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

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

Docket No. 19-1774
Issued: April 3, 2020

Case Submitted on the Record

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

JURISDICTION
On August 21, 2019 appellant, through counsel, filed a timely appeal from a July 29, 2019
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.

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 a medical condition
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On March 20, 2018 appellant, then a 56-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed herniated discs in his lumbar spine due to
factors of his federal employment. He noted that he first became aware of his conditions on
April 6, 2016 and realized that they were caused or aggravated by factors of his federal
employment on March 31, 2016. On the reverse side of the claim form, the employing
establishment indicated that appellant first reported his condition on May 1, 2016 and was last
exposed to the conditions alleged to have caused his conditions on May 21, 2018. Appellant did
not stop work.
In an accompanying narrative statement dated March 19, 2018, appellant noted that he had
been working with restrictions since 2009, following his lumbar laminectomy spinal fusion surgery
in 2008. He related that on March 31, 2016 he woke up with pain and a feeling of paralysis in his
left leg and could not move the leg without difficulty and falling. On April 5, 2016 appellant
sought treatment from his primary care physician, Dr. Ronald Barnett, Board-certified in internal
medicine, who referred him to Dr. Victtorio M. Morreale, a Board-certified neurosurgeon. On
June 21, 2016 Dr. Morreale performed multilevel lumbar decompressive laminectomy and
transforaminal interbody fusion. Appellant indicated that he returned to work in April 2017. He
noted that he was currently diagnosed with herniated lumbar discs at L2-3 and L4-5 and that he
had filed previous claims for lumbar spine conditions and other work-related injuries with OWCP
from 2001 through 2013. Appellant concluded that significant increases in the number of business
pick-ups and packages over the years caused and aggravated his preexisting lumbar spine and leg
conditions, particularly the requirements for stooping, bending, lifting, and twisting and caused
him to miss work several times.
In a March 1, 2018 narrative report, Dr. William H. Kole, Board-certified in pain medicine,
noted that he had treated appellant since June 17, 2004. He related that, when appellant returned
to work in April 2017, appellant’s route began to change dramatically with the addition of
hundreds of parcel pick-ups every day. Dr. Kole opined that appellant’s employment duties such
as lifting and moving parcels and mail and bending and stooping while collecting mail had
aggravated and contributed to his preexisting conditions of degenerative lumbar disc disease,
osteoarthritis, and lumbar radiculopathy. He noted that appellant still suffered from chronic
permanent pain because of the physical requirements of his employment duties. Dr. Kole
requested that appellant be given a job that did not require any lifting or moving of parcels and
mail and with limited bending and stooping.
In an April 5, 2018 development letter, OWCP advised appellant of the deficiencies in his
claim and afforded him 30 days to submit the necessary medical evidence and factual information.
OWCP also received a duty status report (Form CA-17) dated August 4, 2009 from an
unidentifiable healthcare provider.

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An April 25, 2016 magnetic resonance imaging (MRI) scan of the lumbar spine revealed
moderate underlying spondylosis with stenosis and right paracentral disc protrusion at L2-3
impinging on the right L3 nerve root. In a May 11, 2016 lumbar spine computerized tomography
scan report, Dr. Antony Hamame, a Board-certified diagnostic radiologist, provided impressions
of multilevel degenerative disc disease and spondylotic changes as described in the April 25, 2016
MRI scan, disc bulge resulting in moderate spinal canal narrowing at L2-3, and no evidence of
acute fractures or subluxations.
In a July 3, 2017 narrative report, Dr. Barnett indicated that appellant was under his care
since 2006 for work-related spine and knee injuries. He noted that appellant was previously
diagnosed with an aggravation of degenerative lumbar disc disease, knee and leg sprains, a lumbar
strain, and a lumbosacral strain. Dr. Barnett also noted that Dr. Asim Mahmood, a Board-certified
neurosurgeon, performed a lumbar laminectomy spinal fusion surgery on February 8, 2008 and
appellant returned to work in 2009 with work restrictions. He related that appellant no longer
delivered mail walking house to house following the February 8, 2008 surgery. Dr. Barnett
reported that when appellant woke up on March 31, 2016 he could not move his left leg, which
was completely paralyzed. He further noted that appellant had not recently suffered an incident or
accident to cause his left paralysis. Dr. Barnett opined that the chronic conditions of appellant’s
degenerative disc disease and the ongoing physical activities of lifting and moving parcels and
mail, also the bending and stooping while collecting mail, had caused and permanently aggravated
his lumbar spine conditions.
In a subsequently submitted June 21, 2016 operative note, Dr. Morreale noted that
appellant experienced no postoperative complications.
In a July 6, 2017 narrative report, Dr. Morreale certified that appellant was under his care
for work-related lumbar spine problems since May 5, 2016 including June 21, 2016 surgery. He
note that appellant felt immediate relief following the surgery and returned for a series of postop
appointments and gradually improved. Dr. Morreale indicated that x-rays of the lumbar spine
showed fusion intact with no complicating factors. However, appellant returned on March 23,
2017 with a complaint of pain across the lower lumbarsacral area. On June 22, 2017 Dr. Morreale
diagnosed arthrodesis status and other mechanical complications. He noted that appellant was
previously diagnosed with degenerative disc disease. Dr. Morreale opined that many years of
working as a mail carrier lifting and carrying heavy loads throughout the day contributed to
progression of degenerative disc disease which continued to cause appellant severe pain and
difficulty ambulating without falling.
In a response to OWCP’s questionnaire dated April 24, 2018, appellant noted that, when
he resumed work in 2009 with modified duty following the February 8, 2008 surgery, he initially
drove a minivan, delivered express mails, and picked up mail boxes, one business store employing
establishment pick-up, and four or five other business stops. However, over the years, his
responsibility significantly increased. Appellant now drove a two-ton box truck. His parcels
ranged in size and weighted between 21 and 50 pounds. The number of parcels and mail pick-ups
also increased from 25 to 50 parcels a day to 2,000 to 4,000 parcels. Appellant noted that he has
to off load his truck three to four times a day, sometimes going as many as five times a day. He
struggled to work every day with the pain. Appellant asserted that the increased duties had
aggravated his preexisting lumbar spine conditions.

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By decision dated May 23, 2018, OWCP denied appellant’s occupational disease claim
finding that the medical evidence submitted was insufficient to establish a causal relationship
between his conditions and the accepted factors of his federal employment.
On May 20, 2019 appellant, through counsel, requested reconsideration.
OWCP subsequently received photographs of appellant’s workstation, showing his box
truck and the volume of typical parcels and packages he delivered daily.
In a May 1, 2019 report, Dr. Barnett again related the history of appellant’s medical
treatments. He noted that appellant saw him monthly and reported that, although appellant felt
better the first few months following his February 8, 2008 lumbar surgery, the pain was
progressively getting worse. Dr. Barnett noted that appellant injured his knees and back several
times while working due to “poor posture and not abiding by [his] restrictions.”
Dr. Barnett explained that appellant started working for the employing establishment in
1994, performing regular duties until his injuries in 2003. He then again described the
circumstances from March 31, 2016 leading up to the April 5, 2016 referral appointment with
Dr. Morreale, who subsequently performed the June 21, 2016 surgery. Within a year after
returning to work following the June 21, 2016 surgery, Dr. Morreale had observed that x-rays of
the thoracic spine revealed two broken screws and two new herniations. He opined that whatever
appellant was doing was ruining his spine. Similarly, Dr. Barnett also opined that appellant’s
“numerous work injuries over the years and the type of work [appellant] was doing was causing
his degenerative disc disease to be accelerating at a much faster rate than the normal aging
process.”
In a May 20, 2019 statement, appellant alleged that the May 1, 2019 narrative medical
report from Dr. Barnett demonstrated that appellant’s employment factors, involving delivering
and picking up packages, caused and aggravated his spine conditions. He reiterated that his job
responsibilities require loading, unloading, and sorting several 100 parcels weighing up to
thousands of pounds daily and exceeding his 20-pound weight restriction.
By decision dated July 29, 2019, OWCP denied modification of the May 23, 2018 decision,
finding that the medical evidence of record was insufficient to establish that appellant’s preexisting
lumbar spine conditions were aggravated or accelerated by the accepted employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
3

Id.

4
J.W., Docket No. 18-0678 (issued March 3, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

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any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant. 7
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence. 8 The opinion of the physician must be based
on a complete factual and medical background of the employee, 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 specific employment factors identified by the employee.9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted factors of his federal employment.
In a July 3, 2017 narrative report, Dr. Barnett noted that appellant was previously diagnosed
with an aggravation of degenerative lumbar disc. He opined that the ongoing physical activities
of lifting and moving parcels and mail, as well as bending and stooping while collecting mail,
caused and permanently aggravated appellant’s lumbar spine conditions. Additionally, in his
May 1, 2019 narrative report, Dr. Barnett again opined that “numerous work injuries over the years

5

J.S., Docket No. 18-0657 (issued February 26, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

L.J., Docket No. 19-1343 (issued February 26, 2020); R.R., Docket No. 18-0914 (issued February 24, 2020);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

8

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
9

R.G., Docket No. 18-0792 (issued March 11, 2020); D.J., Docket No. 19-1301 (issued January 29, 2020); I.J., 59
ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
N.C., Docket No. 19-1191 (issued December 19, 2019); R.D., Docket No. 18-1551 (issued March 1, 2019).

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and the type of work” appellant was performing had caused his degenerative disc disease to
accelerate faster than the usual aging process.
The Board notes that Dr. Barnett provided a description of the employment factors believed
to have either caused or contributed to appellant’s diagnosed condition, however, he failed to
specifically differentiate between the effects of the preexisting conditions and the symptoms of the
job-related factors.11 A well-rationalized opinion is particularly important since appellant has a
history of preexisting degenerative disc disease.12 As Dr. Barnett did not provide a reasoned
explanation of how appellant’s specific employment duties aggravated or contributed to his current
lumbar spine conditions, his reports are insufficient to establish appellant’s claim.
In a July 6, 2017 narrative report, Dr. Morreale related appellant’s history of clinical
encounters, including his June 21, 2016 lumbar surgery. On June 22, 2017 he diagnosed
arthrodesis status and other mechanical complications while noting appellant’s preexisting
degenerative disc disease. Dr. Morreale opined that the many years of working as a mail carrier
lifting and carrying heavy loads throughout the day contributed to progression of appellant’s
degenerative disc disease. He, however, did not provide medical rationale supporting his
conclusory opinion. The Board has held that a medical opinion is of limited value if it is
conclusory in nature. 13 A medical opinion must explain how the implicated employment factors
physiologically caused, contributed to, or aggravated the specific diagnosed conditions. 14 Without
this explanation, Dr. Morreale’s reports are insufficient to meet appellant’s burden of proof to
establish his claim.15
In a March 1, 2018 narrative report, Dr. Kole similarly opined that lifting, moving,
bending, and stooping while collecting parcels and mail have aggravated appellant’s preexisting
degenerative lumbar disc disease. He also noted that appellant continued to suffer from chronic
permanent pain because of the physical requirements of his employment duties. While Dr. Kole
diagnosed medical conditions, his opinion also lacks the necessary medical rationale to explain
how or why the accepted employment factors were sufficient to result in the diagnosed medical
conditions.16 Accordingly, this report is also insufficient to establish appellant’s claim.
Finally, appellant submitted several diagnostic testing reports. The Board has held,
however, that diagnostic studies lack probative value on the issue of causal relationship as they do

11

Id.

12

See K.M., Docket No. 19-1247 (issued February 21, 2020); B.R., Docket No. 16-0456 (issued April 25, 2016).

13

C.M., Docket No. 19-0360 (issued February 25, 2020); B.H., Docket No. 18-1219 (issued January 25, 2019).

14

C.M., id.; K.G., Docket No. 18-1598 (issued January 7, 2020).

15

Id.

16

L.S., Docket No. 18-0518 (issued February 19, 2020); J.D., Docket No. 14-2061 (issued February 27, 2015).

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not address whether the employment factors caused the diagnosed conditions. 17 The diagnostic
testing reports are thus insufficient to establish the claim.
As appellant has not submitted sufficient rationalized medical evidence to establish causal
relationship, the Board finds that he has not met his burden of proof to establish his occupational
disease claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish lumbar spine
conditions causally related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the July 29, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 3, 2020
Washington, DC

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

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

17

K.G., supra note 14; J.P., Docket No. 19-0216 (issued December 13, 2019).

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

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

Docket No. 10-1495
Issued: March 9, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 11, 2010 appellant filed a timely appeal from the November 17, 2009 and
April 15, 2010 merit decisions of the Office of Workers’ Compensation Programs. Pursuant to
the Federal Employees’ Compensation Act 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 that he sustained
injury to both his right and left knees causally related to factors of his federal employment.
FACTUAL HISTORY
On August 10, 2009 appellant, then a 40-year-old mail carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed bilateral knee pain, resulting in a hole
underneath his right knee which left him unable to put pressure on either knee. He stated that he
first became aware of his condition on July 22, 2003 and of its relationship to his employment on

August 10, 2009. Appellant attributed his knee condition to his employment, specifically 17
years of continuous walking up and down inclines and up and down stairs. He did not stop work.
On July 22, 2003 Dr. Dwight Caughfield, Board-certified in physical medicine and
rehabilitation, reported that a magnetic resonance imaging (MRI) scan of appellant’s right knee
showed an area of subchondral bone marrow edema within the anterior and medial aspect of the
lateral femoral condyle. There was a possible small area of articular cartilage thinning and
fibrillation along the interior most aspect of the lateral patellar facet, with no evidence of
ligamentous or meniscal tear within the right knee.
By letter dated August 25, 2009, the employing establishment controverted appellant’s
claim on the grounds that appellant had previously filed claims for knee conditions which had
been denied and that he failed to provide medical evidence to support his claim.1
By letter dated August 31, 2009, the Office informed appellant that the evidence of
record was insufficient to support his claim. Appellant was advised of the medical and factual
evidence needed and was directed to submit it within 30 days. He did not respond. In a letter of
the same date, the Office also requested additional factual information from the employing
establishment.
By letter dated September 14, 2009, the employing establishment disputed that
appellant’s injury was the result of his employment as a letter carrier. Appellant’s duties
involved lifting mail to be cased by hand for up to two hours a day, loading mail on to a postal
truck, and carrying mail by foot or vehicle for up to six hours a day. The employer noted that
due to recurring medical problems with his knees, appellant’s job was modified to accommodate
his one hour a day walking restriction.
By decision dated November 17, 2009, the Office denied appellant’s claim finding that
he did not establish that he sustained an injury and failed to establish that the event occurred as
alleged.
On December 4, 2009 appellant, through his attorney, requested an oral hearing before an
Office hearing representative. At a March 1, 2010 hearing, he stated that his duties as a city
letter carrier involved walking 8 to 10 miles a day on hilly and flat surfaces, paved and unpaved
roads, climbing stairs and stepping in and out of vehicles on a daily basis. Appellant contended
that 18 years of working as a letter carrier had caused injury to both his knees and that he was
placed on modified duty as of May 9, 2009. He testified that he was not involved in hobbies or
occupations outside of work that involved strenuous walking or running. Counsel informed the
hearing representative that appellant was awaiting medical records which would be forwarded
upon receipt and the hearing record was held open for 30 days.
In a March 11, 2010 report, Dr. Caughfield stated that appellant had severe
chondromalacia of the patellofemoral joint with osteochondral defects in the trochlear groove
1

Appellant had also filed OWCP claims for: a right knee sprain, Claim No. xxxxxx723; a left knee sprain, Claim
No. xxxxxx486; and injury to both knees, Claim No. xxxxxx275. These case files are not included in this appeal
and are not before the Board. See 20 C.F.R. § 501.2(c).

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and distal femur, as well as loose bodies. He noted that appellant’s condition interfered with his
ability to perform his usual occupation and after a prior orthopedic evaluation, appellant was to
avoid squats, stairs and kneeling, a large component of his occupation. Dr. Caughfield added
that, if appellant continued at his current activity level, he would accelerate the knee
chondromalacia and pain which would result in reduced function and increased pain.
By decision dated April 15, 2010, the Office hearing representative affirmed the
November 17, 2009 decision, as modified, to reflect that the occupational exposure occurred as
alleged, namely that appellant was walking, climbing steps and entering and exiting the delivery
truck on a daily basis. The hearing representative found, however, that the medical evidence did
not support that the bilateral knee condition was causally related to factors of employment.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged and that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.2 These are the essential
elements of every compensation claim regardless of whether the claim is predicated on a
traumatic injury or occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.5

2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Elaine Pendleton, supra note 2.

5

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

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Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence.6 Rationalized medical opinion
evidence is medical evidence which includes a physician’s rationalized opinion on the issue of
whether there is a causal relationship between the claimant’s diagnosed condition and the
implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee and must be one of reasonable medical
certainty. The opinion must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee. This medical opinion must include an accurate history of the employee’s
employment injury, and must explain how the condition is related to the injury. The weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested and the medical rationale expressed in support of the physician’s
opinion.7
ANALYSIS
It is not disputed that appellant’s duties as a city mail carrier include walking, climbing
stairs and stepping in and out of delivery trucks on a daily basis. The Board finds, however, that
appellant did not submit sufficient medical evidence to support that his bilateral knee condition is
causally related to his work as a mail carrier.
The July 22, 2003 report of Dr. Caughfield stated that the MRI scan of appellant’s right
knee showed an impression of subchondral bone marrow edema and cartilage thinning and
fibrillation along the interior most aspect of the lateral patellar facet. While Dr. Caughfield
diagnosed appellant’s right knee condition, he failed to address the causal relation between
appellant’s knee condition and his employment as a letter carrier. He provided a detailed
explanation of the MRI scan but failed to address how appellant’s work was the cause of the
injury. The Board has held that medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal
relationship.8 Without medical reasoning explaining how appellant’s employment factors caused
the knee condition, Dr. Caughfield’s report is insufficient to meet appellant’s burden of proof.9
By letter dated March 11, 2010, Dr. Caughfield reported that appellant suffered from
severe knee chondromalacia of the patellofemoral joint with osteochondral defects in the
trochlear groove and distal femur. He noted that appellant’s knee condition interfered with his
ability to perform his duties as a letter carrier and according to previous orthopedic evaluations,
appellant was to avoid squats, stairs and kneeling. Dr. Caughfield opined that, if appellant’s
current activity level continued, he would accelerate the knee chondromalacia and pain which
would result in reduced function and increased pain.
6

D.U., 61 ECAB ___ (Docket No. 10-144, issued July 27, 2010).

7

James Mack, 43 ECAB 321 (1991).

8

C.B., 61 ECAB ___ (Docket No. 09-2027, issued May 12, 2010); S.E., 60 ECAB ___ (Docket No. 08-2214,
issued May 6, 2009).
9

C.B., 60 ECAB ___ (Docket No. 08-1583, issued December 9, 2008).

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The Board finds that the March 11, 2010 opinion of Dr. Caughfield is not well
rationalized. Dr. Caughfield’s report made general reference to appellant’s previous orthopedic
evaluations but did not set out any detail pertaining to his prior medical history or treatment.
Further, he failed to identify or specifically address any findings or test results covering the left
knee. Dr. Caughfield’s evaluation lacked a clear explanation, supported with medical evidence,
of the causal connection between appellant’s knee condition and his employment as a letter
carrier. He stated that appellant’s chondromalacia interfered with his ability to perform his
occupation and would accelerate if he continued his current activity level, but did not state
whether or how appellant’s employment factors caused or aggravated the knee condition.
Medical reports without adequate rationale on causal relationship are of diminished probative
value and do not meet an employee’s burden of proof.10 The opinion of a physician supporting
causal relationship must rest on a complete factual and medical background supported by
affirmative evidence, address the specific factual and medical evidence of record and provide
medical rationale explaining the nature of the relationship between the diagnosed condition and
the established incident or factor of employment.11 Therefore, Dr. Caughfield’s medical reports
are insufficient to meet appellant’s burden of proof.
The record does not contain a rationalized medical report explaining how appellant’s
bilateral knee condition resulted from his employment as a letter carrier. Appellant has alleged
that his accepted duties as a letter carrier, which involved walking 8 to 10 miles a day on various
surfaces, climbing stairs, and stepping in and out of a truck delivery vehicle multiple times a day,
caused his bilateral knee condition. Appellant’s statements however, do not constitute the
medical evidence which is necessary to establish causal relationship. Neither the fact that the
condition became apparent during a period of employment, nor the belief that the condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.12 The Board has held that the mere fact that a condition manifests itself during a
period of employment does not raise an inference of causal relation.13
An award of compensation may not be based on surmise, conjecture, speculation or on
the employee’s own belief of causal relation.14 Causal relationships must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence and the Office
properly denied his claim for compensation.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
bilateral knee condition is causally related to factors of his employment as a mail carrier.

10

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

11

See Lee R. Haywood, 48 ECAB 145 (1996).

12

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

13

Daniel O. Vasquez, 57 ECAB 559 (2006).

14

D.D., 57 ECAB 734 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the April 15, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 9, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 16-1362
Issued: December 7, 2016

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 June 22, 2016 appellant filed a timely appeal from a May 13, 2016 merit decision of
the Office of Workers’ Compensation Programs1 (OWCP). Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish left ankle and foot
conditions causally related to the accepted March 21, 2016 employment incident.

1

The Board notes that appellant submitted additional evidence after OWCP rendered its May 13, 2016 decision.
The Board’s jurisdiction, however, is limited to reviewing the evidence that was before OWCP at the time of its
final decision and; therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 501.2(c)(1);
Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 30, 2016 appellant, then a 50-year-old mail clerk, filed a traumatic injury
claim (Form CA-1) alleging that on March 21, 2016 she tripped on a yellow piece of strapping
which wrapped around her left ankle. The following day she fell in the parking lot due to her
weakened ankle, causing a sprain. Appellant notified her supervisor on March 23, 2016 and
stopped work on March 24, 2016.
In an accompanying narrative statement, appellant reported that in the morning on
March 21, 2016, she was performing expediting duties on the platform when she felt herself
about to fall. She caught herself and found a yellow plastic ring of strapping wrapped around her
left ankle. Appellant finished her shift despite pain. She noted that her foot had been painful
two months prior, but she thought it had improved until the March 21, 2016 incident. Appellant
further explained that the following day she returned to work and after finishing her shift, her left
ankle and heel felt weak, causing her to fall to the ground. She reported that the swelling and
pain in her ankle and heel worsened, causing her to seek medical treatment.
By letter dated March 30, 2016, the employing establishment controverted the claim.
In a March 30, 2016 narrative statement, appellant’s supervisor reported that on
March 21, 2016 she informed him that while she performed expediting duties on the platform,
she tripped over a yellow piece of strapping. Appellant returned to work on the following day
and worked a full shift. On March 23, 2016 she notified him that on March 22, 2016 she had
“punched out” at the end of the day but, while walking to her car, her ankle gave out, causing her
to fall to the ground. Appellant’s supervisor argued that her injury did not occur in the
performance of duty because she fell on her way to her car in the parking lot at the end of her
shift. He further stated that her foot pain was nonwork related as she had complained about it for
years.
In a March 23, 2016 diagnostic report, Dr. Corey A. Couto, a Board-certified diagnostic
radiologist, reported that an x-ray of the left foot revealed abnormality in the heel region with
soft tissue thickening present in the region of the distal Achilles. He noted calcifications
extending to the attachment of the calcaneus and would correlate with heel symptoms.
Dr. Couto further noted other degenerative changes including enthesophyte at the plantar fascia
attachment. Findings revealed no acute fracture.
In another March 23, 2015 diagnostic report, Dr. Couto reported that an x-ray of the left
ankle revealed generalized soft tissue swelling, more conspicuous medially, and no underlying
fracture.
By report dated March 23, 2016, Dr. Joseph A. Sardina, a Board-certified family
practitioner, related that appellant presented to urgent care with a lower left foot injury. He
noted that appellant was injured at work on March 21, 2016 when she tripped over a band of
plastic, causing her to limp due to swelling in her ankle and foot. On March 22, 2016 appellant
returned to work, but was limping. After work, she again twisted her ankle after her foot seemed
to give way. Dr. Sardina provided physical examination findings and review of diagnostic
testing. An x-ray of the left ankle revealed no bony irregularity of the distal fibula or ankle joint.

2

An x-ray of the foot revealed some calcification of the distal Achilles tendon. Dr. Sardina
diagnosed left ankle and foot pain, noting pain in vicinity of Achilles tendon at heel. He noted
no fracture, but some calcifications at distal most portion of Achilles tendon, which could be
preexisting to the injuries suffered recently, although her symptoms were new. Dr. Sardina
concluded that appellant sustained a strain/sprain of her left ankle and foot. He restricted her
from work for seven days pending follow up.
In March 23 and 30, 2016 duty status reports (Form CA-17), Dr. Sardina restricted
appellant from work.
By letter dated April 12, 2016, OWCP informed appellant that the evidence of record was
insufficient to support her claim. Appellant was advised of the factual and medical evidence
needed and was afforded 30 days to submit the requested evidence.
In April 13 and 27, 2016 CA-17 reports, Dr. Sardina diagnosed ankle injury and checked
the box marked “work related” when asked about the cause of injury. He restricted appellant to
limited duty for four hours per day and recommended physical therapy.
By decision dated May 13, 2016, OWCP accepted that appellant tripped over strapping
on March 21, 2016, but denied her claim finding that the evidence of record failed to establish
that her diagnosed conditions were causally related to the accepted March 21, 2016 employment
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.

3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, supra note 3.

3

To establish causal relationship between the condition and the employment event or
incident, the employee must submit rationalized medical opinion evidence supporting such a
causal relationship.6 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. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested, and the medical
rationale expressed in support of the physician’s opinion.7
ANALYSIS
OWCP accepted that the March 21, 2016 employment incident occurred as alleged. The
issue is whether appellant established that the incident caused her left ankle and foot conditions.
The Board finds that she did not submit sufficient medical evidence to support that her left ankle
and foot conditions were causally related to the accepted March 21, 2016 employment incident.8
Appellant sought treatment with Dr. Sardina from March 23 through April 27, 2016. In a
March 23, 2016 report, Dr. Sardina noted a history of the employment incident, provided
physical examination findings, and reviewed diagnostic testing. He diagnosed strain/sprain of
the left ankle and foot. The Board finds that the opinion of Dr. Sardina is not well rationalized.
Dr. Sardina related that appellant could have preexisting conditions related to the left foot. The
March 23, 2016 x-ray of the left foot revealed degenerative changes, as well as calcifications
extending to the attachment of the calcaneus, which would correlate with heel symptoms.
Dr. Sardina speculated that the calcification of the distal Achilles tendon could be preexisting to
the injuries suffered, although appellant’s symptoms were new. While Dr. Sardina noted new
symptoms, such generalized statements do not establish causal relationship because they merely
repeat appellant’s allegations and are unsupported by adequate medical rationale explaining how
this physical activity actually caused the diagnosed conditions.9 He failed to provide any support
that appellant’s injury was caused or aggravated by the March 21, 2016 employment incident
and, did not address why her complaints were not caused by her preexisting conditions.10 A
well-rationalized opinion is particularly warranted when there is a history of preexisting
condition.11 Medical evidence that does not offer any opinion regarding the cause of an

6

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

7

James Mack, 43 ECAB 321 (1991).

8

See Robert Broome, 55 ECAB 339 (2004).

9

K.W., Docket No. 10-98 (issued September 10, 2010).

10

A well-rationalized opinion is particularly warranted when there is a history of preexisting condition. R.E.,
Docket No. 14-868 (issued September 24, 2014); T.M., Docket No. 08-975 (issued February 6, 2009); Michael S.
Mina, 57 ECAB 379 (2006).
11

T.M., id.; Michael S. Mina, id.

4

employee’s condition is of limited probative value on the issue of causal relationship.12 Thus,
his opinion is of limited probative value.13
Dr. Sardina’s remaining reports are also insufficient to establish appellant’s claim. His
April 13, 2016 form report checked the box marked “work related” when asked about the cause
of appellant’s injury. The Board has held that a report that addresses causal relationship with a
checkmark, without medical rationale explaining how the work condition caused the alleged
injury, is of diminished probative value and insufficient to establish causal relationship.14
Without explaining how physiologically the movements involved in the employment incident
caused or contributed to the diagnosed conditions, Dr. Sardina’s opinion is of limited probative
value.15
Dr. Couto’s March 23, 2016 diagnostic reports are also insufficient to establish
appellant’s claim as he just interpreted diagnostic imaging studies and provided no opinion on
the cause of appellant’s injury.16 In the instant case, the record lacks rationalized medical
evidence establishing causal relationship between the March 21, 2016 employment incident and
appellant’s strain/sprain of the left ankle and foot. Thus, appellant has failed to meet her burden
of proof.
Appellant may submit new evidence, together with a written request for reconsideration,
to OWCP within one year of the Board’s decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a left ankle and foot injury causally related to the accepted March 21, 2016
employment incident.

12

The opinion of a physician supporting causal relationship must rest on a complete factual and medical
background supported by affirmative evidence, address the specific factual and medical evidence of record, and
provide medical rationale explaining the relationship between the diagnosed condition and the established incident
or factor of employment. C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued
May 6, 2009).
13

P.O., Docket No. 14-1675 (issued December 3, 2015).

14

C.Y., Docket No. 14-2075 (issued March 2, 2015); Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a
box yes in a form report, without additional explanation or rationale, is insufficient to establish causal relationship).
15

See L.M., Docket No. 14-973 (issued August 25, 2014); R.G., Docket No. 14-113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-548 (issued November 16, 2012).
16

J.P., Docket No. 14-87 (issued March 14, 2014).

5

ORDER
IT IS HEREBY ORDERED THAT the May 13, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 7, 2016
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
__________________________________________
A.J., Appellant
and
U.S. POSTAL SERVICE, BURLINGTON POST
OFFICE, Burlington, NC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
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)
)
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)
)

Docket No. 21-0944
Issued: March 23, 2022

Case Submitted on the Record

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

On June 1, 2021 appellant filed a timely appeal from a January 13, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as 21-0944.
On February 4, 2016 appellant, then a 54-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sustained injuries on January 20, 2016 when she fell down
steps while delivering mail. OWCP accepted the claim for contusion of right hip, contusion of left
hip, left side lumbago with sciatica, left hip trochanteric bursitis, and lumbar intervertebral disc
displacement. It authorized lumbar spinal decompression surgery, which occurred on
December 15, 2016. OWCP paid appellant wage-loss compensation intermittently on the
supplemental rolls and on the periodic rolls from May 28, 2016 until January 4, 2019.
In a report dated June 17, 2019, Dr. Mark Dumonski, a Board-certified orthopedic surgeon,
diagnosed left sacroiliac joint dysfunction and status post L3-4 decompression and fusion. He
opined that appellant had 30 percent permanent impairment of her back, which was based upon 25
percent permanent impairment for L3-4 fusion and 5 percent permanent impairment of the left
sacroiliac joint.
On September 3, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule
award.

On September 18, 2019 OWCP referred appellant to Dr. Chason S. Hayes, a Boardcertified orthopedic surgeon, for a permanent impairment rating. In a report dated October 11,
2019, Dr. Hayes diagnosed lumbar radiculopathy. He found appellant was at maximum medical
improvement (MMI). Using the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides), he found that appellant had an eight
percent permanent impairment of the lumbar spine. In an addendum dated November 5, 2019,
Dr. Hayes noted that he had been requested to recalculate appellant’s permanent impairment based
upon her peripheral nerve impairment. He concluded that under this method, as appellant had no
motor or sensory deficits she had zero percent permanent impairment.
In a report dated December 10, 2019, Dr. Arthur Harris, a Board-certified orthopedic
surgeon serving as the district medical adviser (DMA), noted his disagreement with Dr. Hayes’
October 11, 2019 impairment rating for lumbar spine impairment as this permanent impairment
rating was not based on The Guides Newsletter Rating Spinal Nerve Extremity Impairment Using
the Sixth Edition (July/August 2009) (The Guides Newsletter) for rating spinal nerve impairments.
He explained that appellant did not have any neurologic deficit causing sensory or motor loss,
therefore she had a Class 0 placement using Table 2 of The Guides Newsletter resulting in zero
percent lower extremity permanent impairment, due to her lumbar radiculopathy.
By decision dated December 30, 2019, OWCP denied appellant’s claim for a schedule
award as the medical evidence of record was insufficient to support an impairment to a member or
function of the body.
In a report dated November 20, 2020, Dr. Dumonski diagnosed left sacroiliac joint
dysfunction. He explained that appellant’s 30 percent permanent impairment rating was based
upon her sacroiliac joint dysfunction, which caused pain to extend into her left leg.
On January 5, 2021 OWCP received appellant’s request for reconsideration of the
December 30, 2019 decision.
By decision dated January 13, 2021, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
The Board, having duly considered the matter, finds that this case is not in posture for
decision.
The Board finds that OWCP did not make findings regarding the evidence appellant
submitted in support of the reconsideration request. 1 OWCP summarily denied appellant’s request
for reconsideration without complying with the review requirement of FECA a nd its implementing
regulations.2 As noted, section 8124(a) of FECA provides that OWCP shall determine and make
1
See R.C., Order Remanding Case, Docket No. 20-1671 (issued May 6, 2021); J.K., Order Remanding Case,
Docket No. 20-0556 (issued August 13, 2020); C.D., Order Remanding Case, Docket No. 20-0450 (issued August 13,
2020); T.B., Order Remanding Case, Docket No. 20-0426 (issued July 27, 2020).
2

See M.G., Docket No. 21-0893 (issued December 27, 2021); Order Remanding Case, W.D., Docket No. 20-0859
(issued November 20, 2020); Order Remanding Case, C.G., Docket No. 20-0051 (issued June 29, 2020); Order
Remanding Case, T.P., Docket No. 19-1533 (issued April 30, 2020); see also 20 C.F.R. § 10.607(b).

2

a finding of fact and make an award for or against payment of compensation. 3 Its regulations at
20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings and
facts and a statement of reasons. 4 As well, OWCP’s procedures provide that the reasoning behind
OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence which would overcome it.5
In the January 13, 2021decision, OWCP did not reference or consider the November 20,
2020 medical report of Dr. Dumonski that appellant submitted in support of her request for
reconsideration. It failed to analyze this evidence. OWCP summarily denied appellant’s request
for reconsideration without complying with the review requirements of FECA and its
implementing regulations. 6 Section 8124(a) of FECA provides that OWCP shall determine and
make a finding of fact and make an award for or against payment of compensation. 7 Its regulations
at 20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings of
fact and a statement of reasons. 8 As well, OWCP’s procedures provide that the reasoning behind
OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence which would overcome it. 9
The Board will therefore set aside OWCP’s January 13, 2021 decision and remand the case
for an appropriate decision on appellant’s reconsideration request, which considers the evidence
submitted. Accordingly,

3

5 U.S.C. § 8124(a).

4

20 C.F.R. § 10.126.

5

Federal (FECA) Procedure Manual Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013) (all
decisions should contain findings of fact sufficient to identify the benefit being denied and the reason for the
disallowance).
6

See C.G., supra note 2; T.P., supra note 2; see also 20 C.F.R. § 10.607(b).

7

5 U.S.C. § 8124(a).

8

20 C.F.R. § 10.126.

9

Supra note 5.

3

IT IS HEREBY ORDERED THAT the January 13, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


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

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)
)

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

Docket No. 11-564
Issued: November 1, 2011

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 January 4, 2011 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) decision dated October 4, 2010, which found that he received
an overpayment of compensation and that he was at fault in its creation. Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment in the amount of $2,241.61 for the period August 4 to 28, 2010; and (2) whether he
was at fault in the creation of the overpayment.
On appeal, appellant’s representative argued that OWCP erred in finding an overpayment
as appellant did not return to work.
1

5 U.S.C. § 8101 et seq.

2

Appellant’s representative has not appealed any other decisions.

FACTUAL HISTORY
On October 13, 2009 appellant, then a 54-year-old clerk, injured his left leg after a
“heavy night” at work.3 Appellant stopped work on October 13, 2009. OWCP accepted the
claim for left knee sprain and placed him on the periodic rolls.
On May 10, 2010 OWCP notified appellant that, to avoid an overpayment of
compensation, he was to immediately notify it when he returned to work. He was also advised to
return any check to OWCP which included a period during which he worked.
Appellant’s physicians indicated that he was unable to return to his regular job. An
OWCP referral physician, Dr. Stanley Askin, a Board-certified orthopedic surgeon, opined in a
May 14, 2010 report, that appellant had no work-related restrictions and could perform his dateof-injury job. In an August 3, 2010 letter, an employing establishment nurse asked that
Dr. Askin complete an OWCP work restriction form in view of his stated opinion. In an
August 4, 2010 work capacity evaluation form, Dr. Askin advised that appellant could perform
his usual job.
On August 18, 2010 OWCP received an August 13, 2010 Form CA-3 from the
employing establishment indicating that appellant returned to full duty on August 4, 2010.
On August 24, 2010 OWCP advised appellant and the employing establishment that his
periodic rolls payments had stopped as he returned to work on August 4, 2010.
On September 3, 2010 OWCP notified appellant of its preliminary determination that he
received a $2,241.61 overpayment of compensation for the period August 4 through 28, 2010
because he received compensation for total disability after he returned to work. Appellant was
found at fault in creating of the overpayment, as he knew or should have known that he was not
entitled to receive wage-loss compensation for a period after his return to work. OWCP further
informed appellant that he had 30 days to request a telephone conference, a final decision based
on the written evidence, or a prerecoupment hearing on the issues of fault and a possible waiver.
The record contains calculations showing that appellant should have been paid net
compensation of $2,510.60 for the period August 1 through 28, 2010; however, as he returned to
work on August 4, 2010, OWCP determined he was only entitled to three days. The daily net
rate was determined to be $89.66. OWCP found that appellant was entitled to three days of
compensation, or $268.98, before he returned to work. The difference between the net amount
paid for the entire period and the net amount to which appellant was entitled, resulted in an
overpayment of $2,241.61 ($2,510.60 - $268.98 = $2,241.61).
In a September 7, 2010 telephone call memorandum, appellant informed OWCP that he
had not returned to work. OWCP advised appellant that the employing establishment reported

3

Appellant actually claimed a recurrence of disability due to a prior injury. The record reflects that appellant has
a prior claim for tear of the left medial meniscus under File No. xxxxxx317. OWCP treated the recurrence as a new
traumatic injury in the present claim. Both claims have been combined.

2

that he had returned to work on August 4, 2010 and that he was being removed from the periodic
rolls until his employer verified that he had not returned to work.
In a letter dated September 14, 2010, appellant’s attorney notified OWCP that appellant
did not return to work on August 4, 2010 and that his compensation benefits should not be
discontinued.
By decision dated October 4, 2010, OWCP finalized its finding that appellant received an
overpayment of compensation in the amount of $2,241,61 for the period August 4 to 28, 2010,
based upon his receipt of wage-loss compensation after his return to work. It further found that
he was at fault in the creation of the overpayment, as he accepted a payment which he knew or
should have known was incorrect. OWCP found that, without documentary evidence supporting
his contention that he did not return to work, the Form CA-3 was controlling with regard to
whether appellant returned to work.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA4 provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.5
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, she
may not receive salary, pay or remuneration of any type from the United States, except in limited
circumstances.6 OWCP’s regulations provide that compensation for wage loss due to disability
is available only for any periods during which an employee’s work-related medical condition
prevents him from earning the wages earned before the work-related injury.7
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
OWCP determined that appellant received an overpayment in the amount of $2,241.61
based upon the employer’s assertion that he returned to work on August 4, 2010. When an
employee returns to work and ceases to have any loss of wages, he is no longer entitled to
compensation for wage loss.8 In this case, the evidence is not conclusive as to whether appellant
returned to work. The record contains an employing establishment’s notification on a Form
CA-3 that he returned on August 4, 2010; but there is no other evidence from the employer
4

5 U.S.C. §§ 8101-8193.

5

Id. at § 8102.

6

Id. at § 8116(a).

7

20 C.F.R. § 10.500(a).

8

See Kenneth E. Rush, 51 ECAB 116 (1999).

3

verifying that appellant returned to work on that day. Appellant and his attorney notified OWCP
that he did not return to work and that his wage-loss compensation should continue.9 In view of
appellant’s assertion that he did not return to work, OWCP should have verified his work status
before finding that he received an overpayment of compensation. Under these circumstances,
OWCP should have obtained verification of appellant’s return to work with the employing
establishment.10 As the record requires clarification regarding whether appellant returned to
work on August 4, 2010, the record is insufficient to establish that appellant received an
overpayment of compensation beginning that date.
Upon return of the case record, OWCP should verify with the employing establishment
whether appellant returned to work on August 4, 2010. Following this and such other further
development as it deems necessary, it should make appropriate findings and a decision regarding
any overpayment that may have been received beginning August 4, 2010.11
CONCLUSION
The Board finds that this case is not in posture for decision.

9

There is no evidence that OWCP sought to terminate or reduce appellant’s wage-loss compensation.

10

See R.E., 59 ECAB 323 (2008); Willie A. Dean, 40 ECAB 1208 (1989) (OWCP has a responsibility in the
developing the evidence, particularly when such evidence is of the character normally obtained from the employing
establishment or other government source).
11

In light of the Board’s finding, the other issues are moot.

4

ORDER
IT IS HEREBY ORDERED THAT the October 4, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision.
Issued: November 1, 2011
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
)
__________________________________________ )
C.P., Appellant

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

Docket No. 11-1263
Issued: March 15, 2012

Case Submitted on the Record

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

JURISDICTION
On April 27, 2011 appellant filed a timely appeal from a December 8, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) regarding his schedule
award claim.1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established more than 34 percent permanent
impairment to his left leg, for which he received a schedule award.

1

Appellant has not appealed a November 19, 2010 OWCP decision denying his recurrence claim. Thus, the
Board will not review this decision.
2

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
In October 1969, appellant, then a 35-year-old quality assurance specialist, filed a
traumatic injury claim alleging that he initially injured his lower back while moving an 85-pound
transmitter. He reinjured his back in December 1969 while delivering groceries as part of a base
Christmas project. The claim was accepted for a lumbar strain and L5-S1 herniated disc, right
side. Appellant underwent a laminectomy on January 14, 1970. He worked light duty until he
retired in 1987. Thereafter, appellant worked part time for the Department of Corrections as a
vocational teacher.
On September 10, 2009 appellant inquired about a schedule award and provided a
February 5, 1971 report from Dr. Wayne B. Lockwood, a Board-certified orthopedic surgeon,
who recommended 10 percent spine impairment. In an October 30, 2009 letter, OWCP advised
him that its program does not recognize impairments to the spine. Appellant was informed that,
if he sustained impairment to his lower extremities as a result of his work injury, a medical report
containing an impairment evaluation consistent with the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides) could be submitted for a schedule
award determination.
On February 2, 2010 appellant requested a schedule award. In a January 18, 2010 report,
Dr. M. Stephen Wilson, an orthopedic surgeon, noted the history of injury and reviewed medical
records and set forth findings. He opined that appellant had a significant spine injury resulting in
bilateral lower extremity radiculopathy with severe weakness and significant neuropathy due to
his work-related accident. Dr. Wilson stated that appellant was at maximum medical
improvement. For the right leg, he used Table 16-12, page 535 and determined that appellant
had 21 percent impairment due to motor and sensory deficits of the femoral nerve; 54 percent
due to motor and sensory deficits of the sciatic nerve; and 30 percent for motor and sensory
deficits of the common peroneal nerve. Dr. Wilson combined the percentages under page 604 to
find 75 percent total right leg impairment. For the left leg, he also used Table 16-12, page 535
and determined that appellant had 21 percent impairment due to motor and sensory deficits of the
femoral nerve; 54 percent due to motor and sensory deficits of the sciatic nerve; and 40 percent
for motor and sensory deficits of the common peroneal nerve. Dr. Wilson combined the
percentages under page 604 to find 78 percent total impairment left leg.
On August 5, 2010 an OWCP medical adviser reviewed the medical record and
Dr. Wilson’s January 18, 2010 medical report for the purpose of determining impairment for the
lower extremities. He opined that appellant reached maximum medical improvement on
January 18, 2010, the date of Dr. Wilson’s evaluation. The medical adviser stated that
Dr. Wilson used peripheral nerves to determine impairment in the lower extremities. However,
combining impairment based on the sciatic and common peroneal nerves constituted duplication.

2

The medical adviser recommended a second opinion evaluation. He also opined that, to rate
radiculopathy, it was more appropriate to use The Guides Newsletter, July-August 2009.3
In a September 13, 2010 report, Dr. Wilson noted the history of injury, his review of
medical record and set forth his examination finding. He opined that appellant reached
maximum medical improvement. Dr. Wilson opined that appellant had 48 percent right leg
impairment and 50 percent left leg impairment. For the right leg, he noted net adjustments and
found 13 percent impairment due to moderate sensory and moderate motor deficits of the L3
spinal nerve; a 17 percent impairment due to moderate sensory and moderate motor deficits of
the L4 nerve; 17 percent impairment due to moderate sensory and moderate motor deficits of the
L5 nerve; 13 percent impairment due to moderate sensory and moderate motor deficits of the S1
nerve. Dr. Wilson showed his calculations under proposed Table 2 set forth in The Guides
Newsletter4 and combined the left leg impairments to find 48 percent total impairment. For the
left leg, he noted net adjustments and found appellant had 13 percent impairment due to
moderate sensory and moderate motor deficits of the L3 nerve; 17 percent impairment due to
moderate sensory and moderate motor deficits of the L4 nerve; 17 percent impairment due to
moderate sensory and severe motor deficits due to L5 spinal nerve; and 16 percent impairment
due to moderate sensory and severe motor deficits of the S1 spinal nerve. Dr. Wilson showed his
calculations under proposed Table 2 of the A.M.A., Guides and combined the left leg
impairments to find 50 percent total impairment to the left leg. He further opined that
appellant’s impairment was causally related to appellant’s work-related injury.
OWCP referred appellant to Dr. Michael S. Smith, a Board-certified physiatrist, for a
second opinion evaluation. In a November 2, 2010 report, Dr. Smith noted the history of injury,
a review of the medical records and his examination findings. He diagnosed chronic left L4/5,
L5 and S1 radiculopathy with history of lumbar laminectomy; severe degenerative lumbar disc
disease; history of cervical stenosis with previous myelopathy with resolution of symptoms and
superimposed generalized peripheral neuropathy in the lower extremities. Appellant had obvious
elements of persistent lumbar radiculopathy at L4/5, L5, S1 that resulted in some motor
impairment of L4, L5 and S1 and some sensory impairment in L4 and L5. Dr. Smith explained
that impairments from the right leg were not included as appellant had more of a peripheral
neuropathy and no sign of spinal nerve impairments. He noted that the impairment in the left leg
was present by history after appellant’s accident, reinjury, and surgery before the additional
findings of peripheral neuropathy and cervical myelopathy. Dr. Smith opined that maximum
medical improvement was reached on March 26, 2004, when appellant was found to have
multilevel disc disease with mild lumbar stenosis at L3/4. For the L4 nerve, he utilized proposed
Table 2 of the A.M.A., Guides and found a class 1 (mild sensory deficit) with a default value of
1 percent. Grade modifiers were determined to be 3 for Functional History (GMFH) and 1 for

3

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010)
(Exhibit 1, 4). Exhibit 1 provides that impairment to the upper or lower extremities that is caused by a spinal injury
should be rated consistent with the article “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition” in
the July-August 2009 edition of The Guides Newsletter published by the American Medical Association. The JulyAugust 2009 edition of The Guides Newsletter is set forth at exhibit 4.
4

See id.

3

Clinical Studies (GMCS).5 Dr. Smith applied the net adjustment formula of (GMFH - CDX) (31) + (GMCS - CDX) (1-1) to find a net adjustment of 2. This resulted in class 1 with an
adjustment of 2 from the default value C, which equaled class 1, grade E impairment of two
percent. For moderate/severe motor deficit of L4 nerve, proposed Table 2 showed class 1 with
default value of 13 percent impairment. Grade modifiers were 3 for functional history and 1 for
clinical studies. The net adjustment was calculated to be 2 using the net adjustment formula of
(GMFH - CDX) (3-1) + (GMCS - CDX) (1-1). The result was class 1 with net adjustment of 2
from the default value of C equaled class 1, grade E of 13 percent. For the L5 nerve, Dr. Smith
found five percent moderate sensory impairment and nine percent mild motor deficit. A
moderate sensory deficit for L5 nerve under proposed Table 2 was class 1 with a default value of
three percent. Dr. Smith determined the grade modifiers for functional history was 3 and for
clinical studies was 1. He found the net adjustment of (GMFH - CDX) (3-1) + (GMCS - CDX)
(1-1) equaled 2. The result was a class 1 with a net adjustment of 2 or class 1, grade E of five
percent. Under proposed Table 2, a mild motor deficit of L5 results in class 1, with a default
value of five percent. Dr. Smith determined the grade modifiers for functional history was 3 and
for clinical studies was 1. The net adjustment of (GMFH - CDX) (3-1) + (GMCS - CDX) (1-1)
equaled 2. The result was a class 1 with net adjustment of 2 or class 1, grade E of nine percent.
For the S1 nerve, Dr. Smith found 10 percent moderate motor impairment. Under proposed
Table 2, a moderate motor deficit of S1 nerve was class 1 with a default value of eight percent.
Grade modifier for functional history was 3 and clinical studies was 1. The net adjustment of
(GMFH - CDX) (3-1) + (GMCS - CDX) (1-1) was 2. The result was class 1 with an adjustment
of 2 from the default value C which equaled class 1, grade E or 10 percent. Dr. Smith stated that
he combined the motor impairments of 10 + 13 + 9 to find 32 percent impairment for the spinal
nerve involvement from L4 through S1 for motor impairment. For sensory impairment, he stated
that he combined the two plus five to find seven percent total sensory impairment. Dr. Smith
combined the motor impairment of 32 with sensory impairment of 7 to find 39 percent left leg
impairment.
In a November 19, 2010 report, OWCP’s medical adviser reviewed Dr. Smith’s
November 2, 2010 report for purposes of determining an impairment of the lower extremities.
He noted agreeing with Dr. Smith’s calculations for motor and sensory deficits of the L4, L5 and
S1 nerves under proposed Table 2. However, the medical adviser opined that appellant had 34
percent total left lower extremity impairment. He stated that Dr. Smith should have combined
the findings in each nerve root (15 percent for L4 nerve root, 14 percent for L5 nerve root, and
10 percent for S1 motor deficit) instead of adding the sensory and motor impairments of each
nerve root.
By decision dated December 8, 2010, OWCP granted appellant a schedule award for 34
percent permanent loss of use of the left lower extremity. The award ran 97.92 weeks for the
period March 26, 2004 to February 9, 2006.

5

Grade modifier for physical examination was not used in the impairment since it was used to determine the
spinal nerve impairment.

4

LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.8 For
consistent results and to ensure equal justice under the law to all claimants, good administrative
practice necessitates the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.9 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.10
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on GMFH, Physical Examination
(GMPE) and GMCS.11 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX).12
ANALYSIS
OWCP accepted that appellant had work-related lumbar strain and right-sided L5-S1
herniated disc, for which he underwent surgery on January 14, 1970. Appellant subsequently
requested a schedule award. OWCP awarded him 34 percent left lower extremity impairment
based on its medical adviser’s review of the report of the second opinion examiner, Dr. Smith.
The Board finds that the case is not in posture for decision due to a conflict in medical
opinion necessitating a referral to an impartial medical specialist.13
In his September 13, 2010 report, Dr. Wilson opined that appellant has 48 percent right
lower extremity impairment and 50 percent left lower extremity impairment due to motor and
sensory impairments of the L3, L4, L5 and S1 nerve roots from the accepted work injury. He

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

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

9

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

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
11

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

12

Id. at 521.

13

5 U.S.C. § 8123(a); see Paul J. Navarette, Docket No. 05-895 (issued July 11, 2005).

5

utilized the A.M.A., Guides rating scheme under proposed Table 2 and provided calculations for
his impairment determinations.
Dr. Smith opined in his November 2, 2010 report that only impairment to the left leg was
causally related to the accepted work injury and provided an explanation. He utilized the
A.M.A., Guides rating scheme under proposed Table 2 and opined that appellant had 39 percent
left lower extremity impairment. OWCP’s medical adviser reviewed Dr. Smith’s report and
opined that appellant had 34 percent left leg impairment as Dr. Smith added rather than combine
the findings in each nerve root. The medical adviser did not review or discuss Dr. Wilson’s
September 13, 2010 report.
The Board finds that a conflict in medical opinion exists between Drs. Wilson and Smith
as to the extent of permanent impairment to appellant’s lower extremities as there is no
agreement on whether only the left leg or both legs are involved, and the extent of impairment of
the left leg.14 If there is a conflict in medical opinion between the employee’s physician and the
physician making the examination for the United States, OWCP shall appoint a third physician,
known as a referee physician or impartial medical specialist, to make what is called a referee
examination.15 To resolve the present matter, OWCP shall remand the case, refer appellant for a
referee examination, together with the medical record and a statement of accepted facts, to an
appropriate Board-certified specialist and obtain a rationalized medical opinion regarding
whether for impairment rating purposes appellant has work-related impairment of only the left
leg or both legs and to rate the extent of permanent impairment of the proper lower extremity.
After conducting such further development as it may find necessary, OWCP shall render an
appropriate decision.
On appeal, appellant expressed his disagreement as to why Dr. Smith’s evaluation was
used over that of his physician, Dr. Wilson, and why he was not provided a schedule award for
his right lower extremities. He further requested an explanation as to how his award was
computed. As explained, the Board finds that the case is not in posture for decision due to a
conflict in the medical evidence and must be remanded to an appropriate specialist to resolve the
medical conflict.
CONCLUSION
The Board finds that the case is not in posture for decision.

14

See Paul J. Navarette, supra note 13.

15

See 5 U.S.C. § 8123(a); 20 C.F.R. § 10.321. See also R.A., Docket No. 09-552 (issued November 13, 2009).

6

ORDER
IT IS HEREBY ORDERED THAT the December 8, 2010 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: March 15, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 14-126
Issued: April 3, 2014

Case Submitted on the Record

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

JURISDICTION
On October 24, 2013 appellant filed a timely appeal from the June 12, 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 more than a six
percent permanent impairment of his right arm, for which he received a schedule award.
FACTUAL HISTORY
On May 9, 2001 appellant, then a 49-year-old manual distribution clerk, sustained injury
when he was lifting boxes weighing between 15 and 35 pounds. He felt pain in his right arm and
elbow while lifting. Appellant’s claim was accepted for right lateral epicondylitis and right
1

5 U.S.C. §§ 8101-8193.

brachial neuritis. He underwent right ulnar surgery on September 23, 2005 and right lateral
epicondylectomy and radial tunnel release surgery on January 9, 2006. The procedures were
authorized by OWCP.2
On September 3, 2010 appellant filed a claim for a schedule award due to his accepted
conditions.
In a September 3, 2010 report, Dr. Jacob Salomon, an attending Board-certified
orthopedic surgeon, described appellant’s medical history and reported findings on physical
examination. Under Table 15-4 on page 399 of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009), appellant’s right
lateral epicondylitis would be rated as class 1 with mild pain, an abnormal magnetic resonance
imaging (MRI) scan study which shows postoperative changes of the right elbow surgery and
decreased activities of daily living. Dr. Salomon indicated that the functional history grade
modifier was 2, the physical examination grade modifier was 1 and the clinical studies grade
modifier was 1, which resulted in a final grade D impairment under Table 15-4. This resulted in
six percent impairment of the right arm for the right lateral epicondylitis. Dr. Salomon rated
appellant’s bilateral carpal tunnel syndrome using Table 15-21 and found that he had five percent
permanent impairment in each arm on this basis. The combined upper extremity deficit was then
11 percent in the right arm (epicondylitis deficit combined with carpal tunnel deficit) and 5
percent in the left arm (carpal tunnel deficit). Appellant’s date of maximum medical
improvement was August 16, 2010.
On September 22, 2010 Dr. Neil Ghodadra, a Board-certified orthopedic surgeon serving
as an OWCP medical adviser, stated that his rating differed from that of Dr. Salomon because he
had included bilateral carpal tunnel syndrome in his assessment -- a condition which had not
been accepted as work related. According to Table 15-4 on page 399, appellant’s epicondylitis
corresponded to a class 1 rating with abnormal MRI scan findings and mild pain.
Electromyogram (EMG) testing also showed mild changes. Dr. Ghodadra stated that this
corresponded to six percent permanent impairment of appellant’s right arm.
In a September 29, 2010 decision, OWCP granted appellant schedule award for six
percent permanent impairment of his right arm. The award ran for 18.72 weeks from August 16
to December 25, 2010.
In a November 12, 2012 report, Dr. Anatoly Rozman, an attending Board-certified
physical medicine and rehabilitation physician, discussed appellant’s medical history and
examination findings. He stated that EMG testing revealed carpal tunnel syndrome but did not
show a strong diagnostic evidence of radiculopathy in spite of Dr. Salomon’s finding of a
cervical radiculopathy. Dr. Rozman noted that a February 28, 2011 MRI scan of the lumbar
2

In a September 13, 2012 decision, the Board set aside a September 12, 2011 OWCP decision, which denied
appellant’s request for modification of a loss of wage-earning capacity decision and directed further development.
Docket No. 12-809. In a January 16, 2013 decision, OWCP vacated its June 1, 2007 wage-earning capacity decision
as the evidence of file supported modification of the decision. It further found that there was no rationalized
medical evidence showing that appellant had disability due to his accepted work injuries on or after July 12, 2010.
This matter is not the subject of the present appeal.

2

spine revealed that appellant had disc protrusions at C3-4, C4-5 and C5-6 with mild stenosis.3
This problem was managed conservatively with a long course of physical therapy and appellant
reached maximal improvement on August 16, 2010 as per Dr. Salomon’s opinion. Dr. Rozman
stated that appellant still had pain to palpation of the right radial epicondyle, but noted that he
continued to work. He indicated that Phalen’s test was positive on both hands, but noted that
carpal tunnel syndrome condition was not an accepted work condition in this case. Dr. Rozman
then applied Table 15-4 on page 399 of the sixth edition of the A.M.A., Guides to find that
appellant’s right lateral epicondylitis fell under class 1 which was equal to a five percent
impairment of his right arm. He found that applying the grade modifiers from Table 15-7, Table
15-8 and Table 15-9 meant that appellant had six percent impairment of his right arm due to this
diagnosis-based condition. Dr. Rozman further stated:
“For right brachial neuritis/radiculitis, I used Table 17-2 on page 563. This injury
belongs to the class 3 with interval disc herniation at multiple levels with
radiculopathy, single clinical appropriate level, with preserved muscle extensors
and flexors and positive Spurling’s maneuver. This impairment rating belongs to
90 percent of the upper extremity impairment. The grade modifier for this
condition from [Table] 17-7 physical examination is grade modifier 2, for clinical
studies modifier 2, for functional history Table 17-6 modifier is 2, the adjuster
combined modifier -3, which brings permanent impairment for this condition to
16 percent of the WPI [whole person impairment]. For this claim, I need to
convert right lateral epicondylitis six percent of the upper extremity to the WPI,
which will be equal four percent. Altogether for right lateral epicondylitis and
cervical radiculitis/cervical disc disease will be 16 percent plus 4 percent,
altogether 20 percent of the WPI impairment for this case.”
On January 14, 2012 Dr. David H. Garelick, a Board-certified orthopedic surgeon serving
as an OWCP medical adviser, stated that Dr. Rozman had recommended 20 percent WPI
impairment, 16 percent of which was for brachial neuritis. He stated that the rating was flawed
because Dr. Rozman recommended a WPI rating, but FECA only recognized extremity
impairment. Dr. Garelick indicated that Dr. Rozman’s impairment rating was not consistent with
appellant’s upper extremity EMG study which was negative for any proximal electrical
abnormality. Given the negative study, there was no documented pathology and no impairment
could be awarded for the brachial neuritis. Dr. Garelick stated that Dr. Rozman recommended
six percent impairment of appellant’s right arm for the residual lateral epicondylitis according to
Table 15-4 on page 399 of the sixth edition of the A.M.A., Guides. He noted that he had
reviewed Dr. Rozman’s rationale and believed that he had accurately interpreted and applied the
A.M.A., Guides for this condition. Dr. Garelick found that appellant had six percent permanent
impairment of his right arm with maximum medical improvement occurring on July 9, 2006, six
months post right arm surgery.
In a June 12, 2013 decision, OWCP affirmed its September 29, 2010 decision noting that
Dr. Garelick provided a proper impairment rating based on the findings of the case record,
3

The record contains the findings of the EMG testing from February 18, 2011 and the MRI scan testing from
February 28, 2011. The EMG testing showed “no strong electrodiagnostic evidence of cervical radiculopathy.”

3

including the report of Dr. Rozman. It found that appellant had not submitted probative medical
evidence showing that he had more than six percent permanent impairment of his right arm.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 For OWCP decisions issued on or after
May 1, 2009, the sixth edition of the A.M.A., Guides (6th ed. 2009) is used for evaluating
permanent impairment.7
A schedule award is not payable under section 8107 of FECA for an impairment of the
whole person.8 In determining the amount of a schedule award for a member of the body that
sustained an employment-related permanent impairment, preexisting impairments of the body are
to be included.9
In determining impairment for the upper extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper
extremity to be rated. With respect to the elbow, reference is made to Table 15-4 (Elbow
Regional Grid) beginning on page 398. After the class of diagnosis (CDX) is determined from
the Elbow Regional Grid (including identification of a default grade value), the net adjustment
formula is applied using the grade modifier for Functional History (GMFH), grade modifier for
Physical Examination (GMPE) and grade modifier for Clinical Studies (GMCS). The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10 Under

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

Id.

7

See FECA Bulletin No. 9-03 (issued March 15, 2009). For OWCP decisions issued before May 1, 2009, the
fifth edition of the A.M.A., Guides (5th ed. 2001) is used.
8

See Gordon G. McNeill, 42 ECAB 140, 145 (1990).

9

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3a(3) (January 2010). This portion of OWCP procedures provide that the impairment rating of
a given scheduled member should include any preexisting permanent impairment of the same member or function.
10

See A.M.A., Guides 398-400 (6th ed. 2009).

4

Chapter 2.3, evaluators are directed to provide reasons for their impairment rating choices,
including choices of diagnoses from regional grids and calculations of modifier scores.11
ANALYSIS
OWCP accepted appellant’s claim for right lateral epicondylitis and right brachial
neuritis and appellant filed a claim for a schedule award. In a September 29, 2010 decision, it
granted appellant schedule award for a six percent permanent impairment of his right arm. The
award ran for 18.72 weeks from August 16 to December 25, 2010.
Appellant contends that he was entitled to additional schedule award compensation, but
the Board finds that he did not submit sufficient medical evidence to establish greater
impairment. He submitted a November 12, 2012 report of Dr. Rozman, an attending Boardcertified orthopedic surgeon. The Board finds that Dr. Rozman properly applied the standards of
the sixth edition of the A.M.A., Guides to find that appellant had a six percent right arm
impairment due to right lateral epicondylitis. Dr. Rozman applied Table 15-4 on page 399 to
find that appellant’s right lateral epicondylitis fell under class 1 which was equal to a five percent
impairment of his right arm. He properly found that applying the grade modifiers for functional
history, physical examination and clinical studies (from Table, 15-7, Table 15-8 and Table 15-9
on pages 406 through 411) to the net adjustment formula meant that appellant had six percent
impairment of his right arm due to this diagnosis-based condition.
The Board further notes that Dr. Garelick, a Board-certified orthopedic surgeon serving
as an OWCP medical adviser, properly pointed out that Dr. Rozman’s conclusion that appellant’s
20 percent impairment of the whole person was incorrect. Dr. Garelick properly noted that a
schedule award is not payable under section 8107 of FECA for an impairment of the whole
person.12 Dr. Rozman’s evaluation in this regard was based on the accepted condition of right
brachial neuritis, but Dr. Garelick advised that this evaluation was improper because the medical
evidence of record at the time of the evaluation, including diagnostic testing, did not establish the
existence of residuals of that condition in appellant’s right arm.13 For these reasons, appellant did
not establish that he has more than a six percent permanent impairment of his right arm.14
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.

11

Id. at 23-28.

12

See supra note 8.

13

The record reveals that appellant had bilateral carpal tunnel syndrome, but this condition has not been accepted
as work related and there is no evidence that it preexisted appellant’s May 9, 2001 work injury. See supra note 9.
14

Appellant submitted additional evidence after OWCP’s June 12, 2013 decision, but the Board cannot consider
such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

5

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a six percent permanent impairment of his right arm, for which he received a schedule
award.
ORDER
IT IS HEREBY ORDERED THAT the June 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 3, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6