United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, SAN DIEGO MLS
POST OFFICE, San Diego, CA, Employer
__________________________________________

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

Docket No. 20-0413
Issued: July 28, 2020

Case Submitted on the Record

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

JURISDICTION
On December 12, 2019 appellant filed a timely appeal from a July 3, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.

1
The Board notes that following the July 3, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish upper extremity
conditions which manifested on March 27, 2019 causally related to the accepted factors of his
federal employment.
FACTUAL HISTORY
On April 25, 2019 appellant, then a 63-year-old clerk, filed an occupational disease claim
(Form CA-2) alleging that he developed left shoulder pain and finger numbness due to factors of
his federal employment including repetitive lifting, loading and unloading of heavy boxes
weighing up to 40 pounds. He indicated that he first became aware of his condition and related it
to his employment on March 27, 2019. Appellant did not stop work.
In an April 14, 2019 doctor’s first report of occupational injury or illness, Dr. Marife
Dy Stroika, a Board-certified family practitioner, noted that she evaluated appellant for a left-sided
neck and back injury which occurred at work. She recounted a history that he was lifting 40-pound
boxes on March 27, 20193 when he noticed discomfort in the left side of his upper back and
shoulder. Appellant continued to work and his symptoms increased. Findings on physical
examination revealed limited flexion in the neck and pain when looking to the left side.
Dr. Dy Stroika diagnosed neck and back pain, and left hand numbness. She provided work
restrictions.
In a May 13, 2019 development letter, OWCP notified appellant of the deficiencies in his
claim and informed him of the type of factual and medical evidence to submit in support of his
claim and provided a questionnaire for his completion. It requested that he clarify whether his
claim was for a traumatic injury or an occupational disease. OWCP afforded appellant 30 days to
respond.
In an April 2, 2019 narrative statement, appellant asserted that on March 27, 2019 he was
required to move 60 boxes of labels and felt something wrong in his shoulder. The boxes weighed
approximately 40 pounds each. Appellant continued to work on March 30, 2019 without a
problem. He reported that his pain was present, but not an issue and he expected it to resolve.
Appellant provided notes beginning May 17 through June 4, 2019 from Hamid Sakhi, a
physician assistant and Mary Duvall, a physical therapist.
In a form report dated May 17, 2019, Dr. Oluseyi Awodele, a resident physician, described
appellant’s history of lifting 60 boxes weighing approximately 40 pounds and developing pain in
his left shoulder and arm. On May 20, 2019 he examined appellant and diagnosed degenerative
arthritis of the cervical spine, left shoulder strain, and left trapezius strain. Dr. Awodele indicated
that appellant had experienced right shoulder pain, as well as numbness in the left thumb, index,
and middle finger for approximately three months. He recounted that appellant’s left shoulder

3
The report lists the date of injury as March 28, 2019; however, this appears to be in error as appellant has
consistently indicated his date of injury as March 27, 2019.

2

pain began after a period of prolonged repetitive lifting on March 27, 2019. Approximately two
weeks later, appellant began to experience numbness in his left fingers and thumb.
On June 11 and 18, 2019 Dr. Stephen Leibham, a Board-certified internist, diagnosed left
shoulder strain. He noted that appellant had a normal shoulder examination and that he
experienced neck symptoms at home lying down without a pillow. In his June 18, 2019 note,
Dr. Leibham diagnosed strain of the left shoulder and upper arm. He opined that appellant’s left
shoulder pain was secondary to lifting boxes and listed an injury date of March 27, 2019.
Dr. Leibham found that his left shoulder condition had resolved. He reported that appellant’s left
wrist symptoms appeared to be carpal tunnel syndrome as he had a positive Tinel’s sign, and as
these symptoms had been present for eight months.
By decision dated July 3, 2019, OWCP found that appellant had failed to establish causal
relationship between his diagnosed conditions and the accepted factors of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.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, an employee must submit the following: (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 employee.7
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

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

L.S., Docket No. 19-1769 (issued July 10, 2020); R.G., Docket No. 19-0233 (issued July 16, 2019). See also
Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB
345 (1989).

3

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
the specific employment factor(s) identified by the employee.9 The weight of the 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.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish upper extremity
conditions which manifested on March 27, 2019 causally related to the accepted factors of his
federal employment.
It is undisputed that on March 27, 2019 appellant moved approximately 60 boxes weighing
40 pounds and experienced left shoulder pain. However, the Board finds that he failed to submit
sufficient rationalized medical evidence to establish that his diagnosed conditions were causally
related to the accepted March 27, 2019 employment incident.
In support of his traumatic injury claim, appellant provided a June 18, 2019 note from
Dr. Leibham diagnosing strain of the left shoulder and upper arm. He opined that appellant’s left
shoulder pain was secondary to lifting boxes and provided an injury date of March 27, 2019.
Although Dr. Leibham supported causal relationship, he failed to provide medical rationale
explaining the basis of his conclusory opinion. Without explaining physiologically how the
accepted employment incident caused or aggravated the diagnosed conditions, this report is of
limited probative value and insufficient to establish appellant’s claim.11
In reports dated May 17 and 20, 2019, Dr. Awodele described appellant’s history of lifting
60 boxes weighing approximately 40 pounds and developing pain in his left shoulder and arm. He
diagnosed degenerative arthritis of the cervical spine, left shoulder strain, and left trapezius strain.
Dr. Awodele did not offer a medical opinion as to whether appellant’s diagnosed conditions were
causally related to the accepted employment incident. The Board has held that medical evidence
that does not provide an opinion regarding the cause of an employee’s condition is of no probative
value on the issue of causal relationship.12
On April 14, 2019 Dr. Dy Stroika described the March 27, 2019 work incident and
diagnosed neck and back pain, and left hand numbness. The Board has consistently held that pain

8

S.A., Docket No. 18-0399 (issued October 16, 2018); Robert G. Morris, 48 ECAB 238 (1996).

9
M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB
345 (1989).
10

D.R., Docket No. 19-0954 (issued October 25, 2019); James Mack, 43 ECAB 321 (1991).

11

S.K., Docket No. 20-0102 (issued June 12, 2020); M.M., Docket No. 20-0019 (issued May 6, 2020).

12

Id.

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is a symptom, not a specific medical diagnosis. As Dr. Dy Stroika did not provide a specific
medical diagnosis, her assessment of pain was insufficient to establish appellant’s claim.13
Appellant provided a series of notes from Ms. Duvall, a physical therapist and Mr. Sakhi,
a physician assistant. The Board has held that reports signed solely by physician assistants and
physical therapists are of no probative value as neither considered physicians as defined under
FECA.14 These reports are therefore insufficient to establish appellant’s claim.
The Board finds that appellant has not submitted rationalized, probative medical evidence
sufficient to establish upper extremity conditions which manifested on March 27, 2019 causally
related to the accepted factors of his federal employment when lifting boxes.15 Appellant therefore
has not met his burden of proof.
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 upper extremity
conditions which manifested on March 27, 2019 causally related to the accepted factors of his
federal employment.

13
M.V., Docket No. 19-1515 (issued January 2, 2020): M.M., Docket No. 16-1617 (issued January 24, 2017); K.B.,
Docket No. 16-0122 (issued April 19, 2016); Robert Broome, 55 ECAB 339 (2004).

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2). See also David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); D.H., Docket
No. 18-0072 (issued January 21, 2020) (physical therapists are not considered physicians under FECA); M.C., Docket
No. 19-1074 (issued June 12, 2020) (physician assistants are not considered physicians under FECA).
14

15

T.J., Docket No. 18-1500 (issued May 1, 2019); D.S., Docket No. 18-0061 (issued May 29, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the July 3, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 28, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6


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

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-2138
Issued: March 8, 2007

Case Submitted on the Record

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

JURISDICTION
On September 19, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs schedule award dated September 12, 2006. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has more than a 14 percent permanent impairment of the
right upper extremity, for which he received a schedule award.
FACTUAL HISTORY
On March 19, 2004 appellant, then a 43-year-old letter carrier, filed a traumatic injury
claim alleging that on March 16, 2004 he slipped and injured his right shoulder. The Office
accepted his claim for right rotator cuff tear and authorized right shoulder arthroscopy, which
was performed on April 2, 2004. Appellant did not stop work.

Appellant came under the treatment of Dr. Charles D. Hummer, III, a Board-certified
orthopedic surgeon, who treated appellant from March 22 to October 7, 2004 for his right rotator
cuff tear. A March 19, 2004 magnetic resonance imaging (MRI) scan of the right shoulder
revealed a large full thickness tear of the rotator cuff with tendon retraction. On April 2, 2004
Dr. Hummer performed a right shoulder diagnostic arthroscopy followed by an open rotator cuff
repair for massive tear, with complete reconstruction and diagnosed right complete supraspinatus
and partial anterior infraspinatus avulsion tear of the rotator cuff. In reports dated April 8 to
October 7, 2004, he noted that appellant continued with physical therapy and experienced
markedly improved range of motion and could return to work full time on August 12, 2004. On
October 7, 2004 Dr. Hummer noted full active range of motion of the right shoulder, essentially
normal rotator cuff strength, impingement sign was negative, no audible or palpable subacromial
crepitus and the motor, sensory and reflex examination was normal. He recommended that
appellant continue full-time work and follow-up as needed.
On October 25, 2004 appellant filed a claim for a schedule award.
In a letter dated November 12, 2004, the Office asked that appellant have his physician
evaluate the extent of permanent impairment of the left and right arm pursuant to the A.M.A.,
Guides.1
Appellant submitted a report dated January 27, 2005, from Dr. George L. Rodriguez, a
Board-certified orthopedic surgeon, who diagnosed rotator cuff tear and ulnar nerve injury at the
elbow. Dr. Rodriguez noted that appellant reached maximum medical improvement on
October 2, 2004 and determined that he had 19 percent impairment of the right arm under the
A.M.A., Guides. He noted findings upon physical examination of external rotation of 70 degrees
for 0 percent impairment;2 internal rotation was 30 degrees for 4 percent impairment;3 and no
abnormalities in range of motion for flexion,4 extension5 and adduction.6 Dr. Rodriguez noted a
25 percent deficit in shoulder strength for flexion for 6 percent impairment;7 a 25 percent deficit
in shoulder strength for abduction for 3 percent impairment;8 a 25 percent deficit in shoulder
strength for internal rotation for 2 percent impairment;9 a 50 percent deficit in shoulder strength

1

The American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)
(5 ed. 2001).
th

2

Id. at 479, Figure 16-46.

3

Id.

4

Id. at 476, Figure 16-40.

5

Id.

6

Id. at 477, Table 16-43.

7

Id. at 510, Figure 16-35.

8

Id.

9

Id.

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for external rotation for 3 percent impairment;10 and a sensory nerve impairment for the ulnar
nerve, a Grade 4 or a 25 percent deficit, for a 2 percent impairment.11 Appellant also submitted a
May 5, 2005 MRI scan of the right shoulder that noted recurrent supraspinatus tear, small
glenohumeral joint effusion, acromioclavicular degenerative disease and proximal biceps tendon
synovitis.
The Office referred Dr. Rodriguez’ report to an Office medical adviser. In a June 1, 2005
report, the Office medical adviser advised that appellant had four percent permanent impairment
of the right arm under the A.M.A., Guides. He found that appellant reached maximum medical
improvement on January 27, 2005. The Office medical adviser calculated that external rotation
was 70 degrees for 0 percent impairment;12 and internal rotation was 30 degrees for 4 percent
impairment.13 He noted that section 16.8a on page 508 of the A.M.A., Guides, provided that
when calculating a schedule award for the right shoulder, decreased strength cannot be rated in
the presence of decreased motion. The medical adviser further noted that appellant was not
entitled to a schedule award for the ulnar nerve because the Office did not accept this condition
as work related.
In a decision dated June 21, 2005, the Office granted appellant a schedule award for four
percent permanent impairment of the right upper extremity. The period of the schedule award
was from January 27 to April 24, 2005.
On November 28, 2005 appellant requested a review of the written record. He submitted
reports from Dr. Rodriguez dated April 26 to September 15, 2005, who noted a history of
appellant’s injury and diagnosed rotator cuff tears and ulnar nerve injury at the elbow caused by
appellant’s fall at work on March 16, 2004. Dr. Rodriguez recommended physical therapy and
advised that appellant could return to work subject to restrictions. In a report dated October 10,
2005, he disagreed with the medical adviser’s findings and opined that appellant had 16 percent
permanent impairment of the right arm under the A.M.A., Guides. Dr. Rodriguez noted that
since range of motion was rated for internal rotation a strength deficit would not be rated for this
motion. However, he noted that since range of motion was not rated for external rotation,
flexion or abduction, a strength deficit could be rated for these motions. Dr. Rodriguez noted
that internal rotation was 30 degrees for 4 percent impairment;14 a deficit in shoulder strength for
flexion was a Grade 4 or 25 percent for 6 percent impairment;15 a deficit in shoulder strength for
abduction was a Grade 4 or 25 percent for 3 percent impairment;16 and a deficit in shoulder

10

Id.

11

Id. at 482, 492, Table 16-10, 16-15.

12

See supra note 2.

13

Id.

14

See supra note 2.

15

See supra note 7.

16

Id.

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strength in external rotation was a Grade 3 or 50 percent for 3 percent impairment.17 An x-ray of
the right shoulder dated July 13, 2005, revealed no significant abnormality.
In a September 9, 2005 report, an Office medical adviser opined that appellant sustained
a 10 percent permanent impairment of the right arm. He noted that the only limitation of range
of motion was internal rotation of 30 degrees for a 4 percent permanent impairment of the right
upper extremity in accordance with Figure 16-46, page 479 of the A.M.A., Guides. The medical
adviser disagreed with Dr. Rodriguez calculation for shoulder strength impairment which was
based upon Table 16-35, page 510 of the A.M.A., Guides. He noted that section 16.8, page 508
of the A.M.A., Guides, provides that impairment due to loss of strength could be combined with
other impairment only if based on unrelated or pathomechanical causes; otherwise, impairment
ratings based upon objective anatomic findings take precedence. Additionally, Table 16-2, page
526, of the A.M.A., Guides, provides that where range of motion analysis is used muscle
strength cannot be utilized. The medical adviser modified his impairment rating and noted that
appellant would be entitled to a 10 percent impairment of the right upper extremity based upon
Table 16-27, Distal Clavicle Resection, page 506, of the A.M.A., Guides.
Appellant submitted an MRI scan of the right shoulder dated January 10, 2006, which
revealed status post rotator cuff repair with a recurrent supraspinatus tear present,
acromioclavicular joint degenerative disease and a small glenohumeral joint effusion.
In a decision dated March 2, 2006, the hearing representative set aside June 21, 2005
schedule award and remanded the matter for further development. The hearing representative
noted that Dr. Rodriguez provided an additional impairment of 12 percent for shoulder strength
impairment due to flexion and requested the medical adviser determine whether appellant had
additional impairment of 12 percent based on loss of shoulder strength.
In reports dated January 3 to March 28, 2006, Dr. Rodriguez noted appellant’s continued
complaints and diagnosed rotator cuff tear of the right shoulder and brachial plexitis of the right
shoulder.
The Office referred Dr. Rodriguez’ report’s and the case record to an Office medical
adviser. In a report dated August 27, 2006, the Office medical adviser advised that appellant
sustained 14 percent permanent impairment of the right arm. He calculated that appellant had a
10 percent impairment of the right upper extremity based upon the distal clavicle resection,18 and
4 percent impairment for the range of motion deficit for internal rotation of 30 degrees.19 The
Office medical adviser noted that in accordance with section 16-7B arthroplasty, page 505 of the
A.M.A., Guides, decreased range of motion can be combined with arthroplasty impairment,
which would provide a 14 percent permanent impairment of the right arm. He opined that
Dr. Rodriguez’ calculation which combined range of motion findings with loss of strength
deficits was not in compliance with the A.M.A., Guides.
17

Id.

18

Id. at 506, Table 16-27.

19

See supra note 2.

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By decision dated September 12, 2006, the Office granted appellant a schedule award of
14 percent permanent impairment of the right upper extremity. As appellant was previously paid
a schedule award of 4 percent impairment for the right upper extremity he would receive
compensation for the additional 10 percent permanent impairment. The period of award was
from April 25 to November 29, 2005.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act20 and its
implementing regulation21 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.22
The A.M.A., Guides standards for evaluating the impairment of extremities are based
primarily on loss of range of motion.23 However, all factors that, prevent a member from
functioning normally, including pain or discomfort, should be considered, together with loss of
motion, in evaluating the degree of permanent impairment.24
ANALYSIS
On appeal, appellant contends that he has greater impairment than the 14 percent
determined by the Office.
Dr. Rodriguez determined that appellant had 16 percent permanent impairment of the
right arm. However, he did not adequately explain how his rating complied with the A.M.A.,
Guides. In an October 10, 2005 report, Dr. Rodriguez noted that since deficits in range of
motion were not rated for external rotation, flexion or abduction, deficits in strength could be
rated for these motions. He noted that internal rotation was 30 degrees for 4 percent
impairment;25 a deficit in shoulder strength for flexion was a Grade 4 or 25 percent for 6 percent
impairment;26 a deficit in shoulder strength for abduction was a Grade 4 or 25 percent for
20

5 U.S.C. § 8107.

21

20 C.F.R. § 10.404 (1999).

22

Michele Tousley, 57 ECAB ___ (Docket No. 05-1156, issued October 12, 2005).

23

See William F. Simmons, 31 ECAB 1448 (1980); Richard A. Ehrlich, 20 ECAB 246, 249 (1969) and cases cited
therein.
24

See Paul A. Toms, 28 ECAB 403 (1987).

25

See supra note 2.

26

See supra note 7.

5

3 percent impairment;27 and a deficit in shoulder strength in external rotation was a Grade 3 or
50 percent for 3 percent impairment.28 The A.M.A., Guides, provide that, regarding strength
evaluations under section 16.8, decreased strength cannot be rated in the presence of decreased
motion.29 Consequently, impairment attributable to decreased strength under section 16.8 cannot
be combined with impairment for decreased motion. The Board finds that Dr. Rodriguez did not
properly follow the A.M.A., Guides and finds that his opinion is of diminished probative value.30
The Office medical adviser, on August 27, 2006, properly applied the A.M.A., Guides to
the information provided in Dr. Rodriguez’ October 10, 2005 report. He correctly determined
that appellant had 10 percent impairment of the right arm based upon the distal clavicle
resection;31 and 4 percent impairment for the range of motion deficit for internal rotation of
30 degrees.32 The Office medical adviser noted that in accordance with section 16-7b,
arthroplasty, at page 505 of the A.M.A., Guides, decreased range of motion can be combined
with arthroplasty impairment, which allowed a 14 percent permanent impairment of the right
arm. The Board finds that appellant has no more than a 14 percent permanent impairment of the
right upper extremity. The medical adviser properly set forth calculations in conformance with
the A.M.A., Guides. The evidence establishes that appellant has a 14 percent permanent
impairment of the right arm.
On appeal appellant contends that the medical adviser incorrectly excluded appellant’s
ulnar nerve condition from the schedule award calculation. He indicated that a preexisting
impairment to the limb or organ must be included in the impairment rating regardless of whether
the injury was work related. Appellant contends that his schedule award should be increased to
include preexisting impairments of the ulnar nerve and cites the holding in Walter R. Malena,33
where the Office was required to incorporate all preexisting impairments to the scheduled
member in making a schedule award determination.
Although preexisting impairments of the body are to be included, in determining the
amount of a schedule award,34 the medical evidence in this case fails to establish any preexisting
impairments of appellant’s ulnar nerve. Dr. Hummer, in his initial report of March 22, 2004,
noted a history of an auxiliary load injury to his elbow and shoulder on March 16, 2004. He
noted that appellant had very mild achy pain intermittently in the right shoulder for several years
but had no acute injury and no limitation of range of motion prior to this injury. Dr. Hummer
27

Id.

28

Id.

29

See A.M.A., Guides at section 16.8a, pg 508.

30

See Paul R. Evans, Jr., 44 ECAB 646 (1993); John Constantin, 39 ECAB 1090 (1988) (medical report not
explaining how the A.M.A., Guides are utilized is of little probative value).
31

See supra note 18.

32

See supra note 2.

33

46 ECAB 983 (1995).

34

Id.

6

referred to appellant’s examination of the right elbow revealing pain free range of motion and
made no mention of a ulnar nerve diagnosis, preexisting or otherwise. In a January 27, 2005
impairment evaluation, Dr. Rodriguez noted a history of an impact injury to appellant’s elbow
and shoulder on March 16, 2004, but stated that appellant “otherwise denies any prior or
subsequent injuries to his right shoulder.” Dr. Rodriguez rated appellant for sensory nerve
impairment involving the ulnar nerve but he did not indicate that any ulnar nerve impairment
was preexisting. Instead, he asserted that the “Ulnar Nerve Injury at Elbow -- Right” was
“caused by initial fall” on March 16, 2004. However, an ulnar nerve injury was not accepted by
the Office and the physician failed to provide a reasoned opinion regarding the causal
relationship between appellant’s right ulnar nerve injury and the March 16, 2004 injury.35
Therefore, the Board finds that appellant was not entitled to a schedule award for
preexisting impairment to the ulnar nerve as no preexisting impairment has been established.
CONCLUSION
The Board finds that appellant sustained a 14 percent permanent impairment of the right
upper extremity.
ORDER
IT IS HEREBY ORDERED that the September 12, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 8, 2007
Washington, DC

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

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

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

35

Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition not accepted or approved
by the Office was due to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Norfolk, VA, Employer
__________________________________________

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Appearances:
Karen M. Rye, Esq., for the appellant
No appearance, for the Director

Docket No. 07-1692
Issued: June 2, 2008

Oral Argument April 22, 2008

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 11, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 3, 2007, which found that she did not
sustain an injury in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant was injured while in the performance of duty on
August 27, 2003.
FACTUAL HISTORY
On August 28, 2003 appellant, a 39-year-old transportation assistant, filed a traumatic
injury claim alleging that she sustained injuries to her spine and the right side of her body when
she was struck by a vehicle in a crosswalk on the employing establishment’s premises1 at 12:30
1

Appellant worked in the Defense Logistics Agency, Defense Distribution Depot, Building 143, which is located
on the Naval Station Norfolk.

p.m. on August 27, 2003, during a lunch break. An August 27, 2003 incident report reflected
that appellant had been hit in a crosswalk on the employing establishment premises by Hortense
Colander, who had failed to yield to a pedestrian. Appellant stopped work on the date of the
alleged incident and returned to work on a part-time basis on October 15, 2003. The case record
does not reflect the date she returned to her regular work on a full-time basis.
In an October 19, 2003 letter, the Office informed appellant that the information
submitted was insufficient to establish her claim and provided her 30 days to submit additional
medical and factual evidence and information.
On October 15, 2003 the employing
establishment controverted the claim. They conceded that the incident took place on government
property, but contended that appellant was not injured in the performance of duty, as she was on
her way to her financial institution when she was struck in the crosswalk.
By decision dated November 12, 2003, the Office denied appellant’s claim. The Office
found that the evidence was insufficient to establish that the claimed event occurred as alleged,
and that there was no medical evidence that contained a diagnosis which could be connected to
the claimed event.
On November 3, 2004 appellant requested reconsideration of the November 12, 2003
decision. The record contains reports of x-rays, computerized tomography scans and magnetic
resonance imaging scans, as well as reports from appellant’s treating physicians for the period
August 27, 2003 through March 24, 2004, which reflect appellant’s medical treatment following
the August 27, 2003 accident.
By decision dated February 15, 2006, the Office modified its November 12, 2003
decision, finding that the evidence supported the fact of injury, namely, that appellant had been
struck by a vehicle in the crosswalk on the employing establishment’s premises during her lunch
hour. However, the Office affirmed its denial of the claim on the grounds that appellant was not
in the performance of duty when the incident occurred. The claims examiner found that, because
appellant was on her way to her bank to attend to personal business when the incident occurred,
she had deviated from her employment to engage in a personal activity, which placed her outside
the course of her employment.
On February 1, 2007 appellant, through her representative, requested reconsideration.
She contended that the injury was compensable, in that she was on the employing
establishment’s premises, and she was engaged in a personal act for her comfort, convenience
and relaxation during her assigned lunch hour. In support of her request, appellant submitted an
affidavit dated February 1, 2007. Appellant stated that, at the time the injury occurred, she was
on her way to her truck, which was parked on the employing establishment parking lot, to
retrieve her debit card, which she needed in order to obtain cash for her lunch. She stated that
she intended to return to the building in which she worked, access the automated teller machine
(ATM) on the first floor, and then proceed to the employee cafeteria on the sixth floor.
By decision dated April 3, 2007, the Office denied modification of the February 15, 2006
decision. The claims examiner found that appellant was not in the performance of duty when the
accident occurred, as she was not eating her lunch or walking to the cafeteria at the time of
injury.

2

LEGAL PRECEDENT
The Federal Employees’ Compensation Act2 provides for the payment of compensation
for disability or death of an employee resulting from personal injury sustained while in the
performance of duty. The phrase “sustained while in the performance of duty” is regarded as the
equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
arising out of and in the course of employment.3
It is a general rule of workers’ compensation law that, as to employees having fixed hours
and place of work, injuries occurring on the premises of the employing establishment, while the
employees are going to or from work, before or after working hours, or at lunch time, are
compensable.4
The Office procedure manual provides that injuries arising on the premises may be
approved if the employee was performing assigned duties, or was engaged in activity reasonably
incident to the employment, such as: (a) personal acts for the employee’s comfort, convenience
and relaxation; (b) eating meals and snacks on the premises; or (c) taking authorized coffee
breaks.5
Larson, in his Workers’ Compensation Law treatise, states that “Injuries occurring on the
premises during a regular lunch hour arise in the course of employment, even though the interval
is technically outside the regular hours of employment in the sense that the worker receives no
pay for that time and is in no degree under the control of the employer, being free to go where he
pleases.”6
ANALYSIS
There is no dispute that appellant was on the premises of the employing establishment
when the accident occurred, or that she was on her regular lunch hour. These facts are sufficient
to establish that her injury was sustained in the performance of duty. The fact that appellant, for
her convenience, used a portion of her lunch hour to walk to her personal vehicle, which was

2

5 U.S.C. §§ 8101-8193.

3

Mona M. Tates, 55 ECAB 128 (2003).

4

See Annette Stonework, 35 ECAB 306 (1983) (where the Board held that appellant’s use of a portion of her
lunch hour to purchase stamps for her personal use from a postal facility on the premises of the employing
establishment did not take her injury outside the performance of duty). See also C.S., Docket No. 06-1121 (issued
August 22, 2006) (where appellant was injured on the employing establishment premises on her way to a credit
union while on her break, the Board found that this personal convenience was reasonably incidental to her
employment and, therefore, compensable).
5

Federal (FECA) Procedure Manual, Part 2 -- Performance of Duty, Industrial Premises, Chapter 2.804.4(a)
(October 2005).
6

A. Larson, The Law of Workers’ Compensation § 21.21 (a).

3

also located on government property, in order to retrieve her ATM card, does not take her injury
outside the performance of duty.7
The Office procedure manual provides that injuries arising on the premises may be
approved if the employee was engaged in activity reasonably incident to the employment, such
as personal acts for the employee’s comfort, convenience and relaxation; eating meals and
snacks on the premises; or taking authorized coffee breaks.8 It is certainly reasonable that
appellant might walk to her vehicle during her lunch hour for any number of reasons that would
not take her activities outside the performance of duty. There is no evidence that employees
were prohibited from making such excursions during breaks. The Board finds that appellant’s
action of walking to her personal vehicle to retrieve her ATM card, while on an authorized break,
is within the ambit of what is deemed reasonable, and would have been anticipated by her
employer.9 Therefore, appellant was engaged in an action reasonably incidental to the duties of
her employment at the time of the incident.
In the April 3, 2007 decision, the Office denied appellant’s claim, in part, because she
was not eating lunch at the time of the accident. However, the law does not require that a
claimant be engaged in the act of eating in order to obtain coverage of the Act. Rather, the issue
is whether appellant was engaged in an activity reasonably incidental to the employment, which
includes many other incidental activities.
Appellant has met her burden of proof to establish that she was in the performance of
duty on August 27, 2003 at the time of the accepted incident. The case is remanded to the Office
for development of the medical evidence.
CONCLUSION
The Board finds that appellant was injured while in the performance of duty on
August 27, 2003.

7

See Federal (FECA) Procedure Manual, supra note 5.

8

Id.

9

See Annette Stonework, supra note 4.

4

ORDER
IT IS HEREBY ORDERED THAT the April 3, 2007 decision of the Office of
Workers’ Compensation Programs is reversed and remanded for development of the medical
evidence.
Issued: June 2, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
_______________________________________
A.P., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY, Annapolis, MD,
Employer
_______________________________________

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

Docket No. 10-641
Issued: October 6, 2010

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 January 21, 2010 appellant filed a timely appeal of the October 1, 2009 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has impairment to his right thumb causally related to his
November 12, 2008 employment injury.
FACTUAL HISTORY
On November 12, 2008 appellant, then a 46-year-old meat cutter leader, sustained an
open wound of the right thumb without complications while cutting meat with a band saw. On
November 18, 2008 Dr. Lyn N. Dea, an attending physician, diagnosed a lacerated right thumb
and described the treatment provided. In December 2008, appellant filed a claim for a schedule
award.

On August 18, 2009 the Office advised appellant of the medical evidence needed to
establish his claim for a schedule award. It advised that the physician should use the 6th edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides) in rating any impairment. The Office provided an upper extremity impairment
worksheet for the rating physician to complete. No impairment report was received by the
Office from an attending or treating physician.
By decision dated October 1, 2009, the Office denied appellant’s claim for a schedule
award on the grounds that the medical evidence did not establish that he had impairment due to
his accepted right thumb injury.1
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides (sixth edition) has been
adopted by the Office as the appropriate standard for evaluating schedule losses.4
ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish impairment
due to his accepted right thumb injury.
On August 18, 2009 the Office advised appellant of the medical evidence needed to
establish his claim for a schedule award. It advised that the physician should use the 6th edition
of the A.M.A., Guides in calculating any impairment. The Office provided an upper extremity
impairment worksheet for the rating physician to complete. Appellant did not provide an
impairment rating from his physician. There is no medical evidence establishing impairment to
his right thumb. It is appellant’s burden of proof to establish entitlement to a schedule award.5
1

The Board notes that, while this appeal was pending, the Office issued a February 1, 2010 decision denying
appellant’s request for reconsideration. This decision is null and void. See Douglas E. Billings, 41 ECAB
880 (1990) (holding that decisions of the Office are null and void, because they were issued while the same issue in
the case was on appeal to the Board). Subsequent to the October 1, 2009 Office decision, additional evidence was
associated with the file. The Board’s jurisdiction is limited to the evidence that was before the Office at the time it
issued its final decision. See 20 C.F.R. § 501.2(c).
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404; FECA Bulletin No. 9-03, issued March 15, 2009 (providing for use of the 6th edition of the
A.M.A., Guides effective May 1, 2009).
4

Id.

5

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

2

The Office procedures provide that to support a schedule award, the record must contain
competent medical evidence that describes the impairment in detail, gives a percentage of
impairment, and gives an opinion that the impairment is permanent and stable.6 Appellant did
not submit any medical evidence to establish entitlement to a schedule award. Therefore, the
Office properly denied his schedule award claim.
CONCLUSION
The Board finds that appellant failed to establish that he has impairment causally related
to his accepted right thumb injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 1, 2009 is affirmed.
Issued: October 6, 2010
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

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards, and Permanent Disability Claims,
Chapter 2.808.6(b) (January 2010).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
U.S. POSTAL SERVICE, PARKVILLE
STATION POST OFFICE, Brooklyn, NY,
Employer
__________________________________________

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Appearances:
John L. DeGeneres, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0705
Issued: January 27, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On February 11, 2020 appellant, through counsel, filed a timely appeal from a
November 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 filed a timely claim for compensation pursuant to 5 U.S.C.
§ 8122(a).
FACTUAL HISTORY
On January 25, 2019 appellant, then a 66-year-old retired letter carrier, filed an
occupational disease claim (Form CA-2) alleging that he developed osteoarthritis of the left knee
due to factors of his federal employment. He indicated that he first became aware of his condition
and its relationship to his federal employment on July 18, 2018. On the reverse side of the claim
form the employing establishment noted that appellant retired effective August 1, 2015.
In an attached July 1, 2018 signed statement, appellant indicated that he worked for the
employing establishment from 1970 to 2015. He indicated that he began experiencing left knee
problems in 2004 and began receiving treatment in 2005. Appellant asserted that he did not know
that he could file a claim related to his left knee because, unlike his right knee, he could not specify
a particular traumatic event. He alleged that factors of his federal employment contributed to his
left knee condition, including excessive standing, walking with weight, entering and exiting his
work vehicle, ascending and descending stairs, bending, stooping, twisting, squatting, lifting, and
carrying. Appellant noted that he worked approximately 48 hours a week, 5 days a week for 45
years. He indicated that, since 2010, he played golf for approximately four hours once per week.
Appellant stated that, due to his knee pain, he only played golf four times over the prior year.
An April 28, 2004 magnetic imaging resonance (MRI) scan of appellant’s left knee
revealed a torn medial meniscus and chondromalacia of the patellofemoral joint.
In a June 28, 2005 report, Dr. John L’Insalata, a Board-certified orthopedic surgeon, noted
that appellant had severe, intermittent left knee pain for the past year. He reviewed x-rays and an
MRI scan of appellant’s left knee and diagnosed left knee internal derangement with medial
meniscus tear and chondromalacia.
In a July 21, 2005 operative report, Dr. L’Insalata described the procedure for left knee
arthroscopy, partial medial meniscectomy, debridement chondroplasty of the medial and patella
femoral compartments, and partial synovectomy operations. He noted postoperative diagnoses of
left knee medial meniscus tear, chondromalacia of the medial and patellofemoral compartments,
and synovitis including medial plica. A pathology report on shavings of appellant’s left knee,
dated July 21, 2005, revealed fragments of fibrocartilage with degenerative changes, mild chronic
synovitis, and fibrous tissue and adipose tissue consistent with torn meniscus.
In a January 19, 2006 report, Dr. L’Insalata noted that appellant was working as a postal
worker and experienced discomfort and swelling in the left knee, particularly with extended
walking. He examined appellant and diagnosed left knee effusion and chondromalacia.

2

In an August 4, 2014 statement, appellant noted that on July 14, 2014 he experienced right
foot pain.3 He indicated that he did not report his pain because as a postal worker of 45 years, he
had experienced many nicks and pains. Appellant further stated that on August 1, 2014 he
experienced pain in his lower left back while working. He noted that the pain in his right foot and
back still remained.
A drug counseling information sheet, dated March 2, 2015, indicated that appellant was
prescribed an injectable hyaluronic acid for his left knee, which was to be administered on a weekly
basis.
In a January 20, 2017 report, Dr. Justin Kung, a Board-certified diagnostic radiologist,
reviewed bilateral knee radiographs, dated January 10, 2017. He diagnosed severe degenerative
changes in the medial compartments of both knees.
In a July 18, 2018 report, Dr. Stewart Kaufman, a Board-certified orthopedic surgeon,
noted that appellant worked as a letter carrier for 45 years, which involved frequent repetitive
motion, including getting in and out of a truck, lifting loads, and carrying packages. He indicated
that appellant developed pain in both knees, particularly in the patellofemoral joints. Dr. Kaufman
examined appellant and reviewed his medical record and MRI scans of his knees. He diagnosed
right knee patellofemoral arthritis and left knee patellofemoral disease. Dr. Kaufman opined that
appellant’s degenerative osteoarthritis of the left and right knee was caused, accelerated, and
aggravated by his work activities, including lifting, walking, and climbing.
In a development letters dated March 13 and April 2, 2019, OWCP notified appellant that
the evidence of record was insufficient to establish his claim. It advised him of the type of factual
and medical evidence needed and provided a questionnaire for his completion. OWCP afforded
appellant 30 days to submit the necessary evidence.
On April 8, 2019 appellant responded to OWCP’s development questionnaire. He
reiterated that the date he became aware that his left knee condition was work related was July 18,
2018, the date of his examination with Dr. Kaufman. Appellant noted that, although he received
a diagnosis of arthritis prior to this date, he was unaware of the causal relationship between his
work activities and his left knee condition.
In a letter dated April 9, 2019, counsel asserted that the date appellant became aware that
his left knee condition was work related was the date of a medical determination that had not

3
The Board notes that on August 4, 2014 appellant filed a traumatic injury claim (Form CA-1) under OWCP File
No. xxxxxx684 alleging that on July 14, 2014 he experienced pain in his right foot due to excessive walking and
stepping on and off truck steps and house steps. By decision dated December 19, 2014, OWCP denied appellant’s
claim as the evidence of record was insufficient to establish that the incident occurred, as alleged, since appellant
failed to clarify what type of injury he was claiming or explain his delay in filing his claim and receiving medical
treatment. By decision dated March 25, 2016, the Board found that appellant had not established that he sustained a
right foot condition in the performance of duty on July 14, 2014 and further found that OWCP properly denied his
request for an oral hearing as untimely. See Docket No. 15-0698 (issued March 25, 2016). In a separate appeal, the
Board found that OWCP properly denied his request for oral hearing from a denial of a low back claim as untimely.
See Docket No. 15-1433 (issued December 8, 2015).

3

occurred until July 18, 2018. He further asserted that Dr. Kaufman’s July 18, 2018 report provided
both a diagnosis and a well-rationalized, uncontroverted opinion regarding causal relationship.
By decision dated May 17, 2019, OWCP denied appellant’s occupational disease claim,
finding that he failed to file a timely claim within the requisite three-year time limitation under
section 8122(a) of FECA. It found that he had become aware of the relationship between his
condition and his federal employment on August 1, 2014,4 but had not filed a claim until
February 26, 2019, more than three years after the date of last exposure, August 1, 2015.
On May 31, 2019 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
In a memorandum dated September 12, 2019, appellant noted that OWCP had found that
he indicated in an August 1, 2014 statement that he was aware of a relationship between his
condition and his employment, but he noted that he had not made such a statement on
August 1, 2014. He again indicated that he was unaware of a relationship between his work
activities and his left knee condition until his July 18, 2018 examination with Dr. Kaufman.
On September 13, 2019 appellant, through counsel, requested that the appeal for an oral
hearing be converted to a review of the written record by a representative of OWCP’s Branch of
Hearings and Review. Counsel asserted that appellant’s August 4, 2014 statement, in OWCP File
No. xxxxxx684, demonstrated that he was only addressing pain in his right foot and back and not
his left knee. He further argued that appellant’s general statements on “nicks and pains” involving
his right leg did not suggest that he was aware of a relationship between his work activities and
his left knee condition. Counsel asserted that the earliest possible date appellant could have known
he had a compensable claim was January 20, 2017, the date of Dr. Kung’s x-ray report on
appellant’s knees, and that the earliest date that appellant should have known he had a compensable
claim was July 18, 2018, the date of Dr. Kaufman’s examination.
By decision dated November 29, 2019, OWCP’s hearing representative affirmed the
May 17, 2019 decision, finding that appellant’s occupational disease claim was untimely filed.
The hearing representative found that appellant should have reasonably known within three years
of the time of his last exposure at work that his diagnosed left knee arthritis was possibly related
to his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,6 that an injury was sustained in the performance of duty, as
4

OWCP relied on a statement, by appellant, which was actually dated August 4, 2014.

5

Supra note 2.

6
M.O., Docket No. 19-1398 (issued August 13, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).

4

alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.7 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.8
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes a determination on the merits of the claim.9 In cases of injury on or after September 7,
1974, section 8122(a) of FECA provides that an original claim for compensation, for disability or
death must be filed within three years after the injury or death.10
In an occupational disease claim, the time for filing a claim begins to run when the
employee first becomes aware, or reasonably should have been aware, of a possible relationship
between his or her condition and his or her federal employment. Such awareness is competent to
start the limitation period even though the employee does not know the precise nature of the
impairment or whether the ultimate result of such affect would be temporary or permanent.11
Section 8122(b) of FECA provides that the time for filing in latent disability cases does not
begin to run until the claimant is aware, or by the exercise of reasonable diligence should have
been aware, of a causal relationship between the employment and the compensable disability.12
The Board has emphasized that an employee need only be aware of a possible relationship between
his or her condition and his or her employment to commence the running of the applicable statute
of limitations,13 and that, if an employee continues to be exposed to injurious working conditions
after such awareness, the time limitation begins to run on the last date of this exposure.14
Even if a claim is not filed within the three-year period of limitation, it would still be
regarded as timely under section 8122(a)(1) if the immediate superior had actual knowledge of his
or her alleged employment-related injury within 30 days or written notice of the injury was

7

J.R., Docket No. 20-0496 (issued August 13, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
8
B.M., Docket No. 19-1341 (issued August 12, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

M.B., Docket No. 20-0066 (issued July 2, 2020); Charles W. Bishop, 6 ECAB 571 (1954).

10

5 U.S.C. § 8122(a); F.F., Docket No. 19-1594 (issued March 12, 2020); W.L., 59 ECAB 362 (2008).

11

See A.M., Docket No. 19-1345 (issued January 28, 2020); Larry E. Young, 52 ECAB 264 (2001).

12

5 U.S.C. § 8122(b).

13

D.D., Docket No. 19-0548 (issued December 16, 2019); J.M., Docket No. 10-1965 (issued May 16, 2011);
Larry E. Young, supra note 11.
14
S.F., Docket No. 19-0283 (issued July 15, 2019); Mitchel Murray, 53 ECAB 601 (2002); Garyleane A. Williams,
44 ECAB 441 (1993).

5

provided within 30 days pursuant to section 8119.15 The knowledge must be such as to put the
immediate superior reasonably on notice of an on-the-job injury or death.16
ANALYSIS
The Board finds that appellant’s claim for compensation was timely filed within the
applicable time limitation provisions of 5 U.S.C. § 8122(a).
Where an employee continues in the same employment after he or she reasonably should
have been aware that he or she has a condition, which has been adversely affected by factors of
federal employment, the time limitation begins to run on the date of the last exposure to the
implicated factors.17 The date of last exposure in the present case is August 1, 2015, the date
appellant retired from federal service.
In cases of latent disability, the time for filing a claim does not begin to run until the
claimant is aware, or by exercise of reasonable diligence, should be aware of the causal relationship
between his condition and his employment.18 Appellant has alleged that he first became aware of
his left knee condition and its relationship to his federal employment on July 18, 2018, the date of
his examination with Dr. Kaufman.
OWCP found appellant’s claim untimely under 5 U.S.C. § 8122(a) because it was filed on
January 25, 2019, more than three years after the date of last exposure on August 1, 2015. It
determined that appellant knew or reasonably should have known of a relationship between his
condition and his federal employment on August 1, 2014 when he noted in a statement that he
suffered from right foot pain and experienced many nicks and pains.
The Board finds that the evidence of record does not establish that appellant should have
known earlier than July 18, 2018 that he had a work-related left knee condition. Appellant’s
August 4, 2014 statement addressed pain in his right foot and lower left back, but did not reference
a left knee condition. In a January 20, 2017 report, Dr. Kung diagnosed severe degenerative
changes in the medial compartments of both knees, but did not relate the condition to factors of
appellant’s federal employment. A review of the record shows that appellant did not become
aware of the connection between his left knee condition and factors of his federal employment
until July 18, 2018 when Dr. Kaufman diagnosed left knee patellofemoral disease and opined that
it was caused, accelerated, and aggravated by appellant’s work activities, including lifting,
walking, and climbing.19 The Board therefore finds that appellant’s claim was timely filed under

15

5 U.S.C. §§ 8122(a)(1); 8122(a)(2); see also Larry E. Young, supra note 11.

16
S.O., Docket No. 19-0917 (issued December 19, 2019); B.H., Docket No. 15-0970 (issued August 17,
2015); Willis E. Bailey, 49 ECAB 511 (1998).
17

M.B., supra note 9.

18

Supra note 13.

19

See C.S., Docket No. 18-0009 (issued March 22, 2018); A.S., Docket No. 17-1639 (issued November 27, 2017).

6

5 U.S.C. § 8122(a) as it was filed on January 25, 2019, within three years of the date of awareness
on July 18, 2018.20
As appellant has filed a timely claim for compensation, the case is remanded to OWCP to
address the merits of the claim. After such further development as is deemed necessary, it shall
issue a de novo decision.
CONCLUSION
The Board finds that appellant’s claim for compensation was timely filed within the
applicable time limitation provisions of 5 U.S.C. § 8122(a).
ORDER
IT IS HEREBY ORDERED THAT the November 29, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.21
Issued: January 27, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

20

Id.

21
Christopher J. Godfrey, Deputy Chief Judge, who participated in the preparation of the decision, was no longer
a member of the Board after January 20, 2021.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF ENERGY, BONNEVILLE
POWER ADMINISTRATION, Portland, OR,
Employer
__________________________________________

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Appearances:
Harold J. Moburg, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1944
Issued: March 16, 2009

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 June 27, 2008 appellant, through counsel, filed a timely appeal from the Office of
Workers’ Compensation Programs’ March 14, 2008 merit decision concerning an overpayment
of compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over the merits of this overpayment case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received a
$92,131.97 overpayment of compensation for the period October 1, 2005 to October 28, 2007;
and (2) whether the Office properly determined that he was at fault in creating the overpayment
of compensation, thereby precluding waiver of recovery.
FACTUAL HISTORY
On January 16, 2004 appellant, then a 65-year-old physical electrician, filed an
occupational disease claim alleging that on January 13, 2004 he first realized that he sustained an

employment-related binaural hearing loss.1 On May 9, 2005 the Office accepted appellant’s
claim for a binaural hearing loss.
In a September 19, 2005 decision, it granted appellant a schedule award for an 11 percent
binaural hearing loss. The period of the award ran from April 30 to September 30, 2005. The
Office explained that appellant would be paid $15,339.79 for the period April 30 to September 3,
2005 and $3,382.00 for the period September 4 to 30, 2005. This amount was calculated based
on multiplying appellant’s weekly pay rate of $1,268.65 as of April 30, 2005 by the two-thirds
compensation rate, to equal $845.50 a week. The Office noted that payment of the schedule
award would end on September 30, 2005. It advised appellant that, after the ending date of the
award, his entitlement to compensation would be based solely on any disability for work
resulting from his accepted injury.
Compensation payment logs establish that appellant received electronic funds transfers in
the amount of $3,382.00 every four weeks from October 1, 2005 to October 27, 2007. In
November 6, 2007 worksheets, the Office calculated that appellant received an overpayment in
the amount of $92,082.70 for the period October 1, 2005 to October 27, 2007.
By notice dated November 13, 2007, the Office advised appellant of its preliminary
determination that an overpayment of $92,131.97 was created as he erroneously received
compensation from October 1, 2005 to October 27, 2007 after his schedule award ended on
September 30, 2005. It made a preliminary determination that appellant was at fault in creation
of the overpayment as he knew or reasonably should have known that he was not entitled to
payments after his schedule award ceased.
On November 17, 2007 appellant requested a telephone hearing before the Office. He
disagreed with the Office’s finding of an overpayment and that he was at fault in the creation of
the overpayment. In a Form OWCP-20, completed on December 20, 2007, appellant indicated
that he had $3,500.00 in monthly income (comprised of $1,500.00 in social security benefits and
$2,000.00 in private employment earnings) and $1,182.30 in monthly expenses.
The Office conducted telephonic conferences with appellant on January 23 and
February 8, 2008. It noted that appellant’s total monthly income was $2,712.00 with total
monthly expenses of $2,463.00 Appellant submitted financial information regarding a 2004
divorce from his wife and stated that he paid his wife $122,292.00 after his schedule award
began. He also spent $30,000.00 on having a pacemaker implanted as his health insurance
would not cover this.
In a March 14, 2008 decision, the Office found that appellant received a $92,131.97
overpayment of compensation because he received compensation for the period October 1, 2005
to October 28, 2007 when only entitled to the period April 30 to September 30, 2005. It also
determined that he was at fault in creating the overpayment, thereby precluding waiver of
recovery. The Office considered appellant’s financial information and determined that the
overpayment was due in full.
1

Appellant retired from the employing establishment effective April 30, 2005 and began receiving retirement
from the Office of Personnel Management (OPM).

2

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act2 provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty.3 Section 8129(a) of the Act provides, in
pertinent part, that when an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations prescribed by the
Secretary of Labor by decreasing later payments to which an individual is entitled.4 The Office’s
procedure manual identifies various situations when overpayments of compensation may occur,
including when a schedule award expires but compensation continued to be paid.5
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained an 11 percent binaural hearing loss in the
performance of duty. It granted him a schedule award on September 19, 2005. The Office
explained that appellant would be paid $15,339.79 for the period April 30 to September 3, 2005
and $3,382.00 for the period September 4 to 30, 2005.6 This was based on multiplying
appellant’s weekly pay rate of $1,268.65 by the 66 2/3 percent compensation rate, resulting in a
payment of $845.50 every four weeks.
On November 6, 2007 the Office calculated that appellant had received an overpayment
in the amount of $92,082.70 for the period October 1, 2005 to October 27, 2007 as he received
compensation after his schedule award ended on September 30, 2005. The Board notes that the
period of the overpayment was October 1, 2005 to October 27, 2007 and the overpayment
amount is $92,082.70 as determined by the Office in its overpayment worksheet and supporting
documentation. The Board will affirm, the fact, period and the amount of the overpayment in
this case.
LEGAL PRECEDENT -- ISSUE 2
Under section 8129 of the Act and the implementing regulations, an overpayment must
be recovered unless incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.7 Section 10.433 of the implementing regulations specifically provide that the
Office may consider waiving an overpayment if the individual to whom it was made was not at

2

5 U.S.C. §§ 8101-8193.

3

5 U.S.C. § 8102(a).

4

5 U.S.C. § 8129(a).

5

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2
(May 2004).
6

Checks in the amount of $15,339.79 and $3,382.00 were mailed to appellant.

7

5 U.S.C. § 8129.

3

fault in accepting or creating the overpayment.8 The regulations further provide that each
recipient of compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from the Office are proper.9 Under the regulations, a recipient
will be found to be at fault with respect to creating an overpayment if the recipient on the issue
of fault, section 10.433 of the Office’s regulations provide that an individual will be found at
fault if he or she has done any of the following: (1) made an incorrect statement as to a material
fact which he or she knew or should have known to be incorrect; (2) failed to provide
information which he or she knew or should have known to be material; or (3) accepted a
payment which he or she knew or should have known was incorrect.10
Section 10.433(b) of the Office’s regulations provide, in relevant part, that the
determination of fault depends on the circumstances surrounding the overpayment. The degree
of care expected may vary with the complexity of those circumstances and the individual’s
capacity to realize that he or she is being overpaid.11
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in creating the overpayment under the third
standard noted above, because he accepted payments after September 30, 2005 that he knew or
should have known were incorrect.
The Board finds that appellant was at fault in creation of the overpayment from
October 1, 2005 to October 27, 2007. The September 19, 2005 schedule award clearly set forth
the period of the overpayment and the amount of the payments to be issued, noting that the
schedule award ended on September 30, 2005. Therefore, the Office correctly found appellant at
fault in creation of the overpayment from October 1, 2005 to October 27, 2007. Appellant knew
or should have reasonably known that the payments he received following the expiration of the
schedule award were incorrect. As he was at fault in the creation of the overpayment, he is not
eligible for waiver of recovery of the overpayment. The Office is required by law to recover this
overpayment.12
CONCLUSION
The Board finds that appellant received an overpayment in compensation in the amount
of $92,082.79 during the period October 1, 2005 through October 27, 2007. The Board further

8

20 C.F.R. § 10.433(a).

9

Id.

10

Id. at §10.433(a)(3).

11

Id. at § 10.433(b).

12

Recovery of the overpayment is not an issue in this case, as appellant is not in receipt of continuing total
disability payments. With respect to the recovery of the overpayment, the Board’s jurisdiction is limited to those
cases where the Office seeks recovery from continuing compensation benefits under the Act. 20 C.F.R. § 10.441(a);
see Albert Pineiro, 51 ECAB 310 (2000); Lorenzo Rodriguez, 51 ECAB 295 (2000).

4

finds that appellant was at fault in the creation of the overpayment and, therefore, is ineligible for
waiver of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 14, 2008 is affirmed, as modified.
Issued: March 16, 2009
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF THE AIR FORCE,
LACKLAND AIR FORCE BASE,
San Antonio, TX, Employer
__________________________________________

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

Docket No. 08-2034
Issued: April 13, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 17, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ March 24, 2008 decision, denying her claim for compensation. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained a
left shoulder injury on January 10, 2008 in the performance of duty.
FACTUAL HISTORY
On January 16, 2008 appellant, then a 24-year-old electronic integrated systems
mechanic, filed a traumatic injury claim alleging that she injured her left shoulder on January 10,
2008 after unwrapping a power cord and developing pain. She did not stop work.
Appellant submitted several physical therapy notes from the Integrative Medical Clinic
between January 16 and February 6, 2008. The physical therapy notes dated January 16, 2008

indicated that she had picked up heavy cords and wires when she heard a pop in her left shoulder
and developed a sharp shooting pain. The other notes indicated treatment for left shoulder and
neck pain. Certain of the physical therapy notes contained an illegible signature in the space
provided for a physician’s signature. Other physical therapy notes appear to be signed by
Dr. Bryan Tilghman, a chiropractor. The physical therapy notes signed by him did not diagnose
a spinal subluxation as demonstrated by x-ray.
Dr. Louise Lamarre, an emergency medicine specialist, treated appellant on several
occasions between January 16 and February 6, 2008. She noted appellant’s complaint of
nonradiating cervical and left shoulder pain. Dr. Lamarre diagnosed cervical and thoracic
segmental dysfunction, nonallopathic lesion of the upper extremities and internal derangement of
the shoulder. She found restricted range of motion due to cervical pain and indicated the date of
onset was January 10, 2008. Dr. Lamarre also referred appellant for range of motion and muscle
strength diagnostic testing. In a January 18, 2008 diagnostic report, Dr. Tilghman compared
images of appellant’s cervical spine to a standard cervical spine. The report did not note a
diagnosis of spinal subluxation.
On February 13, 2008 the Office advised appellant of the factual and medical evidence
necessary to establish her claim and allowed her 30 days to submit additional information. In
particular, it requested medical evidence describing the history of injury, detailed findings and a
physician’s opinion regarding how the work incident caused or aggravated the claimed injury.
Appellant submitted several progress notes from Dr. Lamarre dated between February 8
and March 17, 2008. Dr. Lamarre reiterated that appellant complained of left shoulder and neck
pain. She also reiterated her diagnosis of cervical and thoracic segmental dysfunction,
nonallopathic lesion of the upper extremities and internal derangement of the shoulder. In the
progress reports dated February 18 and 20, 2008, Dr. Lamarre indicated that the onset of
appellant’s condition was January 16, 2008. Appellant also submitted the results of muscle
strength and range of motion evaluations performed by Dr. Tilghman between February 8 and
March 12, 2008. Additional physical therapy notes from the Integrative Medical Clinic dated
between February 8 and March 14, 2008, were also submitted indicating physical therapy for
appellant’s left shoulder.
In a March 24, 2008 decision, the Office denied appellant’s claim for compensation
finding that the medical evidence did not provide a physician’s opinion regarding the causal
relationship between appellant’s left shoulder condition and the claimed work factors.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of 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 and/or specific condition for which compensation is
claimed are causally related to the employment injury. These are the essential elements of each
1

5 U.S.C. §§ 8101-8193.

2

and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged. Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.3
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. 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 the specific employment factors identified by the employee.4
ANALYSIS
The record supports that appellant was unwrapping a power cord on January 10, 2008 as
alleged; however, she has not submitted sufficient medical evidence to establish that this
employment incident caused an injury to the left shoulder.
Dr. Lamarre submitted several reports that noted appellant’s complaint of left shoulder
and neck pain and diagnosed cervical and thoracic segmental dysfunction, nonallopathic lesion
of the upper extremities and internal derangement of the shoulder. She also noted that the date of
onset of appellant’s condition was January 10, 2008. However, Dr. Lamarre did not specifically
note the January 10, 2008 incident involving the unwrapping of a power cord. She also did not
offer an opinion regarding whether that incident caused or aggravated an injury to appellant’s left
shoulder.5 Thus, Dr. Lamarre’s opinion is of little probative value as she did not demonstrate
complete and accurate knowledge of appellant’s factual and medical background6 nor did she
2

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Joe D. Cameron, 41 ECAB 153 (1989).

3

Id.

4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
5

See A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (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).
6

See K.E., 60 ECAB __ (Docket No. 08-1461, issued December 17, 2008) (a medical opinion must be based on a
complete factual and medical background with an accurate history of the claimant’s employment injury and must
explain from a medical perspective how the current condition is related to the injury); see also Michael R. Shaffer,
55 ECAB 386 (2004).

3

offer a specific opinion on causal relationship between the January 10, 2008 work incident and a
diagnosed medical condition.
Reports from Dr. Tilghman are also insufficient to establish appellant’s claim. The term
“physician” includes chiropractors only to the extent that their reimbursable services are limited
to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist.7 A chiropractor is not considered a physician under the Act
unless it is established that there is a spinal subluxation as demonstrated by x-ray to exist.8 The
Board notes that Dr. Tilghman did not diagnose a spinal subluxation based on x-ray. Therefore,
his reports were of no probative medical value.9
Furthermore, the physical therapy notes are of no probative value as physical therapists
are not considered physicians under the Act and as a result, they are not competent to provide a
medical opinion.10
Consequently, the medical evidence of record fails to establish that appellant’s work
incident on January 10, 2008 caused or aggravated her left shoulder condition.
CONCLUSION
The Board finds that appellant did not meet her burden of proof in establishing that she
sustained a left shoulder injury on January 10, 2008 in the performance of duty.11

7

The term “physician” includes chiropractors only to the extent that their reimbursable services are limited to
treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist
and subject to regulation by the Secretary. 5 U.S.C. § 8101(2); see also Jack B. Wood, 40 ECAB 95 (1988).
8

Mary A. Ceglia, 55 ECAB 626 (2004).

9

See Michelle Salazar, 54 ECAB 523 (2003).

10

See Barbara Williams, 40 ECAB 649 (1989). See also 5 U.S.C. § 8101(2).

11

Following issuance of the Office’s March 24, 2008 decision, appellant submitted additional evidence to the
Office. The Board may not consider this evidence on appeal as its review is limited to the evidence that was before
the Office at the time of its March 24, 2008 decision. See 20 C.F.R. § 501.2(c).

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated March 24, 2008 is affirmed.
Issued: April 13, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.T., Appellant
and
U.S. POSTAL SERVICE, MIDTOWN BRANCH
POST OFFICE, Atlanta, GA, Employer
__________________________________________

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

Docket No. 19-0531
Issued: August 19, 2019

Case Submitted on the Record

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

JURISDICTION
On January 2, 2019 appellant filed a timely appeal from a November 30, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the November 30, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish more than one
percent permanent impairment of the right lower extremity and one percent permanent impairment
of the left lower extremity, for which she previously received schedule award compensation.
FACTUAL HISTORY
On June 8, 1995 appellant, then a 36-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed bilateral plantar fasciitis due to factors of her
federal employment, including constant standing.
By decision dated September 29, 1995, OWCP accepted appellant’s claim for the condition
of bilateral plantar fasciitis.
On August 8, 2001 appellant filed a claim for a schedule award (Form CA-7).
In development letters dated September 17, 2001, April 1, 2002, and October 6, 2003,
OWCP requested that Dr. Anthony J. Gatti, a podiatrist, provide an impairment rating pursuant to
the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).3
On October 17, 2003 appellant was evaluated by Dr. Charles Haendel, a podiatrist, who
opined that appellant had reached maximum medical improvement (MMI) on October 17, 2003.
Dr. Haendel noted dorsiflexion of 10 degrees, plantar flexion of 45 degrees, inversion of 25
degrees, eversion to 25 degrees, and ankyloses of 10 degrees. He opined that appellant sustained
zero percent impairment of the bilateral lower extremities.
By decision dated November 7, 2003, OWCP denied appellant’s schedule award claim,
finding that the medical evidence of record was insufficient to establish permanent impairment of
a scheduled member or function of the body. On May 19, 2004 an OWCP hearing representative
affirmed the November 7, 2003 decision.
On April 20, 2018 appellant filed a claim for a schedule award (Form CA-7).
In a development letter dated May 4, 2018, OWCP requested that Dr. Jennifer Price, a
podiatrist, submit an impairment rating in accordance with the sixth edition of the A.M.A.,
Guides.4
In an April 30, 2018 report, Dr. Price treated appellant in follow up for chronic bilateral
heel pain. Appellant reported that the heel pain developed gradually over several years and pain
was worse with weight bearing and alleviated by orthotics. Findings on examination of the
bilateral lower extremities revealed mild pain to the sub-metatarsal of the forefoot, mild pain to
palpation of the plantar fascia medial band insertion into the calcaneus, and pain along the dorsal
3

A.M.A., Guides (5th ed. 2001).

4

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

2

aspect of the fifth toe which was contracted. X-rays of appellant’s feet revealed inferior calcaneal
spurs. Dr. Price diagnosed plantar fasciitis, metatarsalgia of both feet, and bilateral calcaneal
spurs.
On May 9, 2018 Dr. Price indicated that appellant’s injury resulted in permanent
impairment. She diagnosed plantar fasciitis, bilateral calcaneal spurs, and bilateral metatarsalgia.
Dr. Price noted that appellant had a history of chronic plantar fasciitis as she stood and walked on
her feet all day. Objective findings were bilateral pain to palpation of the plantar fascia medial
band, and inferior calcaneal spurring, bilaterally. Appellant complained of bilateral foot pain and
pain on the left outer side of the foot. Dr. Price determined appellant had 25 percent impairment
of the left and right feet.
On August 24, 2018 OWCP referred appellant’s case to a district medical adviser (DMA)
to determine whether the medical evidence of record established permanent impairment of a
scheduled member or function of the body causally related to appellant’s accepted condition.
On September 5, 2018 the DMA reviewed the medical evidence of record and determined
that appellant’s date of MMI was May 9, 2018, the date of Dr. Price’s impairment examination.
Utilizing the diagnosis-based impairment (DBI) methodology as set forth in Table 16-2, page 50108, of the A.M.A., Guides, he found that her most impairing diagnosis was plantar fasciitis. The
DMA placed appellant into a class 1 diagnosis and assigned a grade modifier of 1 for functional
history (GMFH) because she still had symptoms in her foot joint. He assigned a grade modifier
of 1 for physical examination (GMPE) because she had an antalgic limp. The DMA found that a
grade modifier for clinical studies (GMCS) was inapplicable in this case. Using the net adjustment
formula (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), he calculated that appellant had a
net adjustment of (1-1) + (1-1) + (n/a) = zero, equaling a default grade C. Based on these
calculations, the DMA concluded that she had one percent permanent impairment of the right
lower extremity and one percent permanent impairment left lower extremity. He disagreed with
Dr. Price’s schedule award determination of 25 percent of the bilateral lower extremities and noted
that she provided no methodology to show how she reached that figure. The DMA advised that
with a diagnosis of plantar fasciitis the highest rated impairment was two percent of the lower
extremities.
On September 7, 2018 OWCP requested that Dr. Price review the impairment rating from
the DMA and respond by opining whether she disagreed with his calculations and providing her
rationale based on the provisions set forth in the sixth edition of the A.M.A., Guides.
Dr. Price resubmitted her May 9, 2018 impairment rating.
By decision dated November 30, 2018, OWCP granted appellant a schedule award for one
percent permanent impairment of the right lower extremity and one percent permanent impairment
of the left lower extremity. The award ran for 4.1 weeks for the period from May 9 to June 6, 2018.
OWCP afforded the weight of the medical evidence to the DMA’s September 5, 2018 report.

3

LEGAL PRECEDENT
The schedule award provisions of FECA and its implementing regulations provide for
compensation to employees sustaining impairment from loss or loss of use of specified members
of the body.5 FECA, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of OWCP. For consistent results and to ensure equal justice, the Board
has authorized 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 OWCP as a standard for evaluation of
schedule losses and the Board has concurred in such adoption.6 For schedule awards after May 1,
2009, the impairment is evaluated under the sixth edition of the A.M.A., Guides, published in
2009.7
The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the
World Health Organization’s International Classification of Functioning, Disability and Health
(ICF).8 Under the sixth edition, the evaluator identifies the impairment class of diagnosis (CDX)
condition, which is then adjusted by grade modifiers based on GMFH, GMPE, and GMCS.9 The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX). Evaluators are
directed to provide reasons for their impairment rating choices, including the choices of diagnoses
from regional grids and calculations of modifier scores.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish more than one
percent permanent impairment of the right lower extremity and one percent permanent impairment
of the left lower extremity, for which she previously received schedule award compensation.
In her May 9, 2018 report, Dr. Price opined that appellant had 25 percent permanent
impairment of the bilateral lower extremities based on his diagnosis of plantar fasciitis. However,
she did not provide a detailed citation to the A.M.A., Guides and her rating was therefore
insufficient to establish permanent impairment for purposes of a schedule award.
In accordance with its procedures, OWCP properly referred the evidence of record to a
DMA, who, in a September 5, 2018 report, reviewed the medical record and determined that
5

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

6

See Bernard A. Babcock, Jr., 52 ECAB 143 (2000). See also id. at § 8107.

7

See D.T., Docket No. 12-0503 (issued August 21, 2012); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.6.6a (March 2017); see also Federal (FECA)
Procedure Manual Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
8

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.
9

Id. at 494-531.

10

See R.V., Docket No. 10-1827 (issued April 1, 2011).

4

appellant’s date of MMI was May 9, 2018, the date of Dr. Price’s impairment examination.
Utilizing Table 16-2, page 501-08, of the sixth edition of the A.M.A., Guides, the DMA found that
appellant’s most impairing diagnosis was plantar fasciitis. He placed her into a CDX of 1 and
assigned a GMFH of 1 because she still had symptoms in her foot joint. The DMA calculated that
appellant had a net adjustment of (1-1) + (1-1) + (n/a) = zero, equaling a default grade C. Based
on these calculations, he concluded that she had one percent permanent impairment of the right
lower extremity and one percent permanent impairment of the left lower extremity.
The Board finds that the DMA applied the appropriate tables and grading schemes of the
sixth edition of the A.M.A., Guides to Dr. Price’s clinical findings. The DMA’s calculations were
mathematically accurate. There is no medical evidence of record utilizing the appropriate tables
of the sixth edition of the A.M.A., Guides demonstrating a greater percentage of permanent
impairment. The DMA explained that Dr. Price’s rating of 25 percent permanent impairment of
the bilateral lower extremities was erroneous under the A.M.A., Guides because she failed to
provide her methodology as to how she reached that figure and because the highest available rating
for the diagnosis of plantar fasciitis was two percent of the lower extremity. The Board has held
that when the attending physician fails to provide an estimate of impairment conforming to the
A.M.A., Guides, or does not discuss how he or she arrives at the degree of impairment based on
physical findings, the opinion is of diminished probative value in establishing the degree of
impairment and OWCP may rely on the opinion of its medical adviser to apply the A.M.A., Guides
to the findings reported by the attending physician.11 The Board finds that the DMA properly
applied the standards of the A.M.A., Guides to the physical findings of Dr. Price. The DMA’s
opinion represents the weight of medical evidence and OWCP properly relied on his assessment
of one percent permanent impairment of the right lower extremity and one percent permanent
impairment of the left lower extremity.12
There is no probative medical evidence of record, in conformance with the sixth edition of
the A.M.A., Guides, establishing that appellant has a higher rating of permanent impairment.
Accordingly, appellant has not established that she is entitled to schedule award compensation
greater than that previously received.
Appellant may request a schedule award or increased schedule award, at any time, based
on evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than one
percent permanent impairment of the right lower extremity and one percent permanent impairment
of the left lower extremity, for which she previously received schedule award compensation.

11

See L.M., Docket No. 12-0868 (issued September 4, 2012); John L. McClanic, 48 ECAB 552 (1997).

12

See M.T., Docket No. 11-1244 (issued January 3, 2012).

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ORDER
IT IS HEREBY ORDERED THAT the November 30, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 19, 2019
Washington, DC

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

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

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

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