
cervical, thoracic and lumbar strains and whether appellant had residuals of the accepted
condition. In response, Dr. Miller opined that he was unable to determine if appellant had
residuals attributable to the work injury.
OWCP determined that another opinion was necessary as Dr. Miller did not properly
resolve the issue before him. On December 15, 2009 it referred appellant to Dr. Robin Simon, a
Board-certified orthopedic surgeon, to determine if appellant sustained permanent impairment as
a result of the accepted work-related injuries. In a December 30, 2009 report, Dr. Simon opined
that appellant sustained an aggravation of the preexisting cervical and lumbar conditions and
continued to have residuals of his bilateral carpal tunnel syndrome. She noted that he sustained a
sensory deficit with seven percent impairment for the arms from carpal tunnel syndrome
pursuant to Table 15-4 and Table 15-2 page 425 of the A.M.A., Guides. Dr. Simon further noted
that appellant had 15 percent impairment to the lower extremities pursuant to Table 16-2, page
534 of the A.M.A., Guides for L5-S1 deficit in the left lower extremity.
On February 12, 2010 OWCP’s medical adviser reviewed Dr. Simon’s report and noted
appellant’s conditions. He opined that Dr. Simon determined that appellant had 7 percent
impairment of the upper extremity and 15 percent impairment for the lower extremities using the
peripheral nerve impairment grids which was incorrect. The medical adviser utilized Table 1523, Entrapment/Compression Neuropathy Impairment, page 449 of the A.M.A., Guides. He
found the grade modifiers for Physical Examination (GMPE), Clinical Studies (GMCS) and
Functional History (GMFH) totaled 4. The grades were averaged at 1.33 and rounded down to 1;
therefore, appellant fell under grade modifier 1 with a default rating value of two percent for
each arm. The medical adviser noted that the upper and lower extremity nerve root impairment
was based on The Guides Newsletter, July to August 2009, Proposed Table 1 Spinal Nerve
Impairment: Upper Extremity Impairments. He noted sensory deficit for bilateral C5 and C6
nerve root was mild, with a default value of one percent for C5 and C6, for two percent
5

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

6

Id. at 564, Table 17-2.

7

Id. at 571, Table 17-4.

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impairment of the right and left upper extremity. The medical adviser referenced Proposed
Table 2 Spinal Nerve Impairment: Lower Extremity Impairment. With regards to the left L5
nerve root sensory deficit yielded two percent impairment of the left leg. The medical adviser
noted that appellant previously received a schedule award for five percent of each arm for the
same problems and was not entitled to an additional award for the upper extremities. He
indicated that appellant had two percent impairment to the left leg.
In a decision dated March 5, 2010, OWCP granted appellant a schedule award for two
percent impairment of the left leg. Appellant requested an oral hearing. In a December 13, 2010
decision, OWCP’s hearing representative vacated the March 5, 2010 decision. The hearing
representative found that there was a medical conflict between the medical adviser, who opined
that appellant had four percent impairment to the upper extremities due to bilateral carpal tunnel
syndrome and OWCP’s referral physician, Dr. Simon, who opined that appellant had seven
percent impairment to the upper extremities due to carpal tunnel syndrome. The hearing
representative instructed OWCP to refer appellant to a specialist to address appellant’s
permanent impairment.
On February 16, 2011 OWCP referred appellant to Dr. Brad Cohen, a Board-certified
orthopedic surgeon, for a second opinion, to determine appellant’s permanent impairment. In a
March 2, 2011 report, Dr. Cohen indicated that he reviewed the records provided and examined
appellant. He diagnosed bilateral carpal tunnel syndrome status post carpal tunnel release,
cervical, thoracic and lumbar strain, aggravation of degeneration of cervical degenerative disc
disease at L4-5, C5-6 and C6-7, aggravation of multilevel lumbar degenerative disc disease
including L5-S1. Dr. Cohen noted appellant’s bilateral carpal tunnel syndrome was confirmed
electrodiagnostically on January 2, 1999 and that he had releases on each wrist from which he
had reached maximum medical improvement. He noted that, pursuant to Table 15-23,
Entrapment/Compression Neuropathy Impairment, clinical studies were a grade modifier 2 for
electromyography (EMG) findings, functional history was a grade modifier 2 for significant
intermittent symptoms, physical examination was a grade modifier 2 for the left arm for
decreased sensation and a grade modifier 3 for the right arm with mild right thenar atrophy.
Dr. Cohen noted that the grade modifiers were six on the left and seven on the right and when
averaged and rounded to the nearest integer equaled two. He noted that grade modifier 2 had a
default value of five percent right and left upper extremity impairment. For cervical spine
impairment, Dr. Cohen referenced Table 17-2, Cervical Spine Regional Grid and noted grade
modifiers 3 for functional history, grade modifiers 0 for physical examination and grade
modifiers 0 for clinical studies. He noted net adjustment was -1, for a class 1, grade B for one
percent whole person impairment for the cervical spine. For the thoracic spine, Dr. Cohen
referenced Table 17-3, Thoracic Spine Regional Grid, Spine Impairments and noted that
appellant was a class zero for a zero whole person impairment for the thoracic spine. For the
lumbar spine, he referenced Table 17-4, Lumbar Spine Regional Grid: Spine Impairments and
noted grade modifiers 2 for functional history, grade modifiers 0 for physical examination and
grade modifiers 0 for clinical studies. Net adjustment formula was -1 for a class 1, grade B for
one percent whole person impairment for the lumbar spine. Dr. Cohen opined that appellant had
eight percent whole person impairment pursuant to the A.M.A., Guides.
In an April 26, 2011 report, OWCP’s medical adviser reviewed Dr. Cohen’s report. He
utilized Table 15-23, Entrapment/Compression Neuropathy Impairment, page 449 of the A.M.A.,

4

Guides. The medical adviser found that appellant had a grade modifier 1 for functional history,
grade modifier 2 for physical examination and grade modifier (motor conduction studies) for
clinical studies. The grades were averaged at 1.6, which he rounded down to 1, noting appellant
fell under grade modifier 1 with a default rating value of two percent for each arm. The medical
adviser noted no change in the net adjustment formula for a final impairment of two percent for
the right and left arms for bilateral carpal tunnel syndrome. For cervical radiculopathy, he noted
that OWCP recognized extremity impairment resulting from spinal nerve root deficit based on
The Guides Newsletter, July to August 2009. The medical adviser used Proposed Table 1, Spinal
Nerve Impairment: Upper Extremity Impairments. In rating the C6 injury, appellant had a class
1, default value C, mild sensory impairment for two percent impairment of the right arm
(functional history grade modifier was one and clinical studies grade modifier was one for net
adjustment of zero). For the left arm, he was a class 1, default value C, mild sensory impairment
for two percent impairment (functional history grade modifier was one and clinical studies grade
modifier was one for net adjustment of zero). The medical adviser noted a final rating for C6
sensory deficit of two percent impairment for the right and left upper extremities. He combined
the impairment due to bilateral carpal tunnel syndrome with impairment due to cervical
radiculopathy for four percent impairment of the right and left arms. Regarding impairment for
the left L4 nerve root, Dr. Cohen noted mild decreased sensation at the first webspace of the left
foot, mild antalgic gait with normal motor function. The medical adviser referenced The Guides
Newsletter, July to August 2009 and utilized Table 2, Spinal Nerve Impairment, Lower
Extremity Impairment. In rating the L4 injury, appellant was a class 1, mild sensory deficit of
one percent of the left lower extremity (functional history grade modifier was one and clinical
studies grade modifier was one for net adjustment of zero). The medical adviser noted a final
impairment of one percent for the left leg for L4 injury and zero for the right leg.
In a June 9, 2011 decision, OWCP denied appellant’s claim for an additional schedule
award. It noted that OWCP’s medical adviser calculated a four percent impairment of the right
and left arms, one percent impairment of the left leg and no impairment of the right leg. Because
appellant was previously granted five percent impairment of the right and left arms and two
percent for the left leg, he was not entitled to an additional schedule award.
Counsel requested a hearing which was held on October 13, 2011. Appellant indicated
that, in the December 13, 2010 decision, OWCP’s hearing representative found that there was a
conflict between OWCP’s medical adviser and OWCP’s referral physician, Dr. Simon, regarding
permanent impairment. He asserted that OWCP failed to refer him to a referee physician but
instead improperly referred him to Dr. Cohen for a second opinion.
In a decision dated January 4, 2012, OWCP’s hearing representative affirmed the June 9,
2011 decision. The hearing representative found that there was no medical conflict between
OWCP’s medical adviser and Dr. Simon, OWCP’s referral physician, meriting referral of
appellant to an impartial medical specialist. The hearing representative determined that the
weight of the medical evidence, as constituted by the medical adviser on April 26, 2011, failed to
support that appellant had greater impairment of the upper or lower extremities previously
granted by OWCP.

5

LEGAL PRECEDENT
Section 8107 of FECA8 and its implementing federal regulations9 set forth the number of
weeks of compensation payable to employees sustaining permanent impairment from loss or loss
of use, of scheduled members or functions of the body. However, FECA does not specify the
manner in which the percentage of loss shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, OWCP has adopted the A.M.A., Guides as the
uniform standard applicable to all claimants.10 For decisions issued beginning May 1, 2009, the
sixth edition of the A.M.A., Guides will be used.11
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.12 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.13
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
alternative approach to rating spinal nerve impairments.14 OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures which memorializes proposed tables outlined in the July to
August 2009 The Guides Newsletter.15
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on GMFH, GMPE and GMCS.16 The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).17
8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id. at § 10.404(a).

11

FECA Bulletin No. 09-03 (issued March 15, 2009).

12

Pamela J. Darling, 49 ECAB 286 (1998).

13

Thomas J. Engelhart, 50 ECAB 319 (1999).

14

Rozella L. Skinner, 37 ECAB 398 (1986).

15

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
16

P.M., Docket No. 12-472 (issued December 27, 2012).

17

A.M.A., Guides 411, 521.

6

ANALYSIS
Appellant’s claim was accepted by OWCP for bilateral carpal tunnel syndrome and
authorized surgical releases which were performed on June 21 and October 5, 1999, in file
number xxxxxx539. He also had a traumatic injury which occurred on February 28, 1996 which
was accepted for sprain of the cervical, thoracic and lumbar spine, file number xxxxxx924.
Appellant filed claims for schedule awards and was previously awarded schedule awards totaling
five percent impairment of each arm and two percent impairment of the left leg. The Board finds
that the current medical evidence of record establishes six percent impairment to his left and
right arms and one percent impairment to the left leg.
To further develop appellant’s claim, OWCP referred appellant to Dr. Cohen for a second
opinion regarding permanent impairment. In a March 2, 2011 report, Dr. Cohen, in calculating
impairment for appellant’s bilateral carpal tunnel syndrome, referenced Table 15-23,
Entrapment/Compression Neuropathy Impairment, page 449 of the A.M.A., Guides. He noted
clinical studies were a grade modifier 2, functional history was a grade modifier 2, physical
examination was a grade modifier 2 for the left arm, for decreased sensation, but grade modifier
3 for the right arm for mild right thenar atrophy. Dr. Cohen noted that the grade modifiers
totaled 6 on the left and 7 on the right and averaged 2 on the left and 2.33 on the right. He
rounded both averages to the nearest integer, two. Dr. Cohen properly noted the grade modifier
2 had a default value of five percent for the right and left upper extremity impairment.
OWCP’s medical adviser applied the A.M.A., Guides to the information provided in
Dr. Cohen’s report and noted pursuant to Table 15-23, Entrapment/Compression Neuropathy
Impairment, of the A.M.A., Guides appellant had grade modifier 1 for functional history, grade
modifier 2 for physical examination and grade modifier (motor conduction studies) 2 for clinical
studies. The grades were averaged at 1.6; however, he improperly rounded the average down to
1, contrary to page 448, rating process of the A.M.A., Guides, which provides that after
determining the average value for the modifiers “Round that average value to the nearest integer
to determine the average grade.” In this instance, the nearest integer to the average value for the
modifier of 1.6 is 2. The grade modifier 2 has a default value of five percent impairment and
therefore appellant has five percent impairment of each arm due to carpal tunnel syndrome.
For the spine, Dr. Cohen referenced Table 17-2, Cervical Spine Regional Grid, 17-3,
Thoracic Spine Grid and 17-4 Lumbar Spine Regional Grid and determined whole person
impairment. However, whole person impairment is not permitted under FECA.18 Also, as noted,
spinal nerve extremity impairments are to be rated as provided in Exhibit 4 of section 3.700 of
OWCP’s procedures. This identifies The Guides Newsletter, July to August 2009 which is to be
used in rating extremity impairments caused by spinal nerve injury.19 Thus, the medical adviser
properly found that Dr. Cohen improperly used tables in Chapter 17 to determine impairment. In
rating the C6 injury, he utilized Proposed Table 1, Spinal Nerve Impairment: Upper Extremity
18

See N.D., 59 ECAB 344 (2008) (FECA does not authorize schedule awards for permanent impairment of the
whole person or the spine).
19

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).

7

Impairments. The medical adviser opined that appellant was a class 1, mild sensory impairment
with a default value of C for both the right and left upper extremities which equates to two
percent impairment. However, he incorrectly noted that class 1, default value C, mild sensory
impairment was two percent impairment. Instead, the A.M.A., Guides Proposed Table 1, Spinal
Nerve Impairment: Upper Extremity Impairments, for a class 1, default value C, mild sensory
impairment provides for a one percent impairment rating. Therefore, the final rating for C6
sensory deficit one percent impairment for the right and left arms. The combined impairment
due to bilateral carpal tunnel syndrome and due to cervical radiculopathy yields six percent
impairment of the right and left arms.
With regards to impairment for the left L4 nerve root, Dr. Cohen noted mild decreased
sensation at the first webspace of the left foot, mild antalgic gait with normal motor function.
OWCP’s medical adviser referenced The Guides Newsletter, and utilized Table 2, Spinal Nerve
Impairment, Lower Extremity Impairment. In rating the L4 injury, appellant was a class 1, mild
sensory deficit, for one percent impairment of the left leg. The medical adviser noted a final
impairment of one percent for the left lower extremity for L4 injury. He also found that there
was no ratable impairment of the right lower extremity.
The Board finds that appellant has a total of six percent impairment to the right and left
arms and one percent impairment to the left leg in accordance with the A.M.A., Guides. There is
no current medical evidence in conformance with the A.M.A., Guides showing a greater
impairment.20 Since appellant was previously granted five percent impairment of the right and
left arms and two percent impairment to the left lower extremity he is only entitled to an
additional one percent impairment to the right arm and also for the left arm.
On appeal, appellant argues that there exists an unresolved conflict in opinion between
OWCP referral physician, Dr. Simon, and OWCP’s medical adviser with regards to whether
appellant sustained permanent impairment to the upper and lower extremities and that the matter
should have been sent to a referee physician. However, the Board finds this argument to be
without merit. Although the hearing representative incorrectly characterized the difference
between the district medical adviser and the most recent referral physician, Dr. Simon, section
8123(a) of FECA provides that when there is a disagreement between the physician making the
examination for the United States and the physician of the employee, a third physician shall be
appointed to make an examination to resolve the conflict.21 A conflict under 5 U.S.C. § 8123
cannot exist unless there is a conflict between an attending physician and an OWCP physician.
Here, Dr. Simon, an OWCP referral physician, and OWCP’s medical were both physicians of
OWCP and are insufficient to create a conflict under 5 U.S.C. § 8123.22

20

See Bobby L. Jackson, 40 ECAB 593, 601 (1989).

21

Robert W. Blaine, 42 ECAB 474 (1991); 5 U.S.C. § 8123(a).

22

See Delphia Y. Jackson, 55 ECAB 373, 376-77 (2004). While the hearing representative, on December 16,
2010, improperly found a medical conflict, the record indicates that OWCP’s subsequent referral of appellant to
Dr. Cohen was for purposes of a second opinion examination.

8

Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant is entitled to schedule award compensation for an
additional one percent impairment to each of the right and left upper extremities. Appellant has
no impairment of the right leg and no additional impairment of the left leg.
ORDER
IT IS HEREBY ORDERED THAT the January 4, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: February 22, 2013
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF AGRICULTURE,
SOIL CONSERVATION SERVICE,
Stillwater, OK, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-1654
Issued: June 28, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On July 7, 2011 appellant filed a timely appeal from an April 6, 2011 decision by the
Office of Workers’ Compensation Programs (OWCP) denying his claim for bilateral
degenerative hip disease. The Board assigned Docket No. 11-1654 to this appeal.1

1

On June 8, 1987 appellant, then a 27-year-old surveying technician, filed a notice of traumatic injury and claim
for compensation alleging that on that date he injured his lower back at work. OWCP accepted the claim for sprain
of the back, lumbar region; degeneration of lumbar or lumbosacral-intervertebral disc; and long-term use of other
medications. (SOAF, RD 01/28/11) OWCP paid compensation and medical benefits. In a decision dated
September 26, 1991, OWCP granted appellant a schedule award for a 12 percent permanent loss of use of each leg.
In a December 11, 1991 decision, OWCP denied appellant’s request for surgery to correct a hip condition, as it
found that appellant’s avascular necrosis was not causally related to his June 8, 1987 employment injury. By
decision dated November 25, 1992, the Board affirmed OWCP’s decisions dated September 26 and
December 11, 1991. Docket No. 92-848 (issued November 25, 1992).

The Board, having duly considered the matter, notes that appellant claims that his
bilateral hip disease is the result or a consequence of his June 8, 1987 employment injury.2 The
medical evidence of record includes an April 15, 2010 report, wherein Dr. Michael Hebrard, a
Board-certified physiatrist, opined that appellant’s ongoing problems in his lumbosacral spine
are industrially related. Dr. Hebrard also was of the opinion that, based upon evaluation of
appellant, the history provided by him and review of his medical records, that appellant’s hip
problems are industrially related. He added that the issues of appellant’s hips were accelerated
by the altered gait from his multiple failed back surgery syndromes which put more flexion on
the hip region and subsequently accelerated the degenerative changes of his hips.
By decision dated April 6, 2011, OWCP denied appellant’s claim to add bilateral
degenerative hip disease to his list of accepted conditions.
In denying appellant’s claim for a consequential injury, OWCP discussed the many
reports appellant submitted in support of his claim, as well as the review of its medical advisers
who opined that the bilateral hip disease was not related to appellant’s employment injuries.
However, the Board notes that OWCP also did not discuss the report of Dr. Hebrard which is
relevant to the issue of whether appellant’s claimed bilateral hip disease is causally related to the
June 8, 1987 employment injury.
As the Board’s decisions are final with regard to the subject matter appealed, it is crucial
that OWCP address all relevant evidence received prior to the issuance of its final decision.3 As
OWCP failed to address the report of Dr. Hebrard, the case is remanded for a proper review of
the evidence and issuance of an appropriate de novo final decision.4

2

The basic rule respecting consequential injuries is that when the primary injury is shown to have arisen out of
and in the course of employment, every natural consequence that flows from the injury likewise arises out of the
employment, unless it is the result of an independent intervening cause. K.R., Docket No. 11-391 (issued
December 21, 2011). An employee who asserts that a nonemployment-related injury was a consequence of a
previous employment-related injury has the burden of proof to establish that such was the fact. See Kathy A. Kelley,
55 ECAB 206 (2004); Carlos A. Marerro, 50 ECAB 170 (1998).
3

See William A. Couch, 41 ECAB 548, 553 (1990); see also 20 C.F.R. § 501.6(d);

4

R.I., Docket No. 11-1086 (issued November 25, 2011).

2

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 6, 2011 is set aside and the case remanded for further action
consistent with this order remanding case.
Issued: June 28, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Concord, NC, Employer
__________________________________________

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Appearances:
Erik B. Blowers, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1300
Issued: March 22, 2019

Case Submitted on the Record

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

JURISDICTION
On June 19, 2018 appellant, through counsel, filed a timely appeal from a May 8, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective December 1, 2017; (2) whether appellant
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.

has met her burden of proof to establish continuing disability or residuals on or after December 1,
2017 causally related to her December 6, 2012 employment injury; and (3) whether appellant has
established that the acceptance of her claim should be expanded to include additional conditions
as a result of her accepted employment injury.
FACTUAL HISTORY
On December 6, 2012 appellant, then a 37-year-old sales distribution clerk, filed a
traumatic injury claim (Form CA-1) alleging that, on that date, she injured her right shoulder when
she lifted a package out of a cage while in the performance of duty. She did not immediately stop
work following the injury. On December 27, 2013 OWCP accepted the claim for right shoulder
strain.
A July 14, 2013 magnetic resonance imaging (MRI) scan found mild degenerative
acromioclavicular (AC) joint changes, but no impingement. Diagnoses included mild subdeltoid
bursitis and mild AC joint degenerative changes.
On July 30, 2014 appellant underwent an OWCP-authorized right shoulder arthroscopic
rotator cuff repair, performed by Dr. Bryan T. Edwards, a Board-certified orthopedic surgeon and
sports medicine physician. By letter dated September 10, 2014, OWCP paid appellant
compensation on the periodic rolls for temporary total disability, with the first payment covering
the period July 31 to August 23, 2014.
On February 25, 2015 appellant underwent a second OWCP-authorized right shoulder
arthroscopic rotator cuff repair, also performed by Dr. Edwards.
On May 18, 2015 OWCP referred appellant for a second opinion evaluation with
Dr. Harrison A. Latimer, a Board-certified orthopedic surgeon, for an opinion regarding the status
of the accepted condition, appropriate treatment, and extent of disability. Dr. Latimer, in a
June 17, 2015 report, performed a physical examination and reviewed the statement of accepted
facts (SOAF) and medical records. Appellant’s physical examination revealed full right shoulder
range of motion and no significant muscle weakness. Based on review of objective findings,
Dr. Latimer found that the accepted right shoulder “sprain” had resolved. He determined that
appellant’s subjective complaints clearly outweighed the objective findings. Dr. Latimer
attributed her continued pain complaints to upper extremity neuritis and opined that she was unable
to perform her date-of-injury job. He recommended that a functional capacity evaluation (FCE),
nerve conduction velocity study, and electromyography be performed.
In a July 15, 2015 report, Dr. Edwards noted appellant’s medical history, which included
two shoulder surgeries due to her rotator cuff injury. He reported that her first shoulder surgery
involved decompression shoulder surgery due to repetitive overuse of her shoulder. As a result of
rehabilitation following the surgery, appellant developed a tear, which resulted in rotator cuff tear
repair surgery. Diagnoses included bilateral upper extremity weakness and cervical radiculopathy,
which he attributed to her employment duties. Dr. Edwards further observed that these conditions
were not preexisting, but were instead a direct result of her repetitive overuse at work. He
concluded that appellant was currently limited by cervical conditions and that she had progressed
as far as possible with respect to her rotator cuff condition.

2

Dr. Edwards, in an October 14, 2015 report, noted that he had treated appellant for a
December 6, 2012 right shoulder employment injury. He summarized her history of injury and
medical treatment provided, including surgeries performed on July 30, 2014 and
February 25, 2015. Dr. Edwards reported that appellant had complained of neck and arm pain, but
the focus at the time had been more on her shoulder issues. As her shoulder condition improved,
he noted that her underlying cervical condition became the focus of her issues. Dr. Edwards opined
that appellant also sustained a neck injury due to the accepted December 6, 2012 employment
injury and that she was currently dealing with the ramifications of that injury.
On June 17, 2016 OWCP received an addendum from Dr. Latimer clarifying his prior
opinion. Dr. Latimer opined that appellant required no further treatment for her shoulder problem,
but required treatment for carpal tunnel syndrome.
By decision dated March 14, 2017, OWCP denied expansion of the acceptance of
appellant’s claim to include a cervical condition, finding that the evidence of record was
insufficient to establish causal relationship between the cervical condition and the accepted
December 6, 2012 employment injury.
Dr. Edwards, in a July 17, 2017 report, related that since the 2012 employment injury
appellant had neck, arm, and shoulder pain. Appellant’s physical examination revealed mildly
painful shoulder forward flexion, full right shoulder internal and external rotation, right-side C5
dermatome sensory loss, and 2+ triceps, biceps, and brachioradialis reflexes. She complained of
headaches when putting her head into deep flexion and extension. Dr. Edwards diagnosed healed
right shoulder rotator cuff repair, cervical neuralgia due to multilevel cervical fusion, right arm
weakness, and headaches. He opined that appellant’s rotator cuff injury had resolved and that her
current limitations were neurologically caused.
In a July 27, 2017 report, Dr. Edwards summarized appellant’s medical history, noted her
pain complaints, and provided physical examination findings. Under assessment, he diagnosed
cervical neuralgia due to multilevel cervical fusion and healed right shoulder cuff repair.
Dr. Edwards opined that appellant was capable of working with restrictions of no lifting more than
five pounds with her right arm.
In a letter dated August 24, 2017, OWCP referred appellant, a SOAF, and list of questions,
for a second opinion evaluation with Dr. Joseph Estwanik, a Board-certified orthopedic surgeon,
to determine the status of appellant’s accepted condition and disability. The questions included:
(1) whether the accepted condition of right shoulder sprain had resolved; (2) whether there are any
residual conditions causally related to the December 6, 2012 employment injury; (3) whether the
diagnosed conditions are medically connected to the accepted factors of employment; (4) whether
appellant is able to return to her date-of-injury position as a sales and distribution associate; and
(5) if she is not able to return to her date-of-injury job, is she able to work in a limited capacity.
In a September 13, 2017 report, Dr. Estwanik noted appellant’s December 6, 2012
employment injury, reviewed the medical record, and provided detailed physical examination
findings. He noted that appellant reported an unstable right shoulder in addition to cervical, left
shoulder, right hand, and upper back pain complaints. Appellant also reported an inability to sleep
on her side, wash her back, put her coat on, reach a high shelf, throw a ball, or lift 10 pounds above

3

her shoulder. Dr. Estwanik also noted that the June 7, 2015 emergency room records indicated
that appellant had been diagnosed with pneumothorax and rib fractures after a recent fall at home.
He noted that the accepted employment-related condition was right shoulder strain. Physical
examination findings included no audible or palpable right shoulder crepitance with active
movement, full bilateral internal and external passive rotation, negative forward flexion, and
negative abduction impingement testing. Dr. Estwanik opined that the accepted condition of right
shoulder sprain had resolved. He pointed out that a January 14, 2013 MRI scan confirmed no
rotator cuff abnormality or relationship to the December 6, 2012 employment injury. The only
diagnosis made on the MRI scan was mild bursitis and preexisting mild AC joint inflammation.
Furthermore, the operative note 19 months after the employment injury confirmed an intact rotator
cuff with no tear observed. The first evidence of a small right rotator cuff tear was two years after
the date of injury, which Dr. Estwanik opined was “remote to her mechanism of injury and is
remote to the objective first MRI scan that demonstrated an intact rotator cuff.”
In response to a specific question as to whether appellant had residual conditions causally
related to the December 6, 2012 employment injury, he responded that she had an excellent
recovery and no residual conditions due to the December 6, 2012 employment injury.
Dr. Estwanik also explained that her current cervical complaints were unrelated to the accepted
right shoulder sprain. He opined that appellant was able to return to her regular job as it related to
the resolved accepted employment injury. Dr. Estwanik concluded that she required treatment for
her preexisting depression, which was unrelated to her accepted employment injury. He further
opined that “the remote surgeries were not related to or attributable to the accepted facts of
shoulder strain by the anatomic findings produced on [the] initial MRI [scan] and the initial
arthroscopic procedure.”
In a letter dated September 29, 2017, OWCP proposed to terminate appellant’s wage-loss
compensation and medical benefits based on Dr. Estwanik’s September 13, 2017 report. It
informed her that Dr. Estwanik found that she no longer had residuals or disability causally related
to the December 6, 2012 employment injury as her accepted condition of “sprain of shoulder and
upper arm, other specified sites, right” had resolved. OWCP afforded appellant 30 days to respond
if she disagreed with the proposed termination.
On October 20, 2017 counsel requested that the acceptance of appellant’s claim be
expanded to include the additional condition of rotator cuff tear, for which OWCP had previously
authorized surgery.
In a letter dated October 26, 2017, counsel disagreed with the proposal to terminate
appellant’s wage-loss compensation and medical benefits. He asserted that she had developed a
consequential rotator cuff injury as the result of the first authorized arthroscopic surgery. Counsel
further asserted that, prior to terminating appellant’s compensation, OWCP should develop the
issue of whether she developed depression as a consequence of her accepted December 6, 2012
employment injury.
Counsel submitted an October 25, 2015 report by Dr. Edwards attributing the right rotator
cuff tear to the physical therapy appellant received following her July 30, 2014 right shoulder
surgery.

4

By decision dated December 4, 2017, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective that same date, finding that the weight of the
evidence rested with Dr. Estwanik who found that appellant no longer had residuals or disability
causally related to the accepted employment injury.
On December 11, 2017 counsel again wrote to OWCP and noted that it had not responded
to his previous requests to expand acceptance of appellant’s claim to include the right rotator cuff
tear for which she had undergone authorized surgery. He also requested that acceptance of
appellant’s claim be expanded to include depression, as diagnosed by Dr. Estwanik.
On March 6, 2018 appellant, through counsel, requested reconsideration. Counsel asserted
that OWCP’s decision to terminate wage-loss compensation and medical benefits was premature
as it had failed to consider the request to expand acceptance of her claim to include additional
consequential conditions. He noted that he had requested that OWCP expand her claim several
times as well as having submitted additional evidence supporting the expansion of her claim. In
support of the reconsideration request, counsel submitted letters that he had written concerning the
request to expand appellant’s claim.
By decision dated May 8, 2018, OWCP noted that counsel had, on several occasions,
requested that the acceptance of appellant’s claim be expanded to include the condition of rotator
cuff tear, for which surgery had been authorized. However, it denied modification of the
December 4, 2017 termination decision, finding that the letters counsel submitted were irrelevant
as the underlying issue was medical in nature.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits.3 After it has determined that an employee
has disability causally related to his or her federal employment, it may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the employment.4
OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.6 To terminate authorization for medical treatment, OWCP must

3
R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
4

D.M., Docket No. 17-1992 (issued September 12, 2018); I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB
734 (2003).
5

R.P., supra note 3; J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

6

D.M., supra note 4; T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

5

establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective December 1, 2017.
On August 24, 2017 OWCP referred appellant for a second opinion evaluation with
Dr. Estwanik to determine whether she had ongoing residuals or disability and the status of her
accepted condition. It noted that it provided Dr. Estwanik with a SOAF, the medical record, and
a list of questions. In a report dated September 13, 2017, Dr. Estwanik opined that appellant’s
right shoulder sprain had resolved.
The Board notes that the list of questions sent to Dr. Estwanik directed him to refer to an
attached SOAF. However, the list of questions found in the record does not contain such an
attachment. It is OWCP’s responsibility to provide a complete and proper frame of reference for
a physician by preparing a SOAF.8 OWCP’s procedures dictate that when an OWCP medical
adviser, second opinion specialist, or referee physician renders a medical opinion based on a SOAF
which is incomplete or inaccurate or does not use the SOAF as the framework in forming his or
her opinion, the probative value of the opinion is seriously diminished or negated altogether.9 As
it remains unclear whether Dr. Estwanik based his opinion on an accurate SOAF, the Board finds
that the probative value of Dr. Estwanik’s opinion is diminished and insufficient to be afforded the
weight of the medical evidence.10
The Board therefore finds that OWCP failed to meet its burden of proof in terminating
appellant’s wage-loss compensation and medical benefits, effective December 1, 2017, based on
Dr. Estwanik’s second opinion report.11
ANALYSIS -- ISSUE 3
The Board finds that the case is not in posture for decision.
The Board notes that when OWCP referred appellant for a second opinion evaluation with
Dr. Estwanik, it provided a list of questions which included whether appellant’s diagnosed
conditions are medically connected to the accepted factors of employment. Dr. Estwanik opined
in his September 13, 2017 report that appellant’s rotator cuff tear was not work related. He
explained that a January 14, 2013 MRI scan confirmed no rotator cuff abnormality or relationship
7

R.P., supra note 3; Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

8

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, supra note 6.

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990); see L.J., Docket No. 14-1682 (issued December 11, 2015).
10

See L.J., Docket No. 16-1852 (March 22, 2018).

11

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

6

to the December 6, 2012 employment injury. Dr. Estwanik noted that the first evidence of a small
right rotator cuff tear was two years after the date of injury, which was “remote to her mechanism
of injury and is remote to the objective first MRI [scan] that demonstrated an intact rotator cuff.”
However, he failed to explain with sufficient rationale why the rotator cuff tear was not
employment related.12
The Board notes that proceedings under FECA are not adversarial in nature, and OWCP is
not a disinterested arbiter. The claimant has the burden of proof to establish entitlement to
compensation. However, OWCP shares responsibility in the development of the evidence to see
that justice is done. Once it undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.13 Accordingly, the
Board finds that the case must be remanded to OWCP.14 On remand OWCP should prepare an
updated SOAF and request that Dr. Estwanik submit a supplemental report regarding whether
appellant’s claim should be expanded to include additional conditions. Following this and any
further development deemed necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective December 1, 2017. The Board further finds that
the case is not in posture for decision as to whether acceptance of the claim should be expanded to
include appellant’s consequential right rotator cuff tear.

12

Cf. Linda L. Mendenhall, 41 ECAB 532 (1990).

13

See A.P., Docket No. 17-0813 (issued January 3, 2018); Richard F. Williams, 55 ECAB 343, 346 (2004).

14

H.T., Docket No. 18-0979 (issued February 4, 2019).

7

ORDER
IT IS HEREBY ORDERED THAT the May 8, 2018 decision of the Office of Workers’
Compensation Programs is reversed in part and set aside in part. This case is remanded to OWCP
for further development consistent with this decision, to be followed by a de novo decision.
Issued: March 22, 2019
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
U.S. POSTAL SERVICE, IRVING VALLEY
BRANCH STATION, Irving, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Richard A. Daniels, for the appellant
Office of Solicitor, for the Director

Docket No. 14-0607
Issued: July 23, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 24, 2014 appellant, through his representative, filed an appeal from an
August 5, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish employment-related
disability from September 5 to November 9, 2012 due to the accepted right shoulder and bilateral
knee injuries.
On appeal appellant’s representative asserts that appellant is entitled to monetary
compensation because he established a recurrence of disability when the employing
establishment withdrew light-duty work.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On May 17, 2006 appellant, then a 49-year-old city carrier, filed a traumatic injury claim
alleging that he injured his right knee in the performance of duty. He stopped work that day.
The claim, adjudicated by OWCP under file number xxxxxx921, was accepted for right knee
sprain, internal derangement of the right knee, and medial meniscus tear on the right. Appellant
returned to modified duty on May 22, 2006. On August 31, 2006 he underwent authorized
arthroscopic repair of the medial meniscal tear. After a brief return to full duty in May 2009,
appellant returned to restricted duty on July 25, 2009. On December 5, 2011 OWCP accepted
that he sustained a consequential aggravation of localized osteoarthritis of the left leg.2
On January 2, 2012 appellant filed a traumatic injury claim, alleging that on
December 31, 2011 he injured his right shoulder while lifting tubs of mail. He did not stop
work. OWCP adjudicated the claim under file number xxxxxx104. A January 9, 2012 magnetic
resonance imaging (MRI) scan of the right shoulder demonstrated moderate osteoarthritis,
indicative of a partial tear of the supraspinatus and subscapularis tendons with a lesion from the
superior labrum extending from anterior to posterior (SLAP).
On January 10, 2012 Dr. Terry Madsen, a Board-certified orthopedic surgeon, performed
OWCP-authorized bilateral total knee replacement arthroplasties.
On April 3, 2012 OWCP accepted a sprain of the shoulder and upper arm and a SLAP
lesion on the right. On April 24, 2012 Dr. Kevin Williams, an orthopedic surgeon, performed a
right shoulder arthroscopic surgery with subacromial decompression, repair of SLAP tear and
rotator cuff repair. On May 7, 2012 he reported that sutures were removed, that appellant should
undergo physical therapy, and that appellant could return to work in six weeks. File numbers
xxxxxx921 and xxxxxx104 were doubled on May 11, 2012.
In a May 21, 2012 duty status report, Dr. Tuan Trinh, Board-certified in internal
medicine, advised that appellant could not work due to a right shoulder injury. In a May 25,
2012 work capacity evaluation, he provided diagnoses of sprain of right knee, internal
derangement of right knee, tear of right medial meniscus, and left osteoarthritis. Dr. Trinh
indicated that maximum medical improvement had not been reached and checked a form box
“yes,” indicating that appellant could perform his usual job. A June 29, 2012 functional capacity
evaluation that assessed appellant’s right shoulder indicated that he was unable to perform
regular job duties. On July 31, 2012 Dr. Trinh assessed appellant’s right shoulder. He advised
that appellant continued to have pain and weakness and could not perform regular duties.
Dr. Trinh provided restrictions, which would apply for four weeks, indicating that reaching was
limited to less than one hour with a lifting restriction of 25 to 50 pounds. On August 16, 2012 he
advised that appellant could work full time with standing restrictions for six hours, sitting for two
hours, no climbing, kneeling, or reaching above the shoulder, and a 25- to 50-pound weight
restriction.
Appellant returned to a modified-duty assignment on August 27, 2012 for eight hours a
day sitting, doing computer work and data input for one to two hours; walking and standing for
2

The record contains a number of decisions in which the left knee claim was denied.

2

two to six hours; and checking letter carrier performance while delivering mail for two to six
hours. The physical requirements indicated that he should lift up to 25 pounds, with intermittent
driving from one to eight hours and simple data entry for one to two hours. Appellant received
wage-loss compensation until his return to work.
Effective October 9, 2012 appellant was off work. On November 9, 2012 he filed a CA-7
claim for compensation for the period September 5, 2012 to “present.” Rodney Malone,
postmaster, indicated on the claim form that appellant was placed off work on September 5, 2012
because the street supervisor position was eliminated. On December 10, 2012 Angela R. Frazier,
the employing establishment human resource officer, informed OWCP that the position to which
appellant had returned was an acting supervisory position and the supervisor had returned to the
position. She stated that appellant’s regular position was a city carrier. Ms. Frazier telephoned
OWCP on December 12, 2012 and indicated that appellant had not been provided a modified
position by the employing establishment because he had been released to full duty on
May 21, 2012. There was no modified position provided to appellant after the supervisor
returned to his position. Ms. Frazier maintained that at that time appellant should have been
returned to his letter carrier position.3
By decision dated January 16, 2013, OWCP denied appellant’s claim for wage loss for
the period September 5 to November 9, 2012 as the medical evidence of record established that
he could return to full duty. Appellant timely requested a hearing.
In January 2013, OWCP referred appellant to Dr. Donald M. Mauldin, a Board-certified
orthopedic surgeon, for a second opinion evaluation regarding appellant’s lower extremities.
Dr. Mauldin was provided with a statement of accepted facts for file number xxxxxx921, and the
questions asked the physician referred only to the accepted lower extremity conditions.
Dr. Mauldin provided a February 12, 2013 report in which he discussed appellant’s medical
history in regard to his knees and provided lower extremity physical examination findings. He
indicated that appellant continued to have symptoms referable to his knee replacement surgery
which would prevent him from returning to a letter carrier position that required walking for
prolonged periods. Dr. Mauldin provided permanent restrictions of no repetitive stair climbing,
bending, or squatting, no prolonged walking on uneven ground, no carrying in excess of 25
pounds. He opined that appellant could perform light-duty work for eight hours a day with some
standing, sitting, and walking, within the restrictions he provided.
Appellant’s representative asserted that, as appellant’s light duty had been withdrawn, he
was entitled to wage-loss compensation. He also maintained that, at the time appellant returned
to work, he continued to have residuals of his right shoulder condition. At the hearing, held on
May 16, 2013, the representative maintained that limitations for the accepted shoulder injuries
remained.
Appellant testified that his “street management” job was withdrawn on
October 9, 2012. He related that he was told by the postmaster that he was going to get appellant
a floor supervisor position but appellant believed that position would not meet his work
restrictions. Rather than discussing the issue further with the postmaster, appellant called
3

On January 9, 2013 appellant was granted a schedule award for 31 percent impairment of the right lower
extremity and 31 percent impairment on the left.

3

OWCP. Appellant asserted that OWCP told him that if his job was eliminated he could just
leave work that day and he would receive compensation.
In an August 5, 2013 decision, an OWCP hearing representative affirmed the January 16,
2013 decision as the medical evidence of record was insufficient to establish entitlement to total
disability for the period claimed.
LEGAL PRECEDENT
Under FECA, the term “disability” is defined as incapacity, because of employment
injury, to earn the wages that the employee was receiving at the time of injury.4 Disability is
thus not synonymous with physical impairment which may or may not result in an incapacity to
earn the wages. An employee who has a physical impairment causally related to a federal
employment injury but who nonetheless has the capacity to earn wages he or she was receiving
at the time of injury has no disability as that term is used in FECA.5 The test of “disability”
under FECA is whether an employment-related impairment prevents the employee from engaging
in the kind of work he or she was doing when injured.6 Whether a particular injury causes an
employee to be disabled for work and the duration of that disability, are medical issues that must
be proved by a preponderance of the reliable, probative and substantial medical evidence.7
The Board will not require OWCP to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.8 Causal relationship is a medical issue. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.9
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that he had
any employment-related disability from September 5 to November 9, 2012 due to the accepted
right shoulder and bilateral knee injuries. The accepted conditions for the 2006 employment
injury, adjudicated under file number xxxxxx921, are right knee sprain, internal derangement of
the right knee, medial meniscus tear on the right and consequential aggravation of localized
osteoarthritis on the left. Under that claim, appellant had bilateral total knee replacements on
4

See Prince E. Wallace, 52 ECAB 357 (2001).

5

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

6

Corlisia Sims, 46 ECAB 963 (1995).

7

Tammy L. Medley, 55 ECAB 182 (2003).

8

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

9

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

4

January 10, 2012. The 2012 injury, adjudicated under file number xxxxxx104, is accepted for a
sprain of the shoulder and upper arm and a SLAP lesion on the right. On April 24, 2012
appellant had surgical repair of his right shoulder injury, under this claim.
The record contains information regarding the position to which appellant returned in
August 2012 as an acting supervisor. Appellant held that position until the supervisor he was
replacing returned in October 2012. The record supports that, at that time, the postmaster
informed him that he would find another position for appellant and suggested the floor
supervisor position. Appellant determined on his own that the suggested position would be
outside his restrictions. While he maintained that he telephoned OWCP and was informed that
he could stop work if his position were eliminated and be paid compensation, there is no record
evidence to support this contention. Appellant left work that day. He therefore has not
established a change in his light-duty position.10
Moreover, the medical evidence does not support appellant’s contention that he was
disabled from work for the period claimed. On a May 25, 2012 work capacity evaluation,
Dr. Trinh advised that appellant could perform his usual job, and on August 16, 2012 stated that
he could work full time with restrictions of standing for six hours, sitting for two hours, no
climbing, kneeling, or reaching above the shoulder, and with a 25- to 50-pound weight
restriction. None of the other physicians, including Dr. Mauldin, discussed the period of claimed
disability from September 5 to November 9, 2012.
The Board finds that appellant has failed to submit sufficient rationalized medical opinion
evidence to establish that he was unable to work from September 5 to November 9, 2012 due to
the accepted conditions and thus he is not entitled to wage-loss compensation for the period
claimed.11
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 did not meet his burden of proof to establish employmentrelated disability from September 5 to November 9, 2012 due to the accepted right shoulder and
bilateral knee injuries

10

See Terry R. Hedman, 38 ECAB 222 (1986).

11

N.R., Docket No. 14-114 (issued April 28, 2014).

5

ORDER
IT IS HEREBY ORDERED THAT the August 5, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.12
Issued: July 23, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

12

Michael E. Groom, Alternate Judge, participated in the preparation of this decision but was no longer a member
of the Board effective December 27, 2014.

6