United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
T.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 18-0778
Issued: January 22, 2020

Case Submitted on the Record

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

JURISDICTION
On February 28, 2018 appellant, through counsel, filed a timely appeal from a November 3,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right shoulder
condition causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as presented in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On December 23, 2014 appellant, then a 56-year-old city letter carrier, filed an
occupational disease claim (Form CA-2) alleging that he sustained a right shoulder condition while
in the performance of duty. He explained that he started a new route in May 2014, which consisted
of mostly apartment buildings that required top loading mailboxes. Appellant related that he
believed the motion required to top load the mailboxes, along with 24 years of casing mail caused
his right shoulder condition. He noted that he first became aware of the condition and its
relationship to his federal employment on June 15, 2014. Appellant stopped work on
December 17, 2014.
By decision dated March 26, 2015, OWCP denied appellant’s claim. It found that the
evidence of record was insufficient to establish causal relationship between the accepted factors
of his federal employment and his diagnosed right shoulder condition.
On April 16, 2015 counsel requested a telephonic hearing before an OWCP hearing
representative, which was held on November 9, 2015.
By decision dated January 8, 2016, an OWCP hearing representative affirmed the
March 26, 2015 decision. He found that appellant’s testimony established employment factors of
repetitive use of the right arm to case and deliver mail. The hearing representative also found that
the medical evidence submitted established the diagnosis of shoulder tendinitis, but did not
establish causal relationship between the diagnosed condition and appellant’s accepted
employment factors.
Appellant, through counsel, appealed to the Board on February 23, 2016. By decision
dated October 12, 2016, the Board affirmed the January 8, 2016 decision. The Board found that
appellant had not met his burden of proof to establish an injury causally related to the accepted
factors of his federal employment.
On September 12, 2017 counsel requested reconsideration and submitted new medical
evidence.
In a May 30, 2017 report, Dr. Ryan J. Kehoe, a Board-certified orthopedic surgeon,
explained that appellant had been under his care for the past several years. He indicated that
appellant had persistent right shoulder and arm pain related to his long-term work exposure at the
3

Docket No. 16-0687 (issued October 12, 2016).

2

employing establishment. Dr. Kehoe related that appellant was involved in repetitive reaching in
an overhead fashion that had predisposed him to rotator cuff tendinitis and subsequent
degenerative change of the acromioclavicular joint. He advised that appellant underwent surgical
intervention involving shoulder arthroscopy, subacromial decompression, distal clavicle excision,
and open biceps tenodesis. Dr. Kehoe opined that appellant’s “repetitive reaching in the workplace
was a significant causative factor in his persistent right shoulder pain and ultimate need for surgical
intervention.”
By decision dated November 3, 2017, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of a disease or condition;8
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed;9 and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors.10
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by

4

Supra note 2.

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

S.C., Docket No. 18-1242 (issued March 13, 2019); Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52
ECAB 468 (2001).
9

B.K., Docket No. 19-0829 (issued September 25, 2019); Michael R. Shaffer, 55 ECAB 386 (2004).

10

See J.R., Docket No. 17-1781 (issued January 16, 2018); I.J., 59 ECAB 408 (2008).

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medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right shoulder
condition causally related to the accepted factors of his federal employment.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s January 8, 2016 decision because the Board
considered that evidence in its October 12, 2016 decision and found that it was insufficient to
establish his claim. Findings made in prior Board decisions are res judicata absent further review
by OWCP under section 8128 of FECA.12 The Board will, therefore, not review the evidence
addressed in the prior appeal.
On reconsideration counsel submitted a May 30, 2017 report from Dr. Kehoe. Dr. Kehoe
noted that appellant had been under his care for the past several years, and explained that he had
persistent right shoulder and arm pain related to his long-term work exposure at the employing
establishment. He indicated that repetitive reaching in an overhead fashion had predisposed
appellant to rotator cuff tendinitis and subsequent degenerative change of the acromioclavicular
joint. Dr. Kehoe opined that appellant’s “repetitive reaching in the workplace was a significant
causative factor in his persistent right shoulder pain and ultimate need for surgical intervention.”
However, while he attempted to provide an opinion on causal relationship, his opinion is
conclusory in nature. A mere conclusory opinion provided by a physician without the necessary
rationale explaining how and why the incident or work factors were sufficient to result in the
diagnosed medical conclusion is insufficient to meet a claimant’s burden of proof to establish a
claim.13 Dr. Kehoe opined that appellant’s “repetitive reaching in the workplace was a significant
causative factor in his persistent right shoulder pain.” A medical opinion must provide an
explanation of how the specific employment factors physiologically caused or aggravated the
diagnosed conditions.14 Absent this explanation, Dr. Kehoe’s report is insufficient to establish
appellant’s claim.
As there is no reasoned medical evidence explaining how appellant’s accepted employment
factors caused or aggravated a right shoulder condition, appellant has not met his burden of proof
in establishing causal relationship.
On appeal counsel argues that appellant did not need to rule out all other causes, and
appellant presented prima facie evidence. He contends that the burden was on OWCP to
“disapprove the causation, not us.” However, as noted above, appellant has the burden of proof to
11

T.H., Docket No. 19-0685 (issued September 9, 2019); see also J.R., id.

12

S.H., Docket No. 19-1128 (issued December 2, 2019); see B.R., Docket No. 17-0294 (issued May 11, 2018).

13

D.L., Docket No. 19-1176 (issued December 13, 2019); F.D., Docket No. 19-0932 (issued October 3, 2010).

14

A.H., Docket No. 19-0270 (issued June 25, 2019); M.W., Docket No. 18-1624 (issued April 3, 2019).

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establish his claim and the Board finds that the medical evidence of record contains insufficient
rationale explaining how appellant’s employment factors caused or aggravated a medical condition
involving his right shoulder. Thus appellant has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his right
shoulder condition was causally related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the November 3, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 22, 2020
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.V., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL, Douglas, AZ,
Employer
__________________________________________

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

Docket No. 13-912
Issued: July 29, 2013

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 8, 2013 appellant, through her attorney, filed a timely appeal from the
February 1, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her occupational disease claim.1 Pursuant to the Federal Employees’ Compensation
Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the
merits of this case.

1

Although the February 1, 2013 decision purports to be a nonmerit decision denying reconsideration, OWCP’s
analysis of the evidence indicates that it reviewed the merits of appellant’s claim. Accordingly, the Board will
exercise jurisdiction over the merits of the claim. See D.R., Docket No. 12-617 (issued May 9, 2012) (OWCP
addressed the merits of the claimant’s reasons for refusing a job offer); D.C., 58 ECAB 620 (2007) (OWCP
addressed the merits by finding for the first time that specialists were available locally and that the claimant’s
argument was therefore invalid).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant established that her left ankle and bilateral foot injuries are
causally related to factors of her federal employment.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law.
FACTUAL HISTORY
This case has previously been before the Board.3 In an April 19, 2012 decision, the
Board affirmed an OWCP decision dated June 16, 2011 denying appellant’s occupational disease
claim. The Board found that the medical evidence was insufficiently rationalized to establish
that she sustained left ankle and foot injuries causally related to an accepted employment factor
of standing on her feet while working as a customs and border patrol officer. The facts and
circumstances of the case as set forth in the Board’s prior decision are incorporated herein by
reference.4
By letter dated December 12, 2012 appellant, through her attorney, requested
reconsideration. She submitted a laboratory report dated May 6, 2011 from LabCorp.
A June 28, 2011 medical report from a physician whose signature is illegible indicated
that appellant had rheumatoid arthritis. Appellant could perform full-time light-duty work with
restrictions.
In reports dated July 27, 2011 and June 4, 2012, Dr. Ladislav Kuchar, an attending
Board-certified podiatrist, noted that since October 13, 2009 appellant had been diagnosed and
treated in his office for ankle derangement and bilateral foot peroneus brevis tendinitis.
Appellant was last seen on June 23, 2011. Dr. Kuchar noted that appellant had undergone ankle
and foot surgeries with no improvement of symptoms caused by her tendinitis. He noted that her
job assignment required standing and walking on uneven hard surfaces, such as concrete, 8 to 16
hours a day and up to 10 consecutive days. Dr. Kuchar advised that it was obvious the abovementioned conditions were aggravated by long periods of walking and standing, especially on
rigid surfaces. He noted that appellant was later diagnosed with rheumatoid arthritis.
Dr. Kuchar stated that while it was possible that she may have had this condition before she was
officially diagnosed with it, joint symptoms, which was what any arthritis primarily affected,
were not her complaint. Rather, appellant’s chief complaint was always focused on her tendons.
Dr. Kuchar stated that rheumatoid arthritis could therefore be safely ruled out as a preexisting
condition. He concluded that the true cause of appellant’s symptoms was tendinitis.
In a July 21, 2011 report, Dr. Ulker Tok, an internist with a specialty in rheumatology,
obtained a history that appellant had rheumatoid arthritis. He noted that the pain in her left ankle
and foot had improved, but she was still unable to work on her feet up to 16 hours a day with
3

Docket No. 11-1842 (issued April 19, 2012).

4

In the June 16, 2011 decision, OWCP accepted that appellant stood on her feet while working as a customs and
border patrol officer.

2

heavy gear as a customs officer. Dr. Tok listed findings on physical examination and diagnosed
rheumatoid arthritis.
In a November 13, 2012 report, Dr. Sanjay J. Chauhan, a Board-certified neurologist,
addressed findings that related to a patient who sustained an injury on December 7, 2010.5
By decision dated February 1, 2013, OWCP denied appellant’s request for
reconsideration on the grounds that the evidence submitted was insufficient to warrant a merit
review of the prior decision. It found that Dr. Kuchar’s opinions were repetitive of his prior
April 14, 2011 opinion and of diminished probative value as they were not rationalized. He
failed to explain how appellant’s ankle condition was causally related to the established
employment factor. Dr. Kuchar did not explain what findings he relied on and how standing and
walking caused or aggravated the condition. He did not address whether the condition was
temporarily or permanently aggravated.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of establishing the essential
elements of her claim, including the fact that the individual is an employee of the United States
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged and that any disability and/or
specific condition for which compensation is claimed are causally related to the employment
injury.7 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.8
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by
medial rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.9 Neither the fact that appellant’s
5

The record contains evidence pertaining to a claimant not associated with this file.

6

5 U.S.C. §§ 8101-8193.

7

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

8

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 8 at 351-52.

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condition became apparent during a period of employment nor, her belief that the condition was
caused by her employment is sufficient to establish a causal relationship.10
ANALYSIS
OWCP accepted as factual that appellant stood on her feet while working as a customs
and border patrol officer. While the work duties are established, the Board finds that she failed
to establish a causal relationship between any left ankle and bilateral foot conditions and the
established work factor.
Dr. Kuchar’s July 27, 2011 and June 4, 2012 reports found that appellant had ankle
derangement and bilateral foot peroneus brevis tendinitis that were aggravated by long periods of
walking and standing on rigid surfaces, 8 to 16 hours a day and up to 10 consecutive days as
required by her work assignment. He also found that she had rheumatoid arthritis, but stated that
tendinitis was the true cause of her symptoms. While Dr. Kuchar opined that appellant’s current
ankle and bilateral foot conditions were the result of an established work factor, he failed to
explain how the employment factor caused or contributed to these conditions. The Board has
held that a medical opinion not fortified by medical rationale is of little probative value.11
Without medical reasoning explaining how the established employment factor caused or
contributed to appellant’s ankle and foot conditions, Dr. Kuchar’s July 27, 2011 and June 4,
2012 reports are insufficient to meet appellant’s burden of proof.
Dr. Tok’s July 21, 2011 report found that appellant had rheumatoid arthritis. He listed
findings on physical examination and obtained a history that she worked on her feet up to 16
hours a day with heavy gear as a customs officer. Dr. Tok did not provide a medical opinion
addressing whether the established employment factor caused or aggravated appellant’s
diagnosed condition. Medical evidence which does not offer any opinion regarding the cause of
an employee’s condition is of limited probative value.12 The Board finds, therefore, that
Dr. Tok’s report is insufficient to establish appellant’s claim. Similarly, the May 6, 2011
laboratory report from LabCorp is also insufficient to establish the claim as this report does not
specifically address whether the established employment factor caused a diagnosed medical
condition.
The June 28, 2011 report from a physician whose signature is illegible has no probative
medical value in establishing that appellant sustained left ankle and bilateral foot conditions
causally related to the established employment factor as the author cannot be identified as a
physician.13

10

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

11

Caroline Thomas, 51 ECAB 451 (2000).

12

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004);
Michael E. Smith, 50 ECAB 313 (1999).
13

See Ricky S. Storms, 52 ECAB 349 (2001); Morris Scanlon, 11 ECAB 384, 385 (1960).

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The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained left ankle and bilateral foot conditions causally related to the
accepted employment factor. Appellant did not meet her burden of proof.
On appeal, appellant’s attorney contended that OWCP’s decision was contrary to fact and
law. For reasons stated above, the Board finds that the weight of the medical evidence does not
establish that appellant sustained left ankle and bilateral foot conditions causally related to the
established employment factor.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained left ankle and
bilateral foot injuries causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 29, 2013
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

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

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

Docket No. 08-19
Issued: June 9, 2008

Case Submitted on the Record

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

JURISDICTION
On November 22, 2005 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated August 28, 2007 issuing appellant a schedule
award for an additional 6 percent impairment of his right upper extremity, for a total of 17
percent impairment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over this decision.
ISSUE
The issue is whether appellant has established that he is entitled to an additional schedule
award for greater than a total of 17 percent impairment of the right upper extremity.
FACTUAL HISTORY
On November 22, 2005 appellant, then a 48-year-old automotive technician, filed a
traumatic injury claim alleging that on that date he sustained an injury to his right shoulder and
low back while lifting a transmission. By letter dated January 11, 2006, the Office accepted his

claim for right shoulder tendinitis and sprain/strain lumbar region. The Office paid appropriate
medical and compensation benefits.
On April 9, 2007 appellant filed a claim for a schedule award. The Board record reveals
that he received a prior schedule award for 11 percent impairment of his right arm for a workrelated injury that occurred on March 14, 1994.
In support of his claim, appellant submitted a May 4, 2007 medical report by his treating
Board-certified orthopedic surgeon, Dr. David B. Fagan. In this report, Dr. Fagan indicated that
he initially saw appellant on November 29, 2005 for his November 22, 2005 injury. He noted
that, before appellant saw him, he had two arthroscopies for rotator cuff repair and another
surgery for instability of his shoulder with an open anterior stabilization. Dr. Fagan noted that he
initially utilized conservative treatment on appellant but in September 2006 appellant underwent
an arthroscopy of his shoulder, a debridement of his rotator cuff, chondroplasty of his humeral
head and a Mumford procedure. He noted his impression that appellant had reached maximum
medical improvement for his injury and subsequent surgery. Dr. Fagan noted, “I think that he
has a permanent partial disability level at his shoulder of 20 percent to 25 percent.” He noted
that it was difficult to determine how much of this is related to his last accident and how much of
it was related to his prior injuries but that a rough estimate would be that 10 percent was related
to his new injury and that 15 percent was related to his prior surgery.
By letter dated June 6, 2007, the Office asked appellant to submit a detailed medical
report from his treating physician recommending an impairment rating under the American
Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A.,
Guides).
In a July 18, 2007 note, the Office medical adviser noted Dr. Fagan’s disability rating,
but he stated that disability ratings are not the same as impairment ratings. He noted that
Dr. Fagan’s report did not contain the information necessary to consider an impairment rating
under the A.M.A., Guides and stated that appellant would need to be seen by a physician skilled
in applying the A.M.A. Guides so that an impairment rating for the accepted condition affecting
the right shoulder could be processed. In a July 26, 2007 note, the Office medical adviser noted
that appellant was eligible for an impairment rating secondary to a right shoulder condition. He
noted that the A.M.A., Guides must be applied and that the maximum active range of motion of
the shoulder must be measured in all applicable planes with a goniometer and the results reported
in degrees. The Office medical adviser also noted that chronic weakness may need to be
considered.
By letter dated July 30, 2007, the Office referred appellant to Dr. John A. Gragnani, a
Board-certified physiatrist, for an evaluation under the A.M.A., Guides. In a report dated
August 8, 2007, Dr. Gragnani reviewed appellant’s medical history. He listed his impressions as
right shoulder pain by history, loss of range of motion, right shoulder, and multiple surgical

2

procedures on right shoulder for rotator cuff and impingement syndrome. Utilizing the A.M.A.,
Guides, Dr. Gragnani calculated appellant’s rating as follows:
“Using the [A.M.A., Guides], a rating was calculated from Chapter 16 for the
upper extremities.
Range of Motion Measurements

Measurement

Rating

Flexion

98 [degrees]

5 percent

Extension

15 [degrees]

2 percent

Abduction

74 [degrees]

5 percent

Adduction

15 [degrees]

1 percent

External Rotation

55 [degrees]

0 percent

Internal Rotation

35 [degrees]

3 percent

For the Right Shoulder

Total

16 percent

“Utilizing Table 16-35, page 510, for decreased shoulder abduction, a 10 percent
deficit is estimated. This would be equivalent to a 1.2 percent decrease due to
strength loss, which would be rounded to 1 percent.
“Combining the 16 percent for range of motion loss with the 1 percent for
strength loss, using the chart on page 604, yields 17 percent. No additional rating
is offered from any other section of the [A.M.A., Guides] or for any sensory loss.
Pain is considered in the range of motion measurements.”
In a report dated August 15, 2007, the Office medical adviser agreed with Dr. Gragnani’s
rating, but noted that this was not the schedule award as appellant had previously received a
schedule award for an 11 percent impairment of his right upper extremity and that the previous
award must be subtracted from the current impairment rating to obtain the increase in the right
upper extremity schedule award. Therefore, as appellant currently had a 17 percent impairment
rating, subtracting the 11 percent previously awarded means that appellant was entitled to a new
schedule award for 6 percent of the right upper extremity.
By decision dated August 28, 2007, the Office issued a schedule award for an additional
six percent impairment of the right upper extremity.

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LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.2 The Act, however, does not specify the manner by which the
percentage loss of a member, function, or organ shall be determined. To ensure consistent
results and equal justice for all claimants under the law, good administrative practice requires the
use of uniform standards applicable to all claimants.3 The A.M.A., Guides has been adopted by
the implementing regulation as the appropriate standard for evaluating schedule losses.4
ANALYSIS
In the instant case, appellant previously received a schedule award for 11 percent
impairment of his right arm for a work-related injury that occurred on March 14, 2006. When
considering appellant’s current impairment to his right upper extremity, Dr. Fagan, appellant’s
treating physician, made a comment that he thought appellant had a permanent partial disability
level at his shoulder of 20 to 25 percent. Initially, the Board notes that Dr. Fagan’s opinion is
couched in speculative language in that he states that he thought appellant had a partial disability
level at his shoulder of 20 percent to 25 percent. An award of compensation may not be based
on surmise, conjecture or speculation.5 In addition, in reaching his conclusion, Dr. Fagan did not
apply the A.M.A., Guides as required by the Act.6 Furthermore, Dr. Fagan did not make
objective findings sufficient to allow the Office medical adviser to apply the A.M.A., Guides to
his opinion. Accordingly, the Office properly referred appellant to Dr. Gragnani for an
impairment rating under the A.M.A., Guides.
Dr. Gragnani took motion measurements for appellant’s right shoulder and interpreted
appellant’s impairment rating by applying these measurements to the appropriate figures in the
A.M.A., Guides. He noted that appellant’s 98 degrees of flexion amounted to 5 percent
impairment and his 15 degrees of extension amounted to 2 percent impairment under the
A.M.A., Guides.7 Dr. Gragnani determined that appellant’s 74 degrees of abduction equaled 5
percent impairment rating and his 15 degrees of adduction equaled 1 percent impairment rating.8
He then continued to apply the A.M.A., Guides when he determined that appellant’s 55 degrees
1

5 U.S.C. §§ 8101-8193.

2

5 U.S.C. § 8107.

3

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

4

20 C.F.R. § 10.404.

5

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

6

20 C.F.R. § 10.404.

7

A.M.A., Guides 476, Figure 16-40. The Board notes that Dr. Gragnani mistakenly refers to several figures he
utilized in the A.M.A., Guides as tables. Nevertheless, this error is harmless.
8

Id. at 477, Figure 16-43.

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of external rotation equaled 0 percent impairment rating but his 35 degrees of internal rotation
equaled 3 percent impairment rating.9 Adding these impairment ratings together, Dr. Gragnani
properly determined that appellant had 16 percent impairment rating for range of motion
measurements in the right shoulder. Finally, he determined that, for decreased shoulder
abduction, 10 percent deficit was estimated, which would be equivalent to 1.2 percent decrease
due to strength loss, which he rounded to 1 percent.10 Combining the 16 percent for range of
motion loss with 1 percent for strength loss using the Combined Values Chart yielded 17 percent
total impairment rating of appellant’s right upper extremity.11 The Office medical adviser
reviewed Dr. Gragnani’s report and agreed that this was a proper rating. However, he correctly
noted that as appellant had previously received a schedule award for 11 percent impairment of
his right upper extremity, appellant was entitled only to the additional amount of impairment,
i.e., 6 percent. The impairment rating found by Dr. Gragnani and approved by the Office
medical adviser is supported by the evidence and the A.M.A., Guides. Appellant’s argument that
he is entitled to a greater award because the tests were passive and did not take into account the
duties of his job, his pain, or the instability of his shoulder are without merit. A schedule award
is based on the application of the A.M.A., Guides, it is not based on appellant’s disability from
work. There is no opinion in the record that applies the A.M.A., Guides and concludes that
appellant is entitled to a greater award. Appellant also argues that the Office insisted that his
doctor indicate what percentage of disability was caused by the prior injury and what was caused
by the new injury, a task which he said was impossible. However, appellant’s award was based
on the fact that he now had a total 17 percent impairment of his right upper extremity. The
Office simply deducted the previous schedule award of 11 percent and determined that appellant
was entitled to an additional 6 percent impairment rating. Accordingly, the Board finds that the
Office made no errors in determining the amount of appellant’s additional schedule award.
CONCLUSION
The Board finds that the Office properly determined that appellant had not established
that he was entitled to a schedule award of greater than 17 percent of his right upper extremity.

9

Id. at 479, Figure 16-46.

10

The Board notes that this computation was completed by multiplying the maximum allowable impairment
percentage “unit of motion relative value” of 12 percent for abduction by the estimated impairment percentage “unit
of motion relative value” of 10 percent abduction. See A.M.A., Guides 510, Table 16-35 entitled “Impairment of
the Upper Extremity Due to Strength Deficit From Musculoskeletal Disorders Based on Manual Muscle Testing of
Individual Units of Motion of the Shoulder and Elbow.”
11

Id. at 604.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 28, 2007 is affirmed.
Issued: June 9, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.M., Appellant
and
DEPARTMENT OF THE NAVY,
PHILADELPHIA NAVAL SHIPYARD,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1244
Issued: November 7, 2017

Case Submitted on the Record

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

JURISDICTION
On May 16, 2017 appellant, through counsel, filed a timely appeal from a May 11, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP abused its discretion in denying appellant’s request for
authorization of lumbar surgery.
FACTUAL HISTORY
On May 21, 1991 appellant, then a 43-year-old oiler, filed a traumatic injury claim (Form
CA-1) alleging that on April 22, 1991 he sustained injuries when he slipped and fell on a
manhole cover. He stopped work and did not return. OWCP accepted the claim for a
lumbosacral strain and herniated L4-5 disc. On February 15, 1996 appellant underwent
authorized surgery performed by Dr. Michael Gratch, an orthopedic surgeon. The procedure
included spinal fusion L4-5, bilateral discectomy L4-5, bilateral L5 foraminotomies, left
autogenous iliac bone graft and insertion of electrical stimulator. Appellant initially received
medical and wage-loss compensation on the supplemental rolls. He received compensation on
the periodic rolls as of June 16, 2002.
Dr. Randall Smith, an attending physician and Board-certified orthopedic surgeon,
indicated in a November 10, 2000 work restriction evaluation (Form OWCP-5) that appellant
could work four hours per day with restrictions. He reported that appellant was limited to 20
pounds lifting. OWCP referred appellant for a second opinion examination with Dr. Anthony
Salem, a Board-certified orthopedic surgeon. In a report dated July 25, 2001, Dr. Salem
provided a history and results on examination. He reported on an OWCP-5 form dated July 26,
2001 that appellant could work eight hours per day with restrictions that included 30 pounds
lifting.
OWCP found that a conflict in the medical evidence and referred appellant for an
impartial examination with Dr. E. Balasubramanian, a Board-certified orthopedic surgeon. In a
report dated March 26, 2002, Dr. Balasubramanian provided a history and results on
examination. He opined that appellant could work full time in a light-duty capacity. In a report
dated July 21, 2003, Dr. Balasubramanian opined that appellant would be able to perform the
duties of an assembler.
By decision dated October 14, 2003, OWCP reduced appellant’s wage-loss compensation
based on a wage-earning capacity of $280.00 per week as an assembler.3
The record indicates that on May 2, 2005 appellant, through counsel, again requested
reconsideration of the wage-earning capacity decision. Appellant submitted additional medical
3

On September 19, 2002 a vocational rehabilitation specialist completed a job classification form for the selected
position of assembler Department of Labor, Dictionary of Occupational Titles No. 723.684-010. The specialist
indicated the job was light duty, available full time in appellant’s area, with wages from $280.00 to $320.00 per
week. In a letter dated March 3, 2003, OWCP advised appellant that it proposed to reduce his compensation
because he had the capacity to earn wages as an assembler. Following the October 14, 2003 reduction of appellant’s
compensation benefits, he requested a hearing before an OWCP hearing representative. A hearing was held on
June 29, 2004. By decision dated October 18, 2004, an OWCP hearing representative affirmed the October 14, 2003
loss of wage-earning capacity determination. She found that OWCP had properly followed its procedures in
reducing appellant’s compensation based on the wage-earning capacity in the selected position of assembler.

2

evidence, including an October 11, 2004 report from Dr. Smith, who provided results on
examination. Dr. Smith diagnosed low back syndrome, degenerative disc disease, degenerative
joint disease, left-sided sciatica, and peridural adhesions. The record reflects that OWCP took no
action on this claim.
On June 30, 2011 appellant also filed a claim for a recurrence of disability (Form CA-2a).
Appellant asserted the date of recurrence of disability was August 4, 2008, and he wrote that he
had remained under medical care since the original injury. He submitted a May 24, 2011 report
from Dr. Lily Voepel, a Board-certified physiatrist. Dr. Voepel opined that appellant’s back
condition had worsened. She wrote that appellant had adjacent segment disease and more
degenerative changes of the lower spine, which were partly due to the aging process but also due
to the 1996 surgery.
OWCP denied the claim for a recurrence of disability by decision dated March 22, 2012.
It found the evidence was insufficient to warrant modification of the October 14, 2003 loss of
wage-earning capacity determination.
Appellant, through counsel, requested a hearing before an OWCP hearing representative
on April 16, 2012. By decision dated June 14, 2012, the hearing representative set aside the
March 22, 2012 decision. She noted that OWCP had never issued a decision with respect to the
May 2, 2005 reconsideration request. In addition, the hearing representative found OWCP had
not properly considered all the relevant evidence, including the May 24, 2011 report from
Dr. Voepel.
Upon further review of the evidence, by decision dated March 20, 2013, OWCP denied
modification of the loss of wage-earning capacity determination. It found the special weight of
the medical evidence rested with the referee physician, Dr. Balasubramanian.
Appellant submitted a July 30, 2016 report from Dr. Richard Hynes, a Board-certified
orthopedic surgeon. Dr. Hynes reported that appellant had been injured at work and had
undergone surgery 20 or 25 years earlier. He indicated that appellant reported ongoing back
pain. Dr. Hynes provided results on examination, and found sagittal imbalance of lumbar spine,
significant mismatch of pelvic incidence and lumbar lordosis with a kyphosed fused L4-5
segment, adjacent level severe stenosis L3-4 above and severe neural foraminal stenosis L5-S1
below with retrolisthesis. As to surgery, he wrote that appellant’s back condition was complex,
and he needed a posterior column osteotomy with an L4-5 fusion. Dr. Hynes noted that there
was no guarantee as to what percentage of improvement would result.
On October 18 2016 OWCP noted that a request for authorization had been received for
additional spinal fusion, insertion of a spine fixation device, and application of a spine prosthetic
device.
OWCP referred the case to an OWCP medical adviser for an opinion as to whether the
proposed surgery was medically necessary to treat the employment-related injuries. In a report
dated October 31, 2016, Dr. William Tontz, an OWCP medical adviser, opined that the proposed
surgery was not medically necessary. He wrote that a low back fusion should be considered in
patients with six months of symptoms, with further indicators such as segmental instability.

3

Dr. Tontz opined that there is a lack of support for fusion surgery for low back pain with failure
to participate effectively in postoperate rehabilitation, total disability over six months, active
psychiatric diagnosis, and narcotic dependence. He noted that there was no recent magnetic
resonance imaging (MRI) or computerized tomography (CT) scan to warrant fusion.
By letter dated November 3, 2016, OWCP requested that appellant submit additional
medical evidence. It forwarded the report of Dr. Tontz and advised him to submit a medical
report from Dr. Hynes discussing the need for surgery.
On January 30, 2017 appellant submitted a January 16, 2017 lumbar MRI scan report
from Dr. Thomas Foster, a Board-certified radiologist. Dr. Foster reported findings that included
congenital canal stenosis with multilevel ligament hypertrophy and facet arthropathy.
Appellant also submitted evidence from physician assistants.
On February 2, 2017 OWCP requested a supplemental report from Dr. Tontz. In a report
dated February 14, 2017, Dr. Tontz again opined that the proposed surgery was not medically
necessary. He noted the results of the January 16, 2017 MRI scan and indicated that there was
no instability. Dr. Tontz reiterated that the proposed surgery was not medically necessary.
By decision dated February 16, 2017, OWCP denied the request for authorization of
spinal surgery. It found the medical evidence did not establish the proposed surgery was
warranted.
Appellant, through counsel, requested reconsideration of OWCP’s February 16, 2017
decision on February 21, 2017, and submitted additional evidence from physician assistants.
Counsel contended that, since OWCP had determined that the weight of the medical evidence
rested with its medical adviser Dr. Tontz, who had not examined appellant, it should refer
appellant to a second opinion medical specialist to resolve the issue of authorization for lumbar
surgery.
By decision dated May 11, 2017, OWCP denied modification of its February 16, 2017
decision. It found that “[n]o medical evidence was submitted in conjunction with the request for
reconsideration or showing that your lumbar spine is no longer stable as a result of your accepted
work[-]related injury.” Therefore, surgery was not medically warranted.
LEGAL PRECEDENT
5 U.S.C. § 8103(a) provides for the furnishing of services, appliances and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or
aid in lessening the amount of monthly compensation.4 In interpreting section 8103(a), the
Board has recognized that OWCP has broad discretion in approving services provided under
FECA to ensure that an employee recovers from his or her injury to the fullest extent possible in

4

5 U.S.C. § 8103(a).

4

the shortest amount of time.5 OWCP has administrative discretion in choosing the means to
achieve this goal and the only limitation on OWCP’s authority is that of reasonableness.6
While OWCP is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.7 Proof of causal relationship in a case such
as this must include supporting rationalized medical evidence.8 Medical rationale is a medically
sound explanation for the opinion offered.9 Therefore, in order to prove that the surgical
procedure is warranted, appellant must submit evidence to show that the procedure was for a
condition causally related to the employment injury and that the surgery was medically
warranted. Both of these criteria must be met in order for OWCP to authorize payment.10
ANALYSIS
Appellant seeks authorization for proposed low back fusion surgery. OWCP accepted
that appellant sustained lumbosacral strain and herniated L4-5 disc on April 22, 1991 when he
slipped and fell on a manhole cover. The record indicates that appellant underwent an initial
lumbar fusion surgery on February 15, 1996.
Attending physician Dr. Hynes opined in his July 30, 2016 report that appellant needed
additional lumbar fusion surgery. Dr. Hynes, however, failed to provide a rationalized medical
opinion on the issue, failed to provide a complete medical history, and he acknowledged that
appellant’s back condition was complex. Dr. Hynes wrote that appellant needed fusion surgery
but failed to clearly explain how the spinal fusion surgery was medically necessary due to the
accepted conditions and failed to provide a detailed medical explanation of the need for
surgery.11 Appellant must submit evidence that shows that the requested medical procedure is
both due to a condition causally related to an employment injury and that it is medically
warranted.12 Dr. Hynes did not substantiate that the requested procedure was medically
warranted. His opinion is therefore of limited probative value.

5

Dale E. Jones, 48 ECAB 648, 649 (1997).

6

Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by OWCP is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment or administrative actions which are
contrary to both logic and probable deductions from established facts).
7

See Debra S. King, 44 ECAB 203, 209 (1992).

8

Id.; see also Bertha L. Arnold, 38 ECAB 282 (1986).

9

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641
(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound and logical).
10

See Cathy B. Millin, 51 ECAB 331, 333 (2000).

11

See C.J., Docket No. 16-1693 (issued July 13, 2017).

12

See L.C., Docket No. 16-1797 (issued March 10, 2017).

5

Dr. Foster provided findings from a January 16, 2017 MRI scan, but offered no opinion
as to whether the request for lumbar surgery should be authorized. A medical opinion which
lacks any explanation as to how or why the employment injury contributed to the need for the
requested surgery, is of limited probative value.13 As such, Dr. Foster’s report is of limited
probative value.
The only other evidence appellant submitted was from a physician assistant. This
evidence is of no probative medical value as a physician assistant is not a physician under
5 U.S.C. § 8101(2).14
The probative evidence on the issue rests with Dr. Tontz, OWCP’s medical adviser. In
his October 31, 2016 and February 14, 2017 reports, Dr. Tontz explained that the proposed
surgery was not medically necessary. He noted appellant’s history and the accepted conditions,
and indicated that there was a lack of support for surgery due to the accepted conditions.
Moreover, Dr. Tontz noted that results of a January 16, 2017 MRI scan did not show instability,
and reiterated in his February 14, 2017 report that the proposed surgery was not medically
necessary. His opinion constitutes the weight of the medical evidence.15
OWCP has discretion with respect to authorization for surgery. Based on the medical
evidence of record, the Board finds that it did not abuse its discretion in this case.16
On appeal counsel argues that OWCP did not follow its procedures and should have
referred appellant for a second opinion examination. The record indicates OWCP followed its
procedures in this case. When spinal surgery was proposed, the case was routed to OWCP’s
medical adviser.17 If the medical adviser’s opinion is negative, or there is a need for additional
clinical data, the claims examiner may: (1) refer for a second opinion examination; or (2) seek
additional information from the attending physician.18 OWCP attempted to secure an additional
report from Dr. Hynes, and received a January 16, 2017 MRI scan. This was sent to OWCP’s
medical adviser, Dr. Tontz, who reiterated his opinion in the February 14, 2017 report that the
proposed surgery was not medically necessary. The Board finds that OWCP properly followed
its procedures in this case.

13

See G.G., Docket No. 17-0504 (issued August 8, 2017).

14

George H. Clark, 56 ECAB 162 (2004). See also David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses and physical therapists are not competent to render a medical opinion
under FECA); 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law).
15

Supra note 13.

16

See L.C., Docket No. 16-1797 (issued March 10, 2017).

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.10(d) (October 2010).
18

Id.

6

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP did not abuse its discretion in denying appellant’s request
for authorization of lumbar surgery.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 11, 2017 is affirmed.
Issued: November 7, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE AIR FORCE, 99TH
MEDICAL GROUP, NELLIS AIR FORCE
BASE, NV, Employer
__________________________________________

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

Docket No. 21-1165
Issued: March 1, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 19, 2021 appellant filed a timely appeal from a February 11, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated May 27, 2020, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On March 10, 2015 appellant, then a 63-year-old nurse educator, filed an occupational
disease claim (Form CA-2) alleging that she sustained an aggravation of her degenerative disc
disease due to constant sitting, staring at a computer screen, and inputting data while in the
performance of duty.
In a July 22, 2014 report, Dr. Shirley Rodriguez, an osteopath, recounted appellant’s
complaints of mid-thoracic, left-sided pain medial to the scapular area. She reported physical
examination findings of abnormal edema bilaterally in appellant’s extremities. Dr Rodriguez
assessed hypertension, osteoarthritis, gastroesophageal reflux disease, thoracic region strain, and
venous insufficiency.
In an October 28, 2014 report, Dr. Wesley Johnson, a Board-certified orthopedic surgeon,
recounted that appellant had worked for the employing establishment for a number of years and
complained of chronic pain issues in her neck and back. On physical examination, he noted
tenderness and mild swelling in her left wrist and some tenderness over the tuberosity of her right
shoulder. Dr. Johnson indicated that appellant had a chronic condition that may have been
exacerbated through her primary care.
Appellant resigned from the employing establishment, effective March 13, 2015.
In a letter dated May 12, 2015, the employing establishment controverted appellant’s claim
alleging that she had not submitted medical evidence of the alleged injury. It also noted that she
had previous fall injuries in 2013 and 2014.
In statements dated October 22, 2014 and May 2, 2015, appellant explained that she was
diagnosed with degenerative disc disease before she began working for the employing
establishment in 2012. She reported that she was exposed to constant sitting, staring at screens,
and inputting data at work and experienced painful, cramping hands, eye strain, headaches, and
back pain.
By decision dated June 16, 2015, OWCP denied appellant’s occupational disease claim,
finding that she had not established that her diagnosed thoracic and lumbar spine conditions were
causally related to the accepted factors of her federal employment.

3

Docket No. 18-1280 (issued March 12, 2019).

2

On June 29, 2015 appellant requested reconsideration.
In reports dated November 6, 2014 through April 20, 2015, Dr. Rodriguez provided
examination findings and assessed right shoulder pain, cervicalgia, degenerative joint disease,
osteoarthritis, thoracic strain, cervical strain, tenosynovitis of the thumb, and right shoulder
supraspinatus tendon tear.
In a June 12, 2015 attending physician’s report (Form CA-20), Dr. Rodriguez noted
appellant’s history of lumbar degenerative joint disease and diagnosed supraspinatus tendon tear
and degeneration of the cervical, thoracic and lumbar spine. She checked a box marked “Yes”
indicating that the diagnosed conditions were caused or aggravated by appellant’s employment
and explained that appellant worked at a desk job, which placed a strain on her spine, shoulders,
and wrist.
By decision dated September 25, 2015, OWCP denied modification of the June 16, 2015
decision.
On November 20, 2015 appellant requested reconsideration.
Appellant submitted reports dated July 16 through October 29, 2015 from Dr. John M.
Baldauf, a Board-certified orthopedic surgeon, who indicated that he treated her for complaints of
right shoulder pain after a slip and fall injury approximately seven months prior. On initial
examination of the right shoulder, Dr. Baldauf observed positive Neer and Hawkins signs and no
pain or swelling. He diagnosed shoulder impingement syndrome, bilateral shoulder tendinitis, and
bilateral shoulder joint pain.
By decision dated February 9, 2016, OWCP denied modification of the September 25,
2015 decision.
On March 21, 2016 appellant requested reconsideration.
In a May 11, 2016 statement, appellant indicated that she continued to be in pain on a level
of 7 to 10 on most days. She alleged that it was common for a person with mild-to-moderate
degenerative joint disease that was previously not problematic to experience a major exacerbation
of her condition from a sedentary job and a hard fall onto cement.
By decision dated June 17, 2016, OWCP denied modification of the February 9, 2016
decision.
On September 7, 2016 appellant requested reconsideration. She contended that she had
submitted all required medical documents from her physicians. Appellant asserted that her federal
employment temporarily aggravated her preexisting degenerative joint condition and that the
October 2014 fall made the aggravation permanent.
In a February 22, 2016 report, Dr. Archie C. Perry, a Board-certified orthopedic surgeon,
indicated that he treated appellant for complaints of low back pain radiating into her bilateral legs.
He discussed her diagnostic reports and provided examination findings. Dr. Perry diagnosed
lumbar degenerative disc disease, lumbar spinal stenosis, and acquired lumbar spondylolisthesis .

3

In March 16 and 30, 2016 reports, Dr. Baldauf discussed appellant’s history of injury and
provided physical examination findings. He diagnosed right hip joint pain, lumbosacral
degenerative disc disease with radiculopathy, lumbar spinal stenosis, acquired lumbar
spondylolisthesis, and lumbago.
In an April 27, 2016 report, Dr. Willis Y. Wu, Board-certified in anesthesiology and pain
medicine, noted lumbar examination findings of mildly limited range of motion and tenderness in
the lumbosacral junction. He diagnosed lumbar intervertebral disc degeneration, lumbar
radiculopathy, lumbar spondylosis without myelopathy, and hip osteoarthritis. Dr. Wu continued
to treat appellant and provided medical reports dated May 13 and June 23, 2016.
By decision dated April 20, 2018, OWCP denied modification of the June 17, 2016
decision.
Appellant appealed to the Board. By decision dated March 12, 2019, the Board affirmed
OWCP’s April 20, 2018 decision, finding that she had not met her burden of proof to establish
causal relationship between her diagnosed medical conditions and accepted factors of her federal
employment.
On October 7, 2019 appellant requested reconsideration. She submitted various articles
about injuries that result from sitting for long periods of time.
By decision dated May 27, 2020, OWCP denied modification.
On January 22, 2021 appellant requested reconsideration. She indicated that she continued
to have pain and suffering due to sitting for six hours a day on a poorly prepared workstation.
Appellant explained that she was diagnosed with degenerative joint disease in 2000, but her
condition was not problematic until she started to work for the employing establishment. She
asserted that her sedentary job duties temporarily aggravated her degenerative joint disease and
her fall in October 2014 permanently aggravated her condition.
By decision dated February 11, 2021, OWCP denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by

4

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

4

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must be received by OWCP within one y ear of the date of
OWCP’s decision for which review is sought. 6 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 7 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
With her January 22, 2021 request for reconsideration, appellant submitted a statement
alleging that she did not experience problems with her degenerative joint disease until she began
to work for the employing establishment. She asserted that her sedentary job duties temporarily
aggravated her degenerative joint disease and her fall in October 2014 permanently aggravated her
condition. Appellant’s reconsideration request does not advance a new legal argument not
previously considered nor does it show that OWCP erroneously applied or interpreted a specific
point of law. Her argument is substantially similar to that which was previously considered and
discussed in OWCP’s April 20, 2018 decision. 9 Consequently, appellant is not entitled to further
review of the merits of her claim based on either the first or second above-noted requirements
under 20 C.F.R. § 10.606(b)(3). 10

5

20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); J.W., Docket No. 19-1795
(issued March 13, 2010); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
6

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
7

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

9

See T.S., Docket No. 20-0968 (issued August 17, 2021); see also J.V., Docket No. 19-1554 (issued
October 9, 2020); Eugene F. Butler, 36 ECAB 393, 398 (1984).
10

20 C.F.R. § 10.606(b)(3)(i) and (ii); P.M., Docket No. 20-0780 (issued November 24, 2020); G.Q., Docket No.
18-1697 (issued March 21, 2019); Alan G. Williams, 52 ECAB 180 (2000).

5

Furthermore, the Board finds that appellant has not provided any relevant and pertinent
new evidence not previously considered. 11 Thus, appellant is also not entitled to a review of the
merits of her claim based on the third above-noted requirement under section 10.606(b)(3).12
As appellant has not met any of the regulatory requirements under 20 C.F.R.
§ 10.606(b)(3), pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 11, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 1, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
11

T.H., Docket No. 20-1598 (issued June 2, 2021); F.D., Docket No. 19-0890 (issued November 8, 2019).

12

20 C.F.R. § 10.606(b)(3)(iii); J.V., Docket No. 19-1554 (issued October 9, 2020); T.M., Docket No. 19-0535
(issued July 25, 2019).
13

S.M., Docket No. 21-0392 (issued August 12, 2021); D.G., Docket No. 19-1348 (issued December 2, 2019); A.R.,
Docket No. 16-1416 (issued April 10, 2017); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006)
(when a request for reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b), OWCP will deny the request for reconsideration without reopening the case for a review on the merits).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, QUEEN ANNE
STATION, Seattle, WA, Employer
__________________________________________

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

Docket No. 10-1178
Issued: December 9, 2010

Case Submitted on the Record

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

JURISDICTION
On March 24, 2010 appellant, through her representative, filed a timely appeal from the
January 14, 2010 decision of the Office of Workers’ Compensation Programs denying her claim
for a recurrence. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of this case.
ISSUE
The issue is whether appellant established that she sustained a recurrence of disability on
March 10, 2009 causally related to an August 5, 2008 employment injury.
On appeal, appellant contends that the Office’s decision is contrary to fact and law.
FACTUAL HISTORY
On August 5, 2008 appellant, then a 31-year-old letter carrier, sustained injury to her low
back while trying to move a tub of mail. She stopped work the date of the injury. On August 20,
2008 the Office accepted appellant’s claim for lumbosacral sprain.

On January 6, 2009 appellant underwent a bilateral sacroiliac joint arthrogram and
bilateral sacroiliac joint injection. By letter dated December 15, 2008, the Office referred her to
Dr. Joan Sullivan, a Board-certified orthopedic surgeon, for a second opinion. In a January 19,
2009 report, Dr. Sullivan, indicated that appellant’s current diagnosis was lumbar strain
secondary to the employment injury of August 5, 2008. She noted that appellant’s prognosis was
good and that at this time appellant did not have any restriction that would not allow her to return
to her job of record. In a January 23, 2009 note, Dr. Srini V. Sundarum, appellant’s treating
Board-certified physiatrist, assessed appellant with sacroiliac strain in recovery. He indicated
that she will return to work on January 26, 2009 full duty and that he would reassess her in two
to three weeks time.
In a March 18, 2009 note, Dr. Sundarum indicated that appellant had a S1 joint strain and
stated that he recommended a repeat injection of the left S1 joint. He indicated that she could
work light duty for the next two weeks with an upper weight lift limit of 20 pounds.
Dr. Sundarum indicated that the date of injury was August 5, 2008. In a March 30, 2009 note, he
noted that on March 18, 2009 appellant started having increased symptoms. Dr. Sundarum noted
that, at the time of the March 19, 2009 visit, he did not place her off work but did indicate that
she had a 20-pound weight limit. He also noted that, by the time of the impartial medical
examination on January 19, 2009, he had returned appellant to full-duty work, but that, due to
objective signs on the March 19, 2009 visit, he placed her on her work for two weeks.
On March 18, 2009 appellant filed a claim for compensation for the period between
March 10 and 18, 2009. On April 6, 2009 she filed a claim for compensation for the period
March 19 through April 5, 2009.
On April 2, 2009 appellant had a left sacroiliac joint arthrogram and a left sacroiliac joint
injection.
In an April 14, 2009 report, Dr. Sundarum assessed appellant with sacroiliac strain and
stated that she was to return to work on a four-hour basis, as she could not tolerate a full day yet.
He recommended that she condition herself for the rest of the four hours by attending physical
therapy sessions. Dr. Sundarum stated that at the completion of two weeks he would see if
appellant could return to full-time work. In the caption, he again indicated that the date of injury
is August 5, 2008.
By decision dated April 28, 2009, the Office denied appellant’s claim for compensation
for the period March 10 through April 5, 2009 for the reason that the medical evidence of record
failed to establish that she was disabled from work due to the employment injury of
April 5, 2008.
Appellant submitted time analysis forms in support of wage-loss compensation for total
disability from March 10 through April 16, 2009 and compensation for four hours a day from
April 17 through 22, 2009. She indicated that there was no work available for her within her
restrictions. A subsequent analysis form listed four hours a day for April 25 and 27, 2009, two
hours for April 29, 2009 and eight hours for April 30, 2009.

2

In a May 1, 2009 note, Dr. Sundarum advised that appellant was to remain off work until
she had a magnetic resonance imaging (MRI) scan. He noted that her job required her to walk
multiple hills as well as drive long distances and that she was unable to carry on these tasks any
further.
In a May 28, 2009 MRI scan, Dr. Steven Pollei, a Board-certified radiologist and
neuroradiologist, indicated that the disc spaces appear unremarkable and that there was mild
facet degeneration changes at the L5-S1 and L4-5 levels.
In a report dated June 1, 2009, Dr. Sundarum indicated that appellant was released to
return to work on a light-duty basis; however, he noted that she would benefit from a
work-conditioning program before being released to full duty. He indicated that she returned to
work full duty and started having worsening of her symptoms before May 2009, for which she
was placed off work. Dr. Sundarum opined that appellant worsening was entirely related to her
employment. He noted that current clinical diagnosis is sacroiliac strain. Dr. Sundarum strongly
recommended physical therapy and possibly a work-conditioning program and noted that, in the
interim, he would release appellant to work only on a light-duty basis, under a 10-pound limit,
for eight hours a day.
In a decision dated August 25, 2009, the Office denied appellant’s claim for a recurrence
of disability commencing March 10, 2009.
By letter dated September 3, 2009, appellant requested a telephonic hearing that was held
on December 3, 2009. She testified that she missed some work following the injury of
August 2008 but was able to eventually return to work to her regular job as a city carrier on
January 27, 2009. Appellant started having symptoms again in February 2009, noting the long
commute and walking up and down stairs was difficult. She stopped work on March 9, 2009
because she was in pain and her medication kept her from driving. Appellant’s manager told her
that she was not allowed to return to work until she saw her physician but her physician could
not see her until March 18, 2009. On March 18, 2009 her physician put her on light duty until
she could get injections. Appellant stated that when she took the light-duty restrictions back to
her employer they refused to give her work. She noted that she returned to work the end of
April 2009 performing light duty, four hours a day for two weeks until the symptoms became
intolerable. Appellant testified that April 30, 2009 was the last day she worked and that the
physician took her off work pending another MRI scan because she did not get the work
conditioning she requested.
By decision dated January 14, 2010, the hearing representative affirmed the January 14,
2010 decision.1
LEGAL PRECEDENT
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
1

On December 15, 2009 the Office terminated appellant’s medical and compensation coverage. Appellant,
through her attorney, did not file an appeal from this decision.

3

injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”2 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial, reliable
and probative evidence that the disability for which she claims compensation is causally related to
the accepted injury. This burden of proof requires that an employee furnish medical evidence from
a physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disabling condition is causally related to the employment injury and supports that
conclusion with sound medical reasoning.3 Where no such rationale is present, medical evidence
is of diminished probative value.4
ANALYSIS
The Office accepted that on August 5, 2008 appellant sustained a work-related
lumbosacral sprain. Appellant returned to work full duty on or about January 26, 2009. She
alleged that she sustained a recurrence on March 10, 2008. The medical evidence of record does
not contain a rationalized medical opinion establishing a spontaneous change in the accepted
medical condition resulting in an inability to work. Dr. Sundarum noted that appellant had an
increase in symptoms on March 18, 2009 and placed restrictions on her employment. In a
May 1, 2009 note, he indicated that appellant could not work until he had an MRI scan, noting
that her job required her to walk on multiple hills and drive long distances. However,
Dr. Sundarum does not provide a rationalized medical opinion addressing how her increase in
symptoms related to the August 5, 2008 employment injury. In order to establish a recurrence,
the medical evidence must demonstrate that the claimed recurrence was caused, precipitated or
aggravated by the accepted injury.5 Dr. Sundarum simply listed the date of the initial injury,
August 5, 2008, in the caption of many of his reports, without providing a rationalized medical
explanation of a relationship between that injury and the claimed recurrence. He did not address
bridging symptoms between the date of the injury and the alleged recurrence.6 Dr. Sullivan, a
second opinion physician, found that appellant could work without limitations. Accordingly,
appellant did not meet her burden of proof to establish a recurrence of the August 5, 2008 injury
on March 10, 2009.
CONCLUSION
The Board finds that appellant has not established that she sustained a recurrence of
disability on March 10, 2009, causally related to her August 5, 2008 employment injury.

2

T.S., 61 ECAB ___ (Docket No. 09-1256, issued April 15, 2010); R.S., 58 ECAB 362 (2007); 20 C.F.R. § 10.5(x).

3

I.J., 59 ECAB 408 (2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

4

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (June 1995).

6

See Ricky S. Storms, 52 ECAB 349 (2001).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 14, 2010 is affirmed.
Issued: December 9, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.R., claiming as widow of E.R., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Munising, MI, Employer
__________________________________________

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Appearances:

Docket No. 12-1156
Issued: February 14, 2013

Case Submitted on the Record

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

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

JURISDICTION
On April 27, 2012 appellant, through her attorney, filed a timely appeal from an Office of
Workers’ Compensation Programs’ (OWCP) schedule award decision dated April 5, 2012.
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 the employee has more than a 10 percent permanent impairment of
the right arm, for which he received a schedule award.
FACTUAL HISTORY
This case has previously been before the Board. On August 14, 1998, the employee, then a
65-year-old groundskeeper, struck his right elbow on the corner of a building while mowing grass.

1

5 U.S.C. § 8101 et seq.

He filed a claim for benefits on August 17, 1998. OWCP accepted right lateral epicondylitis. It
approved surgery for the employee’s right elbow which he underwent on February 11, 1999.2
On April 20, 2006 the employee, through his attorney, filed a Form CA-7 claim for a
schedule award.
By decision dated October 16, 2006, OWCP found that the employee had no ratable
impairment causally related to the accepted condition and was not entitled to a schedule award.
By letter dated October 23, 2006, counsel requested an oral hearing.
In a November 15, 2006 report, Dr. Dee Ann Bialecki-Haase, Board-certified in
orthopedic surgery, found that the employee had a 10 percent impairment of the right arm under
the American Medical Association, Guides to the Evaluation of Permanent Impairment (fifth
edition) (A.M.A., Guides), based on a loss of range of motion in the right elbow. She measured
115 degrees of flexion, a 50 degree extension lag and supination and pronation of the right elbow
at 60 degrees. Dr. Bialecki-Haase found that the employee had a 3 percent impairment of the
right upper extremity for loss of flexion under Figure 16-34, page 472 of the A.M.A., Guides; a 5
percent impairment due to loss of extension under Figure 16-34; a 1 percent impairment due to
loss of supination under Figure 16-37, page 474; and a 1 percent impairment for loss of
pronation under Figure 16-37 for a total 10 percent impairment.
By decision dated August 28, 2007, OWCP granted the employee a schedule award for
10 percent impairment of the right arm. The award was under the fifth edition of the A.M.A.,
Guides for the period November 15, 2006 to June 21, 2007, for a total of 31.2 weeks of
compensation.
By letter dated September 14, 2007, counsel requested an oral hearing, which was held
on January 9, 2008.
By decision dated February 15, 2008, OWCP’s hearing representative affirmed the
August 28, 2007 decision, finding that the employee did not have greater impairment.
On March 26, 2009 the employee, through his attorney, filed a Form CA-7 claim for a
schedule award based on additional impairment to his right upper extremity.
By letter dated May 11, 2009, OWCP asked Dr. Bialecki-Haase to provide an impairment
rating for the employee’s right upper extremity pursuant to the sixth edition of the A.M.A.,
Guides. Dr. Bialecki-Haase did not respond to this request.
On May 29, 2009 the employee died.
On June 15, 2009 appellant, the employee’s wife, filed a Form CA-5 claim for death
benefits, claiming his death was causally related to his accepted elbow condition.
2

In a decision dated September 26, 2006, the Board affirmed OWCP’s October 3, 2005 and February 3, 2006
decisions denying the employee’s claim for a recurrence of disability. Docket No. 10-1925 (issued June 1, 2011).

2

By decision dated October 15, 2009, OWCP denied appellant’s claim for death benefits.
In a November 13, 2009 report, Dr. Anthony F. Skalak, OWCP’s medical adviser,
reviewed Dr. Bialecki-Haase’s physical examination of the employee on August 25, 2008 and
applied Table 15-4, page 399 of the sixth edition of the A.M.A., Guides. He found that the
employee had a class 1 impairment, which produced a grade modifier of 1, grade C for a seven
percent right upper extremity impairment.
By decision dated December 8, 2009, OWCP denied modification of the August 28, 2007
decision, finding that greater permanent impairment was not established.
By letter dated December 15, 2009, counsel requested an oral hearing, which was held on
March 19, 2010.
In a report dated May 18, 2010, Dr. William N. Grant, Board-certified in internal
medicine, found that the employee had a 13 percent impairment of the right upper extremity
under the sixth edition of the A.M.A., Guides. He derived this impairment by applying the net
adjustment formula at pages 406 and 411 of the A.M.A., Guides.3 Dr. Grant found that the
employee had a class 2 impairment under the rating utilized at the elbow regional grid at Table
15-4, page 399. He found that the grade at Table 15-7, page 406 for functional history was 3,
based on a QuickDASH score of 77, for a severe problem which included pain/symptoms with
less than normal activity and the ability to perform self-care activities with modification but
unassisted; the grade at Table 15-8, page 408 for physical examination was 3, for a severe
problem due to loss of range of motion from normal.4 Pursuant to the formula set forth at page
411, Dr. Grant found that appellant had a net adjustment of two by subtracting the grade modifier
of 2 from functional history and physical examination, for a 13 percent impairment of the right
upper extremity under the A.M.A., Guides.
By decision dated June 22, 2010, OWCP’s hearing representative affirmed the
August 28, 2007 decision. She, however, did not consider Dr. Grant’s May 18, 2010 report.
In a report dated June 27, 2010, Dr. Grant reiterated his impairment rating of 13 percent.
In a May 25, 2011 order,5 the Board set aside the June 22, 2010 OWCP decision. The
Board instructed OWCP on remand to consider all the medical evidence of record to determine if
the employee had greater impairment.
By decision dated June 8, 2011, OWCP’s hearing representative found that Dr. Grant’s
June 27, 2010 report was sufficient grounds for further development of the evidence. She
directed that the case be remanded to OWCP to determine whether Dr. Grant’s report provided a
sufficient basis for an additional schedule award under the A.M.A., Guides.

3

A.M.A., Guides 406, 411.

4

Id. at 406, 408

5

Docket No. 10-1963 (issued May 25, 2010).

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In a September 1, 2011 report, a second OWCP’s medical adviser, found that Dr. Grant’s
report was of diminished probative value because he did not properly apply the applicable tables
or protocols of the A.M.A., Guides. Applying the elbow regional grid at Table 15-4, page 399,
he rated a default grade C impairment for the employee’s right lateral epicondylitis condition,
which yielded a five percent impairment for a surgical release procedure. OWCP’s medical
adviser stated that Dr. Grant’s finding of a net adjustment of two would move the default
impairment grade from C to E pursuant to the net adjustment formula set forth at page 411. This
produced a seven percent right upper extremity impairment. As this amounted to an impairment
less than the 10 percent already awarded, the medical adviser concluded that appellant did not
have greater impairment under the sixth edition of the A.M.A., Guides.
By decision dated September 22, 2011, OWCP found that appellant was not entitled to an
additional schedule award.
By letter dated September 30, 2011, counsel requested an oral hearing, which was held
on February 16, 2012.
By decision dated April 5, 2012, OWCP’s hearing representative affirmed the
September 22, 2011 decision, finding that appellant was not entitled to an additional schedule
award.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.8 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.9
ANALYSIS
OWCP accepted the condition of right lateral epicondylitis and authorized right elbow
release surgery. On August 28, 2007 it granted the employee a schedule award for a 10 percent
impairment of the right upper extremity under the fifth edition of the A.M.A., Guides. Following
the employee’s death on May 29, 2009, appellant subsequently requested an additional schedule
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

8

Id.

9

Veronica Williams, 56 ECAB 367, 370 (2005).

4

award under the, sixth edition of the A.M.A., Guides. OWCP found that she did not submit
medical evidence sufficient to establish greater impairment due to the employee’s accepted right
lateral epicondylitis condition pursuant to the sixth edition of the A.M.A., Guides.
The section of the A.M.A., Guides which rates diagnosis-based impairments for the upper
extremities is located at Chapter 15, page 387, section 15.2. It provides that impairments are
defined by class and grade. This section states:
“The impairment class is determined first, by using the corresponding diagnosisbased regional grid. The grade is then determined using the adjustment grids
provided in [s]ection 15.3.
“Once the impairment class has been determined, based on the diagnosis, the
grade is initially assigned the default value, ‘C.’ The final impairment grade,
within the class, is calculated using the grade modifiers or nonkey factors, as
described in [s]ection 15.3. Grade modifiers include functional history, physical
examination and clinical studies. The grade modifiers are used on the [n]et
[a]djustment [f]ormula described in [s]ection 15.3d to calculate a net adjustment.
The final impairment grade is determined by adjusting the grade up or down from
the default value C by the calculated net adjustment. The lowest possible grade is
A and adjustments less than [minus] 2 from the default value C will automatically
be considered A; the highest possible grade is E and adjustments greater than
[plus] 2 will automatically be considered E.”
The regional grid is used for two purposes: (1) to determine the most appropriate class
for specific regional diagnosis and (2) to determine the final impairment after appropriate
adjustments are made using the grade modifiers.10 In applying a diagnosis-based impairment,
the A.M.A. Guides indicate that in most cases, only one diagnosis in a region will be appropriate,
and if a patient has two significant diagnoses, the examiner should use the diagnosis with the
highest impairment in that region.11
In a September 1, 2011 report, OWCP’s medical adviser properly selected the diagnosis
with the highest potential impairment rating, the surgical elbow release procedure the employee
underwent in February 1999. He applied the proper adjustment factors to determine the degree
of impairment of the employee’s right upper extremity. Using the formula above and the net
adjustment formula outlined at pages 406 and 411 of the A.M.A., Guides, the medical adviser
found that the employee’s accepted condition yielded a default grade of C, which equated to a
five percent upper extremity impairment for surgical release. Relying on Dr. Grant’s net
adjustment figure of 2, he found that this moved the default grade from C to E pursuant to page
411 of the A.M.A., Guides. This resulted in a seven percent right upper extremity impairment at
Table 15-4, page 399. The Board finds that OWCP properly based its review on the surgical
release of the flexor or extensor muscles, due to epicondylitis, pursuant to Table 15-4. The 7
percent rating amounted to less than the 10 percent the employee received in the August 28,
10

A.M.A., Guides 387

11

Id.

5

2007 schedule award. OWCP properly denied appellant an additional award in its September 22,
2011 and April 5, 2012 decisions. The Board finds that the medical adviser properly applied the
A.M.A., Guides to rate the employee’s right upper extremity impairment based on the findings of
Dr. Grant, who did not provide adequate medical rationale to support his opinion that appellant
had 13 percent impairment of the right arm.12
As appellant did not submit medical evidence sufficient to support an additional schedule
award greater than the 10 percent the employee received for the right upper extremity, the Board
will affirm OWCP’s April 5, 2012 decision.
CONCLUSION
The Board finds that the employee had 10 percent permanent impairment of the right
upper extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the April 5, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 14, 2013
Washington, DC

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

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

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

12

William C. Thomas, 45 ECAB 591 (1994).

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