United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF THE AIR FORCE, OGDEN
UTAH - OAMA, RANDOLPH AIR FORCE
BASE, TX, Employer
__________________________________________

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Appearances:
Lennin V. Perez., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1507
Issued: October 26, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 6, 2015 appellant, through his representative, filed a timely appeal from a
May 26, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed a
right leg or back injury as a result of his federal employment duties.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant has two other occupational disease claims which are currently on appeal before
the Board, Claim No. xxxxxx584 Docket No. 15-1501 (issued October 19, 2015) and Claim No. xxxxxx967
Docket No. 15-1506 (issued October 26, 2015). The findings in this Claim No. xxxxxx820, pertain to his right leg
and back conditions only.

FACTUAL HISTORY
On April 21, 2014 appellant, then a 60-year-old sheet metal mechanic, filed an
occupational disease claim (Form CA-2) alleging that he developed back pain and right leg
numbness as a result of his federal employment duties. He first became aware of his condition
on April 1, 2010 and of its relationship to his employment on March 13, 2014. Appellant first
sought medical treatment on January 10, 2014. Appellant’s supervisor noted on the claim form
that he had stopped work on September 25, 2013.
By letter dated May 2, 2014, OWCP informed appellant that the evidence of record was
insufficient to support his claim. It noted that he failed to identify the cause of his injury and no
evidence was received. Appellant was advised of the factual and medical evidence needed and
was afforded 30 days to respond.
By letter dated May 7, 2014, the employing establishment controverted the claim. An
official position description for a sheet metal mechanic and notification of personnel action
(Form SF-50) was submitted.
By letter dated January 10, 2014, Dr. Jeffery Lee DeGrauw, Board-certified in family
medicine, reported that appellant was his patient for several years and was permanently disabled
due to his gradual and progressive decline in functional ability. He noted limitations in both
physical and cognitive abilities with significant impairment in short-term memory. Dr. DeGrauw
reported significant arthritic changes involving the hands, neck, lower back, and shoulders which
prevented appellant from using his lower and upper extremities. He further diagnosed
Raynaud’s syndrome, hearing impairment, and cognitive impairment which prevented appellant
from returning back to the workforce.
In a February 28, 2014 medical report, Dr. DeGrauw reported that appellant had chronic
shoulder and neck injuries either related to or associated with his employment. He had a
magnetic resonance imaging (MRI) scan and a surgical consultation as multiple medical opinions
found him unfit to return to regular activities. Dr. DeGrauw noted factors that could affect or
aggravate appellant’s condition involved jobs which required working with his hands above his
shoulders and/or repetitive pushing, lifting, or pulling activities. He further noted that appellant
had significant issues with bending and twisting of the neck and torso area and was further
limited by his functional ability in the hands, elbows, and shoulders associated with degenerative
arthritis from chronic occupational use. Dr. DeGrauw reported a history of sinus surgery in 2001
and 2003, as well as bilateral shoulder surgery in 2013. He provided findings on physical
examination and noted right and left lower extremity musculoskeletal strength was normal.
Dr. DeGrauw reported that even though the muscle groups had normal strength, range of motion,
and function, the neck, back, and shoulder were severely limited due to pain associated with
arthritis. He also diagnosed Raynaud’s syndrome stemming back to March 3, 2011, Alzheimer’s
dementia, and degenerative joint disease in multiple locations including the neck, shoulders,
elbows, wrists, hands, and upper and lower back. Dr. DeGrauw reported that these limitations
precluded appellant from ever returning to work.
In a February 25, 2014 medical report, Dr. Christopher Kleinsmith, a doctor of
osteopathic medicine, reported that appellant was being evaluated for a formal fitness-of-duty

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examination for his job as a sheet metal mechanic due to ongoing neck and shoulder pain,
hearing loss, and Alzheimer’s dementia. He noted review of MRI scan results for the cervical
spine and brain from 2002 to 2004. Dr. Kleinsmith diagnosed Alzheimer’s disease, shoulder
joint pain, rotator cuff tendinitis, and sensorineural hearing loss.
In a May 10, 2014 e-mail correspondence, appellant’s wife reported that he believed his
back issues were due to 30 years of work-related lifting and bending required for his job.3 The
lifting of 150- to 175-pound horizontal stabilizers was most likely the main contributor.
Appellant and his coworkers were told on numerous occasions that they would be given a hoist
to lift the stabilizers, but were never provided with one.
By decision dated July 25, 2014, OWCP denied appellant’s claim finding that the
evidence did not establish that the occupational exposure occurred as alleged. It also found that
appellant failed to establish a firm medical diagnosis which could be reasonably attributed to the
alleged occupational exposure.
Documentation was provided dated July 16, 2014 indicating that appellant was separated
from his employment as a sheet metal mechanic due to his physical inability to perform the
duties of that position.
On July 28, 2014 appellant, with assistance of his representative, requested an oral
hearing before an OWCP hearing representative. He submitted numerous x-ray images of the
cervical and lumbar spine. The images were not accompanied by a medical report interpreting
the findings and did not identify a physician or date of study.
In a May 21, 2014 medical report, Dr. DeGrauw reported that appellant was his patient
for several years and was permanently disabled. He noted that in January 2014 appellant was
diagnosed with Alzheimer’s-type dementia. Dr. Kleinsmith speculated that his dementia could
be related to exposure from hazardous work chemicals. He noted that appellant experienced
numbness, tingling, and pain involving the tips of his fingers and earlobes. In March 2011,
appellant was diagnosed with Raynaud’s syndrome. Dr. DeGrauw reported that appellant had no
prior similar symptoms and opined that Raynaud’s syndrome was caused by the use of
pneumatic tools. He further noted that the continual use of these pneumatic tools could
eventually lead to amputation of the fingers due to their effect on circulation. Dr. Kleinsmith
further diagnosed chronic degenerative joint disease in multiple areas of the body including the
lower back, upper back, neck, shoulders, wrists, and elbows. Chronic problems related to the
neck and back stemmed back to 2002 with incidences as far back as 1987. Dr. DeGrauw
explained that appellant’s work as a sheet metal mechanic for the past 30 years involved lifting
heavy items weighing 150 to 175 pounds, frequent bending and stooping approximated at
80 degree angles for 70 to 80 percent of the day, and frequent bending over using pneumatic
bands to apply sheet metal. He noted that the repetitive heavy lifting involved multiple aspects
of appellant’s body including his lower back, upper back, neck, shoulders, wrists, and elbows.

3

Appellant provided authorization to allow his wife to speak on his behalf pertaining to his workers’
compensation claims.

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Dr. DeGrauw also diagnosed tendinitis and carpal tunnel syndrome in the hands and
elbows, stemming back to 2013. He explained that appellant’s job involved gripping and
handling tools 100 percent of the time. Dr. Kleinsmith further noted issues with chronic
migraine and tension headaches. He reported that, over the past several years, appellant had
been seen and treated for the various above mentioned-illnesses by neurology, orthopedics, and
primary care physicians which were too numerous to be documented. Dr. Kleinsmith concluded
that appellant was unable to work and was permanently disabled.
A hearing was held on March 11, 2015 and appellant was represented. At the hearing,
appellant testified regarding his federal employment and work exposure. He stated that his work
as a riveter and sheet metal mechanic required him to lift 175-pound stabilizers roughly 60 times
a day which entailed constant lifting, bending over, twisting, turning, and stretching. Appellant
noted that it typically required two people to lift the stabilizers in order to remove and replace
rivets. He performed this task since 2001. Appellant argued that this task, along with constant
bending, caused his back and right leg injury. He explained that his work required him to bend
over and look down at whatever he was working on for the entirety of his shift. Appellant stated
that he worked 10 hours a day and overtime two days a week, averaging about 50 to 60 hours per
week. He reported that he had not worked in the shop since 2013 due to a work-related bilateral
shoulder surgery.4 Appellant had no prior injuries or problems with his back or legs until he was
required to lift these stabilizers.
Following the hearing, notification of Personnel Action forms and official position
descriptions were submitted indicating that appellant began working as a sheet metal mechanic
on May 13, 1985.
In an undated narrative statement, appellant provided a detailed description of his
employment duties and the tools he used. He stated that he worked full time Monday through
Thursday, 10 hours daily. Appellant stated that he was constantly exposed to harmful chemicals
and used pneumatic tools which were heavy, loud, and vibrated in his hands. He provided
details pertaining to his work with inlet rings and stabilizers and further explained that his duties
entailed going up and down stairs, lifting heavy equipment, bending, stooping, twisting, and
turning. Appellant stated that his employment duties resulted in his injuries which forced him to
start cutting back his hours. He provided official position descriptions, pictures of the tools he
used, and explanations pertaining to the frequency and mechanics of each of his work-related
tasks.
By decision dated May 26, 2015, an OWCP hearing representative affirmed the July 25,
2014 decision finding that appellant failed to establish a firm medical diagnosis which could be
reasonably attributed to his federal employment duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
4

The Board notes that the record contains no other information pertaining to appellant’s bilateral shoulder injury
claim.

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States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.6
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.7 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.8
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.9 The opinion of the 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. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested, and the medical
rationale expressed in support of the physician’s opinion.10
ANALYSIS
Appellant has established that he engaged in repetitive activities of lifting, bending,
twisting, and turning as a sheet metal mechanic. The issue, therefore, is whether he submitted
5

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

6

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

7

Elaine Pendleton, 40 ECAB 1143 (1989).

8

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

9

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

10

James Mack, 43 ECAB 321 (1991).

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sufficient medical evidence to establish that the employment exposure caused him a right leg or
back injury. This is a medical question. The Board finds that appellant did not submit sufficient
medical evidence to support that he sustained a right leg and back injury causally related to
factors of his federal employment as a sheet metal mechanic.11
In support of his claim, appellant submitted medical reports dated January 10, February
28, and May 21, 2014 from Dr. DeGrauw, his treating physician. The Board notes that he is
alleging right leg numbness and back pain in this occupational disease Claim No. xxxxxx820.
Specifically, appellant has alleged that repetitive bench work and lifting of stabilizers caused him
a right leg and back injury. Thus, Dr. DeGrauw’s opinions pertaining to other conditions not
claimed as work related in this claim are irrelevant and of no probative value to the issue of
whether appellant’s right leg and back injury are caused by his occupational employment duties.
The Board finds that the medical opinions of Dr. DeGrauw are not well rationalized. In
his February 28 and May 21, 2014 reports, Dr. DeGrauw diagnosed degenerative joint disease of
the upper and lower back. He failed to provide a detailed medical history or review of diagnostic
reports. While Dr. DeGrauw generally noted that he treated appellant for several years, the
record does not contain medical examination findings and reports which actually establish the
diagnosis of lower and upper back degenerative joint disease. He vaguely noted treatment and
findings by neurology, orthopedics, and primary care physicians which were too numerous to
document. The procedure manual provides that greater probative value is given to a medical
opinion based on an actual examination. An opinion based on a cursory or incomplete
examination will have less value compared to an opinion based on a more complete evaluation.12
Dr. DeGrauw only generally noted that appellant engaged in repetitive pushing, lifting,
pulling, bending, and twisting and failed to adequately describe the occupational duties alleged
to have caused degenerative joint disease of the back. Moreover, his February 28, 2014 physical
examination of the right and left lower extremity revealed normal strength, range of motion, and
function. Dr. DeGrauw reported that even with normal examination findings, the neck, back,
and shoulder were severely limited due to pain associated with arthritis. However, he failed to
establish arthritis of the back as he has provided no support or objective evidence establishing
this condition.13
In his May 21, 2014 report, Dr. DeGrauw diagnosed chronic degenerative joint disease in
multiple areas of the body including the lower back, upper back, neck, shoulders, wrists, and
elbows. With respect to degenerative joint disease of the lower and upper back, he noted that
appellant’s symptoms were present since 2002 with incidences stemming back to 1987.
Dr. DeGrauw again failed to provide an adequate and detailed medical history and did not
address why appellant’s complaints were not caused by a preexisting degenerative condition or
nonoccupational injury. His general observation that repetitive lifting involved multiple aspects
11

See Robert Broome, 55 ECAB 339 (2004).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.6(a)(4) (September 2010).
13

T.G., Docket No. 13-76 (issued March 22, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).

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of the body is speculative and equivocal in nature, providing only a vague inference of causal
connection. Dr. DeGrauw’s report provided no discussion regarding whether preexisting
degenerative joint disease had progressed beyond what might be expected from the natural
progression of that condition.14 A well-rationalized opinion is particularly warranted when there
is a history of a preexisting condition.15 While Dr. DeGrauw had some understanding of
appellant’s employment duties,16 he failed to establish a firm medical diagnosis establishing a
right leg, or back injury, and did not provide a rationalized opinion on causal relationship. Thus,
his medical report does not constitute probative medical evidence because he fails to provide a
clear diagnosis and does not adequately explain the cause of appellant’s injury.17
The record contains no other medical reports documenting treatment of these conditions,
making it unclear what diagnostic reports or examination findings Dr. DeGrauw utilized to
ascertain the diagnoses provided. An explanation not supported by physical findings does not
constitute a well-rationalized medical opinion.18 Dr. DeGrauw’s reports do not meet that
standard and are insufficient to meet appellant’s burden of proof.19
The remaining medical evidence of record is also insufficient to establish appellant’s
claim. Dr. Kleinsmith’s February 25, 2014 report is of no probative value as he provided no
findings pertaining to the back or lower extremities as alleged by appellant in this occupational
disease claim.20 The x-ray images of the cervical and lumbar spine are also of no probative value
as they were not accompanied by a physician’s diagnostic report interpreting the findings.21 As
noted above, the additional diagnoses provided by Dr. DeGrauw that do not relate to the right leg
and lower back injuries alleged by appellant in this claim are of no probative value. It is
appellant’s burden to specify the nature of his claim.22

14

R.E., Docket No. 14-868 (issued September 24, 2014).

15

The Board has held that an opinion that a condition is causally related because the employee was asymptomatic
before the injury is insufficient, without adequate rationale, to establish causal relationship. T.M., Docket No. 08975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).
16

The physician explained that appellant’s work as a sheet metal mechanic for the past 30 years involved lifting
heavy items weighing 150 to 175 pounds, frequent bending over and stooping approximated at 80 degree angles for
70 to 80 percent of the day, and frequent bending over using pneumatic bands to apply sheet metal.
17

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

18

Supra note 12 at Chapter 2.810.6(a)(2).

19

See L.M., Docket No. 14-973 (issued August 25, 2014); R.G., Docket No. 14-113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-548 (issued November 16, 2012).
20

The Board notes that, at the March 11, 2015 hearing, appellant’s representative testified that he had a previous
work-related shoulder injury for which he underwent surgery. The record before the Board contains no other
information pertaining to this claim.
21

The x-ray images also failed to identify a physician or date of study. See J.P., Docket No. 14-87 (issue
March 14, 2014).
22

O.S., Docket No. 13-438 (issued July 15, 2014).

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In the instant case, the record is without rationalized medical evidence establishing a
diagnosed medical condition causally related to the accepted federal employment duties. OWCP
advised appellant of the type of medical evidence required to establish his claim; however, he
failed to submit such evidence. Thus, appellant has failed to meet his burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
developed a right leg or back injury as a result of his federal employment duties.
ORDER
IT IS HEREBY ORDERED THAT the May 26, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 26, 2015
Washington, DC

Christopher J. Godfrey, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
U.S. POSTAL SERVICE, LOGAN STATION,
Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 20-0984
Issued: November 25, 2020

Case Submitted on the Record

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

JURISDICTION
On April 6, 2020 appellant, through counsel, filed a timely appeal from an October 25,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 29, 2006 appellant, then a 42-year-old letter carrier filed an occupational
disease claim (Form CA-2) alleging that she had developed a stress fracture in her lower back due
to factors of her federal employment, including repetitive lifting and bending. On April 23, 2007
OWCP accepted her claim for temporary aggravation of stress fracture of the L5 pedicle and
temporary aggravation of lumbar degenerative disc disease. It subsequently expanded acceptance
of appellant’s claim to include sprain of the shoulder. Appellant stopped work on January 10,
2006 and did not return.
In a September 16, 2013 notice of proposed termination, OWCP proposed to terminate
appellant’s wage-loss compensation and medical benefits due to her accepted condition. By
decision dated October 29, 2013, it terminated appellant’s wage-loss compensation and medical
benefits, effective November 17, 2013, finding that accepted employment-related residuals and
disability had ceased. Appellant requested an oral hearing on November 5, 2013 and, by decision
dated July 15, 2014, a representative of the Branch of Hearings and Review affirmed the
October 29, 2013 termination decision. On October 21, 2014 she appealed this decision to the
Board. In its April 7, 2015 decision, the Board found that OWCP had met its burden of proof to
terminate appellant’s wage-loss compensation and medical benefits effective October 29, 2013.
On April 16, 2014 appellant underwent electrodiagnostic testing including electromyogram
and nerve conduction velocity (EMG/NCV) testing, which demonstrated a mild severity acute
right L4-5 radiculopathy and mild-to-moderate severity bilateral chronic L4-5 and L5-S1
radiculopathy.
On November 23, 2015 appellant filed a schedule award claim (Form CA-7). In support
of this claim, she provided an October 6, 2015 report from Dr. David Weiss, an osteopath and a
Board-certified orthopedic surgeon. Dr. Weiss diagnosed cumulative and repetitive trauma
disorder, occupational low back syndrome, status post nondisplaced left L5 pedicle fracture,
bulging lumbar discs at L1-2, L2-3, L3-4, and L5-S1, aggravation of preexisting multilevel
degenerative disc disease and osteoarthritis of the lumbar spine, and bilateral L4, L5, and S1
lumbar radiculopathy. He found paravertebral muscle spasm and tenderness of the lumbar spine,
muscle strength of 4/5 on the right hip flexors, and 3+/5 in the right gastrocnemius. Dr. Weiss
reported that Semmes-Weinstein Monofilament Testing revealed diminished light touch
sensibility over the L4 and L5 dermatome involving the left lower extremity. Utilizing the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
3

Docket No. 15-0112 (issued April 7, 2015).

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(A.M.A., Guides)4 including the provisions of The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (The Guides Newsletter) (July/August 2009) to his
findings, he determined that appellant had 13 percent permanent impairment of her left lower
extremity due to sensory impairment and 26 percent permanent impairment of the right lower
extremity due to motor and sensory impairments. Dr. Weiss opined that she had reached maximum
medical improvement (MMI) on October 6, 2015.
On January 8, 2018 OWCP referred appellant, a list of questions, and a statement of
accepted facts (SOAF) for a second opinion examination with Dr. Noubar A. Didizian, a Boardcertified orthopedic surgeon. It asked that he determine if she continued to suffer from residuals
of the work-related injury and any resulting permanent impairment.
In a January 24, 2018 report, Dr. Didizian reviewed the SOAF and noted that appellant’s
claim was accepted for temporary aggravation of stress fracture of the L5 pedicle, temporary
aggravation of degenerative disc disease, and sprain of the shoulder. He reviewed her medical
records including lumbar magnetic resonance imaging (MRI) scans, noted her reports of daily low
back pain, and performed a physical examination. Dr. Didizian found that appellant had a normal
gait, and negative straight leg raising. He reported normal muscle strength in the lower extremities
bilaterally and equal sensory responses. Dr. Didizian opined that, based on his comprehensive
orthopedic and neurologic examination, appellant had no residuals of her accepted employment
injuries. He found that her stress fracture had healed as demonstrated by an/the? MRI scan, that,
therefore, the aggravation of this condition had ended. Dr. Didizian also found that the temporary
aggravation of appellant’s underlying degenerative disc disease had ended. He indicated that
appellant’s objective orthopedic and neurologic examination was negative and did not support any
ongoing subjective complaints or organic pathology. Dr. Didizian further found that his
neurologic examination found no ongoing radiculopathy, motor, sensory, or reflex changes in the
right lower extremity. He determined that appellant had reached MMI in 2006 when her MRI scan
demonstrated resolution of her fracture. Dr. Didizian concluded that there was no permanent
impairment related to the November 1, 2005 employment injury and therefore, an impairment
rating could not be provided.
On July 20, 2018 due to the conflict of medical opinion between Drs. Weiss and Didizian
regarding appellant’s employment-related permanent impairment, OWCP referred her, a SOAF,
and list of questions to Dr. Andrew Collier, a Board-certified orthopedic surgeon, for an impartial
medical examination.
In his August 8, 2018 report, Dr. Collier noted that he had reviewed the SOAF, reviewed
the medical reports, and performed a physical examination. He indicated that appellant reported
low back pain with radiation to her right foot with occasional pins and needles sensation as well
as numbness. Dr. Collier found that her straight leg raising was negative for radicular symptoms
bilaterally, but positive on the right for low back pain. He determined that appellant’s neurological
examination was intact to sensory, motor, and deep tendon reflexes and that she had no focal
sensory deficits nor any motor weakness of her hip flexors, quadriceps, or hamstrings, but that she
did have decreased motion in the low back. Dr. Collier found no muscle atrophy and a nonantalgic
4

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

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gait. He reviewed appellant’s April 16, 2014 EMG/NCV study. Dr. Collier opined that she had
experienced a temporary aggravation of her underlying degenerative disc disease and aggravation
of her L5 left pedicle stress fracture which had since healed and resolved. He again described
appellant’s positive EMG/NCV study in 2014, and noted that these findings were made many years
after her injury and exhibited chronic changes. However, Dr. Collier found that her current
neurological examination was normal. He determined that appellant’s current clinical course was
due to her underlying degenerative disc disease. Dr. Collier did not calculate any permanent
impairment as he found that her employment-related conditions had resolved without residuals.
By decision dated May 3, 2019, OWCP denied appellant’s schedule award claim, finding
that the medical evidence did not establish permanent impairment of a scheduled member due to
her accepted work injury.
On May 13, 2019 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. On August 12, 2019 counsel provided
an additional report from Dr. Weiss dated July 24, 2019 in which he reviewed the medical
evidence of record and found that neither Dr. Didizian nor Dr. Collier used Semmes-Weinstein
Monofilament testing in documenting appellant’s sensory deficits. He also noted that Dr. Collier
did not address motor strength findings in appellant’s gastrocnemius on the right. Finally,
Dr. Weiss noted that on April 16, 2014 her EMG/NCV study documented bilateral L4-5 and L5S1 radiculopathy which corresponded with the sensory and motor deficits he found on
October 6, 2015.
On August 15, 2019 counsel appeared before an OWCP hearing representative.
By decision dated October 25, 2019, OWCP’s hearing representative found that
Dr. Collier’s report was entitled to the special weight of the medical evidence and established that
appellant had no permanent impairment warranting a schedule award.
LEGAL PRECEDENT
The schedule award provisions 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
the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.8

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (February 2013); see also id. at Chapter 3.700.2 and Exhibit 1 (January 2010).

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OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a district medical adviser for an opinion concerning the percentage of
permanent impairment using the A.M.A., Guides.9
Neither FECA nor its regulations provide for a schedule award for impairment to the back
or to the body as a whole.10 Furthermore, the back is specifically excluded from the definition of
organ under FECA.11 The sixth edition of the A.M.A., Guides does not provide a separate
mechanism for rating spinal nerve injuries as impairments of the extremities. Recognizing that
FECA allows ratings for extremities and precludes ratings for the spine, The Guides Newsletter
offers an approach to rating spinal nerve impairments consistent with sixth edition methodology.
For peripheral nerve impairments to the upper or lower extremities resulting from spinal injuries,
OWCP procedures indicate that The Guides Newsletter is to be applied.12 The Board has
recognized the adoption of this methodology for rating extremity impairment, including the use of
The Guides Newsletter, as proper in order to provide a uniform standard applicable to each
claimant for a schedule award for extremity impairment originating in the spine.13
Section 8123(a) of FECA which provides that, if there is disagreement between the
physician making the examination for the United States and the physician of the employee, OWCP
shall appoint a third physician (known as a referee physician or impartial medical specialist) who
shall make an examination.14 This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.15 When there exists opposing reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background, must
be given special weight.16
The claimant has the burden of proof to establish that the condition for which a schedule
award is sought is causally related to his or her employment.17

9

R.A., Docket No. 19-0288 (issued July 12, 2019); id at Chapter 2.808.6(f) (February 2013); Tommy R. Martin, 56
ECAB 273 (2005).
10

L.L., Docket No. 19-0214 (issued May 23, 2019); N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB
354 (2004).
11

5 U.S.C. § 8101(19); G.S., Docket No. 18-0827 (issued May 1, 2019); Francesco C. Veneziani, 48 ECAB
572 (1997).
12

Supra note 8 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.

13

E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).

14

5 U.S.C. § 8123(a); L.S., Docket No. 19-1730 (issued August 26, 2020); M.S., 58 ECAB 328 (2007).

15

20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006).

16

L.S., supra note 14; Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

17

L.S., id.; Veronica Williams, 56 ECAB 367 (2005).

5

ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP found a conflict in the medical opinion evidence between appellant’s treating
physician, Dr. Weiss, who found 13 percent permanent impairment of her left lower extremity due
to sensory impairment and 26 percent permanent impairment of the right lower extremity due to
motor and sensory impairments, and its second opinion physician, Dr. Didizian, who found no
ratable lower extremity impairment. It properly referred her case to Dr. Collier pursuant to
5 U.S.C. § 8123(a) for an impartial medical examination in order to resolve the conflict in the?
medical opinion.18
In his August 8, 2018 report, Dr. Collier opined that appellant did not have any permanent
impairment of a scheduled member or function of the body under the sixth edition of the A.M.A.,
Guides. However, the Board finds that he did not adequately explain this opinion in accordance
with the relevant standards. In a situation where OWCP secures an opinion from an impartial
medical examiner for the purpose of resolving a conflict in the medical evidence and the opinion
from such examiner requires clarification and/or elaboration, OWCP has the responsibility to
secure a supplemental report from the examiner for the purpose of correcting the defect in the
original opinion.19
In his August 8, 2018 report, Dr. Collier opined that all of appellant’s accepted medical
conditions stemming from her January 29, 2006 employment injury had resolved, including the
temporary aggravation of stress fracture of the L5 pedicle and temporary aggravation of lumbar
degenerative disc disease. The Board notes, however, that he failed to adequately explain how
and when those conditions had resolved. Dr. Collier acknowledged that appellant’s April 16, 2014
EMG/NCV study, which demonstrated a mild severity acute right L4-5 radiculopathy and mildto-moderate severity bilateral chronic L4-5 and L5-S1 radiculopathy, but he did not adequately
explain why these chronic findings were related to appellant’s underlying degenerative disc
disease and not to her accepted temporary aggravation of lumbar degenerative disc disease.
Furthermore, he did not explain how and why he believed that his positive findings on physical
examination including her reported low back pain with radiation to her right foot with occasional
pins and needles sensation as well as numbness, and positive straight leg raising on the right for
low back pain were due to her underlying degenerative disc disease rather than the accepted
employment-related aggravation of this condition. Dr. Collier also failed to provide any discussion
of the relevant portion of the sixth edition of the A.M.A., Guides governing this type of permanent
impairment. He did not discuss the standards of The Guides Newsletter, the above-described
FECA-approved methodology, which is premised on permanent impairment stemming from
radiculopathies affecting the upper and/or lower extremities did not calculate any permanent
impairment as he found that her employment-related conditions had resolved without residuals.

18

W.C., Docket No. 19-1740 (issued June 4, 2020).

19
L.L., Docket No. 19-0214 (issued May 23, 2019); S.R., Docket No. 17-1118 (issued April 5, 2018); Nancy
Lackner (Jack D. Lackner), 40 ECAB 232 (1988).

6

For the above-described reasons, the opinion of Dr. Collier requires clarification.
Therefore, in order to resolve the continuing conflict in the medical opinion evidence, the case will
be remanded to OWCP for referral of the case record, a SOAF, and, if necessary, appellant, to
Dr. Collier for a supplemental report regarding whether she has permanent impairment of her
extremities. If Dr. Collier is unable to clarify or elaborate on his original report or if his
supplemental report is also vague, speculative, or lacking in rationale, OWCP must submit the case
record and a detailed SOAF to a second impartial medical specialist for the purpose of obtaining
his rationalized medical opinion on the issue.20 After this and other such further development as
deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 25, 2019 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 25, 2020
Washington, DC

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

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

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

20

L.S., supra note 14; L.L., supra note 19; Harold Travis, 30 ECAB 1071, 1078 (1979).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Youngstown, OH, Employer
__________________________________________

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

Docket No. 17-0373
Issued: April 12, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 8, 2016 appellant, through counsel, filed a timely appeal from the
November 10, 2016 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days elapsed from the last merit decision of June 18, 2015 to the
filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 9, 2013 appellant, then a 53-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that day she injured her right middle finger when the rear
door of the postal vehicle shut on her right hand. She stopped work on December 9, 2013.
OWCP accepted the claim for closed fracture right metacarpal. It subsequently expanded the
claim to include nonunion of right fracture. Wage-loss compensation and medical benefits were
paid including a January 3, 2014 surgery for open reduction, debridement, and internal fixation
of plates and screws of the right middle finger. OWCP also authorized a second surgery on
March 21, 2014, which involved removal of hardware and right finger revision open reduction.
Following a period of temporary total disability, appellant returned to full-duty work on
September 30, 2014.
Appellant also has an accepted occupational disease claim for a right shoulder condition
that arose on or about February 25, 1990.
On January 26, 2015 appellant filed a claim for a schedule award (Form CA-7). No
evidence was received with her claim. On February 2, 2015 OWCP advised appellant of the
deficiencies in her claim and providing her an opportunity to submit the evidence necessary to
establish her claim. In response, it received duplicate copies of medical reports dated
December 12, 2013, January 3, and July 14, 2014 from Dr. Adrian Butler, a Board-certified
orthopedic surgeon.
By decision dated March 10, 2015, OWCP denied appellant’s claim for a schedule award
as she had failed to provide a permanent impairment rating from a qualified physician based on
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (2009).
In an April 6, 2015 letter appellant, through counsel, requested an oral hearing with a
representative of OWCP’s Branch of Hearings and Review.
In an April 17, 2015 report, Dr. Catherine Watkins Campbell, a family practitioner,
provided results on examination and noted that appellant had reached maximum medical
improvement (MMI) on November 19, 2014. She found 49 percent middle finger digit
permanent impairment based on loss of range of motion (ROM) under Table 15-31, A.M.A.,
Guides 470 (6th ed. 2009). Dr. Watkins Campbell indicated that the digit impairment converted
to nine percent right upper extremity impairment.
By decision dated October 9, 2015, the hearing representative conducted a preliminary
review and determined that the case was not in posture for a hearing. She remanded the case to
OWCP for further medical development.

2

As instructed by the hearing representative and in accordance with its procedures, OWCP
forward a statement of accepted facts along with the case file, including Dr. Watkins Campbell’s
April 17, 2015 report, to its district medical adviser (DMA) for a schedule award impairment
determination. In an October 19, 2015 report, the DMA, Dr. Morley Slutsky, Board-certified in
occupational medicine indicated that appellant had reached MMI on February 16, 2015. He
disagreed, in part, with Dr. Watkins Campbell’s impairment findings and provided a detailed
explanation for his disagreement. Citing to tables and figures in the A.M.A., Guides, the DMA
concluded that appellant had a final adjusted right middle finger digit ROM impairment of 57
percent, as opposed to Dr. Watkins Campbell’s 49 percent rating. The DMA’s 57 percent right
middle finger digit impairment converted to 10 percent right upper extremity impairment.
By decision dated December 2, 2015, OWCP denied the claim for an increased schedule
award. It noted that appellant had already received schedule awards totaling 15 percent right
upper extremity impairment under File No. xxxxxx664. As the current 10 percent rating was
less than the total prior awards, OWCP found that she was not entitled to an additional award.3
On June 24, 2016 OWCP received counsel’s May 18, 2016 request for reconsideration on
appellant’s behalf. Counsel submitted an April 17, 2015 report from Dr. Watkins Campbell,
which he claimed had not been previously considered.
By decision dated November 10, 2016, OWCP denied counsel’s request for
reconsideration without a merit review. It found that his May 18, 2016 letter did not meet the
requirements for a review under 20 C.F.R. § 10.606(b)(3).
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is
sought.6 Atimely application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
3

The December 2, 2015 decision referenced three prior schedule awards (December 27, 2007, May 15, 2012, and
January 4, 2013) that appellant reportedly received with respect to her right shoulder condition under File No.
xxxxxx664. However, the referenced decisions or the associated impairment ratings are not in the current case
record. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a
(June 2011).
4

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of the OWCP decision for which review is sought. Supra note 3 at Part 2 -Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt
date of the request for reconsideration as indicated by the “received date” in the Integrated Federal Employees’
Compensation System (iFECS). Id. at Chapter 2.1602.4b.

3

interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.7 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration
without further merit review.9
The Board first finds that OWCP properly considered counsel’s request as a request for
reconsideration and not as a claim for an increased schedule award. In his correspondence to
OWCP, counsel specifically noted that he was requesting reconsideration of OWCP’s
December 2, 2015 decision,10 and requested that the previous decision be overturned following
review of the evidence of record. As counsel was contesting the prior decision, not seeking a
new award based upon new impairment, the Board finds a proper reconsideration request.11
As noted above, the Board does not have jurisdiction over the merits of the December 2,
2015 decision. The issue presented on appeal is whether the request for reconsideration met any
of the requirements of 20 C.F.R. § 10.606(b)(3), thereby warranting a review of the merits of the
claim. In his May 18, 2016 correspondence, counsel did not show that OWCP erroneously
applied or interpreted a specific point of law, or advance a new and relevant legal argument not
previously considered. He resubmitted the April 17, 2015 impairment rating and claimed that
OWCP had failed to consider it. To the contrary, OWCP had previously forwarded
Dr. Watkins Campbell’s April 17, 2015 report to its DMA for review, and OWCP specifically
referenced his report in its December 2, 2015 decision. The medical adviser had reviewed
Dr. Watkins Campbell’s report and found that appellant was entitled to 10 percent right upper
extremity permanent impairment rather than Dr. Watkins Campbell’s 9 percent right upper
extremity permanent impairment rating. Providing additional evidence that either repeats or
duplicates information already in the record of evidence does not constitute a basis for reopening
a claim.12
The Board finds that counsel failed to show that OWCP erroneously applied or
interpreted a point of law, failed to advance a point of law or fact not previously considered by
OWCP, and failed to submit relevant and pertinent new evidence not previously considered.
Consequently, appellant has not met any of the regulatory requirements and OWCP properly
7

Id. at § 10.606(b)(3).

8

Id. at § 10.608(a), (b).

9

See B.D., Docket No. 16-1177 (issued October 27, 2016).

10

See J.K., Docket No. 14-1082 (issued November 24, 2014).

11

See A.C., Docket 13-1810 (issued January 6, 2014); supra note 6 at Chapter 2.1602.3(b) (October 2011).

12

James W. Scott, 55 ECAB 606, 608 n.4 (2004).

4

declined her request for reconsideration of the merits of her claim under 5 U.S.C. § 8128(a).13
Thus, OWCP did not abuse its discretion in refusing to reopen her claim for a review on the
merits.
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 OWCP properly denied appellant’s request for merit review under 5
U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 10, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 12, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13

A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB
630 (2006).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NEW YORK HARBOR HEALTHCARE
SYSTEM, Brooklyn, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1234
Issued: March 22, 2019

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 June 1, 2018 appellant, through counsel, filed a timely appeal from a December 19,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established an injury to his neck, shoulders, or back
causally related to the accepted June 17, 2014 employment incident.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On June 24, 2014 appellant, then a 30-year-old program support assistant, filed a traumatic
injury claim (Form CA-1) alleging that on June 17, 2014 he pinched a nerve or pulled muscles in
his neck, shoulders, and spine when his walker and office chair locked into one another, causing
him to fall to the floor. He stopped work on the date of injury.
Appellant was treated by a series of physicians for his neck, shoulder, and back conditions.
By decision dated August 21, 2014, OWCP denied appellant’s traumatic injury claim. It
found that the medical evidence of record was insufficient to establish a diagnosed condition
causally related to the accepted June 17, 2014 employment incident.
On October 7, 2014 appellant, through counsel, requested reconsideration and submitted
additional evidence.
By decision dated April 6, 2015, OWCP denied modification of its August 21, 2014
decision.
Appellant appealed to the Board. By decision dated August 24, 2015, the Board affirmed
the April 6, 2015 decision.4
Appellant, through counsel, requested reconsideration on April 25, 2016 and submitted
additional medical evidence.
By decision dated May 3, 2016, OWCP denied modification of its prior decision.
Appellant appealed to the Board. By decision dated December 8, 2016, the Board affirmed
the May 3, 2016 decision.5
Appellant, through counsel, on November 29, 2017 requested reconsideration. Counsel
contended that new medical evidence from Dr. Todd Schlifestein, an osteopath, and Dr. Alex

3
Docket No. 15-1166 (issued August 24, 2015); Docket No. 16-1469 (issued December 8, 2016), petition for recon.
denied, Docket No. 16-1469 (issued May 4, 2017).
4

Supra note 3.

5

Supra note 3.

2

Racco, also an osteopath, established that appellant had sustained a medical condition as a result
of the accepted employment incident.
OWCP subsequently received a report dated September 20, 2017, wherein Dr. Schlifstein
advised that subsequent to appellant’s fall at work on June 17, 2014 he experienced neck and back
pain radiating into his upper and lower extremities. Dr. Schlifstein noted that appellant had been
using a walker since childhood due to preexisting cerebral palsy.
On November 19, 2017 Dr. Racco noted that appellant had used a walker beginning in
childhood as a result of his cerebral palsy.
By decision dated December 19, 2017, OWCP denied modification of its prior merit
decision. It found that the newly submitted medical reports were insufficient to establish that the
accepted June 17, 2014 employment incident caused or aggravated a diagnosed condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged; and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.7 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.9 Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.10
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence. The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship

6

Supra note 2.

7

See R.B., Docket No. 18-1327 (issued December 31, 2018).

8

See Y.K., Docket No. 18-0806 (issued December 19, 2018).

9

See G.H., Docket No. 18-0989 (issued January 3, 2019).

10

Id.

3

between the diagnosed condition and the specific employment incident identified by the
claimant.11
ANALYSIS
The Board finds that appellant has not established that he sustained an injury to his neck,
shoulders, or back causally related to the accepted June 17, 2014 employment incident.
On prior appeals, the Board reviewed the evidence before OWCP at the time it issued its
April 6, 2015 and May 3, 2016 decisions and found that it was insufficient to establish that
appellant sustained a diagnosed condition causally related to the accepted June 17, 2014
employment incident. The Board’s review of the previously submitted medical evidence of record
is res judicata absent further review by OWCP under section 8128(a) and therefore the prior
evidence need not be addressed again in this decision.12
In a September 20, 2017 report, Dr. Schlifstein noted that appellant had used a walker since
he was a child due to cerebral palsy. He related that appellant had experienced pain in his back
and neck radiating into both the upper and lower extremities after a June 17, 2014 fall at work.
Dr. Schlifstein, however, did not provide a specific diagnosis or provide rationale for his opinion.
A medical opinion that a condition is causally related to an employment injury because the
employee was asymptomatic before the injury, but symptomatic after it is insufficient, without
supporting rationale, to establish causal relationship.13 Without explaining, physiologically, how
the accepted employment incident caused or contributed to a diagnosed condition, Dr. Schlifstein
Dr. Schlifstein’s report is of limited probative value.14
Dr. Racco, on November 19, 2017, noted that appellant had been using a walker due to
cerebral palsy. However, he did not provide a history of the June 17, 2014 employment incident,
a diagnosis, or an opinion on causation. Without any reference to the June 17, 2014 employment
incident, Dr. Racco’s report is of diminished probative value.15 The Board has held that a
physician must provide a narrative description of the identified employment incident and a
reasoned opinion on whether the described incident caused or contributed to a diagnosed medical
condition.16
As the medical evidence does not contain a rationalized medical opinion explaining the
causal relationship between a diagnosed condition and the accepted June 17, 2014 employment
incident, appellant has not met his burden of proof.

11

H.B., Docket No. 18-0781 (issued September 5, 2018).

12

See W.C., Docket No. 18-1386 (issued January 22, 2019).

13

K.R., Docket No. 18-1388 (issued January 9, 2019); E.D., Docket No. 16-1854 (issued March 3, 2017); Cleopatra
McDougal-Saddler, 47 ECAB 480 (1996).
14

M.N., Docket No. 18-1193 (issued December 28, 2018).

15

See S.T., Docket No. 17-1246 (issued November 2, 2017).

16

Id.

4

On appeal, counsel asserts that he has established fact of injury, noting that the medical
evidence submitted established that appellant used a walker due to preexisting cerebral palsy
unrelated to his employment injury and that the cerebral palsy did not cause his diagnosed
employment-related condition. As explained above, however, the evidence of record is
insufficient to establish a firm medical diagnosis causally related to the accepted June 17, 2014
employment incident, and thus appellant has not met his burden of proof.17
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established an injury to his neck, shoulders, or back
causally related to the accepted June 17, 2014 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the December 19, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 22, 2019
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

17

M.E., Docket No. 18-1135 (issued January 4, 2019).

5


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

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

Docket No. 18-0425
Issued: September 7, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 26, 2017 appellant filed a timely appeal from September 13 and
December 12, 2017 merit decisions 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 the case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that she
reached maximum medical improvement (MMI) thereby warranting consideration of her
entitlement to a schedule award pursuant to 5 U.S.C. § 8107; and (2) whether appellant has met
her burden of proof to establish total disability for the period September 22 through October 9,
2017 causally related to her accepted June 7, 2016 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 8, 2016 appellant, then a 47-year-old rural letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, while at work, she strained her neck and right shoulder on June 7,
2016 lifting parcels from the ground into her postal vehicle. On June 27, 2016 OWCP accepted
her claim for neck strain, as well as right shoulder and right arm strains.2
In a note dated June 22, 2016, appellant’s attending physician, Dr. Susan P. Barnard, a
family practitioner, released her to return to light-duty work with the following restrictions: no
work above shoulder level nor below waist level; no repetitive turning of the head; no repetitive
reaching with the right arm, no lifting over 35 pounds, occasionally; lifting 5 pounds, constantly;
and no driving for more than 30 minutes. On July 7, 2017 she diagnosed the additional condition
of cervical disc herniation. On July 13, 2016 appellant returned to a light-duty position as a lobby
and telephone assistant within her work restrictions.
On August 4, 2016 Dr. Marko Bodor, a Board-certified physiatrist, examined appellant due
to neck and right arm pain. He noted that appellant had a history of C7-T1 neck pain. Dr. Bodor
opined that appellant had aggravated her symptoms in June 2016 at work while lifting boxes. He
found that appellant had decreased sensation in the C5 dermatome on the right, positive Spurling
maneuver, and loss of motor strength in the right biceps and right wrist extensors. Dr. Bodor
diagnosed right C6 radiculopathy and history of right rotator cuff impingement with subacrominal
decompression. He recommended a repeat epidural injection.
On September 29, 2016 appellant underwent a C7-T1 interlaminar epidural steroid
injection for her diagnosed conditions of C5-6 disc degeneration and right side radicular pain. She
underwent a magnetic resonance imaging (MRI) scan of her cervical spine on September 29, 2015
which demonstrated a small disc protraction at C5-6 with mild right foraminal narrowing and small
disc protrusions at C4-5, and C6-7 without foraminal narrowing.
In a report dated November 21, 2016, Dr. Barnard reduced appellant’s work restrictions
finding that she could lift, carry, push, and pull up to 25 pounds (in keeping with appellant’s prior
right shoulder restrictions) and that appellant should perform no prolonged or repetitive periods of
reaching with her right arm.
On March 7, 2017 appellant filed a claim for a schedule award (Form CA-7).
In a report dated March 14, 2017, Dr. Barnard noted appellant’s complaints of increased
neck and right arm pain. She increased appellant’s work restrictions finding that she could lift,
carry, push, and pull less than 10 pounds.

2

The record indicates that OWCP accepted that appellant sustained a right shoulder injury on October 22, 2003 in
OWCP File No. xxxxxx640. Appellant underwent right shoulder surgeries on December 10, 2004 and
March 12, 2009. She continued to report right shoulder symptoms including right shoulder internal impingement
through September 18, 2014. Appellant had permanent medical restrictions for her right shoulder at the time of her
June 7, 2016 employment injury.

2

On March 21, 2017 OWCP referred appellant, a statement of accepted facts (SOAF), and
a list of questions to Dr. John H. Welborn, Jr., a Board-certified orthopedic surgeon, for a second
opinion evaluation.
In his April 5, 2017 report, Dr. Welborn described appellant’s history of injury on
July 7, 2016. He performed a physical examination and diagnosed right shoulder impingement
and acromioclavicular (AC) joint arthritis. Dr. Welborn indicated that he was unable to explain
the cause of appellant’s right side neck pain as she did not have a cervical disc herniation, but
rather a mild disc protrusion. He opined that appellant had no objective findings to support her
complaints of chronic moderate neck pain. Dr. Welborn concluded that appellant did not have
cervical radiculopathy or herniation and that she did not require further medical treatment.
In a note dated April 28, 2017, Dr. Phillip Leroy Wagner, a physician Board-certified in
occupational medicine, released appellant to return to full-duty work. Appellant returned to full
duty on May 1, 2017.
On May 12, 2017 OWCP referred appellant, a SOAF, and list of questions to
Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon, to determine whether appellant had
a permanent impairment for schedule award purposes. In his June 1, 2017 report, Dr. Swartz noted
appellant’s symptoms of pain in the right cervical spine, right trapezius, right shoulder, right
thumb, index, and middle fingers. He described her June 7, 2016 employment incident.
Dr. Swartz noted appellant’s work restrictions of lifting no more than 25 pounds. He performed a
physical examination and found tenderness in the right posterolateral cervical spine. Dr. Swartz
found limited range of motion in appellant’s right shoulder. He found that she was at MMI, but
he noted that further electromyogram (EMG) and nerve conduction velocity (NCV) studies were
recommended.
Appellant underwent an upper extremity EMG on July 6, 2017 which demonstrated
possible carpal tunnel syndrome (CTS) on the right, but no proximal cervical radiculopathy.
Dr. Swartz reviewed this study on July 24, 2017 and found no evidence of radiculopathy and
therefore no upper extremity impairment due to radiculopathy. However, he found that appellant’s
CTS was causally related to her June 7, 2016 employment injury and recommended further
evaluation of this condition. Dr. Swartz further recommended a right shoulder MRI scan.
On August 7, 2017 appellant underwent a right shoulder MRI scan which demonstrated
supraspinatus and infraspinatus tendinosis with no rotator cuff tear.
In a note dated August 15, 2017, Dr. Wagner diagnosed neck muscle strain, right trapezius
strain, and cervical disc herniation. He found that appellant could not lift, carry, push, or pull more
than 10 pounds.3
Subsequent to his testing recommendations, Dr. Swartz reviewed appellant’s diagnostic
studies on September 1, 2017 and recommended treatment for CTS and AC arthrosis as
demonstrated on the MRI scan. He found that appellant was capable of continuing with her job
3
The documents received by OWCP on August 16, 2017 and dated August 11, 2017 are inappropriately associated
with this OWCP file.

3

and a 25-pound lifting restriction. Dr. Swartz concluded that she should be reevaluated in six
months after medical treatment for her additional conditions of CTS and AC arthrosis, and that
this reevaluation should include a new impairment rating.
By decision dated September 13, 2017, OWCP expanded acceptance of the claim to
include primary osteoarthritis, right shoulder, and right CTS.
By decision dated September 13, 2017, OWCP denied appellant’s schedule award claim
finding that she had not reached MMI.
Dr. Wagner completed a note on September 21, 2017 and found that appellant was totally
disabled from September 21 through October 2, 2017 due to uncontrolled symptoms. On
October 2, 2017 he found that she was totally disabled from October 2 through 9, 2017 due to
uncontrolled symptoms.
On October 2 and 9, 2017 appellant filed claims for compensation (Form CA-7) requesting
leave without pay for compensation purposes from September 22 through October 9, 2017.
In a note dated October 11, 2017, Dr. Wagner indicated that appellant was totally disabled
from October 10 thorough 11, 2017 due to uncontrolled symptoms.
In a development letter dated October 25, 2017, OWCP requested that appellant provide
additional medical evidence supporting her claimed period of total disability. It afforded her 30
days for a response.
In a note dated October 25, 2017, Dr. Wagner indicated that appellant could return to
modified work on that date lifting, carrying, pushing, and pulling less than 10 pounds. On
November 8 and 28, 2017 he repeated these restrictions.
By decision dated December 12, 2017, OWCP denied appellant’s claim for disability for
the period September 22 through October 9, 2017.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for loss
or 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 sixth

4

5 U.S.C. §§ 8101-8193, 8107.

5

20 C.F.R. § 10.404.

4

edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment,
(A.M.A., Guides) published in 2009.6
The Board has explained that permanent impairment may only be rated according to the
A.M.A., Guides after MMI has been achieved.7 An impairment should not be considered
permanent until a reasonable time has passed for the healing or recovery to occur. The A.M.A.,
Guides explain that impairment should not be considered permanent until the clinical findings
indicate that the medical condition is static and well stabilized. MMI refers to a date from which
further recovery or deterioration is not anticipated, although over time there may be some expected
change.8 Once impairment has reached MMI, a permanent impairment rating may be performed.9
The period covered by a schedule award commences on the date that the employee reaches
MMI from the residuals of the injury. The question of when MMI has been reached is a factual
one that depends upon the medical findings in the record. The determination of such date is to be
made in each case upon the basis of the medical evidence in that case.10 The date of MMI is
usually considered to be the date of the medical examination that determined the extent of the
impairment.11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established that she has reached MMI, warranting
consideration of a schedule award.
OWCP referred appellant for a second opinion evaluation with Dr. Swartz to address the
extent of permanent impairment, if any, causally related to her June 7, 2016 employment injury.
While initially he related that appellant had reached MMI as of his July 1, 2017 examination, in
this report, as well as in his subsequent reports, specifically his September 1, 2017 report,
Dr. Swartz clearly opined that appellant should undergo additional diagnostic evaluation and
medical treatments for the newly diagnosed right CTS and arthritis of the right AC joint. As
Dr. Swartz did not report that appellant’s conditions were static and well-stabilized, he did not

6

For new 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); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability
Claims, Chapter 2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700, Exhibit 1 (January 2010).
7

See A.D., Docket No. 17-1996 (issued March 5, 2018); B.C., Docket No. 16-2062 (issued November 18, 2016).

8

A.D., id.

9

A.M.A., Guides, 24 (6th ed. 2009); see A.D., supra note 7; Orlando Vivens, 42 ECAB 303 (1991) (a schedule
award is not payable until MMI -- meaning that the physical condition of the injured member of the body has stabilized
and will not improve further has been reached).
10

See A.D., supra note 7; D.S., Docket No. 15-1244 (issued August 24, 2015).

11

See A.D., supra note 7; W.S., Docket No. 16-0344 (issued April 4, 2016).

5

support that appellant had reached MMI.12 There is no medical opinion of record that indicates
appellant has reached MMI.
Accordingly, OWCP properly determined that entitlement to a schedule award was not
established as MMI had not been reached.13
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under FECA14 has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.15
Under FECA the term “disability” is defined as the incapacity because of an employment
injury to earn the wages the employee was receiving at the time of the injury.16
Whether a particular injury causes an employee disability for employment is a medical
issue which must be resolved by competent medical evidence.17 Whether a particular injury causes
an employee to be disabled from work and the duration of that disability, are medical issues that
must be proved by a preponderance of the reliable, probative, and substantial medical evidence.18
For each period of disability claimed, the employee has the burden of proof to establish
that she was disabled for work as a result of the accepted employment injury.19 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

12

Supra note 7.

13

Id.

14

Supra note 1.

15

S.J., Docket No. 17-0828 (issued December 20, 2017); G.T., Docket No. 07-1345 (issued April 11, 2008);
Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).
16
20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
17

See S.J., supra note 15; Edward H. Horton, 41 ECAB 301 (1989).

18

See S.J., id.; Tammy L. Medley, 55 ECAB 182 (2003).

19

See S.J., id.; Amelia S. Jefferson, 57 ECAB 183 (2005).

6

essentially allow an employee to self-certify his or her disability and entitlement to
compensation.20
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.21 Causal relationship is a medical issue and the
medical evidence required to establish causal relationship is rationalized medical evidence.22 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.23
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish total disability
commencing for the period September 22 through October 9, 2017 causally related to her accepted
June 7, 2016 employment injury.
Appellant was treated by Dr. Wagner during the period in question. Dr. Wagner attributed
her disability for work to “uncontrolled symptoms.” He did not specify which of appellant’s
accepted conditions were uncontrolled. Dr. Wagner also diagnosed cervical disc herniation in
addition to appellant’s accepted right shoulder and neck strains.
By development letter dated October 25, 2017, OWCP advised appellant to submit a
comprehensive medical report which explained, with objective medical findings, why appellant
was disabled from work. Dr. Wagner did not provide any specific medical findings explaining
why appellant was disabled from work from September 22 through October 9, 2017. Without
physical findings and an explanation as to why appellant was disabled due to her accepted
conditions24 on the dates alleged by her, Dr. Wagner’s report lacks the probative value necessary
to establish appellant’s claim.25 As previously noted, 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.26

20

See S.J., id.; Fereidoon Kharabi, 52 ECAB 291 (2001).

21

See S.J., id.; Kathryn E. DeMarsh, 56 ECAB 677 (2005).

22

See S.J., id.; Elizabeth Stanislaw, 49 ECAB 540 (1998).

23

Id.

24

L.A., Docket No. 18-0131 (issued May 11, 2018); S.H., Docket No. 16-1378 (issued October 16, 2017); Vanessa
Young, 55 ECAB 575 (2004).
25

L.A., id.

26

See S.J., supra note 15; Kathryn E. DeMarsh, 56 ECAB 677 (2005).

7

Appellant submitted no probative evidence contemporaneous to the alleged dates of
disability that would indicate she was disabled from work either directly due to her accepted
injuries or due to a medical appointment.27 Thus, she has failed to meet her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she reached
MMI thereby warranting consideration of her entitlement to a schedule award pursuant to 5 U.S.C.
§ 8107. The Board further finds that appellant has not met her burden of proof to establish total
disability for the period September 22 through October 9, 2017 causally related to her accepted
June 7, 2016 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 12 and September 13, 2017 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 7, 2018
Washington, DC

Christopher J. Godfrey, 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

27
An injured employee may be entitled to compensation for lost wages incurred while obtaining authorized medical
services. See 5 U.S.C. § 8103(a); Gayle L. Jackson, 57 ECAB 546 (2006); S.J., supra note 15.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-642
Issued: November 1, 2010

Case Submitted on the Record

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

JURISDICTION
On January 19, 2010 appellant filed a timely appeal of an October 16, 2009 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than four percent permanent impairment of the
left upper extremity for which he received a schedule award.
FACTUAL HISTORY
On October 1, 2005 appellant, then a 45-year-old clerk, filed a traumatic injury claim
alleging that on September 30, 2005 he injured his left shoulder while throwing parcels in the
performance of duty. He did not stop work. The Office accepted appellant’s claim for left
shoulder tear of the superior labrum with both anterior and posterior extension.
Initial reports from Dr. Cynthia Harrell, specializing in occupational medicine, diagnosed
left shoulder and upper arm strain. She continued submitting reports through September 14,

2007 noting left shoulder impingement. In a November 9, 2005 magnetic resonance imaging
(MRI) scan report of the left shoulder, Dr. Brian Polesuk, a Board-certified diagnostic
radiologist, found a tear of the superior labrum with both anterior and posterior extension. He
also found tendinitis versus partial tear of the supraspinatus tendon and no full thickness rotator
cuff tendon tear. Reports dated between January 5, 2006 and August 3, 2007 from Dr. John
Edwards, an osteopath and physiatrist, noted appellant’s complaint of left shoulder pain and
diagnosed left shoulder impingement syndrome. The record also contains reports dated between
January 3 and March 8, 2006 from Dr. Donald Leatherwood, II, a Board-certified orthopedic
surgeon. On March 8, 2006 Dr. Leatherwood indicated that appellant did not require orthopedic
surgery and could perform his normal activities without further treatment. He advised that
appellant follow up as needed.
On November 25, 2008 appellant filed a schedule award claim. In support of his claim,
he submitted a July 24, 2008 report from Dr. David Weiss, an osteopath specializing in family
medicine, who summarized the history of injury and noted appellant’s complaint of left shoulder
pain and weakness as well as difficulty performing daily activities. Upon examination, he found
left shoulder posterior cuff tenderness and no tenderness over the acromioclavicular joint,
anterior cuff or long head of the biceps. Regarding left shoulder range of motion, Dr. Weiss
found forward elevation of 160/180 degrees, abduction of 110/180 degrees, cross-over adduction
of 65/75 degrees, external rotation of 90/90 degrees and internal rotation of 80/90 degrees. He
also found that the posterior reach was to the sacrum and that circumduction produced audible
click in the acromioclavicular joint area. Dr. Weiss indicated that drop test produced slight
rotator cuff lag. He diagnosed status post glenoid tear of the left shoulder and post-traumatic
acromioclavicular arthropathy with left shoulder impingement. Based on the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),1 Dr. Weiss
determined one percent impairment for left shoulder flexion deficit, citing Figure 16-40 on page
476. He also determined three percent impairment for abduction deficit, citing Figure 16.43 on
page 477, and three percent pain-related impairment, citing Figure 18-1 on page 574 of the
A.M.A., Guides. Dr. Weiss determined a total of seven percent left upper extremity impairment.
He noted that appellant reached maximum medical improvement on July 24, 2008.
In a January 31, 2009 report, an Office medical adviser reviewed Dr. Weiss’ report and
opined that appellant did not qualify for three percent pain-related impairment as none of the
designated categories of pain-related impairment applied to appellant, citing sections 18.3a and
18.3b on pages 570 and 571 of the A.M.A., Guides respectively.2 He accepted Dr. Weiss’ range
of motion findings and determined one percent impairment for 160 degrees of flexion, three
percent impairment for 110 degrees of abduction, zero percent impairment for 65 degrees of
adduction rounded to 60 degrees, zero percent impairment for 90 degrees of external rotation and
zero percent impairment for 80 degrees of internal rotation, citing Figures 16-40, 16-43 and 1646 on pages 476, 477 and 479 respectively of the A.M.A., Guides. The medical adviser

1

5th ed. 2001.

2

The categories are: (1) when there is excess pain in the context of verifiable medical conditions that cause pain,
(2) when there are well-established pain syndromes without significant, identifiable organ dysfunction to explain the
pain, and (3) where there are other associated pain syndromes. A.M.A., Guides 570-71.

2

determined that appellant had four percent total left upper extremity impairment. He also
indicated that appellant reached maximum medical improvement on July 24, 2008.
In a March 2, 2009 decision, the Office issued appellant a schedule award for four
percent permanent partial impairment of the left upper extremity. It paid him compensation for
12.48 weeks from July 24 to October 19, 2008.
On March 6, 2009 appellant, through his representative, requested an oral hearing which
was held on July 28, 2009. He submitted a July 27, 2009 QuickDASH questionnaire form from
Dr. Weiss indicating that appellant had 36 percent disability symptoms score based on
appellant’s ability to perform various tasks.3
In an October 16, 2009 decision, an Office hearing representative affirmed the March 2,
2009 decision finding that the Office medical adviser properly applied the A.M.A., Guides to
determine appellant’s percentage of impairment.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations 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. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the Office for evaluating
schedule losses and the Board has concurred in such adoption.5
ANALYSIS
The Office accepted that appellant sustained a left shoulder tear of the superior labrum
with both anterior and posterior extension. Appellant submitted a report from Dr. Weiss with
respect to the degree of impairment to the left upper extremity. In his July 24, 2008 report,
Dr. Weiss provided the values for appellant’s range of motion and the corresponding
calculations. His findings included 160 degrees of flexion for one percent impairment and 110
degrees of abduction for three percent impairment, citing Figures 16-40 and 16-43 on pages 476
and 477 respectively of the A.M.A., Guides. Dr. Weiss also assigned three percent for painrelated impairment, citing Figure 18-1 on page 574 of the A.M.A., Guides. He determined that
appellant had seven percent left arm impairment. However, the A.M.A., Guides caution that
3

The QuickDASH questionnaire was attached to another version of Dr. Weiss’ July 24, 2008 report. This later
version of the report referenced the QuickDASH Disability Index but otherwise had the same impairment findings
totaling seven percent impairment under the fifth edition of the A.M.A., Guides. Dr. Weiss did not address how, if
at all, the QuickDASH questionnaire factored into his impairment rating.
4

5 U.S.C. §§ 8101-8193. See 5 U.S.C. § 8107.

5

See 20 C.F.R. § 10.404; R.D., 59 ECAB 127 (2007).

3

examiners should not use Chapter 18 to rate pain-related impairment for any condition that can
be adequately rated on the basis of the body and organ impairment rating systems given in other
chapters. The A.M.A., Guides explain that the impairment ratings in the body organ system
chapters make allowance for expected accompanying pain.6 Dr. Weiss broadly opined that
appellant had left shoulder pain and weakness and assigned an additional three percent
impairment for pain. He did not explain how he determined that appellant’s pain exceeded that
which was already accounted for in the range of motion impairment determinations. This is
important in view of the cautionary language in the A.M.A., Guides regarding the rating of pain
under Chapter 18. Although Dr. Weiss correctly calculated that appellant’s range of motion
impairment totaled four percent, his improper assignment of three percent pain-related
impairment caused an incorrect calculation of appellant’s overall left upper extremity
impairment.
After receiving Dr. Weiss’ report, the Office properly referred the matter to its Office
medical adviser.7 The Office medical adviser reviewed the medical evidence of record and
properly evaluated appellant’s left shoulder impairment. He applied his findings, derived from
Dr. Weiss’ range of motion findings, to the A.M.A., Guides and determined one percent
impairment for 160 degrees of flexion, three percent impairment for 110 degrees of abduction,
zero percent impairment for 65 degrees of adduction rounded to 60 degrees, zero percent
impairment for 90 degrees of external rotation and zero percent impairment for 80 degrees of
internal rotation, citing Figures 16-40, 16-43 and 16-46 on pages 476, 477 and 479 respectively
of the A.M.A., Guides. The medical adviser indicated, as noted, that Dr. Weiss improperly
assigned an additional three percent pain-related impairment and explained that sections 18.3a
and 18.3b on pages 570 and 571 of the A.M.A., Guides supported that appellant did not qualify
for any of the designated categories of pain-related impairment. Accordingly, he explained why
his calculation differed from that of Dr. Weiss and determined appellant’s left shoulder
impairment by applying the Combined Values Chart on page 604 of the A.M.A., Guides to one
percent flexion impairment and three percent abduction impairment to derive a total of four
percent left shoulder impairment.
Subsequent to the Office medical adviser’s report, Dr. Weiss provided another version of
his report that included a July 27, 2009 QuickDASH questionnaire noting a 36 percent disability
symptoms score. This later version of the July 24, 2008 report otherwise contained the same
impairment rating under the fifth edition of the A.M.A., Guides as contained in the earlier

6

B.P., 60 ECAB ___ (Docket No. 08-1457, issued February 2, 2009); see C.J., 60 ECAB ___ (Docket No. 082429, issued August 3, 2009) (the impairment ratings in the body organ system chapters of the A.M.A., Guides
make allowance for any accompanying pain).
7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002); L.H., 58 ECAB 561 (2007) (the Act’s procedures contemplate that, after
obtaining all necessary medical evidence, the file should be routed to an Office medical adviser for an opinion
concerning the nature and percentage of impairment in accordance with the A.M.A., Guides).

4

version of the report. However, Dr. Weiss did not explain how the QuickDASH questionnaire
supported or related his impairment rating under the fifth edition of the A.M.A., Guides.8
The Board finds that the Office medical adviser properly determined appellant’s left arm
impairment under the A.M.A., Guides. There is no other medical evidence, consistent with the
A.M.A., Guides, showing that appellant has greater than four percent impairment of the left
shoulder.
On appeal, appellant asserts that the medical evidence establishes seven percent left
upper extremity impairment in accordance with the A.M.A., Guides as Dr. Weiss’ report
confirmed that appellant complained of pain with activities of daily living. However, the Board
has held that factors such as employability or limitations on daily activities have no bearing on
the calculation of impairment.9 Appellant also asserts that the Office should have found that a
conflict in medical opinion existed between Dr. Weiss and the Office medical adviser as the
former determined four percent impairment and the latter found seven percent. However, the
Office medical adviser was permitted to review Dr. Weiss’ report to verify correct application of
the A.M.A., Guides and confirm the percentage of impairment.10 As noted, Dr. Weiss’
determination of pain-related impairment was unsupported by his findings. Moreover, the
medical adviser provided a rationalized opinion for the percentage of impairment that he
specified.11
CONCLUSION
The Board finds that appellant does not have more than four percent permanent
impairment of the left upper extremity for which he received a schedule award.

8

An opinion which is not based upon the standards adopted by the Office and approved by the Board as
appropriate for evaluating schedule losses is of little probative value in determining the extent of a claimant’s
impairment. Carl J. Cleary, 57 ECAB 563, 568 n.14 (2006).
9

See J.H., 60 ECAB ___ (Docket No. 08-2432, issued June 15, 2009).

10

See I.H., 60 ECAB ___ (Docket No. 08-1352, issued December 24, 2008).

11

See supra note 4 (Office procedures contemplate that, after obtaining all necessary medical evidence, the file
should be routed to an Office 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).

5

ORDER
IT IS HEREBY ORDERED THAT the October 16, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6