United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY & INSPECTION SERVICE,
Athens, GA, Employer
__________________________________________

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

Docket No. 18-0679
Issued: November 7, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 9, 2018 appellant, through counsel, filed a timely appeal from a January 8,
2018 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 to consider 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.

3
The Board notes that following the January 8, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of her left lower extremity, warranting a schedule award.
FACTUAL HISTORY
On May 16, 2011 appellant, then a 61-year-old laboratory support worker, sustained a left
knee injury on May 13, 2011 when walking down the second floor stairway to the first floor
while in the performance of duty. OWCP accepted her claim for tear of the lateral meniscus of
the left knee. Appellant stopped work on May 17, 2011.
Appellant was treated by Dr. Charles Ogburn, a Board-certified internist, from May 26,
2011 to February 13, 2012, for a cervical spine and left knee injury sustained after her May 13,
2011 fall. Dr. Ogburn noted that x-rays of appellant’s left knee revealed age-related
degenerative changes. He diagnosed left knee pain, suspected meniscus tear, and cervical
radiculopathy. Dr. Ogburn performed a series of left knee injections. He recommended physical
therapy and discharged appellant to return to work full duty on September 23, 2011.
A magnetic resonance imaging (MRI) scan of the left knee dated June 10, 2011 revealed
mucoid intrasubstance degeneration of the anterior cruciate ligament, possibly grade 1 sprain,
small closed horizontal tear of the body of the lateral meniscus, increased T2 signal involving the
free edge of the body of the lateral meniscus possibly representing small remote radial tear
versus free edge fraying, lateral patella tilt, lateral overriding patella, and extensive irregular
thinning of the articular cartilage of the patella.
Appellant treated with Dr. William C. Tally, a Board-certified orthopedist, from June 21
to August 19, 2011, for left shoulder and neck pain.
On July 20, 2016 appellant filed a claim for a schedule award (Form CA-7).
In an August 17, 2016 letter, OWCP requested that Dr. Tally submit a detailed report
which provided a rating of impairment pursuant to the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4
Dr. Tally did not respond.
By decision dated September 28, 2016, OWCP denied appellant’s claim for a
schedule award, finding that the evidence of record was insufficient to establish permanent
impairment of a scheduled member or function of the body due to her accepted May 13,
2011 employment injury.
On October 6, 2016 appellant, through counsel, requested a telephonic hearing
before an OWCP hearing representative. The hearing was held on May 1, 2017.
In support of her schedule award claim, appellant submitted an October 3, 2016
report from Dr. Brad Register, a Board-certified orthopedist, who treated her in 2012 for
4

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

2

left knee and left shoulder pain. Dr. Register diagnosed left knee pain with a history of
questionable lateral meniscus tear. He indicated that appellant had intermittent pain in the
left knee, but that she had reached maximum medical improvement (MMI) and had not
required further treatment for the left knee. Dr. Register referred her for an impairment
rating.
In an October 6, 2016 report, a physical therapist opined that, pursuant to the
A.M.A., Guides, Table 16-3, Knee Regional Grid, appellant sustained two percent
permanent impairment of her left lower extremity.
By decision dated June 9, 2017, the hearing representative affirmed the
September 28, 2016 decision.
On August 14, 2017 appellant, through counsel, requested reconsideration submitting
an October 28, 2016 impairment rating report from Dr. Register which was based on the
findings of a physical therapist. The primary diagnosis was left knee pain. Dr. Register
opined that, pursuant to the A.M.A., Guides, appellant had two percent permanent
impairment of the whole person.
In an August 16, 2017 letter, OWCP requested that appellant provide an impairment
rating conducted pursuant to the protocols of the A.M.A., Guides. It specifically requested
that she arrange for the submission of a detailed narrative medical report from her treating
physician based upon a recent examination in accordance with the A.M.A., Guides. OWCP
indicated that although appellant had submitted an impairment rating by Dr. Register, a whole
person rating of impairment was inappropriate under FECA.
Appellant submitted an updated impairment rating from Dr. Register dated
August 30, 2017. The primary diagnosis was left knee pain and he noted that, pursuant to the
A.M.A., Guides, Knee Regional Grid, for soft tissue injury/pain of the left knee, appellant’s
diagnosis was a class 1, mild problem, with consistent motion deficits. Grade modifier for
functional history (GMFH) was 2 for moderate deficit pursuant to the lower limb instrument
(LEFS 20/80), the grade modifier for physical examination (GMPE) was 1 for mild range of
motion deficits (98 flexion, -6 extension), and the grade modifier for clinical studies
(GMCS) was zero due to no available clinical studies or relevant findings. Using the net
adjustment formula, Dr. Register concluded that appellant was a grade C or two percent
whole person impairment, which he converted to six percent permanent impairment of the
left lower extremity.
OWCP thereafter routed Dr. Register’s permanent impairment rating to a district medical
adviser (DMA). In a report dated September 27, 2017, the DMA noted review of Dr. Register’s
August 30, 2017 report, which demonstrated limited motion of 6 to 98 degrees for 6 percent left
lower extremity impairment based on the diagnosis-based impairment (DBI) method. He
indicated that Dr. Register had not provided the necessary documentation of appellant’s residual
subjective complaints, diagnostic studies, treatment, or diagnosis. The DMA also noted that
there was insufficient information contained in the case record to make a determination of
permanent impairment based on the A.M.A., Guides. He recommended that appellant be
referred for a second opinion examination to establish a permanent impairment rating.
On October 31, 2017 OWCP referred appellant for a second opinion to Dr. Howard B.
Krone, a Board-certified orthopedist, for a determination of whether appellant had permanent
3

impairment attributable to her accepted condition. In a report dated December 5, 2017,
Dr. Krone noted a history of appellant’s work-related condition and subsequent treatment. He
noted examination findings and noted that she was ambulating without a cane. Dr. Krone found
that examination of appellant’s left knee was normal and that she had reached MMI in 2011. He
further noted that the diagnosis was initially a lateral meniscal tear of the left knee, but that there
were no MRI scan findings included for review and his examination did not demonstrate
evidence of a lateral meniscal tear. Dr. Krone noted the diagnosis of left knee pain was
secondary to the initial contusion of the anterior aspect of her left knee and had generally
resolved within six to eight weeks post injury. He indicated that based upon the A.M.A., Guides
appellant had zero percent permanent impairment of the left lower extremity due to lack of
physical findings.
On December 18, 2017 OWCP requested clarification from Dr. Krone regarding his
opinion. It noted that Dr. Krone had not assigned an impairment rating based on the DBI
method because he had not observed evidence of a lateral meniscus tear. OWCP requested
that he review additional medical evidence it had provided, including a left knee MRI scan
dated June 10, 2011 and a medical report from Dr. Ogburn dated June 14, 2011, and provide a
supplemental impairment rating of permanent impairment, if any. It further requested that
Dr. Krone address whether appellant had permanent impairment based on the range of motion
methodology of the A.M.A., Guides, and provide the date of MMI.
In a supplemental report dated December 18, 2017, Dr. Krone noted that Dr. Ogburn’s
June 14, 2011 office note described MRI scan findings, but made no mention of a complete
tear of the lateral meniscus. He further indicated that OWCP had not sent him a left knee
MRI scan report as dictated by a radiologist. Dr. Krone found that appellant’s physical
examination had not demonstrated lateral joint line pain and opined that, if there was a lateral
meniscus tear, he would have observed lateral joint line pain and a positive McMurray test,
which he had not. He therefore again opined that appellant had zero percent permanent
impairment of the left lower extremity. Dr. Krone advised that during his examination on
December 5, 2017 appellant’s range of motion was normal and thus there would be no
permanent impairment based on loss of range of motion. He noted that appellant reached
MMI on July 12, 2011.
By decision dated January 8, 2018, OWCP denied modification of the June 9, 2017
decision.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing federal regulations,6 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

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

4

the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions issued
beginning May 1, 2009, the sixth edition of the A.M.A., Guides will be used.8
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).9 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class of diagnosis condition (CDX), which is then adjusted by grade
modifiers of GMFH, GMPE, and GMCS.10 The net adjustment formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).11 The grade modifiers are used on the net adjustment
formula described above to calculate a net adjustment. The final impairment grade is determined
by adjusting the grade up or down the default value C, by the calculated net adjustment.12
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment
in accordance with the A.M.A., Guides with the DMA providing rationale for the percentage of
impairment specified.13
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP referred appellant to Dr. Krone for a second opinion examination to determine her
permanent impairment for schedule award purposes. In a report dated December 5, 2017,
Dr. Krone provided findings on physical examination and noted that the diagnosis was initially a
lateral meniscal tear of the left knee, but that no MRI scan findings were included for review and
that the examination was normal and had not demonstrated evidence of a lateral meniscal tear.
He noted the diagnosis of left knee pain secondary to the initial contusion to the anterior aspect
of her left knee, which would have resolved within six to eight weeks post injury. Dr. Krone
concluded that appellant had reached MMI in 2011 and, in accordance with the A.M.A., Guides,
she had zero percent permanent impairment of the left lower extremity.
On December 18, 2017 OWCP requested that Dr. Krone provide clarification of his
opinion. In his supplemental report dated December 18, 2017, Dr. Krone noted receiving a
7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
9

A.M.A., Guides, 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement.
10

Id. at 494-531.

11

Id. at 521.

12

A.M.A., Guides 497.

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).

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fax from OWCP on December 19, 2017, which included an office note from Dr. Ogburn dated
June 14, 2011. He noted that he had not been provided a left lower extremity MRI scan report
and that Dr. Ogburn’s June 14, 2011 office note described MRI scan findings, but made no
mention of a complete tear of the lateral meniscus. Dr. Krone also noted that his physical
examination had not demonstrated lateral joint line pain, findings of lateral joint line pain, nor
a positive McMurray test. He therefore continued to opine that appellant had zero percent
impairment of the left lower extremity pursuant to the A.M.A., Guides.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter.
While the claimant has the responsibility to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. It has the obligation to see that
justice is done.15 Once OWCP undertakes development of the record it must procure medical
evidence that will resolve the relevant issues in the case.16 It began to develop the evidence
when it referred appellant to Dr. Krone for a second opinion examination to determine whether
appellant sustained permanent impairment. Dr. Krone questioned whether appellant had
evidence of a left lateral meniscus tear as her physical examination was negative. He clearly
indicated that he had not received a copy of the June 10, 2011 MRI scan report of the left knee
upon which the accepted conditions of the claim had been based. The Board finds that the MRI
scan report was necessary for full consideration of whether appellant sustained permanent
impairment of her left lower extremity.17
14

Therefore, the Board finds that the case must be remanded to OWCP. On remand OWCP
should prepare an updated statement of accepted facts and obtain a copy of the MRI scan of the
left knee dated June 10, 2011. The case shall then be forwarded to Dr. Krone for a supplemental
opinion, or to a new second opinion physician, to address whether appellant has permanent
impairment of her left lower extremity in accordance with the sixth edition of the A.M.A.,
Guides. Following this and such further development deemed necessary, OWCP shall issue a de
novo decision on appellant’s schedule award claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

14

See X.V., Docket No. 18-1360 (issued April 12, 2019); Jimmy A. Hammons, 51 ECAB 219 (1999); Vanessa
Young, 55 ECAB 575 (2004).
15

See B.C., Docket No. 19-0920 (issued September 25, 2019); Richard E. Simpson, 55 ECAB 490 (2004).

16

Supra note 14; Phillip L. Barnes, 55 ECAB 426 (2004).

17

See P.E., Docket No. 17-0961 (issued March 14, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the January 8, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: November 7, 2019
Washington, DC

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

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

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

7


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

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

Docket No. 16-0981
Issued: August 29, 2016

Case Submitted on the Record

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

JURISDICTION
On April 8, 2016 appellant, through counsel, filed a timely appeal from a
February 10, 2016 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 the case.
ISSUE
The issue is whether appellant established that she sustained permanent impairment due
to her accepted sprain of the right shoulder and upper arm.
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.

FACTUAL HISTORY
This case has previously been before the Board. In a May 27, 2015 decision, the Board
set aside in part and affirmed in part OWCP’s overpayment decision dated September 2, 2014
and affirmed an October 30, 2014 OWCP decision denying a prerecoupment hearing.3 The
Board found that appellant received an overpayment of compensation from April 3
to May 4, 2013 when she received wage-loss compensation after she returned to work. The
Board further found that she was without fault for that portion of the overpayment covering
April 3 to 6, 2013, but that she was at fault in creating that portion of the overpayment occurring
from April 7 to May 4, 2013. The Board remanded the matter for consideration of waiver of the
recovery of the overpayment from April 3 to 6, 2013. The facts and circumstances set forth in
the Board’s prior decision are incorporated herein by reference. The facts relevant to this appeal
are set forth below.
Relevant facts include that on December 5, 2011 appellant, then a 35-year-old letter
carrier, injured her right arm while delivering a package on her mail route. OWCP accepted her
claim for right shoulder and upper arm sprain. Appellant stopped work on December 5, 2011
and received appropriate wage-loss compensation.
Appellant came under the treatment of Dr. Molly D’Costa, an osteopath, on December 5,
2011 until April 30, 2012 for right shoulder pain and biceps tendinitis. She reported delivering a
70-pound parcel and while removing the package from her vehicle she felt a pull in her right
shoulder and experienced radiating pain down to her right wrist. Dr. D’Costa diagnosed right
shoulder sprain and strain and returned appellant to work with a lifting restriction. A magnetic
resonance imaging (MRI) scan of right shoulder dated December 29, 2011 revealed rotator cuff
tendinopathy without full-thickness tear or tendon retraction. A January 9, 2012 MRI scan of the
right shoulder revealed rotator cuff tendinopathy without full-thickness tear or tendon retraction.
Thereafter, in the course of developing the claim, OWCP referred appellant to a second
opinion physician and also to an impartial medical examiner. It sought to determine whether
appellant’s accepted conditions had resolved and whether she could return to work regular duty
or with restrictions.
On October 6, 2014 OWCP issued a notice of proposed termination of compensation and
medical benefits as the impartial medical examiner’s report dated July 7, 2014 established no
residuals of the work-related employment conditions.4
On October 6, 2014 appellant filed a claim for a schedule award (Form CA-7). By letter
dated October 17, 2014, OWCP informed appellant that she should provide a physician’s
assessment, based on loss of function of the upper extremities, in accordance with the sixth
3

Docket No.15-0265 (issued May 27, 2015).

4

OWCP based its proposed termination on the report of Dr. Michael J. Cohen, a Board-certified orthopedic
surgeon acting as an impartial medical examiner. In a July 7, 2014 report, Dr. Cohen noted findings and opined that
appellant had fully recovered from her accepted right shoulder sprain and needed no further treatment. He advised
that her objective findings did not correlate to her subjective symptoms.

2

edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment, (A.M.A., Guides).5 She was provided 30 days to respond.
By decision dated October 27, 2014, OWCP terminated appellant’s wage-loss
compensation and medicine benefits effective the same date, finding that the weight of the
medical evidence established that appellant had no residuals or continuing disability resulting
from her accepted employment injury.
Appellant submitted a report from Dr. Ryan Pizinger, a Board-certified orthopedist, dated
October 20, 2014, who treated her for a right shoulder lifting injury sustained at work on
November 30, 2011. A right shoulder x-ray revealed no acute fractures, type 2 acromion, and
mild acromioclavicular arthropathy. A cervical spine x-ray showed mild-to-moderate disc
degeneration from C5-6 and C6-7, osteophyte formation, and facet hypertrophy. Dr. Pizinger
recommended a magnetic resonance arthrogram and an MRI scan of the cervical spine. On
December 8, 2014 he noted that appellant was unable to return to work.
By decision dated May 1, 2015, OWCP denied appellant’s claim for a schedule award. It
noted that she did not respond to its October 17, 2014 development letter and that her FECA
benefits had been terminated on October 27, 2014.
On May 6, 2015 appellant requested a telephone hearing which was held before an
OWCP hearing representative on December 16, 2015. She submitted a report from Dr. Pizinger
dated April 28, 2015, who noted that appellant was under his care and was unable to return to
work. Dr. Pizinger noted restrictions of no lifting, pulling, pushing, carrying over zero pounds
and no sudden head or neck movements.
On November 17, 2015 appellant, through counsel, submitted an impairment rating from
Dr. Neil Allen, a Board-certified neurologist and internist, dated October 23, 2015. Counsel
requested that Dr. Allen’s impairment rating be forwarded to an OWCP medical adviser.
In a report dated October 23, 2015, Dr. Allen noted a history of injury and medical
treatment and listed her complaints of right shoulder pain and low back pain. Right shoulder
findings included antalgic posture, global tenderness, intact light touch and sharp/dull
discrimination, intact brachial and radial pulses, and 4/5 external muscle strength in the rotators
and biceps. Dr. Allen noted that range of motion on the right was 140 degrees for flexion, 50
degrees for extension, 100 degrees for abduction, 60 degrees for adduction, 40 degrees for
internal rotation and 65 degrees for external rotation. He diagnosed complete right rotator cuff
rupture and right shoulder and upper arm sprain. Dr. Allen advised that appellant had reached
maximum medical improvement. He rated permanent impairment evaluation using the
diagnosis-based impairment method. Dr. Allen noted that pursuant to the Shoulder Regional
Grid, Table 15-5, page 402 of the A.M.A., Guides, based on the historical data and medical
records, appellant had a class one impairment with a default value of three percent upper
extremity impairment. For the functional history adjustment, Table 15-7, page 406, appellant
had a QuickDASH score of 64, she reported pain with normal activity and was able to perform
self-care activities with modification but unassisted. Dr. Allen noted that appellant qualified for
5

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

3

a grade 2 modifier for functional history. For physical examination adjustment, Table 15-8, page
408, appellant had moderate palpatory findings, consistently documented with observed
abnormalities, stable, mild motion deficit, mild alteration in alignment/deformity and no muscle
atrophy. Dr. Allen noted that appellant qualified for a grade 2 modifier. For clinical studies
adjustment, Table 15-8, page 408, x-rays of the right shoulder revealed no apparent bone or joint
abnormalities and no fractures. A right shoulder MRI scan revealed mild rotator cuff
tendinopathy without a full-thickness tear or tendon retraction with a type 2 anterior acromion
process present. An MRI scan of the right shoulder with contrast revealed a partial thickness
longitudinal intrasubstance tear of the distal supraspinatus tendon. Dr. Allen noted that this
qualified for a grade modifier of 2 but it was not considered in adjustment as it was used as a key
factor to determine class placement. He opined that based on the net adjustment formula on page
411 of the A.M.A., Guides appellant had four percent right arm impairment.
At the December 16, 2015 telephonic hearing, appellant’s counsel referenced the recent
submission of Dr. Allen’s October 23, 2015 report containing an impairment rating and
requested that Dr. Allen’s impairment evaluation be forwarded to an OWCP medical adviser.
By decision dated February 10, 2016, an OWCP hearing representative found the medical
evidence of record insufficient to establish permanent impairment and affirmed the May 1, 2015
decision. He noted that Dr. Allen failed to acknowledge reports from the second opinion
physician or the impartial medical examiner. Additionally, Dr. Allen summarized the 2015 MRI
scan, but he did not discuss whether the MRI scan findings represented a new pathology.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing federal regulations,7 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.8 For decisions issued
beginning May 1, 2009, the sixth edition of the A.M.A., Guides will be used.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, for upper extremity impairments the evaluator
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013) and Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
10

A.M.A., Guides, 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement.

4

identifies the impairment Class of Diagnosis (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS).11 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).12
The grade modifiers are used on the net adjustment formula described above to calculate a net
adjustment. The final impairment grade is determined by adjusting the grade up or down the
default value C, by the calculated net adjustment.13
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the medical adviser for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale
for the percentage of impairment specified.14
ANALYSIS
OWCP accepted appellant’s claim for right shoulder and upper arm sprain. The Board
finds this case is not in posture for decision. Dr. Allen’s October 23, 2015 report included an
impairment rating for appellant’s right upper extremity. He provided physical examination
findings, he cited to tables and charts in the A.M.A., Guides, and provided an impairment rating
pursuant to the A.M.A., Guides.
In this case, the hearing representative made a medical determination as to the injury
appellant sustained not causing or contributing to any permanent impairment without the benefit
of medical advice or review by an OWCP medical adviser. OWCP procedures provide that, after
obtaining all necessary medical evidence, the file should be routed to OWCP’s medical adviser
for an opinion concerning the nature and percentage of any impairment in accordance with the
A.M.A., Guides.15 In this case, the medical evidence was not forwarded to an OWCP medical
adviser for review. For these reasons, the February 10, 2016 decision will be set aside and the
case remanded to OWCP for review of the medical record by an OWCP medical adviser.
Following such development as OWCP deems necessary, it shall issue a de novo merit
decision.16
CONCLUSION
The Board finds that the case is not in posture for decision.
11

Id. at 385-419.

12

Id. at 411.

13

Id.

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
15

Id. at Chapter 2.808.6(d) (August 2002).

16

See B.M., 09-2231 (issued May 14, 2010) (where the Board set aside OWCP’s decision denying appellant’s
request for a schedule award and determined that it was improper for OWCP to render a decision without the benefit
of medical advice from or review by its medical adviser).

5

ORDER
IT IS HEREBY ORDERED THAT the February 10, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
proceedings consistent with this decision.
Issued: August 29, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
DEPARTMENT OF THE ARMY,
AVIATION & MISSLE COMMAND,
CORPUS CHRISTI ARMY DEPOT,
Corpus Christi, TX, Employer
__________________________________________

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

Docket No. 19-0067
Issued: May 3, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 11, 2018 appellant filed a timely appeal from a September 10, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that his diagnosed
cervical and left upper extremity conditions are causally related to the accepted factors of his
federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 13, 2018 appellant, then a 64-year-old retired aircraft pattern, jig, and fixture
builder leader, filed an occupational disease claim (Form CA-2) alleging left carpal tunnel
syndrome (CTS) and ulnar nerve entrapment, which he attributed to repetitive work-related hand
movements, including hammering sheet metal and other materials. He identified April 1, 2013 as
the date he first became aware of his condition, and February 15, 2018 as the date he first realized
his condition was caused or aggravated by his employment. On the reverse side of the claim form,
the employing establishment noted that appellant had retired in October 2016. Appellant’s Form
CA-2 was accompanied by his position description and a notification of personnel action (SF 50B) regarding his voluntary retirement, effective October 1, 2016.
In a development letter dated March 21, 2018, OWCP advised appellant of the need for
additional factual information and medical evidence in support of his claim. It specifically
inquired about the circumstances of the alleged employment factors. OWCP also requested that
appellant provide a narrative report from his attending physician, which included a diagnosis and
a medical explanation as to how the reported work incident either caused or aggravated a medical
condition. It afforded him 30 days to submit the requested information. No evidence was received.
By decision dated April 23, 2018, OWCP denied appellant’s occupational disease claim
finding that the evidence submitted was insufficient to establish that the factors of employment
occurred as alleged.
On June 11, 2018 appellant requested reconsideration and submitted a June 5, 2018 report
from Dr. Robert C. Lowry, a family medicine specialist. Dr. Lowry noted that appellant presented
on May 21, 2018 for evaluation of left hand pain reportedly incurred from work-related activity.
Appellant related that he became aware of left hand and left wrist pain while performing repetitive
work-related duties of constant hammering and sanding sheet metal, holding and grasping to cut
sheet metal, as well as pneumatic air tools. He also explained that he had to constantly use impact
wrenches and riveting parts on aircrafts. Appellant further explained that his job duties also
consisted of twisting and turning bolts, ratchets, fasteners, rolling cylinders, and rolling sheet
metal. Dr. Lowry recorded his belief that appellant’s past medical and recreation activities were
noncontributory to the present conditions. He noted that diagnostic testing had not yet been
performed. Dr. Lowry diagnosed bilateral CTS and left hand primary osteoarthritis.
Dr. Lowry offered his medical opinion that, “[u]pon reviewing diagnostics and description
of accident, it is my medical opinion [that appellant] suffers from a [CTS], right upper limb, [CTS],
left upper limb, and primary osteoarthritis, left hand caused by occupational work[-]related injury.
This injury occurred over a period of time and is due to the repeated stress and strain on [his] right
and left hand and left wrist while performing repetitive work-related duties.” He opined that
appellant met all criteria per FECA guidelines and concluded that causal relationship had been
established from appellant performing repetitive work-related duties of constant hammering and
sanding sheet metal, holding and grasping to cut sheet metal as well as pneumatic air tools.
Dr. Lowry concluded that, undoubtedly, appellant’s pain is a direct result of the subsequent
condition of his bilateral CTS and primary osteoarthritis of his left hand that has developed due to
the work-related injury.

2

A June 14, 2018 bilateral upper extremity electromyography and nerve conduction velocity
(EMG/NCV) study revealed left C6 cervical radiculopathy, moderate bilateral median neuropathy
at the wrist, consistent with CTS, moderate left ulnar neuropathy at the elbow, and no evidence of
brachial plexopathy or myelopathy.
In a June 27, 2018 follow-up report, Dr. Lowry reexamined appellant and reviewed the
results of his June 14, 2018 electrodiagnostic study. He continued to diagnose bilateral CTS and
left hand primary osteoarthritis. Dr. Lowry again opined that these conditions were causally
related to appellant’s employment. His report of June 27, 2018 repeated verbatim much of the
June 5, 2018 report regarding causal relationship.
In a July 11, 2018 report, Dr. Lowry reviewed the NCV study and found that the test
showed clear evidence of a median neuropathy at the wrists, bilaterally, a C6 radiculopathy, and a
C8 brachial plexopathy, bilaterally. He also noted, “[appellant] also has de Quervian’s in the left
along with [carpometacarpal] arthritis. It does not appear that his prior clinicians have looked into
these issues and instead focussed [sic] on the CTS. Previous injections to the wrist, however, have
only provided temporary and partial improvements of the symptoms.” Dr. Lowry updated his
diagnoses to include: (1) bilateral CTS; (2) bilateral pronator tunnel syndrome; (3) left de
Quervian’s; (4) left carpometacarpal arthritis; and (5) bilateral cervical radiculopathy versus
brachial plexopathy. He reported his belief that, “[t]hese conditions were far more likely than not
due as a direct consequence of his work as a Jigger/Builder at the Helicopter Base …, as the
constant repetitive nature of the physical demands of that job lifting, using power tools, and
forcefully working with metal.”
By decision dated September 10, 2018, OWCP reviewed the merits of the claim and
modified its prior decision to find that appellant had established fact of injury. However, it denied
the claim after finding that the medical evidence of record was insufficient to establish causal
relationship between his diagnosed conditions and the accepted employment factors. It indicated
that the medical evidence did not set forth the pathophysiologic mechanisms by which the accepted
work factors caused or aggravated appellant diagnosed conditions. OWCP also noted that
Dr. Lowry had not mentioned appellant’s prior work-related left shoulder injury (OWCP File No.
xxxxxx117) and whether it had any bearing on his current injuries.2
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation,4 that an injury was sustained in the performance of duty as alleged, and that any
disability or medical condition for which compensation is claimed is causally related to the
2

Appellant has an accepted traumatic injury claim for lumbar sprain and left shoulder joint derangement(s) due to
a May 16, 2016 work-related slip and fall.
3

Supra note 1.

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

3

employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or existence
of the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally
related to the identified employment factors.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.9 Additionally, the 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 appellant’s
specific employment factor(s).10
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his
diagnosed cervical and left upper extremity conditions are causally related to the accepted factors
of his federal employment.
Appellant submitted three reports from Dr. Lowry containing opinions relative to causal
relationship. In reports dated June 5 and 27, 2018, Dr. Lowry noted that, “[u]ndoubtedly, the pain
that [appellant] suffers … developed due to a work[-]related injury.” In the report dated July 11,
2018, he again opined that the conditions were “far more likely than not” a “direct consequence of
5
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

9

M.V., Docket No. 18-0884 (issued December 28, 2018).

10

Id.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

4

[appellant’s] work” because of the repetitive physical lifting, use of power tools, and metal work
that his employment required.
To be rationalized, the opinion of a physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.12 Dr. Lowry’s reports
provided diagnoses and statements of reasonable medical certainty, but failed to provide a detailed
explanation on causal relationship. While he identified the specific employment factors alleged
by appellant, he did not provide a pathophysiological explanation as to how those activities either
caused or contributed to appellant’s diagnosed conditions.13 Additionally, Dr. Lowry was
apparently unaware of appellant’s prior left upper extremity injury under OWCP File No.
xxxxxx117. The Board has consistently held that complete medical rationalization is particularly
necessary when there are preexisting conditions involving the same body part,14 and has required
medical rationale differentiating between the effects of the work-related injury and the preexisting
condition in such cases.15 The Board finds that the reports of Dr. Lowry to be insufficient to meet
appellant’s burden of proof, as they did not provide an adequate physiological explanation
regarding the cause of appellant’s diagnosed cervical and left upper extremity conditions.
Appellant also submitted diagnostic testing reports. While the EMG/NCV study report
revealed left C6 cervical radiculopathy, moderate bilateral median neuropathy at the wrist
consistent with CTS and moderate left ulnar neuropathy at the elbow, the report did not provide
an opinion as to the cause of those conditions. Diagnostic studies are of limited probative value
as they do not address whether the employment factors caused any of the diagnosed conditions.16
As appellant has not submitted rationalized medical evidence on the issue of causal
relationship in support of his claim, the Board finds that he has not met his burden of proof to
establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

12

D.W., Docket No. 13-1873 (issued March 13, 2014).

13

Id.

14

E.g., K.R., Docket No. 18-1388 (issued January 9, 2019).

15

See, e.g., A.J., Docket No. 18-1116 (issued January 23, 2019); M.F., Docket No. 17-1973 (issued December 31,
2018); J.B., Docket No. 17-1870 (issued April 11, 2018); E.D., Docket No. 16-1854 (issued March 3, 2017); P.O.,
Docket No. 14-1675 (issued December 3, 2015).
16

E.M., Docket No. 18-1599 (issued March 7, 2019).

5

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his
diagnosed cervical and left upper extremity conditions are causally related to the accepted factors
of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the September 10, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 3, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.B., Appellant
and
U.S. POSTAL SERVICE, NEW JERSEY
INTERNATIONAL PROCESSING &
DISTRIBUTION CENTER, Jersey City, NJ,
Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0019
Issued: May 28, 2019

Case Submitted on the Record

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

JURISDICTION
On October 3, 2018 appellant, through counsel, filed a timely appeal from a May 14, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

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.

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
ISSUE
The issue is whether appellant has met her burden of proof to establish total disability for
the period February 6, 2016 to August 7, 2017 causally related to the accepted conditions of right
shoulder and right upper arm contusions.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On December 25, 2015 appellant, then a 40-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that she injured her right arm on December 22, 2015 when heavy
boxes fell and hit her arm while in the performance of duty. She finished her shift and returned to
work for a brief period on December 25, 2015. OWCP accepted right shoulder contusion and right
upper arm contusion.5 Appellant received continuation of pay for the period December 23, 2015
through February 5, 2016 and filed claims for compensation (Form CA-7) for the period
commencing February 6, 2016.
On December 25, 2015 the employing establishment properly executed an authorization
for medical examination and/or treatment (Form CA-16).
Dr. Mark A.P. Filippone, a Board-certified physiatrist, first saw appellant on
December 28, 2015. He described appellant’s complaint of right shoulder and biceps pain with a
sense of weakness at the elbow. Dr. Filippone diagnosed contusion to the right biceps muscle area
and internal derangement of the right shoulder. He indicated that a cervical spine injury could not
be precluded and advised that she was totally disabled from work.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the May 14, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
4

Docket No. 17-1994 (issued June 8, 2018).

5

Dr. Neil Raswant, an osteopath Board-certified in emergency medicine, saw appellant at an emergency department
on December 25, 2015. He noted her complaint of right bicep pain following an incident at work when a box fell on
her right arm. A right humerus x-ray was normal. Following physical examination, Dr. Raswant diagnosed contusion,
upper arm. He advised that appellant should avoid using her right arm until cleared by her physician, but could resume
light-duty work on December 28, 2015.

2

On January 7, 2016 Dr. Filippone noted an additional complaint of neck pain. He advised
that appellant could return to full-time limited duty and provided physical restrictions. On
February 5, 2016 Dr. Filippone reported that appellant continued to be symptomatic despite not
working. Right shoulder examination demonstrated a positive beer can emptying maneuver and
diminished range of motion. Dr. Filippone advised that appellant was clinically manifesting a
progressive right frozen shoulder and questioned whether she was developing reflex sympathetic
dystrophy in the right upper extremity. He opined that appellant was in too much pain to work in
any capacity and indicated that a cervical spine injury should be accepted by OWCP.
A February 11, 2016 magnetic resonance imaging (MRI) scan of appellant’s cervical spine
demonstrated minimal spondylosis and no acute cervical pathology. A right shoulder MRI scan
demonstrated distal supraspinatus tendinosis versus low-grade partial tear, small subdeltoid bursal
fluid, and moderate osteoarthritis of the acromioclavicular (ACL) joint. February 12, 2016 x-rays
of the right shoulder and right humerus showed no acute osseous pathology and mild osteoarthritis
of the right acromioclavicular joint. An x-ray of the cervical spine on February 12, 2016
demonstrated no acute osseous pathology, no ligamentous instability, and minimal spondylosis.
A February 12, 2016 right humerus MRI scan demonstrated distal supraspinatus tendinosis versus
low-grade partial tear, moderate osteoarthritis of the ACL joint, and no acute right humeral
pathology.
On March 4, 2016 Dr. Filippone again advised that appellant was totally disabled.
In a report dated March 16, 2016, Dr. Richard P. Mackessy, a Board-certified orthopedic
surgeon, noted full neck range of motion and painful shoulder range of motion with weakness of
her rotator cuff. He reviewed x-rays and MRI scans and diagnosed rotator cuff tendinitis.
By decision dated April 8, 2016, OWCP denied expansion of the acceptance of appellant’s
claim to include additional conditions. It noted that Dr. Filippone had not provided rationale to
explain why a cervical spine injury should be accepted, and that Dr. Mackessy noted full neck
range of motion.
By decision dated April 18, 2016, OWCP denied appellant’s claim for disability
compensation commencing December 25, 2015. It found the medical evidence insufficient to
establish disability because the physicians had rendered her disabled due to conditions denied by
OWCP in its April 8, 2016 decision.
On April 25, 2016 appellant, through counsel, requested a hearing before an OWCP
hearing representative regarding both the April 8 and 16, 2016 OWCP decisions.
In a supplemental March 16, 2016 report, Dr. Mackessy described right shoulder
examination findings noting no tenderness on direct examination with full active and passive range
of motion without pain. Strength testing was 5/5 in all muscle groups tested, and sensation was
intact and symmetric. Dr. Mackessy noted that a right shoulder MRI scan demonstrated rotator
cuff tendinitis and diagnosed an incomplete rotator cuff tear or rupture of right shoulder, not
specified as traumatic.
In an April 6, 2016 treatment note, Dr. Filippone noted that appellant was not doing well
despite physical therapy, reporting continued biceps tendon pain over the shoulder bilaterally.
3

Beer can maneuver was positive on the right. Dr. Filippone advised that, as per his initial
evaluation on December 28, 2015, appellant was grossly injured by a 70-pound box that fell from
above her head, striking the anterior right mid and distal third of the right biceps with great force,
and that she continued to be totally disabled. In reports dated June 7 to August 30, 2016, he noted
neck, right shoulder pain, and left upper arm pain, and advised that appellant could return to
restricted duty. In an August 30, 2016 treatment note, Dr. Filippone reported that appellant’s neck
and right shoulder pain were improving. He advised that she could return to work with a 50-pound
weight restriction and a 100-pound push-pull limit.
In a brief report dated April 7, 2016, Dr. Mackessy noted appellant’s complaint of
continued shoulder pain. He indicated that the MRI scans of her shoulder and neck were benign.
In a May 5, 2016 report, Dr. Mackessy indicated that appellant’s examination was fairly benign,
but that she did not have strength. He advised that she could return to work with a 25-pound lifting
restriction, but if 70 pounds was required, it would be another month with therapy for
strengthening.
The hearing, held on September 28, 2016, addressed both causal relationship of additional
conditions and entitlement to total disability compensation. Appellant testified regarding the
December 22, 2015 incident, described her subsequent medical treatment, and related that she
attempted to return to work on January 19, 2016, but that the employing establishment had no light
duty available.
Counsel subsequently submitted a September 20, 2016 report in which Dr. Filippone
described examination findings and appellant’s treatment. He noted that the February 11, 2016
MRI scan demonstrated distal supraspinatus tendinosis versus a low grade partial tear of subdeltoid
and small subdeltoid bursal fluid which would be totally consistent with a downward force vector
on the adjacent humerus, opining that a 75-pound box falling on the humerus could damage the
immediately adjacent shoulder joint. On October 24, 2016 Dr. Filippone provided physical
restrictions regarding use of her right upper extremity.
On October 18, 2016 the employing establishment offered appellant a full-time limitedduty position with a 10-pound lifting/pushing restriction.
By decision dated November 9, 2016, an OWCP hearing representative vacated the April 8
and 18, 2016 decisions and remanded the case for further development as to whether additional
conditions had been caused by the December 22, 2015 employment injury and appellant’s
entitlement to disability compensation.
In correspondence dated November 17, 2016, the employing establishment informed
OWCP that appellant had not responded to its October 18, 2016 limited-duty job offer.
By report dated October 24, 2016, Dr. Filippone opined that the force of the box which fell
on appellant caused damage to the muscles of her right shoulder and neck.
On February 3, 2017 OWCP referred appellant to Dr. Timothy Henderson, a Boardcertified orthopedic surgeon, for a second opinion evaluation. In a February 20, 2017 report,
Dr. Henderson noted his review of the medical record and appellant’s complaint of right shoulder
pain with activity. He described the employment injury and appellant’s medical treatment. Right
4

shoulder examination demonstrated tenderness to palpation over the greater tuberosity with slight
tenderness to palpation over the long head of the biceps tendon. Neer’s, Hawkins’, O’Brien’s,
negative speed, and cross arm adduction tests were negative. Forward elevation and abduction
were to 170 degrees bilaterally, external rotation was to 60 degrees bilaterally, and internal rotation
was to T8 on the left and T10 on the right. Dr. Henderson recommended eight weeks of physical
therapy two times per week and indicated that, although appellant had a mild residual disability,
she could return to full duty without restrictions. He further advised that there were no objective
findings that appellant suffered an aggravation of a preexisting condition. Dr. Henderson verified
his recommendation that she could perform her usual job without restriction on a work capacity
evaluation (Form OWCP-5c), advising that she should reach maximum medical improvement in
two months.
In a supplemental report dated March 8, 2017, Dr. Henderson opined that the claim should
not be accepted for right shoulder rotator cuff tear. He noted the February 2016 MRI scan findings
of distal supraspinatus tendinosis versus low-grade partial tear and explained that his physical
examination did not reveal a rotator cuff tear.
Dr. Filippone continued to submit reports in which he reiterated his findings and
conclusions.
By decision dated March 9, 2017, OWCP denied expansion of the acceptance of
appellant’s claim. It found the weight of the medical evidence rested with the opinion of
Dr. Henderson.
On March 6, 2017 OWCP asked the employing establishment if appellant had tried to
report to work on December 28, 2015, or any time thereafter. In an undated response, S.M., an
employing establishment human resources manager, noted that Dr. Filippone had indicated on
December 28, 2015 that appellant was totally disabled from work. S.M. further explained that,
based on Dr. Filippone’s August 30, 2016 physical restrictions, appellant was offered a modified
position, but did not respond.
In a treatment note dated February 22, 2017, received by OWCP on March 21, 2017,
Dr. Filippone commented that he had reviewed a modified job offer that potentially included lifting
up to 70 pounds. He requested an offer that appellant could perform. Dr. Filippone indicated that
appellant could lift to shoulder level up to 35 pounds with her right arm. He continued to submit
reports with these restrictions.
On March 16, 2017 appellant, through counsel, requested a hearing with OWCP’s Branch
of Hearings and Review. Appellant did not attend the hearing held on May 9, 2017. Counsel
asserted during the hearing that Dr. Henderson’s opinion was insufficiently rationalized and that
Dr. Filippone’s opinion consistently supported causal relationship of additional conditions.
Dr. Filippone submitted a duty status report (Form CA-17) dated May 24, 2017 in which
he advised that appellant could perform full-time limited-duty work. He indicated that appellant
had no left upper extremity restrictions and could not reach above the shoulder on the right. Right
lifting and carrying were limited to 35 pounds, and pushing and pulling to 70 pounds.

5

By decision dated June 12, 2017, an OWCP hearing representative affirmed the March 9,
2017 decision. She found that the weight of the medical evidence rested with the opinion of
Dr. Henderson and denied appellant’s request for expansion of the acceptance of the claim to
include additional conditions.
Dr. Filippone continued to submit reports in which he repeated appellant’s restrictions.
On August 30, 2017 OWCP forwarded a copy of a mail handler position description to
Dr. Henderson for comment. In correspondence received September 7, 2017, Dr. Henderson
reiterated his opinion that appellant could return to full-duty work without restrictions.
By decision dated September 19, 2017, OWCP found that appellant had not met her burden
of proof to establish entitlement to wage-loss compensation because the medical evidence
submitted was insufficient to establish that she was disabled for the claimed period due to the
accepted conditions.
Appellant, through counsel, requested a hearing on September 25, 2017 from the
September 19, 2017 decision.6
On January 22, 2018 Dr. Filippone raised appellant’s right upper extremity lifting/carrying
restriction to 55 pounds and her pushing/pulling to 100 pounds. He continued to advise that she
could not reach above her right shoulder.
During the hearing, held on February 28, 2018, appellant described the employment injury
and her medical treatment. She testified that she had received continuation of pay but no wageloss compensation since it ended in February 2016 and had returned to full-time limited duty on
August 7, 2017. Counsel asserted that, at a minimum, a conflict in medical evidence had been
created between Dr. Filippone and Dr. Henderson as to whether appellant was disabled from work
during the claimed period of disability.
By decision dated May 14, 2018, the hearing representative affirmed the September 19,
2017 decision. She found the weight of the medical evidence rested with the opinion of
Dr. Henderson who found no objective basis for disability.
LEGAL PRECEDENT
An employee seeking benefits under FECA7 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.8 For each period of disability
claimed, the employee has the burden of proof to establish that he or she was disabled from work

6

On September 27, 2017 appellant appealed the June 12, 2017 decision denying expansion of the acceptance of his
claim to the Board. See supra note 4.
7

Supra note 2.

8

See D.W., Docket No. 18-0644 (issued November 15, 2018).

6

as a result of the accepted employment injury.9 Whether a particular injury causes an employee to
become disabled from work, and the duration of that disability, are medical issues that must be
proven by a preponderance of probative and reliable medical opinion evidence.10
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury. Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.11 Furthermore, whether a particular injury
causes an employee to be disabled from employment and the duration of that disability are medical
issues which must be proven by a preponderance of the reliable, probative, and substantial medical
evidence.12
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.13 The opinion of the physician must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature of
the relationship.14
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.15
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish total disability
for the period February 6, 2016 to August 7, 2017 causally related to the accepted conditions of
right shoulder and right upper arm contusions.
Dr. Filippone, an attending physiatrist, began treating appellant on December 28, 2015 and
submitted periodic reports. In addition to the accepted conditions, he also diagnosed a cervical
condition and additional right shoulder conditions. While he described appellant’s symptoms in
numerous reports and opined that she was totally disabled, Dr. Filippone did not explain why her
9

Id.

10

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

11

Id.

12

T.O., Docket No. 17-1177 (issued November 2, 2018).

13

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

14

See S.J., id; Kathryn Haggerty, 45 ECAB 383 (1994).

15

See B.K., Docket No. 18-0386 (issued September 14, 2018).

7

claimed disability was due to the accepted conditions. His opinion was conclusory in nature and
failed to explain in detail how the accepted medical conditions of right shoulder and upper arm
contusions were responsible for her disability and why she could not perform her federal
employment during the period claimed due to her accepted contusions.16 Dr. Filippone discussed
the right shoulder MRI scan findings, advising that they were abnormal. However, other than a
contusion, no additional right shoulder condition has been accepted. Dr. Filippone further opined
that the force of the box fall caused shoulder and cervical injuries. A cervical condition has also
not been accepted. Whether a claimant’s disability is related to an accepted condition is a medical
question which must be established by a physician who, on the basis of a complete and accurate
factual and medical history, concludes that the disability is causally related to employment factors
and supports that conclusion with sound medical reasoning.17 Consequently, the Board finds that
Dr. Filippone’s reports were insufficient to establish appellant’s claim that she was totally disabled
for the period from February 6, 2016 to August 7, 2017 causally related to her accepted medical
conditions.
Dr. Mackessy saw appellant on March 16, April 7, and May 5, 2016. He advised that the
right shoulder MRI scan findings were not specified as traumatic. Dr. Mackessy diagnosed rotator
cuff tendinitis, which is a condition that has not been accepted. The only comment he made
regarding disability was that on May 5, 2016 he reported that appellant could return to limited
duty, commenting that, if 70-pound lifting was required, she needed another month of
strengthening as her examination was fairly benign, but she did not have strength. Dr. Mackessy
did not indicate that any restrictions were due to the accepted conditions. The Board has held that
a report is of limited probative value if it does not contain medical rationale explaining how a given
period of disability was related to the accepted employment injury.18 Without a specific opinion
as to how her employment injury caused the claimed period of disability, the opinions expressed
by Dr. Mackessy were insufficient to establish total disability for the claimed period.
Dr. Henderson, OWCP’s referral orthopedic surgeon, provided reports dated February 20,
March 8, and September 5, 2017. He noted his review of the record, described the employment
injury, and noted appellant’s complaints of continued right shoulder pain. Dr. Henderson provided
examination findings and advised that appellant had no disabling residuals as of his examination
on February 20, 2017, and that she could return to full duty without restrictions.
The issue of disability for work can only be resolved by competent medical evidence.19 A
physician’s opinion on causal relationship between a claimant’s disability and an employment
injury is not dispositive simply because it is rendered by a physician. To be of probative value,
the physician must provide rationale for the opinion reached. Where no such rationale is present,
the medical opinion is of diminished probative value.20 As Dr. Filippone and Dr. Mackessy
16

G.T., Docket No. 17-1994 (issued June 8, 2018).

17

See M.C., Docket No. 18-1391 (issued February 1, 2019).

18

See M.B., Docket No. 18-1455 (issued March 11, 2019).

19

Id.

20

E.G., Docket No. 17-1955 (issued September 10, 2018).

8

referenced conditions that have not been accepted, their opinions are insufficient to establish that
appellant was disabled commencing February 6, 2016.21
On appeal counsel asserts that because OWCP had expanded acceptance of the claim on
September 12, 2018, the case should be remanded for it to reassess appellant’s claim for wage loss.
The Board’s jurisdiction is limited to reviewing final adverse decisions of OWCP issued under
FECA within 180 days from the date of issuance.22 OWCP had not issued its decision expanding
the acceptance of appellant’s claim on or before May 14, 2018, OWCP’s decision at issue in this
case. Therefore the Board is precluded from considering this argument on appeal.
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 total disability
for the period February 6, 2016 to August 7, 2017 causally related to the accepted conditions of
right shoulder and right upper arm contusions.

21

Supra note 11.

22

20 C.F.R. §§ 501.2(c), 501.3(a) & (e); see N.M., Docket No. 18-1244 (issued March 4, 2019).

9

ORDER
IT IS HEREBY ORDERED THAT the May 14, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 28, 2019
Washington, DC

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

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

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

10


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

)
)
)
)
)
)
)
)

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

Docket No. 14-853
Issued: December 1, 2014

Case Submitted on the Record

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

JURISDICTION
On March 5, 2014 appellant, through her attorney, filed a timely appeal of an October 28,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant sustained ratable permanent impairment of her upper
extremities warranting a schedule award.
On appeal, counsel argues that there is an unresolved conflict of medical opinion
evidence.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. Appellant, a 35-year-old letter carrier,
developed carpal tunnel syndrome due to factors of her federal employment.2 She underwent
electromyogram (EMG) and nerve conduction velocity (NCV) studies on April 13, 1998.
OWCP accepted appellant’s claim for bilateral tenosynovitis of the wrists on April 22, 1998. On
November 16, 1999 appellant’s attending physician, Dr. Scott M. Fried, an osteopath, performed
an anterior sub muscular transposition of the ulnar nerve in appellant’s right elbow. OWCP
accepted appellant’s periods of intermittent total disability as work related and authorized
compensation. OWCP terminated her compensation and medical benefits due to bilateral
tenosynovitis of the wrists effective July 31, 2001. The Board affirmed this decision on
June 5, 2003.3
In a report dated June 10, 2004, Dr. Nicholas Diamond, an osteopath, evaluated
appellant’s permanent impairment under the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4 He found 41 percent
impairment of the right upper extremity and 35 percent impairment of the left upper extremity.
Appellant requested a schedule award on September 30, 2004. The medical adviser reviewed
appellant’s claim for schedule award on June 9, 2005 and found that she had no impairment of
her left upper extremity and seven percent impairment of her right upper extremity due to loss of
range of motion. He again reviewed appellant’s medical evidence on November 6, 2008 and
noted that carpal tunnel syndrome was never accepted. The medical adviser recommended
further medical examination.
In a letter dated May 22, 2009, OWCP requested that appellant submit medical evidence
regarding her impairment under the sixth edition of the A.M.A., Guides.5 Dr. Diamond
resubmitted his June 10, 2004 report and noted that his impairment rating was revised to the
sixth edition of the A.M.A., Guides. He diagnosed entrapment neuropathy right median nerve at
the wrist and determined that appellant had clinical studies grade modifier 1, physical
examination grade modifier 2 or functional history grade modifier 2 or five percent impairment
of the right upper extremity. Dr. Diamond found entrapment neuropathy right ulnar nerve at the
elbow, clinical studies grade modifier 1, functional history grade modifier 2 or physical
examination grade modifier 1 for 13 percent impairment of the right upper extremity. He also
found a moderate motor deficit of the right supraspinatus at C5-6 with functional history grade
modifier 2 and clinical studies grade modifier 2 and eight percent impairment of the right upper
2

Appellant had a previous claim for sprain of the talofibular ligament and requested a schedule award for the left
lower extremity. OWCP found that she had nine percent impairment of her left lower extremity. The Board
reviewed this claim and found that it was not in posture for a decision and remanded the case to OWCP on
December 24, 1998. Docket No. 97-1177 (issued December 24, 1998).
3

Docket No. 03-545 (issued June 5, 2003).

4

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

5

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.0808.6.a (January 2010).

2

extremity. Dr. Diamond diagnosed a mild motor deficit of the right biceps with a functional
history grade modifier 2 and clinical studies grade modifier 2 and net adjustment of 2 for right
upper extremity impairment rating of six percent. He also found a motor deficit of the right
triceps with functional history grade modifier 2 and clinical studies grade modifier 2 and a net
adjustment of 2 for a right upper extremity impairment of 12. Dr. Diamond concluded that
appellant had 38 percent impairment of the right upper extremity.
As to appellant’s left upper extremity, Dr. Diamond found entrapment neuropathy of the
left medical nerve at the wrist with clinical studies grade modifier 1, functional history grade
modifier 3 and physical examination grade modifier 2 for five percent impairment of the left
upper extremity. He diagnosed class 1 mild motor deficit of the left supraspinatus and deltoid,
C5-6 of the brachial plexus, nine percent impairment. With adjustments from functional history
of 2 and clinical studies of 2 resulting in a net adjustment of 13 percent Dr. Diamond found that
appellant had a combined left upper extremity impairment of 17 percent.
OWCP referred the medical evidence to an OWCP medical adviser on March 11, 2010.
In a report dated March 17, 2010, Dr. Henry J. Magliato, the medical adviser, found that
appellant had five percent impairment due to entrapment neuropathies of the right median nerve
at the wrist in accordance with Table 15-23 of the A.M.A., Guides.6 He found that her grade
modifiers were 3 for functional history, 2 for physical examination and 1 for clinical studies.
Dr. Magliato agreed that appellant had entrapment neuropathy of the ulnar nerve at the elbow
based on Table 15-23 of the A.M.A., Guides.7 He listed her functional history grade modifier 2,
clinical studies grade modifier 1 and physical examination grade modifier 4 and found that
appellant had two percent impairment of the right elbow. He determined that Dr. Diamond had
used other diagnoses in the right upper extremity, which were neither accepted or preexisting
conditions and were based on shoulder and cervical spine impairments. Dr. Magliato
recommended additional development of the medical evidence.
OWCP stated that it referred appellant for an impartial medical examination on
November 5, 2010 to resolve a conflict of medical opinion between Dr. Diamond and
Dr. Magliato regarding the extent of permanent impairment. In a report dated December 22,
2010, Dr. Mark K. Levistsky, a Board-certified orthopedic surgeon, designated as the impartial
medical examiner, listed findings on physical examination, including normal range of motion of
the cervical spine; right trapezius pain; and intact reflexes. Appellant reported right shoulder
pain with motion, but no impingement and normal strength or atrophy. Dr. Levistsky found
normal range of motion of the right elbow with no atrophy in either hand. He reported normal
grasp and intrinsic strength in both hands. Dr. Levistsky found positive Tinel’s sign and
Phalen’s test in the right median nerve. He reviewed the medical reports of record and
diagnostic studies. Dr. Levistsky found that she had bilateral tenosynovitis of her arms. He
found that appellant’s tenosynovitis had resolved and that she had completely recovered from her
injuries to her right upper extremity. Dr. Levistsky stated, “I find no evidence of any permanent
functional impairment to her right upper extremity.”

6

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

7

Id.

3

OWCP again referred appellant to Dr. Levistsky and he examined her on
August 23, 2011. Dr. Levistsky again found no evidence of any permanent functional
impairment of either of her upper extremities. He stated that tests for carpal tunnel syndrome
were normal with no evidence of atrophy in either of appellant’s hands. Dr. Levistsky stated that
she had no evidence of any neurological deficits in either of her upper extremities. He stated that
tests for carpal tunnel syndrome were normal and that there was no evidence of any neurological
deficits in either of her upper extremities.
Dr. Andrew Merola, a medical adviser and Board-certified orthopedic surgeon, reviewed
the evidence on February 29, 2012. He agreed with Dr. Levistsky finding a normal examination
without objective evidence of deficiencies. Dr. Merola reported the findings of no thenar
atrophy and normal grip strength.
By decision dated March 7, 2012, OWCP denied appellant’s claim for a schedule award
based on Dr. Levistsky’s reports.
Counsel requested an oral hearing before an OWCP hearing representative on
March 12, 2012. He submitted a report from Dr. Diamond dated June 8, 2012. Dr. Diamond
reviewed his June 10, 2004 report and the reports of Drs. Levistsky and Merola. He noted the
diagnosis of entrapment neuropathy of the right median nerve at the wrist and provided grade
modifiers for clinical studies 1, functional history 3 and physical examination 2 due to decreased
sensation. He averaged the grade modifiers and reached two8 finding a right upper extremity
impairment of five percent. Dr. Diamond also found entrapment neuropathy of the right ulnar
nerve at the elbow. He reported functional history grade modifier 2, clinical studies grade
modifier 1 and physical examination grade modifier 1 for two percent impairment of the right
upper extremity. Dr. Diamond stated that appellant’s average modifier was two and stated that
her impairment range was increased to three. He also noted that since this was her second
entrapment, the lesser impairment was reduced by 50 percent9 to reach an impairment rating of
five percent of the right upper extremity.
Dr. Diamond also provided impairment ratings for moderate motor deficits at C5 and 6.
He stated that a class 2 rating was 25 percent and provided grade modifiers including functional
history 2 and clinical studies 2, for a net adjustment of 0. Dr. Diamond found that appellant had
25 percent impairment of the right upper extremity due to this condition.10
Appellant testified at the oral hearing on June 13, 2012. She stated that she had retired
from the employing establishment in 2004 and that she received disability retirement and social
security benefits. Appellant described her right hand and right elbow symptoms. She continued
to experience pain in both wrists and hands with numbness and tingling. Appellant reported
dropping items and losing strength in her arms. She could not drive more than five minutes
because her hands became numb. Appellant’s children helped her to shop to avoid dropping
8

Id. at 448-49, Table 15-23.

9

Id.

10

Id. at 434, Table 15-20.

4

items, reaching and bending. She contended that Dr. Levistsky failed to provide a complete
examination. Counsel argued that there was no conflict in the medical evidence at the time of
Dr. Levistsky’s reports.
By decision dated August 16, 2012, the hearing representative set aside the March 7,
2012 decision and remanded the case for further development of the medical evidence. He found
that OWCP incorrectly determined that there was a conflict of medical opinion between
Dr. Diamond and Dr. Magliato. Therefore, Dr. Levistsky was not an impartial medical
examiner. The hearing representative found that Dr. Levistsky’s reports were of diminished
probative value as he was provided with a deficient statement of accepted facts which did not
mention an accepted right elbow surgery in 1999.
OWCP amended the statement of accepted facts on September 26, 2012, which included
the acceptance of bilateral tenosynovitis and the authorized November 16, 1999 right ulnar nerve
transposition surgery. Dr. Magliato reviewed the medical records on behalf of OWCP on
September 29, 2012 and noted that Dr. Diamond’s reports were based on an old examination of
June 10, 2004 and then applying the sixth edition of the A.M.A., Guides. He stated that
Dr. Levistsky’s report was more recent and should be accepted as representing appellant’s
current physical condition.
By decision dated October 23, 2012, OWCP denied appellant’s claim finding that
Dr. Levistsky’s reports were entitled to the weight of the medical evidence. It found that she did
not establish any permanent impairment of her upper extremities.
Counsel requested an oral hearing on October 31, 2012.
In a decision dated
December 17, 2012, the Branch of Hearings and Review vacated the October 23, 2012 decision
and remanded the case for referral to a second opinion examiner.
OWCP referred appellant for a second opinion to Dr. Stanley Askin, a Board-certified
orthopedic surgeon. In a report dated February 1, 2013, Dr. Askin reviewed the statement of
accepted facts and the medical evidence of record. He listed appellant’s symptoms of numbness
in both hands, pain from her neck to right fingertips and pain from her left elbow to her hand.
Dr. Askin examined appellant and found a scar on her right arm, but no other objective findings.
He noted that appellant demonstrated no neck flexion, 30 degrees of extension, 30 degrees of
right rotation and 20 degrees of left rotation. Dr. Askin further found that appellant’s shoulder
motion was limited to 80 degrees of abduction on the right and 70 degrees on the left. He
reported 70 degrees of forward flexion in both shoulders and essentially full range of motion of
her left elbow. Appellant’s right elbow demonstrated 40 to 110 degrees of motion with no
crepitus. Dr. Askin found that appellant’s forearm circumferences were equal. Appellant’s
muscle function was intact in her upper extremities bilaterally with intact thenar function. There
were no atrophic or dystrophic changes in either hand and that two-point discrimination was
preserved in all digits. Dr. Askin stated, “[Appellant] did have a positive Phalen’s [test] and
Tinel’s [sign] of both hands, suggesting that the real explanation for her complaints has been
carpal tunnel syndrome.”
In response to the questions posed by OWCP, Dr. Askin stated that appellant had zero
percent impairment of her upper extremities due to the accepted condition of bilateral

5

tenosynovitis. He stated that she did not cooperate with the examination as she had no objective
limitation and no imperfection that was not under her voluntary control. Dr. Askin found that
carpal tunnel syndrome might be the true explanation for her complaints. He stated, “If so
[appellant’s] complaints do have a physical basis, but such was not an accepted condition and is
not being addressed or treated in the present time. The bottom line is that she offers no
acceptable basis upon which to make a calculation as her presentation appears to be one of
fabrication.”
Dr. Magliato reviewed Dr. Askin’s report on March 13, 2013. He found a conflict
between Dr. Diamond and Dr. Levistsky. He further stated that, based on Dr. Askin’s findings,
appellant had no impairment of the right upper extremity.
By decision dated April 17, 2013, OWCP denied appellant’s claim for a schedule award
relying on Dr. Askin’s report as it was more recent than Dr. Diamond’s examination of 2004.
Counsel requested an oral hearing on April 22, 2013. He argued that there was a conflict
of medical opinion on the issue of permanent impairment.
The hearing representative issued an October 28, 2013 decision. She found that appellant
did not establish any permanent impairment warranting a schedule award. The hearing
representative found that Dr. Diamond’s findings were significantly different and inconsistent
with prior and subsequent medical evaluations. The hearing representative noted that
Dr. Diamond did not explain how the degree of impairment for the bilateral medial nerves, the
deltoid muscle deficit, C5-6 motor deficit, and bilateral brachial plexopathy were related to
appellant’s accepted employment injury or her surgery in 1999. She concluded that
Dr. Diamond’s ratings of impairment was of diminished probative value.
LEGAL PRECEDENT
The schedule award provision of FECA11 and its implementing regulations12 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of use, of scheduled members or functions 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 matter which rests in the 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. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.13

11

See supra note 1.

12

20 C.F.R. § 10.404.

13

For decisions issued after May 1, 2009, OWCP began using the sixth edition of the A.M.A., Guides. A.M.A.,
Guides, 6th ed. (2009); see supra note 5; Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700, Exhibit 1 (January 2010).

6

A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to her employment.14 The Board has held that medical opinion based upon stale
clinical or physical examination evidence is unpersuasive.15 The Board has evaluated the
probative value of medical opinion evidence by looking to the quality of the information cited in
the report rather than limiting its review to the putative date of the report.16 Where a physician
prepares a report without a contemporaneous clinical examination and record review, the
physician should explain why new information was unnecessary to reach the medical opinion
expressed in the report.17
ANALYSIS
OWCP accepted appellant’s claim for bilateral tenosynovitis of the wrists on
April 22, 1998. On November 16, 1999 she underwent an authorized anterior submuscular
transposition of the ulnar nerve in her right elbow.
Appellant filed a claim for a schedule award on September 30, 2004 and submitted a
report from Dr. Diamond dated June 10, 2004. Dr. Diamond applied the fifth edition of the
A.M.A., Guides to find that she had 41 percent impairment of the right upper extremity and 35
percent impairment of the left upper extremity.
On May 22, 2009 OWCP requested that appellant submit medical evidence regarding any
impairment under the sixth edition of the A.M.A., Guides.18 Dr. Diamond resubmitted his
June 10, 2004 report, stating he revised the impairment rating under the sixth edition of the
A.M.A., Guides. He found 38 percent impairment of her right upper extremity and 17 percent of
14

Veronica Williams, 56 ECAB 367 (2005).

15

L.T., Docket No. 13-997 (issued June 10, 2014); E.W.¸ Docket No. 13-506 (issued May 13, 2013) (the Board
held that a medical report dated May 16, 2011, which contained only clinical examination results from October 2004
and where the author of the report failed to respond, within the allotted time, to an OWCP request for a
supplemental report did not support appellant’s claim for a schedule award. The Board affirmed OWCP’s order
denying a schedule award). B.M., Docket No. 13-691 (issued September 12, 2013) (the Board found that a medical
report dated April 22, 2010 and based on physical examination findings from July 2004 rested on stale evidence and
did not create a conflict with a second opinion report based on an examination made almost seven years later. The
Board affirmed OWCP’s schedule award).
16

D.S., Docket No. 13-20 (issued April 3, 2013) (the Board found a report dated November 5, 2010, which
provided an impairment rating was of limited probative value because, in part, it was based on physical examination
findings from 2003).
17

B.N., Docket No. 12-1394 (issued August 5, 2013) (the Board found a report dated November 28, 2011, by an
attending osteopath, to be stale because the physician used his examination findings from July 2004 and applied the
criteria of the sixth edition of the A.M.A., Guides to the results of 2004. He failed to explain why a current
examination was not necessary to support the opinion offered). R.C., Docket No. 12-437 (issued October 23, 2012)
(the Board found that a report dated September 27, 2010, by an attending orthopedic surgeon, did not create a
conflict of medical evidence, in part, because the physician relied on examination findings from October 2, 2007.
The physician did not explain why a new examination was not necessary).
18

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the sixth edition. See supra note 5.

7

the left upper extremity. Dr. Diamond relied on the physical findings from his June 10, 2004
report. The Board finds that his impairment ratings are of reduced probative value as he relied
on physical findings some five and seven years after his examination of appellant. These
physical examination findings constitute stale medical evidence.19
The Board finds that there was no conflict of medical opinion between Dr. Diamond and
Dr. Magliato. As noted, Dr. Diamond’s findings were based on a stale examination. The
medical adviser reviewed the findings and recommended a second opinion evaluation. Given the
reduced probative value of Dr. Diamond’s impairment rating findings, there was no conflict of
medical opinion evidence. Dr. Levistsky was improperly designated as an impartial medical
adviser and his reports are not entitled to special weight.
In his reports dated December 22, 2010 and August 23, 2011, Dr. Levistsky found that
appellant’s accepted tenosynovitis had resolved and that she had recovered from the injuries to
her right upper extremity. He stated that tests for carpal tunnel syndrome were normal and that
there was no evidence of any neurological deficits in either of her upper extremities. However,
Dr. Levistsky’s opinion was not based on an accurate statement of accepted facts, which
excluded the November 16, 1999 right ulnar nerve transposition surgery authorized by OWCP in
1999. Due to this deficiency, his opinion is also of reduced probative value.
Dr. Askin reported findings on examination of appellant on February 1, 2013. He
reviewed an accurate statement of accepted facts and the medical evidence in the record.
Dr. Askin stated that appellant had no impairment of her upper extremities due to the accepted
condition of bilateral tenosynovitis. He stated that carpal tunnel syndrome might be the true
explanation for her complaints and stated, “If so [appellant’s] complaints do have a physical
basis, but such was not an accepted condition and is not being addressed or treated in the present
time. The bottom line is that she offers no acceptable basis upon which to make a calculation as
her presentation appears to be one of fabrication.”
The Board finds that the most recent medical evidence based on an accurate factual
background is the February 1, 2013 report of Dr. Askin, who provided findings on physical
examination and concluded that appellant’s accepted employment injury did not result in any
permanent impairment.
Appellant has the burden of proving that the condition for which a schedule award is
sought is causally related to her employment.20 She has not submitted sufficient medical opinion
evidence to establish that she sustained a permanent impairment to her upper extremities causally
related to her accepted employment injury of bilateral tenosynovitis of the wrists.

19

K.P., Docket No. 13-2079 (issued February 18, 2014); see H.C., Docket No. 11-1407 (issued May 11, 2012)
(finding that an attending osteopath did not reexamine appellant and based his physical findings on a 2004
examination such that his report constituted stale medical evidence and did not create a conflict of medical opinion
evidence).
20

Veronica Williams, 56 ECAB 367 (2005).

8

Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish a
permanent impairment of a scheduled member due to her accepted employment-related condition
of bilateral tenosynovitis of the wrists.
ORDER
IT IS HEREBY ORDERED THAT the October 28, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 1, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9