United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Dayton, OH, Employer
__________________________________________

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Appearances:
Brad Harris, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0126
Issued: June 2, 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 October 27, 2016 appellant, through counsel, filed a timely appeal from a May 2,
2016 decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the
Federal Employees’ Compensation Act3 (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

Appellant timely requested oral argument before the Board. By order dated March 2, 2017, the Board exercised
its discretion and denied the request, finding the issue could be addressed based on a review of the case record.
Order Denying Oral Argument, Docket No. 17-0126 (issued March 2, 2017).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established more than 13 percent permanent
impairment of the right upper extremity for which she previously received a schedule award.
FACTUAL HISTORY
On July 23, 2010 appellant, then a 58-year-old nurse, filed a traumatic injury claim (Form
CA-1) alleging that on July 22, 2010 she tripped and fell fracturing her right arm in the
performance of duty. OWCP accepted the claim for a fracture of the right humerus and lumbar
sprain. Appellant stopped work on July 22, 2010. OWCP paid her compensation for total
disability from September 6 to October 15, 2010.
Appellant underwent an open reduction and internal fixation of the right proximal
humerus fracture on August 3, 2010.4
Appellant filed a claim for schedule award (Form CA-7).
By decision dated February 23, 2012, OWCP granted appellant a schedule award for 13
percent permanent impairment of the right upper extremity. The period of the award ran for
40.56 weeks from January 3 to October 13, 2011.
Appellant, on June 17, 2012, filed a claim for an increased schedule award (Form CA-7).
In an impairment evaluation received on June 22, 2012, Dr. Frank A. Burke, a Boardcertified orthopedic surgeon, diagnosed a comminuted displaced right proximal humerus fracture
requiring an open reduction and internal fixation and a back sprain. Applying Table 15-34 on
page 475 of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides), he found 26 percent permanent impairment using the
range of motion (ROM) method. Dr. Burke opined that appellant had reached maximum medical
improvement (MMI).
Dr. Nabil F. Angley, a Board-certified orthopedic surgeon and OWCP medical adviser,
concurred with Dr. Burke’s finding of 26 percent permanent right upper extremity impairment
due to loss of motion. He indicated that the date of MMI was October 18, 2010, the date
appellant resumed limited-duty work.
On October 7, 2013 appellant, through counsel, questioned why OWCP had not
processed her schedule award claim. On November 15, 2013 OWCP referred the case record to
an OWCP medical adviser for review, noting that it was unclear why Dr. Angley used
October 18, 2010 as the date of MMI.

4

By decision dated December 13, 2011, OWCP reduced appellant’s compensation to zero after finding that her
actual earnings as a gastroenterology staff nurse effective August 29, 2011 fairly and reasonably represented her
wage-earning capacity.

2

Dr. Morley Slutsky, an OWCP medical adviser and Board-certified occupational
medicine specialist, reviewed the evidence on December 14, 2013. He noted that the diagnosisbased impairment (DBI) estimate method was preferred over the ROM method for rating
impairments of the upper extremities. Dr. Slutsky identified the diagnosis as a humerus fracture
and found, using Table 15-5 on page 405, that appellant had three percent permanent impairment
of the right upper extremity. He advised that she had reached MMI on June 1, 2011.
In an addendum dated March 28, 2014, Dr. Burke reviewed Dr. Slutsky’s report at the
request of OWCP. He asserted that it was appropriate to use the ROM method to rate appellant’s
impairment using motion loss as it was pronounced. Dr. Burke noted that such a rating was
allowed under the A.M.A., Guides.
Dr. Slutsky, on April 13, 2014, again advised that appellant had three percent permanent
impairment of the right upper extremity using the DBI method.
On July 29, 2014 OWCP referred appellant to Dr. Alan Kohlhaas, a Board-certified
orthopedic surgeon, for an impartial medical examination. In an August 25, 2014 impairment
evaluation, Dr. Kohlhaas diagnosed a comminuted proximal fracture of the humerus with
surgical repair August 3, 2010. Using the ROM method he found that appellant had eight
percent permanent impairment due to reduced motion under Table 15-34 on page 475 of the
A.M.A., Guides. Dr. Kohlhaas opined that appellant reached MMI on June 1, 2011.
Dr. Daniel Zimmerman, a Board-certified internist and OWCP medical adviser,
determined that appellant had three percent permanent impairment of the right arm using a DBI
estimate.
By decision dated October 17, 2014, OWCP denied appellant’s claim for an increased
schedule award.
Appellant, through counsel, on November 13, 2014 requested an oral hearing before an
OWCP hearing representative. Following a preliminary review, by decision dated April 27,
2015, an OWCP hearing representative vacated the October 17, 2014 decision. Counsel found
that an OWCP medical adviser could not resolve a conflict in medical opinion and instructed
OWCP to refer the case to the impartial medical examiner to review the medical adviser’s report.
Dr. Kohlhaas, in a supplemental report dated May 13, 2015, reviewed Dr. Zimmerman’s
report and noted that he used a diagnosis of fracture set forth at Table 15-5 on page 405 in rating
appellant’s impairment. He again found eight percent permanent impairment of the right upper
extremity using the ROM method.
In a decision dated May 29, 2015, OWCP denied appellant’s claim for an increased
schedule award.
Appellant, on June 3, 2015, requested a telephone hearing, which was held on
February 16, 2016. In a March 9, 2016 statement, counsel contended that OWCP erred by
procedurally referring the case to a second OWCP medical adviser after Dr. Angley had
concurred with Dr. Burke’s May 23, 2012 impairment rating. He asserted that Dr. Angley
should have addressed any questions regarding the date of MMI and questioned why Dr. Slutsky
3

provided a new finding regarding the percentage of impairment. Counsel argued that everything
after Dr. Angley’s report was based on a procedural error and should not be considered. He
asserted that OWCP procedures provide that if the OWCP medical adviser and attending
physician agree the award should be processed.
By decision dated May 2, 2016, OWCP’s hearing representative affirmed the May 29,
2015 decision. She found that OWCP properly obtained an additional opinion from another
medical adviser as Dr. Angley had not provided a detailed evaluation of Dr. Burke’s findings and
had not explained the date he chose for MMI. The hearing representative determined that the
opinion of Dr. Kohlhaas as the impartial medical examiner represented the special weight of the
medical evidence and established that appellant had no more than 13 percent permanent
impairment.
On appeal counsel contends that OWCP committed a procedural error in referring the
case to a new OWCP medical adviser after obtaining an opinion from Dr. Angley agreeing with
the extent of permanent impairment found by Dr. Burke. He asserts that she is entitled to a
schedule award for an additional 13 percent permanent impairment plus interest and
reimbursement of attorney’s fees.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.5 Section 8107
of FECA 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.6 FECA, 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 under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the American Medical Association, Guides to the Evaluation of
Permanent Impairment as the appropriate standard for evaluating schedule losses.7
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.

5

See 20 C.F.R. §§ 1.1-1.4.

6

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
7

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

4

5 U.S.C.

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).8 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.9
ANALYSIS
The issue on appeal is whether appellant has more than the previously awarded 13
percent permanent impairment of the right upper extremity.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.10
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.11 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.12
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the May 2, 2016 decision.
Following OWCP’s development of a consistent method for calculating permanent impairment
for upper extremities to be applied uniformly, and such other development as may be deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper extremity
schedule award.
8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
9

Isidoro Rivera, 12 ECAB 348 (1961).

10

T.H., Docket No. 14-0943 (issued November 25, 2016).

11

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

12

Supra note 10.

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CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 2, 2016 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further action consistent with
this decision.
Issued: June 2, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
TENNESSEE VALLEY AUTHORITY,
Paradise Plant, KY, Employer
__________________________________________

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

Docket No. 15-1179
Issued: July 16, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 29, 2015 appellant filed a timely appeal from a January 5, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has established more than 54 percent total binaural hearing
impairment, for which he received a schedule award.
FACTUAL HISTORY
This case has previously been before the Board. In a December 19, 2003 decision, the
Board affirmed OWCP’s July 11, 2003 decision which found that appellant had failed to

1

5 U.S.C. § 8101 et seq.

establish more than six percent binaural hearing loss for which he received a schedule award.2
By decision dated September 13, 2007, the Board set aside OWCP’s February 8, 2007 decision
which denied appellant’s request for reconsideration as it was untimely filed and failed to present
clear evidence of error, and remanded the case for handling under the proper standard consistent
with OWCP’s procedures.3 By decision dated August 7, 2008, the Board set aside its
December 20, 2007 decision for further development to determine whether appellant’s increased
hearing loss was causally related to his noise exposure.4 The facts and history as stated in the
Board’s prior decisions are hereby incorporated by reference.
By decision dated October 9, 2008, OWCP awarded appellant an additional 48 percent
impairment for a total binaural impairment of 54 percent. The additional award ran for 96 weeks
of compensation for the period April 2, 2002 to February 2, 2004.
On September 22, 2014 appellant filed a claim for an increased schedule award by Form
CA-7. No new evidence was submitted along with the claim.
In a September 26, 2014 letter, OWCP advised appellant of the deficiencies in his claim
and requested that he submit additional factual and medical information, including any
audiograms taken since 2008. It requested that he explain any hazardous noise exposure since
last working at the employing establishment on October 2, 1989. OWCP also requested that
appellant list his hobbies outside of his employment.
In an October 7, 2014 statement, appellant responded to OWCP’s questions and stated
that the employing establishment was the last place he worked. He indicated that his hearing had
worsened and he now wore two hearing aids. Appellant submitted a July 22, 2014 note from
Dr. Bernard Buchanan, a Board-certified internist, finding appellant medically cleared for
hearing aids, a July 10, 2014 hearing health report and a July 10, 2014 audiometric test.
In an October 30, 2014 letter, an OWCP medical adviser reviewed a July 10, 2014
audiogram and stated that it did not conform to OWCP’s specifications. He recommended that
OWCP generate a statement of accepted facts and refer appellant for a second opinion
evaluation.
On November 3, 2014 OWCP received a September 10, 2014 audiogram.

2

Docket No. 03-2048 (issued December 19, 2003). On September 4, 2001 appellant, then a 55-year-old
machinist, filed an occupational disease claim for hearing loss. He first became aware of his employment-related
hearing loss in 1988. Appellant explained that he hit his ear in 1986 with a wrench and, after being treated for over
a year, his doctor advised him to have surgery to repair his eardrum. A claim for that condition was filed in 1992.
Since his surgery, appellant stated that his hearing has not returned. The record reflects that he worked at the
employing establishment between April 1978 and October 1989, where he was exposed to loud noises from turbines
eight hours daily. By decision dated January 18, 2002, OWCP granted a schedule award for six percent binaural
hearing loss.
3

Docket No. 07-1015 (issued September 13, 2007).

4

Docket No. 08-698 (issued August 7, 2008).

2

OWCP referred appellant, a November 21, 2014 statement of accepted facts, and list of
questions, to Dr. William J. Brown, a Board-certified audiologist, and Dr. Andrew S. Mickler, a
Board-certified otolaryngologist, for a second opinion evaluation. Appellant did not attend the
second opinion evaluation due to distance and other health issues.
On December 19, 2014 OWCP provided appellant with Form 1322, Outline for Otologic
Evaluation, for his treating physician to complete. On December 22, 2014 Sheila Elliott-Rich, an
audiologist, completed the Form 1322 based on September 10, 2014 audiometric test results.
In a January 5, 2015 report, the medical adviser stated that recalculation of an award was
not indicated in this case. He noted that the November 21, 2014 statement of accepted facts
reflected that appellant had retired from federal employment in 1989 and was last exposed to
noise on the job at that time. The medical adviser advised “it is accepted that hearing loss
consequential to noise does not progress following removal from the source of that noise.
Therefore, any loss of hearing after 1989 cannot be work related, and any deterioration of
hearing since 1989 is not due to work factors.”
By decision dated January 5, 2015, OWCP denied entitlement to an additional schedule
award. Determinative weight was accorded to the medical adviser’s report.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing federal regulations6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to rate permanent impairment.8
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the
losses at each frequency are added and averaged.9 The fence of 25 decibels is then deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.10 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.11 The binaural
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

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

9

A.M.A., Guides, supra note 2 at 250.

10

Id.

11

Id.

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loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
arrive at the amount of the binaural hearing loss.12 The Board has concurred in OWCP’s
adoption of this standard for evaluating hearing loss.13
OWCP procedures set forth requirements for the medical evidence used in evaluating
hearing loss. These include that the employee undergo both audiometric and otologic
examination; that the audiometric testing be performed by an appropriately certified audiologist;
that the otologic examination be performed by an otolaryngologist certified or eligible for
certification by the American Academy of Otolaryngology and that the audiometric and otologic
examination be performed by different individuals as a method of evaluating the reliability of the
findings. Further, all audiological equipment authorized for testing meet the calibration protocol
contained in the accreditation manual of the America Speech and Hearing Association; that the
audiometric test results include both bone conduction and pure tone air conduction thresholds,
speech reception thresholds and monaural discrimination scores. The otolaryngologist’s report is
to include date and hour of examination, date and hour of employee’s last exposure to load noise,
a rationalized medical opinion regarding the relation of the hearing loss to the employmentrelated noise exposure, and a statement of the reliability of the tests.14
The Board has recognized that, if a claimant’s employment-related hearing loss worsens
in the future, the employee may apply for an additional schedule award for any increased
impairment.15 The Board has also recognized that a claimant may be entitled to an award for an
increased hearing loss, even after exposure to hazardous noise has ceased, if causal relationship
is supported by the medical evidence of record.16
ANALYSIS
On October 9, 2008 appellant received a schedule award for a total binaural impairment
of 54 percent. He subsequently requested an increased schedule award. By decision dated
January 5, 2015, OWCP denied an additional schedule award.
The Board has long recognized that, if a claimant’s employment-related hearing loss
worsens in the future, he may apply for an additional schedule award for any increased

12

Id. at 251.

13

Horace L. Fuller, 53 ECAB 775 (2002).

14

Luis M. Villanueva, 54 ECAB 666 (2003). See Federal (FECA) Procedure Manual, Part 3 -- Medical,
Requirements for Medical Reports, Chapter 3.600.8(a) (September 1995).
15

Paul Fierstein, 51 ECAB 381 (2000); Paul R. Reedy, 45 ECAB 488 (1994). Federal (FECA) Procedure
Manual, Part 2 -- Claims, Payment of Schedule Awards, Chapter 2.808.7(b)(2) (April 1995). If, on the other hand,
the claimant sustains increased impairment at a later date which is due to work-related factors, an additional award
will be payable if supported by the medical evidence. In this case, the original award is undisturbed and the new
award has its own date of maximum medical improvement, percent and period.
16

Id.

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permanent impairment.17 The Board has also recognized that a claimant may be entitled to a
schedule award for increased hearing loss, even after exposure to hazardous noise has ceased, if
causal relationship is supported by the medical evidence of record.18
Appellant submitted a July 22, 2014 note from Dr. Buchanan medically clearing him for
hearing aids and a July 10, 2014 hearing health report; however, none of these reports provide a
well-rationalized medical opinion that appellant has experienced additional hearing loss causally
related to his employment-related hearing loss.
Appellant also submitted audiometric testing dated July 10 and September 10, 2014 and a
December 22, 2014 Form 1322 completed by Sheila Elliott-Rich, an audiologist. However, the
audiograms were not accompanied by a physician’s opinion addressing how the employmentrelated noise exposure caused or aggravated any additional hearing loss. As such this evidence
failed to constitute competent medical evidence.19
The Board notes that OWCP attempted to send appellant for a second opinion evaluation
with an audiologist and an otolaryngologist, but appellant did not attend.
The Board finds that appellant has not established an increase in bilateral sensorineural
hearing loss causally related to his federal employment.
On appeal, appellant contends that his bilateral hearing loss was causally related to
exposure in his federal employment and has increased little by little since he left federal
employment. He states that hearing problems do not run in his family and he has to wear hearing
aids or he cannot hear. Appellant argues that he should be compensated for his loss in hearing.
As discussed, however, the audiograms and evidence submitted in his claim do not constitute
probative medical evidence showing progression of an employment-related condition resulting in
increased impairment.
CONCLUSION
The Board finds that appellant did not establish more than 54 percent total binaural
impairment, for which he received a schedule award.

17

Paul R. Reedy, supra note 15.

18

J.R., 59 ECAB 710, 713 (2008).

19

Id. See also H.M., Docket No. 13-1061 (issued July 29, 2013); M.T., Docket No. 12-1294 (issued
December 6, 2012). 5 U.S.C. § 8101(2); M.P., Docket No. 13-1790 (issued December 17, 2013) (an audiologist is
not a physician under FECA and the audiologist’s opinion regarding the medical cause of a claimant’s hearing loss
is of no probative medical value).

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ORDER
IT IS HEREBY ORDERED THAT the January 5, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 16, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Redondo Beach, CA, Employer
__________________________________________

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

Docket No. 07-2157
Issued: February 20, 2008

Case Submitted on the Record

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

JURISDICTION
On October 2, 2007 appellant filed a timely appeal from the May 3, 2007 decision of an
Office of Workers’ Compensation Programs’ hearing representative, which affirmed the
January 18, 2007 denial of continuation of pay. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the issue of continuation of pay.
ISSUE
The issue is whether the Office properly denied appellant’s claim for continuation of pay
on the grounds that written notice of injury was not filed within 30 days of the date of the injury.
FACTUAL HISTORY
On October 6, 2006 appellant, then a 47-year-old letter carrier, filed a traumatic injury
claim alleging that he experienced rhabdomyolysis, renal failure and dehydration while
delivering heavy mail on June 17, 2006, which was a hot day. He went to the emergency room
after becoming sick to his stomach and experiencing shortness of breath and body cramps.

Appellant was off of work from June 18 to 26, 2006, when he returned to modified duties. The
employing establishment controverted the claim.
By decision dated December 1, 2006, the Office accepted appellant’s claim for
precipitation of rhabdomyolysis, with transient renal failure resolved by September 5, 2006. The
Office combined this claim with File No. 132160742, which was then closed.1 The Office also
stated that an emotional condition claim brought under File No. 132160742 was not accepted.
By decision dated January 18, 2007, the Office found that appellant was not eligible for
continuation of pay because his claim had been filed more than 30 days after the date of injury.
It stated that this decision did not affect his entitlement to compensation benefits.
On January 21, 2007 appellant informed the Office that he had attempted to file a CA-1
form when he was in the hospital after his June 17, 2006 employment injury. He stated that the
employing establishment told him that there was no need to file a new CA-1 at that time. The
employing establishment did not provide appellant a CA-1 form until he had asked for one
several times. On February 1, 2007 he requested a review of the written record.
By decision dated May 3, 2007, the Office hearing representative affirmed the denial of
appellant’s claim for continuation of pay. He noted that the rules governing continuation of pay
did not have any exceptions to the requirement that a claim must be filed within 30 days.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act2 and its implementing regulations provide for
the continuation of pay in certain circumstances.3 Specifically, section 8118(a) provides for
continuation of pay, not to exceed 45 days, to an employee who has filed a claim for a period of
wage loss due to traumatic injury with his immediate supervisor on a form approved by the
Secretary of Labor within the time specified in section 8122(a)(2) of the Act.4 Section
8122(a)(2) provides that written notice of injury shall be given in writing within 30 days after the
injury.5 Section 10.210(a) of the implementing federal regulations provides in pertinent part:
“An employee who sustains a traumatic injury which he or she considers
disabling, or someone authorized to act on his or her behalf, must take the
following actions to ensure continuing eligibility for continuation of pay. The
employee must: (a) [c]omplete and submit Form CA-1 to the employing

1

In File No. 132160742, filed on June 16, 2006, the Office accepted that appellant sustained employment-related
heat exhaustion on May 25, 2006.
2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. §§ 10.205, 10.220.

4

5 U.S.C. § 8118(a).

5

5 U.S.C. § 8122(a)(2).

2

[establishment] as soon as possible, but no later than 30 days from the date the
traumatic injury occurred.”6
Therefore, to be entitled to continuation of pay, an employee must file a claim on an appropriate
form within 30 days after the injury.7
The Board has held that the responsibility for filing a claim rests with the injured
employee.8 The Board has also held that section 8122(d)(3) of the Act,9 which allows the Office
to excuse failure to comply with the time limitation provision for filing a claim for compensation
because of exceptional circumstances, is not applicable to section 8118(a),10 which sets forth the
filing requirements for continuation of pay.11 There is no provision in the Act for excusing an
employee’s failure to file a claim for continuation of pay within 30 days of the employment
injury.12
ANALYSIS
The record establishes that appellant sustained an accepted traumatic injury on
June 17, 2006. He filed a claim for continuation of pay related to this injury on October 6, 2006,
more than 30 days later. Appellant contended that he did not file it sooner because the
employing establishment informed him that there was no need for a new claim and made it
difficult for him to obtain a CA-1 form. Even if these allegations are true, the Board notes that
there are no exceptions to the requirement that a claim for continuation of pay be filed within 30
days of the date of injury. Because appellant did not file his claim for continuation of pay within
30 days of the employment injury, the Office properly denied appellant’s claim for continuation
of pay.13
The Board notes that, although appellant is barred from receiving continuation of pay, he
may still be eligible for other types of compensation benefits under the Act. On January 18,
2007 the Office explained that the decision denying his continuation of pay did not affect his
entitlement to compensation benefits. Therefore, appellant may still claim wage-loss
compensation benefits for disability or claim compensation for medical treatment rendered due
to the effects of the employment injury.
6

20 C.F.R. § 10.210(a).

7

Laura L. Harrison, 52 ECAB 515 (2001); Sylvia P. Blackwell, 35 ECAB 811 (1984).

8

See Catherine Budd, 33 ECAB 1011 (1982) (continuation of pay denied where employee did not timely file her
claim because the employing establishment erroneously told her that her medical records and accident report were
sufficient).
9

5 U.S.C. § 8122(d)(3).

10

5 U.S.C. § 8118(a).

11

Michael R. Hrynchuk, 35 ECAB 1094 (1984).

12

Robert E. Kimzey, 40 ECAB 762 (1989).

13

Loretta R. Celi, 51 ECAB 560 (2000).

3

CONCLUSION
The Board finds that the Office properly denied appellant’s claim for continuation of pay
on the grounds that written notice of injury was not filed within 30 days of the date of the injury.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 3 and January 18, 2007 are affirmed.
Issued: February 20, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
INDEPENDENCE ANNEX, Charlotte, NC,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-1937
Issued: December 15, 2020

Case Submitted on the Record

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

On September 21, 2019 appellant filed a timely appeal from a September 11, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards docketed the appeal as No. 19-1937.1
On April 17, 2018 appellant, then a 40-year-old city carrier assistant filed an occupational
disease claim (Form CA-2) for an emotional condition and other stress-related conditions. She
noted that she first became aware of her condition on February 8, 2018. OWCP assigned File No.
xxxxxx341. By decision dated September 11, 2019, it denied appellant’s emotional condition
claim, finding that the evidence of record was insufficient to establish a compensable employment
factor.
The Board, having duly considered this matter, finds this case not in posture for decision.

1

The Board notes that following the September 11, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

Appellant has several other claims involving emotional conditions. Under OWCP File No.
xxxxxxx368, OWCP accepted that, on August 12, 2017, she, then a 38-year-old city carrier
assistant, sustained a right ankle sprain and sprain of right rotator cuff capsule as a result of an
employment-related fall in the performance of duty. Appellant subsequently requested that her
accepted claim be expanded to include additional conditions including depression. Under OWCP
File Nos. xxxxxx435, xxxxxxx066 and xxxxxx767, she attributed emotional conditions to either a
consequence of her accepted August 12, 2017 employment-related injury and/or factors of her
federal employment.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between case files.2 For example,
if a new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required.3
As OWCP File Nos. xxxxxxx368, xxxxxx341, xxxxxx435, xxxxxx066 and xxxxxx767, all
involve claims for an emotional condition, for a full and fair adjudication, they must be
administratively combined. Consolidation of the case files prior to the final decision would allow
OWCP to consider all relevant claim files and accompanying evidence in developing appellant’s
current occupational disease claim.
Accordingly, the Board will remand the case to OWCP to ensure that the previously cited
OWCP files have been administratively combined. Following this and other such further
development as deemed necessary, OWCP shall issue a de novo decision regarding appellant’s
emotional condition claim in File No. xxxxxx341 based upon a review of the evidence from all of
the consolidated OWCP files.

2

K.R., Docket No. 20-0911 (issued October 30, 2020); R.R., Docket No. 19-0368 (issued November 26, 2019);
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8c
(February 2000).
3

Id.

2

IT IS HEREBY ORDERED that the September 11, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: December 15, 2020
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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.N., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER SECURITY,
Imperial, CA, Employer
__________________________________________

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Appearances:
Kelly A. Smith, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-850
Issued: August 16, 2012

Case Submitted on the Record

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

JURISDICTION
On March 5, 2012 appellant, through his attorney, filed a timely appeal from an Office of
Workers’ Compensation Programs’ (OWCP) overpayment decision dated September 7, 2011.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3(e), the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment in the amount of $12,888.73 from April 4 to June 4, 2011; and (2) whether OWCP
properly found appellant was at fault in creating the overpayment, thereby precluding waiver of
the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 45-year-old supervisory border patrol agent, injured his left knee on
February 16, 2010 when he fell between two rocks. He filed a claim for benefits, which OWCP
accepted for torn medial meniscus of the left knee, left knee sprain of the medial collateral
ligament and chondromalacia of the left patella. OWCP paid wage-loss compensation for total
disability.
In the April 5, 2010 acceptance letter, OWCP advised appellant:
“RETURNING TO WORK
“You are expected to return to work (including light-duty or part-time work, if
available) as soon as you are able. Once you return to work, or obtain new
employment, notify this office immediately. Full compensation is payable only
while you are unable to perform the duties of your regular job because of your
accepted employment-related condition. If you receive a compensation check
which includes payment for a period you have worked, return it to us immediately
to prevent an overpayment of compensation.”
On April 4, 2011 appellant returned to work for eight hours a day.
On June 17, 2011 OWCP issued a preliminary determination that an overpayment
occurred in the amount of $12,888.73 for the period April 4 through June 11, 2011 because
appellant received wage-loss compensation to which he was not entitled. It found that he
received compensation in the amount of $17,493.81, but was only entitled to $4,605.08, creating
the overpayment of $12,888.73. OWCP found that appellant was at fault in the matter because
he accepted payment of compensation for temporary total disability after returning to work at full
salary on April 4, 2011, and that the payments he had been receiving were incorrect. It informed
him that, if he disagreed with the decision, he could, within 30 days, submit evidence or
argument to OWCP or request a prerecoupment hearing with the Branch of Hearings and Review
on the matter of the overpayment and that any response he wished to make with regard to the
overpayment should be submitted within 30 days of the June 17, 2011 letter.
Appellant completed and submitted the overpayment questionnaire on July 8, 2011.
In a decision dated September 7, 2011, OWCP finalized the overpayment of $12,034.75.
It found that appellant was at fault in the creation of the overpayment as he accepted
compensation to which he was not entitled and therefore the overpayment could not be waived.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 (a) of FECA provides that the United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of duty.2 A claimant, however, is not entitled to
receive temporary total disability and earnings for the same period. An overpayment of
2

5 U.S.C. § 8102(a).

2

compensation is created when a claimant returns to work but continues to receive wage-loss
compensation.3
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation for the period April 4 through June 4, 2011. The record shows that he received
an overpayment during the period in question because he received direct deposit checks for
temporary total disability compensation after he returned to work on April 4, 2011. Based on
this determination, OWCP properly found that appellant received an overpayment of
compensation during that period. The record establishes that he received net compensation from
March 13 to June 4, 2010 in the amount of $17,493.81, but should only have received $4,605.08,
which represents the amount of compensation due prior to his return to work. The overpayment
was correctly computed to be $12,888.73. Thus OWCP’s September 7, 2011 decision will be
affirmed for fact and amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA4 provides that an overpayment must be recovered unless
“incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.”
No waiver of an overpayment is possible if the claimant is not “without fault” in helping to
create the overpayment.5
Under OWCP regulations, waiver of the recovery of an overpayment may be considered
only if the individual to whom it was made was not at fault in accepting or creating the
overpayment.6 The fact that the overpayment was the result of error by OWCP or another
government agency does not by itself relieve the individual who received the overpayment of
liability for repayment if the individual also was at fault for receiving the overpayment.7 Each
recipient of compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she received from OWCP are proper. The recipient must show good faith
and exercise a high degree of care in reporting events that may affect entitlement to or the
amount of benefits. A recipient who has done any of the following will be found to be at fault
with respect to creating an overpayment: (1) made an incorrect statement as to a material fact
which he or she knew or should have known to be incorrect; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a payment which he

3

Danny E. Haley, 56 ECAB 393 (2005); Donna M. Rowan, 54 ECAB 698 (2003).

4

5 U.S.C. § 8129(a)-(b).

5

Bonnye Mathews, 45 ECAB 657 (1994).

6

20 C.F.R. § 10.433(a).

7

Id. at § 10.435(a).

3

or she knew or should have known to be incorrect (this provision applies only to the overpaid
individual).8
Whether OWCP determines that an individual was at fault with respect to the creation of
an overpayment depends on the circumstances surrounding the overpayment. The degree of care
expected may vary with the complexity of those circumstances and the individual’s capacity to
realize that he or she is being overpaid.9
ANALYSIS -- ISSUE 2
OWCP applied the third standard in determining that appellant was at fault in creating the
overpayment. For it to establish that he was with fault in creating the overpayment of
compensation, OWCP must establish that, at the time appellant accepted the compensation direct
deposits in question, he knew or should have known the payments were incorrect.10
OWCP requires that recipients of compensation benefits take all reasonable measures to
ensure that payments from OWCP are proper. However, the Board has held that an employee
who receives payments from OWCP in the form of direct deposit may not be at fault for the first
incorrect deposit into his account, as the acceptance of that resulting overpayment lacks the
requisite knowledge.11 Because the regulations define fault by what the claimant knew or should
have known at the time of acceptance, one of the consequences of electronic fund transfers is
that in many cases, but not necessarily all, the claimant will not be at fault for accepting the first
incorrect payment because the requisite knowledge is lacking at the time of deposit. A finding of
no fault does not mean, of course, that the claimant gets to keep the money, only that OWCP
must consider whether the claimant is eligible for waiver. In cases involving a series of incorrect
payments, where the requisite knowledge is established by a letter or telephone call from OWCP
or simply with the passage of time and a greater opportunity for discovery, the claimant will be
at fault for accepting the payments subsequently deposited.12 Each case must be judged on its
merits. Whether or not OWCP determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.
The record establishes that appellant received compensation by direct deposit payments
every 28 days. The evidence of record does not establish that on the date of the first direct
deposit of compensation after his return to work, he knew or should have known that he was
accepting a direct deposit to which he was not entitled. Therefore appellant cannot be found at
fault for at least the first compensation payment after his return to work.

8

Supra note 6.

9

Id. at § 10.433(b).

10

See Claude T. Green, 42 ECAB 174 (1990).

11

Tammy Craven, 57 ECAB 689 (2006).

12

J.W., Docket No. 10-1271 (issued February 3, 2011).

4

On appeal, appellant’s attorney disputes the finding of fault. She concedes that an
overpayment occurred in this case; but asserts that appellant did in fact contact OWCP and return
the payments to OWCP. The record is unclear as to whether appellant repaid OWCP.
The Board finds that this case is not in posture for decision regarding the issues of fault
and waiver of the overpayment. On remand OWCP, shall verify whether any repayment was
received and thereafter issue an appropriate decision.13
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation for the period April 4 through June 4, 2011. The September 7, 2011 decision is
set aside and remanded to OWCP regarding the issues of fault and waiver of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the September 7, 2011 decision of the Office of
Workers’ Compensation Programs be affirmed in part and set aside and remanded in part.
Issued: August 16, 2012
Washington, DC

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

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

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

13

The evidence submitted by an employing establishment on the basis of their records will prevail over the
assertions from the claimant unless such assertions are supported by documentary evidence. See generally Sue A.
Sedgwick, 45 ECAB 211, 218 n.4 (1993); Federal (FECA) Procedure Manual, Part 2 -- Claims, Computation of
Compensation, Chapter 2.900(b)(3) (September 1990).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.B., Appellant
and
INDEPENDENT AGENCIES, U.S. EQUAL
EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, DC, Employer
__________________________________________

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

Docket No. 15-0993
Issued: November 16, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 30, 2015 appellant filed a timely appeal from a December 3, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a pulmonary condition
causally related to factors of her employment.

1

Appellant timely requested an oral argument before the Board. By order dated October 5, 2015, the Board
denied her request for oral argument as the arguments presented on appeal could be adequately addressed in a
decision based on a review of the case record.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. By decision dated October 4, 2012, and
pursuant to a request by the Director of OWCP, the Board remanded appellant’s occupational
disease claim for OWCP to further address the allegation regarding poor air quality in the
workplace.3 The facts of that decision are incorporated herein and the relevant facts are set forth
below.
On July 7, 2011 appellant, then a 57-year-old program analyst, filed an occupational
disease claim (Form CA-2) alleging that she sustained asthma attacks and chronic respiratory
problems due to exposure to naphthalene. She explained that a coworker was using mothballs in
her home and exposed her to the chemical at work. Appellant first became aware of her
condition on January 1, 2000 and realized it resulted from her employment on June 28, 2011.
She stopped work on August 10, 2011. The employing establishment reported that appellant had
been on leave on several occasions for various periods of time. It stated that she would be
transferred to the Charlotte, NC district office effective August 28, 2011.
Appellant reported that in 2000 she began to work at the Charlotte, NC district office of
the employing establishment and experienced headaches, wheezing, and problems breathing.
She attributed her symptoms to poor air quality in the building from constant construction and
renovations. Appellant stated that several air quality tests were conducted which were positive
for asbestos in her office. In 2011 she transferred to the Washington, DC district office but
continued to experience respiratory issues when she was in the presence of her acting supervisor,
Mary Burks.
Appellant was treated by Dr. Carl A. Smart, a Board-certified internist specializing in
pulmonary disease. In a July 29, 2011 report, Dr. Smart related that she had a history of sinus
disease, bronchospasm, and shortness of breath. He stated that appellant was exposed to
naphthalene and experienced increased shortness of breath and wheezing. Dr. Smart reported
that he was concerned about the environment to which she was constantly exposed.
In a September 15, 2011 report, Dr. Robert E. Harley, a Board-certified otolaryngologist,
listed various procedures that had been performed and diagnosed left sinonasal polyposis,
chronic pansinusitis, turbinate hypertrophy, asthma, perennial allergic rhinitis, and seasonal
allergic rhinitis.
By letter dated September 20, 2011, OWCP advised appellant that the evidence submitted
was insufficient to establish the alleged employment factors or that she had sustained a
diagnosed condition as a result of the alleged exposure to chemicals at work.
On October 4, 2011 appellant provided a statement explaining that in June 2011 she was
informed that her existing condition, which initially occurred in the Charlotte, NC district office,
was exacerbated because of mothball vapors. She claimed that these vapors resulted in her
surgery in April 2011 and ongoing sinus infections. Appellant stated that her disability was due
to poor air quality in the Charlotte, NC and Washington, DC, district offices. She reported that
3

Docket No. 12-1071 (issued October 4, 2012).

2

the medical evidence proved that she experienced a respiratory reaction and complications when
in the district office buildings. Appellant explained that her respiratory reactions were witnessed
by Ms. Burks, Kendra Duckworth, and numerous coworkers. She claimed that she experienced
headaches, sneezing, tightness in her chest, lethargy, and trouble speaking but these conditions
went away when she was away from the triggers. Appellant explained that the testing done by
the government was based upon a “normal” person and not a person with a compromised
immune system.
In a decision dated November 22, 2011, OWCP denied appellant’s occupational disease
claim, finding that the evidence was insufficient to establish that she was exposed to a coworker
who used mothballs or that exposure to vapors at work caused or contributed to her pulmonary
conditions.
Appellant filed an appeal before the Board. The Director of OWCP requested that the
case be remanded as OWCP had failed to address appellant’s alleged exposure to poor air quality
at work. The Board remanded the claim for OWCP to further develop the evidence as
appropriate and adjudicate her claim in its entirety.
By letter dated July 2, 2013, OWCP requested a detailed description from appellant of the
employment factors she believed contributed to her injury and a narrative medical report from a
physician explaining how she sustained a diagnosed condition as a result of the alleged
employment factors.
OWCP also requested additional information from the employing establishment
regarding the accuracy of appellant’s statements. It requested a description of the harmful
substances to which appellant could have been exposed, including the results of any air samples
if available, a description of the circulation and ventilation of her work area, and whether
precautions were taken to minimize effects of exposure.
On July 16, 2013 appellant stated that she was forced to return to the Charlotte, NC
district office in 2011 because the Washington, DC, district office could not accommodate her
disability. Appellant clarified that the exposure to mothballs only caused an exacerbation of her
condition from 2000 to 2012. She stated that she was now on retirement disability.
Appellant submitted a January 24, 2012 report by Dr. Smart. Dr. Smart noted that he had
treated her for approximately 12 years and that during that period of time she informed him that
she had endured adverse work environments in the Washington, DC and Charlotte, NC district
offices resulting in continuous treatment for respiratory asthma and lung diseases. He related
that appellant remained in the same poor work environment and was restricted to certain areas of
the building. Dr. Smart reported that when she returned to the Charlotte, NC district office in
September 2011 she was allowed to have an air machine in her office and work from home two
days per week. He noted that, since appellant returned to Charlotte, NC, he had treated her for a
number of respiratory infections. Dr. Smart recommended that her work environment be
changed in order to reduce her risk of recurrent pulmonary disease exacerbations.
In a decision dated August 12, 2013, OWCP denied appellant’s occupational disease
claim. It accepted that she was exposed to a coworker who used mothballs and to poor air

3

quality in the workplace and that she was diagnosed with various pulmonary conditions, but
denied her claim finding insufficient medical evidence to establish that her pulmonary conditions
were causally related to her employment.
By letter dated August 29, 2013, appellant requested an oral hearing regarding her claim.
She questioned why her file did not contain any documents or statements from the Charlotte, NC
district office regarding her office work environment. Appellant provided the names of various
witnesses who could testify about her problems with poor air quality in the Charlotte, NC and
Washington, DC district offices and her need for accommodation.
On March 3, 2014 a telephone hearing was held. Counsel at that time4 stated that he had
never received any information from OWCP regarding the quality of air in the Washington, DC
office even though appellant’s claim had been remanded to develop the issue of poor air quality.
Mr. Harris contended that this information was essential to appellant’s claim and that he could
not adequately move forward without such information. He also contended that the medical
evidence, specifically, Dr. Smart’s August 1, 2011 report addressed that exposure in appellant’s
work office led to her condition.
Appellant testified that she worked in the Charlotte, NC district office until 2000 before
she transferred to the Washington, DC, district office where she worked for over 10 years. She
explained that the Washington, DC office was an open floor plan divided with cubicles.
Appellant stated that it was not the whole building where she experienced these symptoms, but in
specific areas, including her area, the supervisor’s area, and the disability director’s area. She
related that she experienced asthma attacks, eyes burning, and headaches. Appellant stated that,
although she had an air machine to assist with the open floor plan, it did not help with her
symptoms. She received treatment from a variety of doctors from January to March 2011 and
underwent surgery in April 2011.
Appellant submitted various medical reports dated from 2008 to 2012. In a
November 20, 2008 report, Dr. Richard E. Collins, Board-certified in allergy and immunology,
stated that she had a history of chronic rhinitis symptoms and was allergic to dust and mold. He
related that she had increasing rhinitis symptoms accompanied by headaches, sinus congestion,
and recurrent sinus infections. Dr. Collins reported that appellant had mold and dust exposure at
work and related her feelings that her symptoms were perennial in nature and increasing in
intensity. He reviewed her history and provided examination findings. Dr. Collins also
conducted an allergy skin test and reported that appellant was allergic to dust mites and mold.
He diagnosed allergic rhinitis and chronic sinusitis.
In reports dated August 1 to May 31, 2011, Dr. Smart noted that appellant had suffered
from sinus and lung disease for many years. He opined that her lung disease had been
“exacerbated and worsened, if not caused, by her exposure, primarily at work.” Dr. Smart
explained that appellant initially worked in the Charlotte, NC district office and subsequently
moved to the Washington, DC district office. He noted that she had been exposed to naphthalene
which had led to recurrent sinus infections, bronchitis, and asthma exacerbation. Dr. Smart
4

The record reflects that on October 27, 2014 Mr. Harris withdrew as counsel for appellant.

4

recommended that appellant not be in an environment that risked any potential exposure that
could be an irritation to the lungs.
In reports dated from November 7, 2011 to October 16, 2013, Dr. Smart noted that
appellant had moved back to Charlotte, NC from Washington, DC because her health
accommodations were not being met. Appellant claimed that she was still being exposed to dust.
Dr. Smart continued to examine her for complaints of sinus infection, wheezing, and postnasal
drip. In a May 3, 2012 report, he noted that appellant was now out of work due to disability.
Dr. Smart reported that there was some improvement with her sinus symptoms but she still
experienced coughing and some shortness of breath. He opined that there was clearly an issue
with exposure to environmental exposures. In a September 13, 2012 report, Dr. Smart reported
that appellant still experienced increased shortness of breath, cough, and nasal drainage but that
she has improved over the past several months since being removed from her work environment.
In an April 9, 2013 progress note, he related her continued symptoms. Dr. Smart diagnosed
acute bronchospasm, sinusitis, shortness of breath, asthma, and cough. He noted that appellant’s
condition had been a long-standing issue and that her work environment had contributed to the
condition.
Appellant was also treated by Dr. Harley, who provided reports dated April 25, 2011 to
May 21, 2013. Dr. Harley related that she experienced chronic sinus problems for the past five
years. He reviewed appellant’s history and provided findings on examination. Dr. Harley
diagnosed acute sinusitis, left nasal polyposis, chronic pensinusitis, turbinate hypertrophy,
asthma, and perennial allergic rhinitis.
In progress notes dated January 28, 2011 to October 10, 2013, Dr. Latimer A. Taylor, an
internist, examined appellant for complaints of sore throat, loss of appetite, diffuse arthralgia,
and ear discomfort. He related that she believed her work environment was causing breathing
difficulties and stated that her work environment had not changed for the better. In a
December 9, 2012 report, Dr. Taylor reported that appellant’s condition had improved since
quitting her job in Washington, DC. Upon examination, he observed unlabored breathing and
wheeziness in the lungs. Dr. Taylor diagnosed asthma, rectal bleeding, and unspecified
menopausal and postmenopausal disorder.
On November 26, 2012 appellant underwent an x-ray examination, which found no
evidence of pulmonary disease and an April 4, 2011 computerized tomography (CT) report
which found severe pansinusitis, postoperative changes, and questionable rounded masa in the
apex of the left maxillary sinus.
In a July 7, 2013 urgent care record, Dr. Ajsa Nikolic, a Board-certified family
practitioner, examined appellant for complaints of dizziness, nausea, and vomiting. He reviewed
her history and conducted an examination. Dr. Nikolic observed that appellant’s chest and lungs
were within normal limits and found no wheezing, rhonchi, or auscultation. He reported that she
had likely benign positional vertigo, but dizziness from hypertension was possible. Dr. Nikolic
recommended that appellant follow up with her primary care physician that same week.

5

On December 12, 2013 appellant underwent pulmonary function testing which revealed
reduced forced expiratory volume/volume capacity, but normal volume capacity and total lung
capacity, therefore, indicating asthma or chronic bronchitis.
In a decision dated April 17, 2014, an OWCP hearing representative affirmed the denial
of appellant’s claim. She noted that the employing establishment had not responded to the
request for further information regarding appellant’s alleged exposures.
The hearing
representative, therefore, denied the claim on relationship, finding that the evidence was
insufficient to establish how the alleged exposures caused appellant’s sinus and lung conditions.
On October 15, 2014 OWCP received appellant’s reconsideration request. Appellant
alleged that it had failed to acknowledge that her claim had been remanded by the Board to
investigate claims of contaminants in the Washington, DC district office.
Appellant provided a February 16, 2014 Environmental Studies report of the Charlotte,
NC district office. The results demonstrated very low levels of asbestos and a very light
covering of settled dust. The report concluded that routine building maintenance and custodial
activities produced significantly elevated airborne asbestos exposures when surfaces were in
excess of 100,000.00 square centimeters.
Appellant submitted various documents from 2002 and 2003 regarding a grievance she
filed against her employing establishment for failing to accommodate her disability of asthma.
She also provided various letters and e-mails dated June to August 2011 regarding her request to
transfer back to the Charlotte, NC district office because they could better accommodate her
disability.
In an undated statement, appellant’s son related appellant’s problems with asthma and
difficulty breathing for over 10 years. He noted that despite her various requests and efforts to
obtain an office at work because of her sinus and lung conditions, the employing establishment
did not assist appellant. Appellant’s son stated that appellant also informed him of the negative
attitude that appellant’s supervisor had towards her due to her disability, which added stress to
appellant’s condition. He reported that she had sinus surgery in April 2011 and had to return to
the Charlotte, NC district office in August 2011. Appellant’s son requested a resolution of
appellant’s claim.
By decision dated December 3, 2014, OWCP denied modification of the April 17, 2014
decision, finding that specific details of exposure to allergens at work had not been documented
and the medical evidence of record had not established that the diagnosed conditions were
causally related to specific employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence5 including that he or she sustained an injury in the performance of duty and that any
5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

6

specific condition or disability for work for which she claims compensation is causally related to
that employment injury.6 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.9
ANALYSIS
This case was previously remanded by the Board, upon a motion from the Director of
OWCP, for remand to address appellant’s allegation of poor air quality which it had failed to do
in its earlier decision. Upon remand,10 on July 2, 2013 OWCP requested additional information
from the employing establishment and appellant regarding the air quality of the workplace,
including results of air studies, and a description of circulation and ventilation in appellant’s
work area, if available. Neither appellant nor the employing establishment responded to this
request.
Based upon appellant’s allegations, OWCP accepted that appellant was exposed to a
coworker who used mothballs and to general poor air quality in the workplace, and, that she was
diagnosed with various pulmonary conditions.11 The Board finds, however, that the medical
evidence of record is insufficient to establish that appellant’s pulmonary conditions were caused
or aggravated by factors of appellant’s federal employment.

6

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
7

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

8

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

10

See Donald L. Strain, Docket No. 94-2607 (issued January 14, 1997); Robert A. Redmond, 40 ECAB
800 (1989). See also K.H., Docket No. 14-968 (issued July 6, 2015).
11

In the absence of any response from the employing establishment, OWCP may accept appellant’s version of
events as established. See W.M., Docket No. 07-1223 (issued September 10, 2007). See also T.C., Docket
No 08-1497 (issued December 1, 2005). Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development
of Claims, Chapter 2.800.5(d)(1) (June 2011). In this case, appellant has not specified the implicated employment
factors with detail such as extent or duration. See generally Tracey P. Spillane, 54 ECAB 608 (2003).

7

Appellant submitted various reports by Dr. Smart dated July 29, 2011 to
October 16, 2013. Dr. Smart related that she had a history of sinus disease, bronchospasm, and
asthma. He reported that appellant was exposed to naphthalene at work. In a May 31, 2011
report, Dr. Smart opined that her lung disease had been “exacerbated and worsened, if not
caused, by her exposure, primarily at work.” In a January 24, 2012 report, he explained that
appellant worked in adverse environments in Charlotte, NC and Washington, DC, which resulted
in continuous treatment for respiratory, asthma, and lung disease. Dr. Smart recommended a
change in her work environment to reduce her risk of recurrent pulmonary disease exacerbations.
In an April 9, 2013 report, he provided findings on examination and diagnosed acute
bronchospasm, sinusitis, shortness of breath, asthma, and cough. Dr. Smart found that
appellant’s condition had been a long-standing issue and that her “work environment had
contributed to the significant degree to such.”
Although he provided an opinion on causal relationship, the Board finds that Dr. Smart’s
conclusion is unsupported by medical rationale demonstrating how appellant’s work
environment caused or exacerbated her pulmonary condition.12 Dr. Smart fails to explain how
any specific exposure to naphthalene at appellant’s workplace or any other exposure to poor air
quality contributed to her recurrent pulmonary conditions. A physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
claimant’s specific employment factors.13 Dr. Smart did not relate specific exposures at
appellant’s employment or explain how they caused her condition. The Board has found that a
medical report is of limited probative value on the issue of causal relationship if it contains a
conclusion regarding causal relationship which is unsupported by medical rationale.14 For these
reasons, Dr. Smart’s opinion is insufficient to establish appellant’s claim.
Appellant was also treated by Dr. Harley from April 25, 2011 to May 21, 2013.
Dr. Harley noted that she experienced chronic sinus problems for the past five years and
conducted an examination. He diagnosed left sinonasal polyposis, chronic pansinusitis, turbinate
hypertrophy, asthma, perennial allergic rhinitis, and seasonal allergic rhinitis. Dr. Harley does
not, however, provide any opinion on the cause of appellant’s various pulmonary conditions.
The Board has held that medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of limited probative value on the issue of causal relationship.15
Likewise, Dr. Nikolic’s July 7, 2013 hospital record is also of limited value on the issue of causal
relationship as he does not provide any opinion on the cause of appellant’s symptoms.
In progress notes dated January 28 to October 10, 2011, Dr. Latimer examined appellant
for complaints of sore throat, loss of appetite, diffuse arthralgia, and ear discomfort. He related
that she believed her work environment was causing breathing difficulties and pointed out that
12

D.R., Docket No. 12-478 (issued July 23, 2012).

13

See Victor J. Woodhams, supra note 9; see also S.D., 58 ECAB 713 (2007).

14

T.M., Docket No. 08-975 (February 6, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

15

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).

8

her condition improved since leaving her job in Washington, DC. Dr. Taylor diagnosed asthma,
rectal bleeding, and unspecified menopausal and postmenopausal disorder. The Board notes that
he does not opine on the cause of appellant’s conditions but merely communicated her belief that
her work environment caused her pulmonary conditions.16 Dr. Taylor’s reports, therefore, are
insufficient to establish appellant’s claim.
The additional medical evidence including the November 26, 2012 x-ray examination,
December 12, 2013 pulmonary function testing, and the July 7, 2013 hospital record are likewise
insufficient as there is no opinion on whether appellant’s employment caused or contributed to
her pulmonary conditions.
The Board finds that there is insufficient medical evidence to establish that appellant
sustained a pulmonary condition causally related to her work environment. Accordingly,
appellant did not meet her burden of proof to establish her claim.
On appeal, appellant alleges that OWCP refused to consider the evidence she provided
and had a bias against the evidence she submitted. She specifically stated that it overlooked the
contradictions of the agency and failed to provide any evidence to show that they provided
appellant with a safe work environment. The Board notes that appellant has the burden of proof
to establish that her pulmonary conditions were causally related to exposures at work. Although
appellant submitted medical evidence, none of the reports on the record were sufficiently
rationalized to establish that any specific exposure to a coworker who used mothballs and any
specific lack of air quality at work caused or contributed to her pulmonary conditions.
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 her burden of proof to establish that she
sustained a pulmonary condition causally related to factors of her federal employment.

16

See P.K., Docket No. 08-2551 (issued June 2, 2009) (an award of compensation may not be based on a
claimant’s belief of causal relationship).

9

ORDER
IT IS HEREBY ORDERED THAT the December 3, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 16, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

10


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

)
)
)
)
)
)
)
)

Appearances:
William Bothwell, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1092
Issued: October 22, 2018

Case Submitted on the Record

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

JURISDICTION
On April 18, 2017 appellant, through her representative, filed a timely appeal from a
February 21, 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.3

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.

Following OWCP’s issuance of its February 21, 2017 decision, appellant submitted additional evidence. The
Board’s jurisdiction is limited to the evidence which was before OWCP at the time it issued its decision. Therefore,
the Board is precluded from reviewing this additional evidence for the first time on appeal. See 20 C.F.R.
§ 501.2(c)(1).
3

ISSUE
The issue is whether appellant met her burden of proof to establish that she has more than
32 percent permanent impairment of her right lower extremity and more than 31 percent permanent
impairment of her left lower extremity, for which she previously received schedule award
compensation.
FACTUAL HISTORY
On December 20, 2006 appellant, then a 48-year-old city letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that she sustained a right knee injury earlier that same day while
descending the front steps of a house while in the performance of duty. OWCP initially accepted
her claim for right knee sprain. It later expanded the acceptance of the claim to include right knee
lateral meniscus tear, right thigh/pelvic region localized primary osteoarthritis, and aggravation of
left pelvis/thigh osteoarthritis. OWCP authorized two right knee arthroscopic procedures
performed on January 8, 2008 and January 20, 2009, a July 14, 2009 right total hip arthroplasty,
and a March 14, 2011 left total hip arthroplasty. Appellant received wage-loss compensation for
periods of temporary total disability. Effective May 9, 2013 she retired from federal service due
to disability.
By letter dated February 6, 2015, appellant filed a claim for a schedule award (Form CA-7).
In support of her claim, appellant submitted an October 20, 2013 report from
Dr. Sanford R. Wert, a Board-certified orthopedic surgeon, who noted that she injured her right
knee when descending stairs on December 20, 2016 while delivering mail. Dr. Wert estimated
that appellant had reached maximum medical improvement (MMI) as of July 18, 2012. Utilizing
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides),4 he found 12 percent permanent impairment of the right lower
extremity based on a diagnosis of right knee partial medial and lateral meniscectomies (class 1,
grade E).5 Regarding her bilateral hip condition, Dr. Wert opined that appellant had 67 percent
permanent impairment of the right and left lower extremities based on the poor results of her
bilateral total hip arthroplasties (class 4, grade C).6 As such, he found 67 percent left lower
extremity permanent impairment, and the combined value of the right lower extremity permanent
impairment (67 percent + 12 percent) was 71 percent.
OWCP referred the case to its district medical adviser (DMA). In a February 7, 2016
report, the DMA recommended that appellant be referred for a second opinion evaluation.
In a May 9, 2016 report, Dr. Arnold Goldman, a Board-certified orthopedic surgeon and
OWCP referral physician, reviewed appellant’s medical history, a February 2, 2016 statement of
accepted facts (SOAF), and conducted a physical examination. He found that all of her
4

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

5

Table 16-3, Knee Regional Grid, A.M.A., Guides 509 (6th ed. 2009).

6

Table 16-4, Hip Regional Grid, A.M.A., Guides 515 (6th ed. 2009).

2

arthroscopic portals were clean and dry regarding the right knee. Appellant had well-healed
incisions in terms of both hips and was not using any assistive device. She had a bilateral antalgic
gait on both lower extremities and had difficulty standing on her toes and backwards on her heels.
Appellant’s right knee range of motion (ROM) was limited from 5 to 110 degrees and the left knee
was 5 to 115 degrees. She had a bilateral positive straight leg raise at approximately 50 to 60
degrees in a seated position. Both legs demonstrated a decreased external rotation to 45 degrees.
Appellant had difficulty putting each leg into a figure-four position, could not do a full squat, and
had a positive Faber sign regarding both hips. Applying the sixth edition of the A.M.A., Guides,
Dr. Goldman rated appellant based on the “good result” of her left and right total hip arthroplasties
(class 2 diagnosis -- class of diagnosis (CDX)), which represented a default (grade C) lower
extremity impairment of 25 percent under Table 16-4, A.M.A., Guides at 515. He assigned a grade
modifier of 1 for functional history (GMFH) due to antalgic limp with orthotics, a grade modifier
of 1 for physical examination (GMPE) due to a “mild problem,” and found that a grade modifier
for clinical studies (GMCS) was not applicable because radiographic studies were performed prior
to the hip replacement surgeries. Using the net adjustment formula (GMFH 1- CDX 2) + (GMPE
1 - CDX 2), Dr. Goldman calculated a net adjustment of -2, which he equated to a grade A lower
extremity permanent impairment of 21 percent, bilaterally.
Regarding the right knee, Dr. Goldman found that appellant had a class 1 diagnosis of
“Meniscal Injury: Partial Meniscectomy.” He assigned a grade modifier of 1 for functional history
and physical examination and zero for clinical studies. Using the net adjustment formula (GMFH
1 - CDX 1) + (GMPE 1 - CDX 1) + (GMCS 0 - CDX 1), Dr. Goldman calculated a net adjustment
of -1, which he equated to a grade B and determined that appellant had two percent permanent
impairment of the right knee under Table 16-3, A.M.A., Guides at 509.
On July 12, 2016 Dr. Michael M. Katz, a Board-certified orthopedic surgeon and OWCP
medical adviser, reviewed the medical evidence and found that Dr. Goldman did not document the
arc of motion of either hip. He opined that Dr. Robert I. Meyerson, a Board-certified orthopedic
surgeon and appellant’s attending physician, had measured motion which demonstrated 90 degrees
of flexion, 10 degrees of internal rotation, and 20 degrees of external rotation, which was consistent
with heterotopic ossification. Dr. Katz explained that, under Table 16-24, Hip Motion
Impairments, A.M.A., Guides at 549, appellant’s condition would be classified as a mild motion
deficit, which represented a class 3 impairment (fair result) under Table 16-4, A.M.A., Guides at
515, with a default (grade C) lower extremity rating of 37 percent permanent impairment,
bilaterally. Accepting Dr. Goldman’s net adjustment calculation of -2, Dr. Katz adjusted
appellant’s hip-related bilateral lower extremity impairment from 37 percent (grade C) to 31
percent (grade A). Additionally, Dr. Katz concurred with Dr. Goldman’s finding of two percent
right lower extremity permanent impairment based on the diagnosis of “partial medial
meniscectomy” under Table 16-3, A.M.A., Guides at 509. Thus, appellant’s combined right lower
extremity permanent impairment was 32 percent. Dr. Katz determined that appellant had reached
MMI on May 9, 2016, the date of Dr. Goldman’s second opinion examination.
In a supplemental report dated July 28, 2016, Dr. Goldman indicated that he concurred
with Dr. Katz’ recalculated impairment ratings.
On August 3, 2016 Dr. Katz explained that he and Dr. Goldman’s final net adjustment
calculations both equaled -2 and, therefore, their final impairment ratings were in agreement.

3

In an August 22, 2016 report, Dr. Katz found no substantive error in the recalculation of
his impairment rating.
By decision dated September 14, 2016, OWCP granted appellant a schedule award for 32
percent permanent impairment of her right lower extremity and 31 percent permanent impairment
of her left lower extremity. The award ran for 181.44 weeks for the period May 9, 2016 to
October 31, 2018.
On October 5, 2016 appellant requested an oral hearing before a representative of the
Branch of Hearings and Review. A hearing was held on December 22, 2016. Appellant provided
testimony and the hearing representative held the case record open for 30 days for the submission
of additional evidence.
In a January 22, 2017 letter, appellant’s representative argued that appellant was entitled
to 28 percent increase in her permanent impairment rating for her right and left hips, and 8 percent
increase in her permanent impairment rating for her right knee.
By decision dated February 21, 2017, OWCP’s hearing representative affirmed the prior
schedule award decision.
LEGAL PRECEDENT
The schedule award provisions of FECA7 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a mater which rests in the sound discretion of OWCP.
For consistent results and to ensure equal justice, the Board has authorized the use of a single set
of tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides
has been adopted by OWCP as a standard for evaluation of schedule losses and the Board has
concurred in such adoption.8 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides, published in 2009.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).10 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on GMFH, GMPE

7

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

8

See Bernard A. Babcock, Jr., 52 ECAB 143 (2000). See also 5 U.S.C. § 8107.

9
See D.T., Docket No. 12-503 (issued August 21, 2012); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.6.6a (March 2017); see also Part 3 -- Medical,
Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
10
A.M.A., Guides (6th ed., 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.

4

and GMCS.11 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
Evaluators are directed to provide reasons for their impairment rating choices, including the
choices of diagnoses from regional grids and calculations of modifier scores.12
ANALYSIS
Appellant’s accepted conditions include right knee sprain, right knee lateral meniscus tear,
right thigh/pelvic region localized primary osteoarthritis, and aggravation of left pelvis/thigh
osteoarthritis. She has undergone two right knee arthroscopic procedures and bilateral total hip
arthroplasty, all of which OWCP approved. By decision dated September 14, 2016, OWCP
granted appellant a schedule award for 32 percent permanent impairment of the right lower
extremity and 31 percent permanent impairment of the left lower extremity. A representative of
the Branch of Hearings and Review subsequently affirmed that decision on February 21, 2017.
Appellant’s representative argues that the bilateral hip range of motion measurements demonstrate
a moderate-to-severe motion deficit, thereby representing a class 4 diagnosis (poor result) under
Table 16-4, A.M.A., Guides at 515. He also challenges the right knee impairment rating, arguing
that appellant had tears to both the medial and lateral meniscus, rather than just the lateral
meniscus. It is appellant’s burden to submit sufficient medical evidence to establish the extent of
permanent impairment.13
With respect to appellant’s right knee permanent impairment due to her accepted lateral
meniscus tear, both the January 8, 2008 and January 20, 2009 arthroscopic procedures involved a
partial lateral meniscectomy. In his October 20, 2013 report, Dr. Wert found 12 percent right
lower extremity permanent impairment based on a diagnosis of right knee partial “medial and
lateral meniscectomy.” As appellant’s two OWCP-approved right knee arthroscopic surgeries did
not involve the medial meniscus, both Dr. Goldman and the Dr. Katz, OWCP’s medical adviser,
properly rated her for a “partial medial or lateral meniscectomy.”14 Appellant’s representative
failed to provide any competent medical evidence in support of his argument that she should have
received a higher rating based on a diagnosis of partial “medial and lateral” meniscectomy.
Regarding appellant’s accepted bilateral hip condition and OWCP-approved total
arthroplasties, Dr. Wert found 67 percent bilateral lower extremity permanent impairment based
on a “poor result” (class 4) following surgery. Upon review Dr. Katz noted that appellant’s hip
ROM measurements represented only a mild motion deficit or a class 3 impairment (fair result)
under Table 16-4, A.M.A., Guides at 515. Dr. Katz also advised that Dr. Wert’s net adjustment
calculation was in error. Therefore, he recommended that OWCP refer appellant for a second
opinion evaluation.
The Board has held that when the attending physician fails to provide an estimate of
impairment conforming to the A.M.A., Guides or does not discuss how he arrives at the degree of
11

Id. at 494-531.

12

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

13

See Annette M. Dent, 44 ECAB 403 (1993).

14

Table 16-3, A.M.A., Guides 509 (6th ed. 2009).

5

impairment based on physical findings, his opinion is of diminished probative value in establishing
the degree of impairment and OWCP may rely on the opinion of its medical adviser to apply the
A.M.A., Guides to the findings reported by the attending physician.15 Thus, Dr. Wert’s report is
of diminished probative value regarding appellant’s permanent impairment under the sixth edition
of the A.M.A., Guides.16
Dr. Goldman, the second opinion examiner, initially found only 21 percent bilateral lower
extremity permanent impairment under Table 16-4, A.M.A., Guides at 515. The rating was based
on appellant having achieved a “good result” following surgery. However, Dr. Katz, OWCP’s
medical adviser, disagreed noting again that appellant’s bilateral hip ROM measurements
represented a mild motion deficit, which was consistent with a class 3 diagnosis (fair result) under
Table 16-4. He explained that the default (grade C) rating was 37 percent lower extremity
permanent impairment, and after applying the net adjustment formula (-2), he found 31 percent
(grade A) bilateral lower extremity permanent impairment. Upon further reflection, Dr. Goldman
ultimately agreed that appellant’s bilateral hip ROM deficit represented a class 3 diagnosis (fair
result) under Table 16-4.
As noted, appellant’s representative argues that the bilateral hip ROM measurements
represent a moderate-to-severe motion deficit (class 4 -- poor result), rather than a mild motion
deficit as determined by Dr. Goldman and Dr. Katz. However, appellant’s representative has not
submitted any competent medical evidence demonstrating that she has a greater hip-related
permanent impairment than previously awarded.
The Board finds that Dr. Katz applied the appropriate tables and grading schemes of the
sixth edition of the A.M.A., Guides to clinical findings provided by appellant’s physicians and
Dr. Goldman. Dr. Katz’ calculations were mathematically accurate. There is no medical evidence
of record utilizing the appropriate tables of the sixth edition of the A.M.A., Guides demonstrating
a greater percentage of permanent impairment. The Dr. Katz explained that he had recalculated
appellant’s impairment ratings for each hip because Dr. Goldman’s assessment failed to document
the arc of motion of either hip. In a supplemental report dated July 28, 2016, Dr. Goldman
indicated that he concurred with Dr. Katz’ recalculated impairment ratings. Therefore, OWCP
properly relied on its medical advisers, Dr. Katz’ assessment of 32 percent permanent impairment
of the right lower extremity, and 31 percent permanent impairment of the left lower extremity, in
granting appellant a schedule award.
There is no probative medical evidence of record, in conformance with the sixth edition of
the A.M.A., Guides, establishing that appellant has more than 32 percent permanent impairment
of the right lower extremity and 31 percent permanent impairment of the left lower extremity.
Accordingly, appellant has not established that she is entitled to a schedule award greater than that
previously received.

15

See John L. McClanic, 48 ECAB 552 (1997); L.M., Docket No. 12-868 (issued September 4, 2012).

16
See Richard A. Neidert, 57 ECAB 474 (2006) (an attending physician’s report is of little probative value where
the A.M.A., Guides are not properly followed).

6

Appellant may request a schedule award or increased schedule award, at any time, based
on evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained more than 32 percent permanent impairment of her right lower extremity and more than
31 percent permanent impairment of her left lower extremity, for which she previously received
schedule award compensation.
ORDER
IT IS HEREBY ORDERED THAT the February 21, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 22, 2018
Washington, DC

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

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

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

7