United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
FORCE MEDICAL CENTER PRODUCT
CENTERS-SYSTEMS, RANDOLPH AIR
FORCE BASE, TX, Employer
__________________________________________

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

Docket No. 13-1121
Issued: October 29, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 9, 2013 appellant filed a timely appeal from a March 21, 2013 Office of
Workers’ Compensation Programs’ (OWCP) overpayment decision. 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.
ISSUES
The issues are: (1) whether appellant received a $5,094.80 overpayment of compensation;
(2) whether OWCP abused its discretion in denying waiver of the overpayment; and (3) whether
OWCP properly found that the overpayment should be recovered by deducting $400.00 monthly
from appellant’s continuing compensation payments.

1

5 U.S.C. § 8101et seq.

FACTUAL HISTORY
OWCP accepted that on July 6, 2000 appellant, then a 51-year-old heavy equipment
operator, sustained a tear of the medial meniscus of the right knee, sprain of the right knee
cruciate ligament, hypersomnia with sleep apnea, morbid obesity, right lower leg joint
derangement, postsurgical nonabsorption and ventral hernia without obstruction or gangrene in
the performance of duty. He stopped work in May 2006 and receivedwage-loss benefits for
which he was placed on periodic rolls.
On appellant’s claim for compensation (Form CA-7) dated June 8, 2006, the employing
establishment indicated that his optional life insurancewas a base salary of $47,521.24. By letter
dated February 5, 2008, the Office of Personnel Management (OPM) advised OWCP that
appellant’s optional life insurance base salary was $48,668.00. OPM further noted that he had
elected postretirement basic life insurance (PRBLI) with no reduction effective May 25, 2007.
On June 28, 2012 OWCP made preliminary findings that appellant received an
overpayment of $5,094.80 for the period of May 25, 2007 to June 2, 2012 because an incorrect
optional life insurance (OLI) code was used and deductions were not made for basic life
insurance. It found that he was without fault in the creation of the overpayment. OWCP noted
that the first overpayment occurred when appellant’s optional life insurance was improperly
deducted using code W0 with a base salary of $47,521.24 instead of the correct base salary of
$48,668.00. For the period May 25, 2007 to June 2, 2012, appellant’s OLI deductions totaled
$8,680.80. Using the correct S0 code,his OLI deductions should have totaled $7,089.32. It
further noted that appellant’s basic life insurance for that period totaled $983.57 whereas it
should have totaled $1,003.24 based on the corrected $48,668.00 base salary. Explaining that no
deductions were made for basic life insurance from May 25, 2007 to June 2, 2012, it calculated a
total of $6,666.61 in PRBLI deductions. Taking the difference of the life insurance deductions
appellant paid from what he should have paid, OWCP found a $5,094.80 overpayment of
compensation for the period May 25, 2007 through June 2, 2012.
As OWCP determined that appellant was without fault in the creation of the
overpayment. It requested that he submit financial information pursuant to an enclosed
overpayment recovery questionnaire (Form OWCP-20) within 30 days if he sought waiver of the
overpayment. OWCP noted that waiver would be denied if he failed to furnish the information
requested on the enclosed OWCP-20 form with supporting documentation within 30 days. It
further informed appellant that he could submit additional evidence in writing or at a
prerecoupment hearing, but that a prerecoupment hearing must be requested within 30 days of
the date of the written notice of overpayment.
On July 6, 2012 appellant requested a prerecoupment hearing. He noted that the
overpayment occurred through no fault of his own and requested a waiver of repayment due to
financial hardship. Appellant did not submit the overpayment recovery questionnaire.
At the January 8, 2013 prerecoupment hearing, appellant testified that he did not take
issue with the overpayment decision, but that he was not at fault for the mistakes made by
OWCP. Further, paying back the overpayment would cause him extreme financial hardship.
Appellant stated that the only income he received was from his OWCP compensation benefits.

2

He testified that his wife earned $492.00 every two weeks working at Walmart and that they
received approximately $500.00 in 2012 from a rental property they owned in California.
Appellant stated that he had approximately $600.00 to $800.00 in his checking account, nothing
in his savings account, a $90,000.00 thrift savings plan (TSP), which remained untouched.
Healso had property in North Carolina where he lived, a rental property in California, two
vehicles which were 12 years old and a boat which was 15 years old. Appellant provided a list
of his expenses, which included $800.00 a year in property taxes for his North Carolina home,
$650.00 a year in property taxes for his California property, $1,700.00 a year for homeowners
insurance, $1,000.00 a year for car maintenance, $800.00 a month for his mortgage, $175.00 a
month for the electric bill, $165.00 a month for cable/phone/internet, $200.00 a month for
minimum credit card payments on $5,000.00 balance,$75.00 a month for hospital bills, $10.00 a
month for prescription copays, $80.00 a month for physicians’ copays, $145.00 a month for car
insurance, $200.00 a month for cellphone bills, $400.00 a month for gas and $400.00 a month for
food. He testified that there were other hospital bills and items that were part of his monthly
expenses. The hearing examiner instructed him that if he recalled or found any other bills, to
submit additional financial information on the expenses before a decision was made on the
overpayment determination. She informed appellant that the record would be held open for 30
days. No other financial information was submitted.
By decision dated March 2, 2012, the hearingrepresentative finalized the overpayment in
the amount of $5,094.80 for the period May 25, 2007 to June 2, 2012 because an incorrect
optional life insurance code was used and deductions were not made for basic life insurance.
The hearing representative found that appellant was without fault in the creation of the
overpayment but denied waiver of recovery, finding that he had excess income over expenses
and exceeded the asset limit. Based on the evidence of record, the hearing representative found
that he could repay the overpayment by deducting $400.00 from continuing compensation every
28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA 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 or her duty.2 Section 8129(a) of FECA provides, in pertinent part:
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.3
Section 8116(a) of FECA provides that, while an employee is receiving compensation or
if he or she has been paid a lump sum in commutation of installment payments until the
expiration of the period during which the installment payments would have continued, the

2

5 U.S.C. § 8102(a).

3

Id. at § 8129(a).

3

employee may not receive salary, pay or remuneration of any type from the United States, except
in limited specified instances.4
Under the Federal Employees Group Life Insurance (FEGLI) program, most civilian
employees of the Federal Government are eligible to participate in BLI and one or more of the
options.5 The coverage for basic life is effective unless waived6 and premiums for basic and
optional life coverages are withheld from the employee’s pay.7
FECA and its implementing regulations provide that an employee entitled to disability
compensation benefits may continue BLI coverage without cost under certain circumstances8 and
may also retain the OLI.9 At separation from the employing establishment, the FEGLI insurance
will either terminate or be continued under compensationer status.10 If the compensationer
chooses to continue BLI and OLI insurance coverage, the schedule of deductions made while the
compensationer was an employee will be used to withhold premiums from his or her
compensation payments.11 Thus while receiving disability compensation in lieu of retirement
benefits, the former employee is responsible for all insurance premiums.12
ANALYSIS-- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $5,094.80 for the period May 25, 2007 to June 2, 2012.
The record shows that an overpayment occurred because an incorrect base salary and OLI
code was used and deductions were not made for basic life insurance from May 25, 2007 to
June 2, 2012. On a June 8, 2006 Form CA-7, the employing establishment incorrectly indicated
that appellant’s base salary of $47,521.24. By letter dated February 5, 2008, OPM advised
OWCP that appellant’s life insurance was basedon a salary $48,668.00. It further noted that
appellant had elected PRBLI effective May 25, 2007. Because OWCP failed to make proper
adjustments to his compensation benefits until June 3, 2012, incorrect withholdings occurred.
The June 28, 2012 OWCP noted that the first overpayment occurred when appellant’s
OLI was improperly deducted from a base salary of $47,521.24 instead of the correct base salary
4

Id. at § 8116(a).

5

5 C.F.R. § 870.201.

6

Id. at § 870.204(a).

7

Id. at § 870.401(a).

8

Id. at § 870.701, subpart G.

9

Id. at § 871.201, subpart B; 8702.201, subpart B; 873.203, subpart B.

10

Id. at § 870.501.

11

Id. at § 872.410, subpart D.

12

Scherri L. Stanley, 53 ECAB 433 (2002).

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of $48,668.00. It found that, for the period May 25, 2007 to June 2, 2012, hisOLI deductions
totaled $8,680.80. Using the correct base salary of $48,668.00, appellant’s OLI deductions
should have totaled $7,089.32. Subtracting the $7,089.32OLI deductions he should have paid
from the $8,680.80 in OLI deductions he actually paid, he overpaid $1,591.48 for OLI.
An OWCP memorandum further noted that appellant’s basic life insurance for the period
May 25, 2007 to June 2, 2012 totaled $983.57 whereas it should have totaled $1,003.24 using the
correct $48,668.00 base salary. After subtracting $983.57 from $1,003.24, appellant should have
paid an extra $19.67 for BLI.13
Finding that no deductions were made for PRBLI from May 25, 2007 to June 2, 2012,
OWCP provided an explanation as to its calculations and found a total of $6,666.61 in PRBLI
deductions which were not made. Taking the $6,666.61 in PRBLI deductions, which appellant
should have paid and adding it to the $19.67 owed for BLI deductions resulted in an
overpayment of $6,686.28. As OWCP properly determined that he overpaid for his OLI benefits
in the amount of $1,591.48, this amount was subtracted from the $6,686.28 owed for PRBLI and
BLI benefits ($6,686.28 - $1,591.48) for a total overpayment of $5,094.80.It properly found a
$5,094.80 overpayment of compensation for the period May 25, 2007 through June 2, 2012.14
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.15 These statutory
guidelines are found in section 8129(b) of FECA which states: Adjustment or recovery [of an
overpayment] by the United States may not be made when incorrect payment has been made to
an individual who is without fault and when adjustment or recovery would defeat the purpose of
this subchapter or would be against equity and good conscience.16 If OWCP finds that a
claimant to be without fault in the matter of an overpayment, then, in accordance with section
8129(b), OWCP may only recover the overpayment if it determined that recovery of the
overpayment would neither defeat the purpose of FECA nor be against equity and good
conscience.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of his
income (including compensation benefits) to meet current ordinary and necessary living
expenses and also, if the beneficiary’s assets do not exceed a specified amount as determined by

13

Coverage for basic life is effective unless waived and premiums for basic and optional life coverages are
withheld from the employee’s pay. 5 C.F.R. at § 870.204(a) and § 870.401(a). Thus, appellant is responsible for
payment of the premiums and the premiums must be deducted from his compensation payments. W.J., Docket No.
12-672 (issued August 24, 2012).
14

S.W., Docket No. 11-895 (issued December 5, 2011).

15

See Robert Atchison, 41 ECAB 83, 87 (1989).

16

5 U.S.C. § 8129(b).

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OWCP from data provided by the Bureau of Labor Statistics.17 According to 20 C.F.R.
§ 10.437, recovery of an overpayment is considered to be against equity and good conscience
when an individual who received an overpayment would experience severe financial hardship
attempting to repay the debt and when an individual, in reliance on such payments or on notice
that such payments would be made, gives up a valuable right or changes his position for the
worse.18 To establish that a valuable right has been relinquished, it must be shown that the right
was in fact valuable, that it cannot be regained and that the action was based chiefly or solely in
reliance on the payments or on the notice of payment.19
ANALYSIS -- ISSUE 2
In the present case, appellant failed to submit a completed overpayment recovery
questionnaire with financial information. He did, however, provide testimony at the January 8,
2013 hearing outlining his income, expenses and assets.
Using the information provided at the hearing, the hearing representative determined that
appellant received compensation from OWCP in the amount of $2,372.57 every 28 days
($2,513.79 per month) and that his wife had net pay of $492.00 every two weeks from her job at
Walmart for a monthly income of $1,066.00. Shefurther noted that in 2012, appellant received
approximately $500.00 in rent for his California property. The hearing representative concluded
that appellant’s net monthly income totaled $3,621.46. Taking a monthly average of appellant’s
yearly expenses for property taxes, homeowners insurance and car maintenance, the hearing
representative added the monthly cost for these items to appellant’s other expenses including his
monthly mortgage payments, electric bill, cable/phone/internet bill, credit card payments,
prescription copays, hospital bill, car insurance payments and monthly food payments.
Shetotaled his current monthly expenses at $2,515.85 and noted that $200.00 per month spent on
cellphone bills did not qualify as an ordinary and necessary living expense. Taking appellant’s
monthly income of $3,621.46 and deducting his monthly expenses of $2,315.85, the hearing
representative found that appellant had $1,305.61 in disposable income each month. Appellant’s
income exceeded his monthly expenses by more than $50.00. Factoring his $1,305.61 monthly
income surplus and $90,000.00 TSP plan balance the hearing representative properlydetermined
that waiver could not be granted.
When an employee’s assets exceed $8,000.00 for an individual with a spouse, recovery of
the overpayment will not defeat the purpose of FECA. The evidence submitted establishes that
17

20 C.F.R. § 10.436. An individual is deemed to need substantially all of his monthly income to meet current
and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00.
Desiderio Martinez, 55 ECAB 245 (2004). OWCP’s procedures provide that assets must not exceed a resource base
of $4,800.00 for an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each
additional dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions,
Chapter 6.200.6(a) (October 2004). The procedure manual states that assets do not include the value of household
furnishings (primary residence), wearing apparel, one or two vehicles, family burial plot or prepaid burial contract, a
home which the person maintains as the principal family domicile or income-producing property, if the income from
such property has been included in comparing income and expenses.
18

Id. at § 10.437(a), (b).

19

Id. at § 10.437(b)(1).

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appellant had more than $8,000.00 in assets. With respect to whether recovery would be against
equity and good conscience, there was no evidence that he would experience severe financial
hardship in repaying the debt.20 The evidence reflects that appellant had, excess monthly income
over expenses with other significant assets. In addition, there was no evidence presented that he
had given up a valuable right in reliance on the overpayment or changed his position for the
worse. The Board finds that the evidence of record does not establish that recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience.21
OWCP properly denied waiver of recovery of the $5,094.80 overpayment of compensation.22
LEGAL PRECEDENT-- ISSUE 3
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by OWCP. This information will be used to
determine the repayment schedule, if necessary.23
When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as soon as the
error is discovered or his or her attention is called to the same. If no refund is made, OWCP
shall decrease later payments of compensation, taking into account the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.24
ANALYSIS-- ISSUE 3
Appellant receives $2,372.57 in continuing compensation benefits every 28 days and a
total combined monthly income of $3,621.46. The hearing representative determined the
overpayment could be recovered by deducting $400.00 from his continuing compensation
payments every 28 days. The Board notes that a claimant is responsible for submitting necessary
information with respect to income, expenses and assets as required by OWCP.25 In this case,
appellant submitted limited information regarding his financial circumstances and his income
and expenses were not sufficiently documented.
OWCP considered the amount of appellant’s assets and the extent that his monthly
income exceeded his monthly expenses. As noted, the hearing representative determined that

20

Id. at 10.438(a) (in requesting waiver, the overpaid individual has the responsibility for providing financial
information).
21

L.D., Docket No. 12-1408 (issued April 26, 2013).

22

M.S., Docket No. 11-96 (issued August 17, 2011).

23

20 C.F.R. § 10.438.

24

Id. at § 10.441(a).

25

Id. at § 10.438.

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hismonthly expenses totaled $2,315.85.26 Subtracting this amount from appellant’s monthly
income of $3,621.46, it determined that hehad a surplus of $1,305.61 monthly in excess
income.Appellant’s income exceeded his monthly expenses by more than $50.00. The evidence
reflects that the hearing representative considered the financial circumstances of appellant and
other factors to minimize the hardship in accord with 20 C.F.R. § 10.441.27 Therefore, OWCP
properly required repayment of the overpayment by deducting $400.00 from appellant’s
continuing compensation payments every 28 days.28
On appeal, appellant argued that he cannot pay his bills and that deducting $400.00 per
month from his continuing compensation payments would causea severe hardship. In support of
his claim, he provided a list of his yearly and monthly expenses.As the Board’s review is limited
to evidence in the case record at the time OWCP made its decision over which the Board has
jurisdiction, the Board cannot review this evidence submitted for the first time on appeal.29 The
Board finds that OWCP determined his monthly surplus and excess income based on the
information he provided during the January 8, 2013 prerecoupment hearing. As noted, appellant
provided limited information but the hearing representative did consider the evidence of record
and supported her findings.30 The payment schedule was reasonable in the absence of any
financial documentation proving otherwise.31 The Board finds that OWCP properly determined
the overpayment should be recovered by deducting $400.00 from continuing compensation.
CONCLUSION
The Board finds that OWCP properly determined that appellant received a $5,094.80
overpayment of compensation for the period May 25, 2007 through June 2, 2012. The Board
further finds that he was not at fault for the overpayment that occurred and that OWCP properly
denied waiver of the overpayment based on the evidence of record. The Board also finds that
OWCP properly determined the overpayment should be recovered by deducting $400.00 from
continuing compensation every 28 days.

26

The Board notes that, when calculating appellant’s monthly expenses, the hearing representative failed to
mention $400.00 monthly spent on gas and approximately $80.00 monthly spent on copays for medical visits, as
evidenced from appellant’s testimony. The Board finds that the failure of the hearing representative to include these
two expenses was harmless error.Even if $480.00 was added to appellant’s monthly expenses, he would still have
$825.61 in disposable income per month. Thus, the omission of these two expenses would not change appellant’s
$400.00 repayment amount.
27

W.M., Docket No. 13-291 (issued June 12, 2013).

28

M.G., Docket No. 07-2317 (issued April 11, 2008).

29

D.E., Docket No. 07-27 (issued April 6, 2007); 20 C.F.R. § 501.2(c).

30

See S.C., Docket No. 12-1871 (issued February 26, 2013).

31

Supra note 29.

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ORDER
IT IS HEREBY ORDERED THATthe March 21, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 29, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, LOCK & DAM #13, Fulton, IL,
Employer
__________________________________________

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

Docket No. 11-1742
Issued: March 6, 2012

Case Submitted on the Record

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

JURISDICTION
On July 27, 2011 appellant, through his attorney, filed a timely appeal from a June 8,
2011 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 the schedule award decision.
ISSUE
The issue is whether appellant has more than a one percent impairment of the right lower
extremity and a one percent impairment of the left lower extremity for which he received a
schedule award.
On appeal, appellant’s attorney asserts that the decision is contrary to fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board. By decision dated December 12, 2008,
the Board reversed OWCP decisions dated January 8, 2008 and July 26, 2007. The Board found
that OWCP did not meet its burden of proof to establish that the constructed position of sales
attendant fairly and reasonably represented appellant’s wage-earning capacity because OWCP
did not consider his accepted malignant melanoma and carpal tunnel syndrome prior to reducing
his compensation.2 The law and the facts of the previous Board decision are incorporated herein
by reference.
On April 14, 2009 appellant filed separate schedule award claims for both his accepted
back condition and his accepted bilateral carpal tunnel.3 By letter dated May 27, 2009, OWCP
informed him of the type evidence needed to support his schedule award claims, to include a
report by his physician in accordance with the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4
In a report dated June 11, 2009, Dr. Richard T. Katz, an attending Board-certified
physiatrist, reviewed medical records and provided examination findings. He advised that
appellant had bilateral S1 radiculopathy and stated that, as the sixth edition of the A.M.A.,
Guides did not have tables in regard to spinal root pain in the upper and lower extremity
chapters, it was most appropriate to rate appellant under Table 16-12, peripheral nerve
impairment. Dr. Katz advised that a mild sensory deficit of the lateral plantar nerve yielded a
one percent deficit of each lower extremity. Following a review of a December 8, 2005 nerve
conduction study, on July 2, 2009, he advised that appellant had a two percent impairment of
each upper extremity. By report dated August 20, 2009, Dr. Daniel D. Zimmerman, an OWCP
medical adviser who is Board-certified in internal medicine, noted his review of Dr. Katz’ report
and agreed with his conclusions that appellant had two percent impairments of each upper
extremity and one percent impairments of each lower extremity.
On December 17, 2009 appellant was granted a schedule award for a two percent
impairment of the right upper extremity and a two percent impairment of the left upper
extremity, for a total of 12.48 weeks, to run from June 11 to September 6, 2009. On
2

Docket No. 08-1111 (issued December 12, 2008). On January 19, 2006 OWCP accepted that appellant, then a
51-year-old lock and dam operator, sustained employment-related melanoma of the right cheek. On April 10, 2006
the employing establishment informed him that it could not accommodate his restriction to avoid sunlight.
Appellant stopped work and was placed on the periodic rolls. On October 31, 2006 OWCP accepted that he
sustained employment-related bilateral carpal tunnel syndrome under file number xxxxxx358. By decision dated
January 24, 2007, it reduced appellant’s compensation benefits, effective February 17, 2007, based on his capacity
to earn wages as a sales attendant. On March 22, 2007 OWCP accepted that he sustained employment-related
displacement of lumbar intervertebral disc without myelopathy under file number xxxxxx567. On April 24, 2007
appellant underwent an L4-5 posterior lumbar interbody fusion procedure. In decisions dated July 26 and October 9,
2007 and January 8, 2008 OWCP denied modification of the January 24, 2007 wage-earning capacity decision. On
March 24, 2008 it combined appellant’s claim numbers xxxxxx793, xxxxxx358 and xxxxxx567, with the former
being the master file.
3

Id.

4

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

2

December 21, 2009 he was granted a schedule award for a one percent impairment of the right
lower extremity and a one percent impairment of the left leg, for a total of 5.76 weeks, to run
from June 11 to July 21, 2009. On January 6, 2010 appellant, through his attorney, requested
hearings for each schedule award decision.5
The hearings were held separately on April 1, 2010. At the hearing regarding the carpal
tunnel claim, appellant’s attorney indicated that both Dr. Katz and an OWCP medical adviser
accurately assessed appellant’s impairment and that he was not in disagreement regarding the
rating awarded. At the hearing regarding his lower extremities, appellant testified that he
continued to have constant pain and numbness in his legs. Following the hearings, he submitted
additional medical evidence including a December 7, 2009 operative report of a left carpal tunnel
release from the Department of Veterans Affairs (VA) and a VA pain clinic procedure note for a
lumbar facet injection. In decisions dated June 10, 2010, an OWCP hearing representative
affirmed the December 17, 2009 schedule award decision regarding appellant’s upper extremities
and the December 21, 2009 schedule award decision regarding his lower extremities.6
On January 7, 2011 appellant, through his attorney, requested reconsideration of the
June 10, 2010 schedule award decision regarding his lower extremity impairment. He submitted
additional medical evidence including a July 30, 2010 report in which Dr. Martin Fritzhand, a
Board-certified urologist, noted his review of medical evidence.7 Counselor provided physical
examination findings and provided an impairment evaluation in accordance with the fifth edition
of the A.M.A., Guide. He concluded that appellant had impairments of 2.5 percent to each lower
extremity.
On April 27, 2011 Dr. Zimmerman, an OWCP medical adviser, reviewed the MRI scan
study and Dr. Fritzhand’s report. He noted that it was inappropriate to evaluate impairments
under the fifth edition of the A.M.A., Guides and that the record contained no new information in
accordance with the sixth edition to establish that appellant was entitled to increased awards for
his lower extremities. By decision dated June 8, 2011, OWCP found that appellant was not
entitled to increased schedule awards for his lower extremities.

5

Appellant elected FECA benefits effective February 1, 2010 and was returned to the periodic compensation rolls
in November 2010.
6

Appellant did not file an appeal with the Board from the June 10, 2010 decision regarding his upper extremity
impairments.
7

The evidence submitted also included VA progress notes dated January 21, 2009 to February 16, 2011, x-ray
reports of bilateral wrists and right hand and a lumbar spine x-ray and a March 1, 2011 magnetic resonance imaging
(MRI) scan of the lumbar spine. In a February 27, 2011 work capacity evaluation, Dr. A. Paul Rauwolf, Boardcertified in family medicine, advised that appellant must work indoors.

3

LEGAL PRECEDENT
The schedule award provision of FECA8 and its implementing federal regulations,9 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.10 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides was used to calculate schedule
awards.11 For decisions issued after May 1, 2009, the sixth edition is to be used.12
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.13 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.14
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
alternative approach to rating spinal nerve impairments.15 OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures.16
ANALYSIS
The Board finds that appellant has a one percent impairment of the right lower extremity
and one percent impairment on the left. OWCP accepted that appellant sustained displacement
of intervertebral disc without myelopathy. The Board finds that the weight of the medical
8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id. at § 10.404(a).

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
12

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

13

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

14

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

15

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

16

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, supra note 11.

4

evidence rests with the opinions of Dr. Katz, an attending physiatrist, and Dr. Zimmerman, an
OWCP medical adviser, the only impairment evaluations of record that comport with the sixth
edition of the A.M.A., Guides. By letter dated May 27, 2009, OWCP informed appellant that, in
order to support his schedule award claim, he should submit a report from his physician that was
in accordance with the sixth edition of the A.M.A., Guides. In a June 11, 2009 report, Dr. Katz
provided examination findings and advised that appellant had bilateral S1 radiculopathy. He
indicated that the sixth edition of the A.M.A., Guides did not have tables in regard to spinal root
pain in the upper and lower extremity chapters and advised that it was most appropriate to rate
appellant under Table 16-12, peripheral nerve impairment. Dr. Katz properly advised that a mild
sensory deficit of the lateral plantar nerve yielded a one percent deficit of each lower extremity.17
On reconsideration, appellant submitted a July 30, 2010 report in which Dr. Fritzhand
evaluated appellant’s lower extremity impairments under the fifth edition of the A.M.A., Guides
and concluded that he had a 2.5 percent impairment of each lower extremity. However, as noted
above, subsequent to May 1, 2009, the applicable edition of the A.M.A., Guides to be used in
determining impairments is the sixth edition. Dr. Fritzhand based his impairment rating on the
fifth edition. A medical opinion not based on the appropriate edition of the A.M.A., Guides is of
diminished probative value in determining the extent of a claimant’s permanent impairment.18
While appellant submitted additional medical evidence, he did not submit an additional
impairment evaluation.
The Board finds that the opinions of Dr. Katz and Dr. Zimmerman, an OWCP medical
adviser, who evaluated appellant’s bilateral lower extremities impairment in accordance with
Table 16-12 of the sixth edition of the A.M.A., Guides, constitute the weight of the medical
evidence. There is no medical evidence in conformance with the proper edition of the A.M.A.,
Guides showing a greater impairment.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not establish that he has more than a one percent
impairment of the right lower extremity and one percent impairment on the left.

17

Supra note 4 at 536.

18

Shalanya Ellison, 56 ECAB 150 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the June 8, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 6, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
DEPARTMENT OF THE JUSTICE, FEDERAL
BUREAU OF INVESTIGATION,
Washington, DC, Employer
__________________________________________

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Appearances:
Appellant, pro se
no appearance, for the Director

Docket No. 07-1087
Issued: November 7, 2007

Oral Argument October 3, 2007

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

JURISDICTION
On March 13, 2007 appellant filed a timely appeal from a February 23, 2007 merit
decision of the Office of Workers’ Compensation Programs affirming the denial of her schedule
award claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
schedule award issue.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she has a
ratable permanent impairment of the left upper extremity.
FACTUAL HISTORY
On August 1, 2004 appellant, then a 54-year-old human resources specialist, filed an
occupational disease claim stating that she developed trigger finger and carpal tunnel syndrome

in the performance of duty.1 She first became aware of her condition and related it to her
employment on December 1, 1998. After appropriate development, the Office accepted
appellant’s claim for trigger finger of the left hand (middle and ring fingers). Appellant retired
from the employing establishment effective September 2, 2005.
In an October 4, 2004 report, Dr. Rida Azer, an orthopedic surgeon, diagnosed left
middle and ring trigger finger with an associated nodule in the fibrous flexor tendon sheath. On
February 15, 2005 he performed a release of left middle and ring finger trigger deformity with
tenolysis and recorded preoperative and postoperative diagnoses of left middle and ring finger
trigger deformity. Dr. Azer provided follow-up reports detailing appellant’s postsurgery
progress. One year post surgery, he reported that appellant’s range of motion and grip strength
were normal.
On February 17, 2006 appellant claimed a schedule award.
In a May 12, 2006 report, Dr. Hampton Jackson, Jr., an orthopedic surgeon and an
associate of Dr. Azer, provided an impairment rating. He noted appellant’s complaints of
persistent pain and weakness in her palm and throughout her middle and ring fingers.
Dr. Jackson indicated that appellant had diminished flexion of the metacarpophalangeal joints
but no “true triggering.” He concluded that she had a 43.74 pain-related impairment score based
on Table 18-6 of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).2 Dr. Jackson also found that appellant had 30 percent grip
strength loss index related to her left middle and ring fingers, equaling 10 percent arm
impairment. He found that appellant had 25 percent impairment due to loss of pinch strength,
which also translated to 10 percent upper extremity impairment. Using the Combined Values
Chart,3 Dr. Jackson concluded that appellant had 55 percent impairment of the left arm. He
stated that she reached maximum medical improvement on May 12, 2006.
In a June 21, 2006 report, the Office medical adviser reviewed Dr. Jackson’s impairment
rating. He concluded that the rating did not conform to the A.M.A., Guides. The Office medical
adviser explained that Dr. Jackson’s impairment rating was based on loss of grip strength and
pinch strength, but a trigger finger release would not have affected any of the muscles of
appellant’s hand. If anything, he concluded, the trigger finger release would ultimately result in
increased strength. The Office medical adviser concluded that appellant had no percent
impairment of the left upper extremity.
The Office found a conflict in the medical opinion between Dr. Jackson and the Office
medical adviser. On July 17, 2006 it referred appellant, together with a statement of accepted
facts, to Dr. David Dorin, a Board-certified orthopedic surgeon, for an impartial medical
examination. In a July 28, 2006 report, Dr. Dorin noted appellant’s history of trigger finger
release and explained that her treating physician documented her progress and improvement,
1

The record reflects that appellant had previously filed a claim which was assigned file number 250540519,
which was accepted for left carpal tunnel syndrome.
2

A.M.A., Guides 584, Table 18-6.

3

Id. at 604-605.

2

showing that by one year postsurgery she had satisfactory grip, range of motion and sensation
and no triggering. He performed a physical examination, finding that she had a full and
complete range of motion of the left wrist, middle and ring fingers, as well as good stability and
no specific local tenderness. Dr. Dorin also found that appellant had a full range of motion of the
left middle and ring fingers, good resistive motion in flexion and extension, no swelling and no
synovitis or specific tenderness. He measured her grip strength using a Jamar Dynamometer and
concluded that she did have some diminished grip strength, which he attributed either to
voluntary lack of effort or to her history of carpal tunnel release surgeries, but which he
determined was not related to her trigger finger release. Dr. Dorin explained that he was unable
to reconcile appellant’s subjective complaints of pain with her normal physical examination
findings. He concluded that she had reached maximum medical improvement and had no
impairment of the left arm. Dr. Dorin was unable to find a basis on which to rest an impairment
rating consistent with the A.M.A., Guides.
By decision dated September 14, 2006, the Office denied appellant’s schedule award
claim.
On September 23, 2006 appellant requested reconsideration and submitted additional
treatment records, some of which were previously of record. In a November 3, 2006 report,
Dr. Azer stated that he concurred with Dr. Jackson’s impairment rating and that appellant had
permanent limitations as a result of her employment-related condition.
By decision dated February 23, 2007, the Office denied modification of its September 14,
2006 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, 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.6
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.7 When the case is referred to an
impartial medical specialist for the purpose of resolving a conflict in medical evidence, the
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

See id.

7

5 U.S.C. § 8123(a); see Elsie L. Price, 54 ECAB 734 (2003); Raymond J. Brown, 52 ECAB 192 (2001).

3

opinion of such specialist will be given special weight when based on a proper factual and
medical background and sufficiently well rationalized on the issue presented.8
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a ratable impairment of the left upper extremity. The Office accepted her claim for left
middle and ring finger trigger deformity and paid appropriate compensation. Appellant has not
presented sufficient medical evidence to establish that she is entitled to a schedule award for
permanent partial impairment to her left upper extremity.
Dr. Jackson, a treating physician, provided a May 12, 2006 report and impairment rating,
concluding that appellant had 55 percent impairment of the left arm due to factors including pain,
loss of grip strength and loss of pinch strength following her trigger finger release. As noted by
the Office medical adviser, however, this impairment estimate did not conform with the A.M.A.,
Guides and consequently concluded that she had no ratable impairment of the left upper
extremity. The Office properly found a conflict in the medical evidence regarding whether
appellant had permanent impairment attributable to her trigger finger condition and referred her
to Dr. Dorin for an impartial medical examination.
In a July 28, 2006 report, Dr. Dorin concluded that there was no basis for rating
appellant’s impairment under the A.M.A., Guides, as Dr. Azer’s reports indicated that
appellant’s range of motion was normal after the surgery. Physical examination revealed
essentially normal grip strength, pinch strength and sensation in her fingers, hand and wrist.
Dr. Dorin noted some diminished grip strength with the performance of a Jamar Dynamometer
test, but attributed this to a voluntary lack of effort or to lingering effects from appellant’s
previous carpal tunnel surgeries. He explained that her diminished grip strength, if any, was not
related to her trigger finger release. Dr. Dorin concluded that appellant had fully healed from her
trigger finger release and advised that he was unable to correlate the physical examination
findings with appellant’s subjective complaints of pain. He determined that appellant did not
have any ratable impairment pursuant to the A.M.A., Guides. The Board finds that Dr. Dorin’s
report is well rationalized. Dr. Dorin explained the basis for his conclusion that appellant did not
sustain any ratable impairment to her left upper extremity. Because he is an impartial medical
examiner who provided a rationalized medical opinion, his report constitutes the weight of the
medical evidence.9 The Board finds that the Office properly relied upon Dr. Dorin’s report in
concluding that appellant does not have any ratable impairment pursuant to the A.M.A., Guides.
Subsequent to the receipt of Dr. Dorin’s report, appellant submitted Dr. Azer’s
November 3, 2006 report. Dr. Azer concurred with Dr. Jackson’s conclusion on permanent
impairment. However, this report is insufficient to establish that appellant has permanent
impairment due to her accepted trigger finger conditions as Dr. Azer provided no additional

8

See Bernadine P. Taylor, 54 ECAB 342 (2003); Anna M. Delaney, 53 ECAB 384 (2002).

9

See id.

4

reasoning for his opinion other than stating that he concurred with Dr. Jackson’s assessment.10
As noted, Dr. Jackson was on one side of a medical conflict that was resolved by Dr. Dorin.
Without any new findings by Dr. Azer to demonstrate a ratable impairment attributable to the
accepted trigger finger conditions, his opinion is insufficient to overcome the report of the
impartial medical examiner or to create a new conflict in the medical evidence. Other medical
evidence submitted with appellant’s request for reconsideration did not specifically address why
any permanent impairment of the left arm would be causally related to the accepted condition.
Consequently, she has not established that she has any permanent impairment causally related to
her accepted trigger finger conditions.
CONCLUSION
The Board finds that appellant did not meet her burden of proof in establishing that she
had ratable permanent partial impairment of the left upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the February 23, 2007 and September 14, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 7, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

10

See Barbara Johnsen (James C. Johnsen), 54 ECAB 839 (2003) (to be of probative value, the physician must
provide rationale for the opinion reached; where no such rationale is present, the medical opinion is of diminished
probative value).

5


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

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket Nos. 10-1752 &
10-1890
Issued: April 29, 2011

Case Submitted on the Record

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

JURISDICTION
On June 22, 2010 appellant, through his representative, filed a timely appeal from the
April 13, 2010 merit decision of the Office of Workers’ Compensation Programs granting a
schedule award for his right leg. On July 13, 2010 he filed a timely appeal from the June 8, 2010
merit decision of the Office granting a schedule award for his arms. Pursuant to the Federal
Employees’ Compensation Act and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
a 7 percent permanent impairment of his right arm, a 7 percent permanent impairment of his left
arm and a 31 percent permanent impairment of his right leg, for which he received schedule
awards.

FACTUAL HISTORY
The Office accepted that on April 14, 2000 appellant, then a 50-year-old letter carrier,
sustained a medial meniscus tear of his right leg, due to walking down a slope at work. It paid
him compensation for periods of disability. On November 4, 2000 Dr. Michael C. DiStefano, an
attending Board-certified orthopedic surgeon, performed right knee surgery including a partial
medial meniscectomy, partial lateral meniscectomy, thermal ablation of the patella and
chondroplasty of the medial femoral condyle. The procedures were authorized by the Office.
On July 28, 2002 appellant filed a claim for a schedule award due to his accepted
employment injury. In a June 26, 2002 report, Dr. Arthur H. Tiger, an attending Board-certified
orthopedic surgeon, determined that appellant had a 40 percent permanent impairment of his
right leg under the standards of the fifth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (5th ed. 2001).
The Office subsequently authorized appellant to undergo a total right knee arthroplasty
and Dr. DiStefano performed the surgery on May 11, 2005.
Appellant filed a claim for an occupational disease claim on August 2, 2006 stating that
as a result of the repetitive tasks required by his job he sustained bilateral carpal tunnel
syndrome. He asserted he first realized that this condition was related to his employment on
June 9, 2006. The Office accepted that appellant sustained bilateral carpal tunnel syndrome and
right trigger thumb. On February 8, 2008 appellant filed another claim for a schedule award due
to his accepted employment injuries.
In a November 5, 2007 report, Dr. David Weiss, a Board-certified orthopedic surgeon,
found that, under the fifth edition of the A.M.A., Guides, appellant had a 35 percent impairment
of his right arm, a 12 percent impairment of his left arm and a 50 percent impairment of his right
leg. He reported the findings of his physical examination of appellant including findings for
range of motion for his wrists, digits and right knee. Dr. Weiss also noted findings for strength
and sensory loss in the upper and lower extremities. He determined that the date of maximum
improvement for appellant’s extremities was November 5, 2007.
The Office referred Dr. Weiss’ report to Dr. Henry J. Magliato, a Board-certified
orthopedic surgeon serving as an Office medical adviser, to evaluate appellant’s arm impairment.
On January 28, 2008 Dr. Magliato reviewed Dr. Weiss’ measurements and findings and
determined that appellant had a 32 percent impairment of his right arm and a 6 percent
impairment of his left arm under the fifth edition of the A.M.A., Guides. His impairment ratings
for the arms differed from those of Dr. Weiss because he calculated different impairments for
motion of the right wrist, left wrist and left thumb.
The Office then referred the case to Dr. Andrew A. Merola, a Board-certified orthopedic
surgeon serving as an Office medical adviser, to evaluate appellant’s leg impairment. On
August 27, 2008 Dr. Merola provided an opinion that Dr. Weiss did not provide sufficient
objective data to support his findings that appellant had a 50 percent impairment of his right leg
under the fifth edition of the A.M.A., Guides. On November 1, 2008 he indicated that using the

2

June 26, 2002 findings of Dr. Tiger showed that appellant had a 21 percent impairment of his
right leg under the fifth edition of the A.M.A., Guides.
The Office determined that there was a conflict in the medical opinion between the
opinion of Dr. Weiss and the opinion of Dr. Magliato regarding appellant’s arm impairment and
referred him to Dr. Raphael K. Levine, a Board-certified orthopedic surgeon, for an impartial
medical examination and opinion on the matter.
On September 17, 2008 Dr. Levine found that appellant had a 10 percent impairment of
each arm under the fifth edition of the A.M.A., Guides. In December 21, 2008 and April 4, 2009
reports, Dr. Merola indicated that he agreed with Dr. Levine’s opinion that appellant had a 10
percent impairment of each arm under the fifth edition of the A.M.A., Guides.
In an April 30, 2009 report, Dr. Weiss again determined that appellant had a 50 percent
impairment of his right leg under the fifth edition of the A.M.A., Guides. He provided a
description of his impairment rating method that was similar to that contained in his
November 5, 2007 report.
On June 17, 2009 the Office requested that Dr. Weiss rate appellant’s impairment in
accordance with the standards of the sixth edition of the A.M.A., Guides (6th ed. 2009).
On September 21, 2009 the Office received a report from Dr. Weiss. The report
contained the findings from Dr. Weiss’ November 5, 2007 evaluation but was updated by him to
contain a new impairment calculation done on September 10, 2009 under the standards of the
sixth edition of the A.M.A., Guides. Dr. Weiss concluded that appellant had a 7 percent
permanent impairment of his right arm, a 7 percent permanent impairment of his left arm and a
31 percent permanent impairment of his right leg. He explained that, under Table 15-23
(Entrapment/Compression Neuropathy Impairment) on page 449 of the sixth edition of the
A.M.A., Guides, appellant’s condition fell under grade modifier 3 in each arm and that he
therefore had a default value of eight percent in each arm.1 Because appellant had a QuickDASH
score of 54 in the right arm and a QuickDASH score of 31 in the left arm, Dr. Weiss indicated
that it was appropriate to move one place to the left from the default value found on Table 15-23
and he concluded that appellant had a seven percent impairment in each arm. Under Table 16-3
(Knee Regional Grid) on page 511 of the sixth edition of the A.M.A., Guides, he found that
appellant fell under Class 3 (within the osteotomy/knee replacement diagnostic category) due to
the nature of his surgery and subsequent symptoms.2 This yielded a default value of 37 percent.
Dr. Weiss discussed the relevant grade modifiers3 noting that appellant had a functional history
score of one, a physical examination score of two and a clinical studies score of zero. These
scores caused the default value to shift two places to the left on Table 16-3 and yielded a final
impairment rating for appellant’s right knee of 31 percent.
1

In each arm, appellant had test findings at the grade modifier 3 level, history grade modifier 3 level and physical
findings grade modifier 3 level.
2

Dr. Weiss actually stated that appellant fell under Class 2, but the findings of record and the default value he
choose (37 percent) show that this was an inadvertent error.
3

See A.M.A., Guides 515-17, 519-20, Table 16-5 to Table 16-8.

3

On September 28, 2009 Dr. Merola indicated that he agreed with Dr. Weiss’ assessment,
under the sixth edition of the A.M.A., Guides, that appellant had a 7 percent permanent
impairment of his right arm, a 7 percent permanent impairment of his left arm and a 31 percent
permanent impairment of his right leg.
In an October 28, 2009 decision, the Office granted appellant a schedule award for a 31
percent permanent impairment of his right leg. In a December 30, 2009 decision, it granted him
a schedule award for a seven percent permanent impairment of his right arm and a seven percent
permanent impairment of his left arm. The awards were based on the September 10, 2009
impairment calculations of Dr. Weiss under the sixth edition of the A.M.A., Guides.
Appellant requested a telephone hearing with an Office hearing representative regarding
both decisions. During the February 3, 2010 hearing regarding appellant’s leg impairment,
counsel argued that appellant’s right leg impairment should have been based on the 50 percent
impairment found by Dr. Weiss under the fifth edition of the A.M.A., Guides. During the
April 15, 2010 hearing regarding appellant’s arm impairment, he argued that appellant should
have received a schedule award for a 10 percent impairment in each arm based on the opinion of
Dr. Levine who applied the standards of the fifth edition of the A.M.A., Guides. Counsel
asserted that the delay in the issuance of the Office’s schedule award decisions impermissibly
caused his impairment to be rated under the sixth edition of the A.M.A., Guides.
In an April 13, 2010 decision, an Office hearing representative affirmed the October 29,
2009 decision. In a June 8, 2010 decision, an Office hearing representative affirmed the
December 30, 2009 decision. Both hearing representatives found that the Office properly
assessed appellant’s impairment under the standards of the sixth edition of the A.M.A., Guides.
LEGAL PRECEDENT
The schedule award provision of the Act4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, 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 regulations as the
appropriate standard for evaluating schedule losses.6
The effective date of the sixth edition of the A.M.A., Guides is May 1, 2009.7 The Office
procedures provide that, effective May 1, 2009, all schedule awards are to be calculated under
the sixth edition of the A.M.A., Guides. The bulletin describing these procedures indicates that
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

Id.

7

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

4

any initial schedule award issued on or after May 1, 2009 should be based on the sixth edition of
the A.M.A., Guides.8
In determining impairment for the upper extremities due to carpal tunnel syndrome under
the sixth edition of the A.M.A., Guides, reference is made to Table 15-23 (Entrapment/
Compression Neuropathy Impairment) and accompanying relevant text.9 In Table 15-23, Grade
Modifiers are described for test findings, history and physical findings. A survey completed by a
given claimant, known by the name QuickDASH, is used to further modify the grade and to
choose the appropriate numerical impairment rating.10 After the class is identified, the precise
degree of the impairment can be modified by various factors, including functional history,
physical examination and clinical studies.11 Under Chapter 2.3, evaluators are directed to provide
reasons for their impairment rating choices, including choices of diagnoses from regional grids and
calculations of modifier scores.12
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the knee, the relevant portion of the leg for the present case, reference
is made to Table 16-3 (Knee Regional Grid) beginning on page 509. Then the associated class is
determined from the Knee Regional Grid and the adjustment grid and grade modifiers (including
functional history, physical examination and clinical studies) are used to determine what grade of
associated impairment should be chosen within the class defined by the regional grid. The
evaluator then uses the regional grid to identify the appropriate impairment rating value for the
impairment class, modified by the adjustments as calculated.13
ANALYSIS
The Office accepted that on April 14, 2000 appellant sustained a medial meniscus tear of
his right leg. On November 4, 2000 appellant underwent right knee surgery, including a partial
medial meniscectomy, partial lateral meniscectomy, thermal ablation of the patella and
chondroplasty of the medial femoral condyle. On May 11, 2005 he underwent a total right knee
arthroplasty. The Office later accepted that appellant sustained bilateral carpal tunnel syndrome
and right trigger thumb.
In an October 28, 2009 decision, the Office granted appellant a schedule award for a 31
percent permanent impairment of his right leg. In a December 30, 2009 decision, it granted him
a schedule award for a seven percent permanent impairment of his right arm and a seven percent
permanent impairment of his left arm. The awards were based on the September 10, 2009
8

Id.

9

See A.M.A., Guides 449, Table 15-23.

10

Id. at 448.

11

Id. at 406-09.

12

Id. at 23-28.

13

See A.M.A., Guides 499-500 (6th ed. 2009).

5

impairment calculations of Dr. Weiss, an attending osteopath, who concluded that, under the
sixth edition of the A.M.A., Guides, appellant had a 7 percent permanent impairment of his right
arm, a 7 percent permanent impairment of his left arm and a 31 percent permanent impairment of
his right leg.14
On appeal, counsel argued that appellant should have received a schedule award based on
impairment calculations of record that were performed under the standards of the fifth edition of
the A.M.A., Guides. He asserted that the delay in the issuance of the Office’s schedule award
decisions impermissibly caused appellant’s impairment to be rated under the sixth edition of the
A.M.A., Guides.
The Board finds, however, that the Office issued its November 28 and December 30,
2009 schedule award decisions after May 1, 2009, the effective date of the sixth edition of the
A.M.A., Guides, and therefore appellant’s claim was properly evaluated under the standards of
the sixth edition.15
The Board finds that the Office properly based appellant’s schedule awards on the
September 10, 2009 impairment calculations of Dr. Weiss under the sixth edition of the A.M.A.,
Guides. The Office’s determination in this regard is further supported by the September 28,
2009 opinion of Dr. Merola, a Board-certified orthopedic surgeon serving as an Office medical
adviser, who indicated that he agreed with Dr. Weiss’ impairment assessment made under the
sixth edition of the A.M.A., Guides.
Dr. Weiss explained that, under Table 15-23 (Entrapment/Compression Neuropathy
Impairment) appellant’s condition fell under grade modifier 3 in each arm and that he therefore
had a default value of eight percent in each arm.16 Appellant’s QuickDASH score of 54 in the
right arm and 31 in the left arm meant that it was appropriate to move one place to the left from
the default value found on Table 15-23.17 Dr. Weiss concluded that appellant had a seven
percent impairment in each arm. Under Table 16-3 (Knee Regional Grid), he found that
appellant fell under Class 3 (within the osteotomy/knee replacement diagnostic category) due to
the nature of his surgery and subsequent symptoms. Dr. Weiss found that this yielded a default
value of 37 percent.18 He discussed the relevant grade modifiers19 noting that appellant had a
functional history score of one, a physical examination score of two and a clinical studies score

14

The calculations were based on findings obtained by Dr. Weiss on November 5, 2007. Dr. Weiss properly
found that appellant reached maximum medical improvement on that date.
15

See supra notes 7 and 8. Counsel suggested that the Office intentionally delayed the issuance of its schedule
awards decision such that appellant’s awards would be calculated under the sixth edition of the A.M.A., Guides.
The Board notes that the matter of appellant’s entitlement to schedule award compensation was properly developed
by the Office.
16

See supra note 3 at 449, Table 15-23.

17

See Id.

18

Id. at 511, Table 16-3.

19

Id. at 515-17, 519-20, Table 16-5 t Table 16-8.

6

of zero. These scores caused the default value to shift two places to the left on Table 16-3 and
yielded a final impairment rating for appellant’s right knee of 31 percent.20
For these reasons, appellant did not submit evidence showing that he has more than a 7
percent permanent impairment of his right arm, a 7 percent permanent impairment of his left arm
and a 31 percent permanent impairment of his right leg.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a 7 percent permanent impairment of his right arm, a 7 percent permanent impairment
of his left arm and a 31 percent permanent impairment of his right leg, for which he received
schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the June 8 and April 13, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 29, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

20

The record contains several impairment rating assessments that are higher than those provided by Dr. Weiss in
September 2009. However, these were all calculated under the standards of the fifth edition of the A.M.A., Guides
and, as previously explained, the sixth edition of the A.M.A., Guides provides the relevant standards in the present
case.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.H., Appellant
and
DEPARTMENT OF AGRICULTURE,
FOOD SAFETY & INSPECTION SERVICE,
Minneapolis, MN, Employer
__________________________________________

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Appearances:
John M. Lefler, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-738
Issued: November 8, 2011

Case Submitted on the Record

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

JURISDICTION
On January 31, 2011 appellant filed a timely appeal from the August 9, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his claim for a
May 28, 2009 work injury. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty on May 28, 2009.
FACTUAL HISTORY
On May 29, 2009 appellant, then a 45-year-old food inspector, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a work-related injury to his neck, back, left arm
1

20 C.F.R. § 8101 et seq.

and left side at 2:20 p.m. on May 28, 2009. He was waiting to park in his car when a car backing
out of a parking spot struck his front driver’s side door and front left fender. Appellant first
stopped work for various periods beginning May 29, 2009. On a Form CA-1, John Warhol, a
supervisor, stated that appellant’s regular work hours were from 3:41 p.m. to 12:11 a.m. He
contended that appellant did not sustain injury while in the performance of duty on May 28, 2009
noting, “Car accident in parking lot.”
In a June 9, 2009 letter, OWCP requested that appellant submit additional factual
evidence in support of his claim.
Appellant submitted medical evidence including return-to-work forms, dated in
June 2009, which were completed by Dr. J.P. Meyer, an attending Board-certified
anesthesiologist.
An OWCP claims examiner requested that the employing establishment answer questions
regarding the parking lot where the May 28, 2009 accident occurred and the circumstances for
appellant’s presence at work prior to his start time. In a June 4, 2009 statement, Steve
Cockerham, a supervisor, stated that the parking lot where the accident occurred was on the
premises but was owned and operated by a private company. The employing establishment had
a designated parking area for inspection personnel and employing establishment employees were
required to park in this area. Mr. Cockerham noted that appellant’s official tour of duty was
from 3:41 p.m. to 12:11 a.m. He stated that sometimes there was a brief block of scheduled
overtime prior to the start of the shift, so appellant might have been required to be on the floor by
3:29 p.m. if he was assigned to the head or viscera inspection stations on May 28, 2009.
According to the time of accident recorded on the Form CA-1, appellant was present in the
parking lot over one hour before his scheduled time to report for duty. He stated that inspectors
arrived at the facility in order to prepare for work at their discretion and the employing
establishment did not dictate the time they arrived before their shift started. Some inspectors
showed up at work more than 30 minutes before their shifts started and many employees had
personal reasons for doing so. Moreover, many inspectors showed up less than 30 minutes
before their scheduled start times.
Appellant was also asked to address the circumstances of his early arrival to work on
May 28, 2009. In a June 2009 response, he stated that he lived 20 miles from the plant where he
worked and, because he lived in a farming area, he normally left early to be on time in case a
farmer with equipment would be in front of him and he would be unable to pass. Appellant
stated that parking was very limited at the work site and that he had to be ready and “on the line”
for his 3:29 p.m. start time. He stated that he allowed 20 to 25 minutes to change his clothes and
check his equipment and 10 to 15 minutes to catch up on paperwork and check for new
directives. Appellant submitted additional medical evidence in support of his claim.
In a June 19, 2009 statement, Lyle Johnson, Jr., a coworker stated that he entered the
employing establishment’s parking lot on May 28, 2009 and stopped about one car length behind
appellant’s car. He observed that, while appellant was waiting for a parking space to open up to
his right, a car backed directly into the left front fender of appellant’s car.

2

In a July 13, 2009 decision, OWCP denied appellant’s claim. It noted that the course of
employment for an employee having a fixed time and place of work embraced a reasonable time
interval before official working hours while the employee was on the premises engaged in
preparatory or incidental acts.2 It was found that appellant’s injury did not occur within a
reasonable time interval before official working hours while performing acts incidental to his
employment.
Appellant requested reconsideration of his claim. Counsel prepared a brief in which he
cited federal and state case law in support of his argument that appellant sustained an injury in
the performance of duty on May 28, 2009. He argued that the facts of appellant’s case were
different than those of the Holst case cited by OWCP in its July 13, 2009 decision. Appellant
submitted additional medical reports in support of his claim, including treatment reports of
Dr. Meyer.
In a June 2, 2010 statement, appellant noted that at times he was required to start work
earlier than his normal start time and he frequently was not notified of the earlier start time until
he had actually arrived at the work site and there were only a few minutes left before the new
start time. He listed 10 dates between January and June 2009 when he had start times that were
earlier than his usual start time. Appellant did not address whether he was required to start work
early on May 28, 2009.
In a July 12, 2010 letter, an employing establishment official stated that inspectors were
not compensated for any time prior to their shift start times and were only required to be on the
line at the designated shift start time. She noted that, as acknowledged by appellant, there was
no requirement that he had to start work early for any reason on May 28, 2009, the date of the
accident. The employing establishment contended that appellant arrived at work on May 28,
2009 “an excessive amount of time before the start of the shift.”
In an August 9, 2010 decision, OWCP affirmed the July 13, 2009 decision.
LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”3 The
phrase “sustained while in the performance of duty” has been interpreted by the Board to be the
equivalent of the commonly found prerequisite in workers’ compensation law of “arising out of
and in the course of employment.”4 The phrase “in the course of employment” is recognized as
relating to the work situation, and more particularly, relating to elements of time, place and
circumstance. To arise in the course of employment, an injury must occur at a time when the
employee may reasonably be said to be engaged in the master’s business, at a place where he
may reasonably be expected to be in connection with the employment and while he was

2

For this proposition, OWCP cited Mark C. Holst, 39 ECAB 496 (1988).

3

5 U.S.C. § 8102(a).

4

Charles Crawford, 40 ECAB 474, 476-77 (1989).

3

reasonably fulfilling the duties of his employment or engaged in doing something incidental
thereto.”5
The Board has accepted the general rule of workers’ compensation law that an injury
sustained by an employee having fixed hours and place of work while going to or coming from
work is generally not compensable because it does not occur in the performance of duty.
Exceptions to the rule have been declared by the courts and workers’ compensation agencies.
One such exception almost universally recognized is the premises rule: an injury that occurs to
an employee going to or coming from work before or after working hours or at lunch, while on
the premises of the employer, is compensable. However, the occurrence of an incident on the
employing establishment premises which leads to an injury is not sufficient, in itself, to give rise
to coverage under FECA as the employee must show not only that the injury encompasses the
work setting but also that the employment caused the injury.6 The facts must show that the
injury was sustained within a reasonable time interval of work and that a substantial employer
benefit was derived or an employment requirement gave rise to the injury.7
In T.F.,8 the employee sustained injury when she tripped on a loose floor tile some 25
minutes before her work shift began at 6:00 a.m. She was on the premises of her employer in the
vicinity of her work cubicle. The Board affirmed the denial of compensability under the statute,
noting that the reasons given by the employee for her early arrival at work included being able to
find a good parking place, drink coffee, eat breakfast and put her lunch away. The activities in
which she was engaged at the time of injury were found personal to the employee and not
reasonably incidental to the work of her employer. Moreover, the Board noted that her presence
at the premises some 25 minutes prior to the commencement of her work shift did not constitute
a reasonable interval under the circumstances. The employee’s presence was not required by her
employer, did not pertain to preparatory activities reasonably incidental to her employment as a
tax examiner, or provide a substantial benefit to her employer.
ANALYSIS
On May 29, 2009 appellant filed a traumatic injury claim alleging that he sustained a
work-related injury to his neck, back, left arm and left side at 2:20 p.m. on May 28, 2009. He
was waiting in his car for a parking spot when a car backing out from a spot hit his car on the

5

Mary Keszler, 38 ECAB 735, 739 (1987).

6

See Howard M. Faverman, 57 ECAB 151 (2005).

7

See William W. Knispel, 56 ECAB 639 (2005); Venicee Howell, 48 ECAB 414 (1997); Arthur A. Reid, 44
ECAB 979 (1993); Nona J. Noel, 36 ECAB 329 (1984). Compare John F. Castro, Docket No. 03-1653 (issued
May 14, 2004) with George E. Franks, 52 ECAB 474 (2001). In cases concerning what constitutes a reasonable
interval before or after work, the Board has been influenced by the activities engaged in by the employees before or
after work. In Howell, the Board found coverage when the employee was injured five minutes after work while
performing the incidental task of submitting a job bid. However, in Noel, the Board denied coverage when the
employee was injured 90 minutes before work while engaging in the personal activity of eating breakfast.
8

Docket No. 09-154 (issued July 16, 2009).

4

front driver’s side door. The record reflects that appellant’s usual tour of duty was from 3:41
p.m. to 12:11 a.m.9
The record establishes that the incident in this case occurred as alleged on the premises of
the employing establishment. This factor alone, however, is not sufficient to establish
entitlement to benefits as the concomitant requirement of an injury arising out of the employment
must be shown, and this encompasses not only the work setting but also that the employment
caused the injury. In order for an injury to be considered as arising out of the employment, the
facts of the case must show that the injury occurred within a reasonable time interval of work
and that a substantial employer benefit was derived or a work requirement gave rise to the
injury.10
The Board finds that, at the time of the injury, appellant was not on the employing
establishment premises for reasons related to work. The record reflects that his injury occurred
about 80 minutes before the start of his regular shift. Appellant stated that he lived 20 miles
from the plant where he worked and indicated that, because he lived in a farming area, he
normally left early to be on time in case a farmer with equipment would be in front of him and he
would be unable to pass. He indicated that parking was very limited at the work site and that he
had to be ready and “on the line” for start time. The Board notes that appellant’s wish to avoid
being detained by slow moving traffic and to find a parking space at work are purely personal
reasons for showing up early at work.11 Appellant also generally claimed that he tended to show
up early at work to perform activities such as changing clothes, checking machinery, catching up
on paperwork and checking for new directives, but there was no requirement that he arrive early
to work to perform these activities. He was not performing such dates when the injury occurred
about 80 minutes before his tour of duty began on May 28, 2009.
What constitutes a reasonable interval depends not only on the length of time involved,
but also on the circumstances occasioning the interval and nature of the employment activity.
The record reveals that appellant was not required to be at work prior to about 3:41 p.m. on
May 28, 2009. Appellant did not advise his supervisor of any condition that required him to be
on the premises prior to his official hours in order to prepare for his daily work duties.
Accordingly, the Board finds that his presence on the premises about 80 minutes prior to

9

Although on some days appellant was required to start work at a slightly earlier time, there is no evidence that
this was the case on May 28, 2009.
10

See supra notes 6 and 7.

11

See T.F, supra note 8.

5

the commencement of his tour of duty on May 28, 2009 did not constitute a reasonable interval
before the start of the work shift, under the circumstances of this case.12
Appellant’s arrival at the employing establishment prior to official starting time does not
automatically place his activities outside the scope of the employment. However, his actions at
the time of his accident on May 28, 2009 did not further the employer’s business or provide a
substantial benefit to the employer. Appellant’s presence on the premises at the time of the
claimed injury was not required as a condition of his employment, nor was he involved in any
preparatory activity reasonably incidental to his employment activities on May 28, 2009. He
chose to arrive at the employing establishment early as a matter of personal convenience.
Appellant generally indicated that he tended to arrive early at work to perform activities that he
felt prepared him for the workday, but he was not required to do so and he was not performing
any preparatory or incidental actions at the time of his accident.
Counsel contended that appellant sustained an injury while in the performance of duty on
May 28, 2009.13 However, the Board has long held that entitlement to benefits under statutes
administered by other federal or state agencies does not establish entitlement to benefits under
FECA.14
There is no evidence that appellant’s injury resulted from any employment-related
factors. Thus, the Board finds that he has failed to establish that he sustained an injury in the
performance of duty on May 28, 2009.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury in the performance of duty on May 28, 2009.

12

See T.F, supra note 8 where the Board found that the claimant’s arrival at work 25 minutes before her start time
was not a reasonable interval.
13

Counsel argued that the facts of appellant’s case were different than those of Mark C. Holst, supra note 2, a
case he believed OWCP relied on to deny appellant’s claim. However, OWCP only cited this case for the general
proposition that the course of employment for an employee having a fixed time and place of work embraced a
reasonable time interval before official working hours while the employee was on the premises engaged in
preparatory or incidental acts.
14

See Donald Johnson, 44 ECAB 540, 551 (1993).

6

ORDER
IT IS HEREBY ORDERED THAT the August 9, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 8, 2011
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Covington, KY, Employer
__________________________________________

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

Docket No. 12-858
Issued: September 4, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 7, 2012 appellant filed a timely appeal from the December 30, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§
501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a lumbar spine injury causally related to her
employment on October 20, 2011.
FACTUAL HISTORY
On October 20, 2011 appellant, then a 63-year-old clerk, filed a traumatic injury claim
alleging that she sustained a lower back injury at work on that date. She stated that she was
1

5 U.S.C. § 8101 et seq.

walking to retrieve a sweater when she felt dizzy and fell down outside Room 603. The
employing establishment controverted the claim, contending that appellant had failed to establish
the fact of injury, that the claimed incident occurred in the performance of duty or that the
claimed incident caused a diagnosed condition.
On November 21, 2011 OWCP advised appellant that the information submitted was
insufficient to establish her claim and requested additional information, including a detailed
account of the alleged injury and a physician’s report, with a diagnosis and a rationalized opinion
as to the cause of the diagnosed condition.
Appellant submitted October 20, 2011 emergency department records from St. Elizabeth
Covington North, where she was treated on that date by Dr. David L. Bracken, Board-certified in
emergency medicine. The records reflect her report that she stumbled and fell backwards at
work after becoming dizzy while standing. Examination revealed diffuse tenderness to palpation
of the lower lumbosacral spine as well as over the sacrum. X-rays showed no fracture,
malalignment or acute osseous abnormality. They did, however, reveal very mild hypertrophic
degenerative changes in both hips and moderate to severe disc space narrowing and hypertrophic
end plate changes at L4-5. Dr. Bracken diagnosed acute lumbosacral strain.2
The record contains a December 21, 2011 letter from Dr. Gregory A. Benbow, an
employing establishment physician, who opined, based on his review of the record, that appellant
did not sustain an employment-related injury, contending that appellant fell because she was
dizzy. The record also contains an employing establishment claim for injury form wherein she
alleged that she bruised her tailbone when she felt dizzy and fell down at work on
October 20, 2011.
By decision dated December 30, 2011, OWCP denied appellant’s claim. Although it
accepted that the work event occurred as alleged, namely, that she fell at work on October 20,
2011 OWCP found that the evidence did not establish that the claimed medical condition was
causally related to the established work-related event.
LEGAL PRECEDENT
FECA provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.3 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.4

2

The October 20, 2011 emergency records also contain nursing notes, notes from a respiratory therapist and x-ray
reports.
3

5 U.S.C. § 8102(a).

4

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).

2

An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his 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 OWCP, that an injury was sustained in the performance of duty as
alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.5 When an employee claims that she sustained a
traumatic injury in the performance of duty, he must establish the fact of injury, consisting of
two components, which must be considered in conjunction with one another. The first is
whether the employee actually experienced the incident that is alleged to have occurred at the
time, place and in the manner alleged. The second is whether the employment incident caused a
personal injury and generally this can be established only by medical evidence.6
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.7 An award of
compensation may not be based on appellant’s belief of causal relationship.8 Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.9 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under FECA.10
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 that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.11

5

Robert Broome, 55 ECAB 339 (2004).

6

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term injury as defined by FECA, refers to a disease proximately caused by the employment.
5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(q)(ee).
7

Katherine J. Friday, 47 ECAB 591, 594 (1996).

8

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

9

Id.

10

20 C.F.R. § 10.303(a).

11

John W. Montoya, 54 ECAB 306 (2003).

3

ANALYSIS
OWCP accepted that the workplace incident occurred as alleged, namely, that appellant
fell at work on October 20, 2011. The issue, therefore, is whether she has submitted sufficient
medical evidence to establish that the employment incident caused an injury. The medical
evidence presented does not contain a rationalized medical opinion establishing that the workrelated incident caused or aggravated any particular medical condition or disability. Therefore,
appellant has failed to satisfy her burden of proof.
Medical evidence submitted in support of appellant’s claim included October 20, 2011
emergency department records from St. Elizabeth Covington North, where she was treated by
Dr. Bracken, who provided examination findings and diagnosed acute lumbosacral strain.
Dr. Bracken related appellant’s report that she stumbled and fell backwards at work after
becoming dizzy while standing. He did not, however, provide an opinion that her fall caused her
diagnosed back condition. Medical evidence which does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value.12 Dr. Bracken did not identify or
describe the nature of a relationship between the diagnosed lumbar condition and the established
incident. Therefore, his report is insufficient to establish appellant’s claim.13
Emergency department records also contain nursing notes, notes from a respiratory
therapist and x-ray reports. As nurses and respiratory therapists do not qualify as “physicians”
under FECA, these reports do not constitute probative medical evidence.14 The remaining
medical evidence of record including disability slips, x-rays and test results, which do not
contain an opinion as to the cause of appellant’s diagnosed back condition, are of limited
probative value.
Appellant expressed her belief that her back condition resulted from the October 20, 2011
employment incident. The Board has held that the mere fact that a condition manifests itself
during a period of employment does not raise an inference that there is a causal relationship
between the two.15 Neither the fact that the condition became apparent during a period of
employment, nor the belief that the condition was caused or aggravated by employment factors
or incidents, is sufficient to establish causal relationship.16
OWCP advised appellant that it was her responsibility to provide a comprehensive
medical report describing her symptoms, test results, diagnosis, treatment and the physician’s
12

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

13

Cecilia M. Corley, 56 ECAB 662 (2005).

14

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as “physician” as defined in 5 U.S.C. § 8101(2). Section 8101(2) of OWCP provides
as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors and osteopathic practitioners within the scope of their practice as defined by State law.” See Merton J.
Sills, 39 ECAB 572, 575 (1988).
15

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

16

Id.

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opinion, with medical reasons, on the cause of her condition. Appellant failed to submit
appropriate medical documentation in response to OWCP’s request. As there is no probative,
rationalized medical evidence addressing how her back condition was caused or aggravated by
her employment, she has not met her burden of proof to establish that she sustained an injury in
the performance of duty on October 20, 2011.
The Board also notes that the employing establishment controverted the claim as an
idiopathic fall. It is a well-settled principle of workers’ compensation law that an injury resulting
from an idiopathic fall where a personal nonoccupational pathology causes an employee to
collapse and suffer injury upon striking the immediate supporting surface and there is no
intervention or contribution by any hazard or special condition of employment is not within the
coverage of FECA. Such an injury does not arise out of a risk connected with the employment
and is, therefore, not compensable. However, the fact that the cause of a particular fall cannot be
ascertained or that the reason it occurred cannot be explained, does not establish that it was due
to an idiopathic condition. If the record does not establish that the particular fall was due to an
idiopathic condition, it must be considered as merely an unexplained fall and therefore
compensable. Even though appellant may have mentioned dizziness prior to the fall, there is no
medical evidence that she fell due to an idiopathic cause. The fall remains an unexplained fall.17
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 failed to meet her burden of proof to establish that she
sustained a traumatic injury in the performance of duty on October 20, 2011.

17

See A.C., Docket No. 11-952 (issued March 9, 2012); G.B., Docket No. 10-2155 (issued June 1, 2011).

5

ORDER
IT IS HEREBY ORDERED THAT the December 30, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 4, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6