United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland Heights, OH, Employer
__________________________________________

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

Docket No. 11-1154
Issued: December 16, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 13, 2011 appellant, through her attorney, filed a timely appeal from a
January 25, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation benefits effective September 29, 2010 on the grounds that she had no residuals of
an October 24, 1996 employment injury; and (2) whether appellant established that she had any
continuing employment-related disability or residuals after that date.
On appeal, her attorney asserts that the decision is contrary to fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On October 24, 1996 appellant, then a 42-year-old letter carrier, filed a traumatic injury
claim alleging that she injured her right shoulder that day while lifting boxes. OWCP accepted
the claim for right trapezius strain and right shoulder impingement. On November 11, 1998
appellant underwent right shoulder arthroscopic surgery. She returned to modified duty on
May 12, 1999 and came under the care of Dr. Antony M. George, a general practitioner.2
On February 20, 2007 appellant began a limited-duty position for four hours daily. She
sustained a recurrence of disability on May 19, 2009 and returned to modified employment for
six hours a day on June 24, 2009. Appellant stopped all work on July 21, 2009 and was placed
on the periodic compensation rolls. On September 29, 2009 Dr. Reuben Gobezie, a Boardcertified orthopedic surgeon, performed a second right shoulder arthroscopic procedure
consisting of subacromial decompression with acromioplasty, extensive debridement and distal
clavicle resection. Appellant did not return to work.
In an October 7, 2009 report, Allyson Brinda, a physician’s assistant and associate of
Dr. Gobezie, described appellant’s postoperative recovery. On December 10, 2009 the
employing establishment notified OWCP that appellant’s disability retirement had been
approved, effective December 4, 2009 and that her limited-duty job remained available.
Dr. George submitted additional reports in which he noted her complaints of right shoulder pain
and soreness. He provided examination findings.
In February 2010, OWCP referred appellant to Dr. Manhal A. Ghanma, a Board-certified
orthopedic surgeon, for a second-opinion evaluation. In a March 8, 2010 report, Dr. Ghanma
reviewed the medical record, appellant’s report of the history of injury and medical treatment.
He listed appellant’s complaint of constant neck and shoulder pain with stiffness and weakness
in the right arm. Dr. Ghanma provided findings on physical examination of the right shoulder,
noting no swelling or discoloration, no crepitation with range of motion, no evidence of
impingement or instability, no abnormality of the acromioclavicular (AC) joint, the subacromial
bursa, the biceps groove or the head of the humerus and no evidence of atrophy. He provided
shoulder range of motion measurements that demonstrated a decrease on the right when
compared to the left. Dr. Ghanma advised that appellant had no additional diagnosis caused by
the employment injury and that her cervical problems were due to degenerative changes in the
cervical spine and were not a result of the October 24, 1996 employment injury. He indicated
that there were no residuals of the right trapezius strain or right shoulder impingement causally
related to the employment injury and no residuals of the two shoulder procedures other than that
a portion of the clavicle was removed but that this did not cause symptoms on a clinical basis.
2

On February 19, 2002 appellant was granted a schedule award for a three percent impairment of the right upper
extremity and on November 7, 2003 was granted a schedule award for an additional three percent. Following an
appeal to the Board, by order dated August 13, 2003, the Board remanded the case to OWCP for reconstruction and
proper assemblage of the case record. Docket No. 02-1554 By decision dated May 7, 2004, an OWCP hearing
representative set aside the November 7, 2003 decision and remanded the case to OWCP for a second-opinion
evaluation regarding the degree of right upper extremity impairment. On September 10, 2004 appellant was granted
a schedule award for a five percent impairment, for a total impairment of eight percent. On January 26, 2007 she
filed for an additional schedule award.

2

Dr. Ghanma observed that the difference in range of motion related to lack of full effort on
appellant’s part. He concluded that she was not disabled from any type of employment and
could return to full-time duties as a letter carrier without restrictions and that she needed no
further therapy or treatment.
In a March 3, 2010 report, Ms. Brinda advised that appellant was doing well following
the September 2009 surgery. By letter dated March 26, 2010, Dr. George advised that appellant
continued to have loss of range of motion and strength in all direction with pain and spasms
throughout the muscles of the shoulder girdle. He opined that she would never be able to return
to a position that required repetitive or forceful use of the right shoulder.
OWCP found a conflict in medical opinion between Dr. George and Dr. Ghanma
regarding whether appellant had ongoing residuals of her employment injury and whether she
was disabled for employment. On May 10, 2010 appellant was referred to Dr. Ralph Kovach,
Board-certified in orthopedic surgery, for an impartial evaluation. In a May 24, 2010 report,
Dr. Kovach described the October 24, 1996 employment injury and her subsequent treatment.
He noted appellant’s complaint of constant pain in the right trapezius musculature with some arm
pain. Examination of the AC joint revealed no crepitation and no tenderness and there was no
crepitation on movement of the shoulder. Dr. Kovach provided right shoulder range of motion
findings, advised that appellant had no atrophy in the arms, no instability in the shoulder and
negative impingement signs. Reflexes in the upper extremities were normal and there were no
sensory changes. Dr. Kovach advised that careful evaluation of the trapezius revealed no
wasting and muscle spasm was not present. Trigger points were extensively searched for and
none were found. Dr. Kovach noted that shoulder strength testing was 3/5 in all directions but
that appellant made minimal effort in the evaluation. He advised that there was no additional
diagnosis caused by the October 24, 1996 employment injury and that appellant had no residuals
of a right trapezius strain or right shoulder impingement or residuals of the 1998 and 2009
arthroscopic procedures and that she was not totally disabled from any type of employment and
could return to the letter carrier position without physical restrictions. Dr. Kovach noted that she
had postoperative range of motion that was not expected to improve but that she needed no
further therapy or treatment and was at maximum medical improvement.
On August 27, 2010 OWCP proposed to terminate appellant’s compensation benefits
finding that the medical evidence established that her work-related conditions had resolved.
Appellant disagreed with the proposed termination and submitted September 13, 2010
reports, in which Dr. George provided examination findings and noted that he had reviewed
other medical reports that had significant inconsistencies with his physical findings. Dr. George
found that she could not return to work until she had a functional capacity evaluation to assess
her work ability. He stated that Dr. Gobezie also reported that appellant had a prolonged
recovery from surgery and should only be released upon appropriate guidelines.
By decision dated September 30, 2010, OWCP finalized the termination of benefits
effective September 29, 2010. It found that the weight of the medical evidence rested with the
opinion of Dr. Kovach who performed the referee examination.

3

On October 4, 2010 appellant requested reconsideration and submitted additional
treatment notes dated October 11 to December 6, 2010, in which Dr. George reported her
complaint of continued shoulder discomfort, right worse than left. Dr. George advised that she
had limited shoulder range of motion and diagnosed right shoulder strain, status post
supraspinatus, rotator cuff surgery.
In a merit decision dated January 25, 2011, OWCP denied modification of the
September 30, 2010 decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.3
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4
Section 8123(a) of FECA provides that if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.5 When 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 on a proper factual background, must be
given special weight.6
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective September 29, 2010. The accepted conditions in this case are
right trapezius strain and right shoulder impingement caused by an October 24, 1996
employment injury. OWCP determined that a conflict in medical evidence had been created
between the opinions of Dr. George, an attending physician, and Dr. Ghanma, an OWCP referral
physician, regarding whether appellant continued to suffer residuals of the employment injury
and as to the extent of any disability. It then properly referred her to Dr. Kovach, Board-certified
in orthopedic surgery, for an impartial evaluation.
In a thorough May 24, 2010 report, Dr. Kovach described the October 24, 1996
employment injury and appellant’s subsequent treatment. He noted her complaint of constant
pain in the right trapezius musculature with some arm pain. On examination of the AC joint,
Dr. Kovach advised that there was no crepitation or tenderness and no crepitation on movement
of the shoulder. He provided right shoulder range of motion findings, advised that appellant had
3

Jaja K. Asaramo, 55 ECAB 200 (2004).

4

Id.

5

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

6

Manuel Gill, 52 ECAB 282 (2001).

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no atrophy in the arms, no instability in the shoulder and negative impingement signs. Reflexes
in the upper extremities were normal and there were no sensory changes. There was no trapezius
wasting, muscle spasm or trigger points. Dr. Kovach noted that appellant made minimal effort in
the strength testing and advised that there was no additional diagnosis caused by the October 24,
1996 employment injury. He indicated that she had no residuals of a right trapezius strain, right
shoulder impingement or of the 1998 and 2009 arthroscopic procedures and that she was not
totally disabled from any type of employment and could return to the letter carrier position
without physical restrictions. Dr. Kovach concluded that appellant needed no further therapy or
treatment and was at maximum medical improvement.
The Board finds that, as Dr. Kovach provided a comprehensive, well-rationalized opinion
in which he clearly advised that any residuals of appellant’s accepted conditions had resolved his
opinion is entitled to the special weight accorded an impartial examiner and constitutes the
weight of the medical evidence.7
The medical evidence appellant subsequently submitted is insufficient to overcome the
weight accorded Dr. Kovach as an impartial medical specialist. In a number of reports,
Dr. George essentially reiterated his findings and conclusion that she continued to be disabled
from the employment injury.8 The Board has long held that reports from a physician who was on
one side of a medical conflict that an impartial specialist resolved, are generally insufficient to
overcome the weight accorded to the report of the impartial medical examiner or to create a new
conflict.9 Dr. George had been on one side of the conflict resolved by Dr. Kovach.
The Board therefore concludes that Dr. Kovach’s opinion that residuals of appellant’s
accepted conditions had ceased is entitled to the special weight accorded an impartial medical
examiner10 and the additional reports from Dr. George are insufficient to overcome the weight
accorded him as an impartial medical specialist regarding whether she had residuals of her
accepted right upper extremity conditions.
OWCP therefore properly terminated her
compensation benefits effective September 29, 2010.
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s compensation benefits
effective September 29, 2010, the burden shifted to her to establish that she had any continuing
disability causally related to her accepted right upper extremity injury.11 To establish a causal
relationship between the condition, as well as any attendant disability claimed and the
7

See Sharyn D. Bannick, 54 ECAB 537 (2003).

8

The Board notes that Dr. George referenced Dr. Gobezie. The only medical report of record from Dr. Gobezie
is the September 29, 2009 operative report. The reports from Ms. Brinda do not constitute competent medical
evidence as a physician’s assistant is not considered a physician under FECA. Ricky S. Storms, 52 ECAB
349 (2001).
9

I.J., 59 ECAB 408 (2008).

10

See Sharyn D. Bannick, supra note 7.

11

See Joseph A. Brown, Jr., 55 ECAB 542 (2004).

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employment injury, an employee must submit rationalized medical evidence, based on a
complete factual and medical background, supporting such a causal relationship.12 Causal
relationship is a medical issue and the medical evidence required to establish a causal
relationship is rationalized medical evidence.13 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. 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.14
ANALYSIS -- ISSUE 2
The Board finds that appellant submitted insufficient medical evidence with her
October 4, 2010 reconsideration request to establish that she continued to be disabled after
September 29, 2010 due to the October 24, 1996 employment injury.
As discussed above, Dr. Kovach provided a comprehensive report in which he outlined
examination findings and provided a rationalized explanation for his opinion that appellant’s
accepted conditions of right trapezius strain and right shoulder impingement had resolved and
that she could return to her previous letter carrier duties.
Under FECA, the term “disability” means the incapacity, because of an employment
injury, to earn the wages that the employee was receiving at the time of injury. Disability is thus
not synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the
time of injury, has no disability as that term is used in FECA.15
In reports dated October 11 to December 6, 2010, Dr. George again reported appellant’s
complaint of continued shoulder discomfort and advised that she had limited shoulder range of
motion. The Board finds these reports of diminished probative value because they do not contain
sound medical reasoning establishing that she was totally disabled after September 29, 2010 due
to the accepted conditions caused by the October 24, 1996 employment injury.16 Dr. George did
not explain why the 1996 employment injury caused continuing disabling residuals, especially
considering that appellant had two corrective surgical procedures and, as stated earlier, he had
been on one side of the conflict in medical evidence resolved by Dr. Kovach. The reports
submitted on reconsideration are therefore entitled to little probative value and are insufficient to
12

Jennifer Atkerson, 55 ECAB 317 (2004).

13

Id.

14

Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

15

20 C.F.R. § 10.5(f); Cheryl L. Decavitch, 50 ECAB 397 (1999).

16

Sandra D. Pruitt, 57 ECAB 126 (2005).

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meet an employee’s burden of proof to establish that she continues to have work-related
disability due to the accepted conditions.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 OWCP met its burden of proof to terminate appellant’s
compensation benefits effective September 29, 2010 on the grounds that she had no residuals of
an accepted condition and that she did not establish that she had any continuing employmentrelated disability or condition after that date causally related to the October 24, 1996
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the January 25, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 16, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

17

S.S., 59 ECAB 315 (2008).

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

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

Docket No. 18-0855
Issued: November 28, 2018

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 March 15, 2018 appellant, through counsel, filed a timely appeal from a December 11,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether 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
On October 9, 2010 appellant, then a 46-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that, while delivering mail on October 6, 2010, she slipped while backing
away from a dog and struck her face on a gas meter, causing a fracture of the left orbital socket,
left cheek, and her nose. She stopped work on the date of injury.
By decision dated November 18, 2010, OWCP accepted the claim for closed left orbital
fracture, cracked tooth, and cervical spine sprain. It paid appellant wage-loss compensation and
medical benefits on the periodic rolls commencing November 24, 2010. On November 7, 2011
OWCP expanded its acceptance of the claim to include adjustment disorder with anxiety and
cognitive communication deficit.
Following a vocational rehabilitation program, appellant returned to work on April 1, 2013
under an assisted reemployment contract for 30 hours a week. OWCP paid appellant wage-loss
compensation for the remaining hours.
On July 27, 2016 appellant filed a claim for a schedule award (Form CA-7). In support
thereof, she submitted an October 10, 2016 report from Dr. Paul Scheatzle, an attending
osteopathic physician Board-certified in physiatry. Dr. Scheatzle related appellant’s symptoms of
intermittent cephalgia, vertigo, short-term memory difficulties, left oral dysesthesias, left facial
weakness, tooth sensitivity, emotional lability, and poor attention span. On examination, he found
that she had decreased sensation on the left side of her face, a slight decrease in balance, increased
lateral sway with heel and toe walking, limited cervical spine motion, left paraspinal muscle
spasms, and increased thoracic kyphosis. Dr. Scheatzle diagnosed post-concussion syndrome. He
opined that appellant had attained maximum medical improvement (MMI). Referring to the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(hereinafter, A.M.A., Guides),3 he found 24 percent whole person impairment due to combined
impairments for cognitive communication deficit, cracked tooth, orbital floor fracture, and a class
2 cervical spine sprain.
In a letter dated November 18, 2016, OWCP notified Dr. Scheatzle that OWCP did not
utilize whole person impairment ratings. It advised that schedule award ratings should be
expressed in terms of upper extremity impairment, and not the cervical spine itself. OWCP also
advised that impairments must be calculated according to the sixth edition of the A.M.A., Guides.4
In response, Dr. Scheatzle submitted a report dated November 30, 2016 in which he found
five percent whole person impairment due to impairment of the cervical spine. He noted that
3

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

4

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

2

appellant had attained MMI as of October 19, 2016. On examination, Dr. Scheatzle found
“guarding and spasm of the cervical paraspinal muscles, flattening of the cervical lordosis,
tenderness to palpation,” and lateral flexion limited to 30 degrees. Referring to Table 17-2, page
564 of the sixth edition of the A.M.A., Guides, he assessed a class 1 impairment for cervical
sprain/strain with continued complaints of axial pain, equal to five percent impairment of the whole
person.
Dr. Martin Fritzhand, a Board-certified urologist, submitted a January 10, 2017 permanent
impairment evaluation. He summarized appellant’s history of injury and treatment. On
examination, Dr. Fritzhand noted diminished pinprick and light-touch sensation on the left side of
appellant’s face, at MMI by January 2012. He opined that after reviewing section 13.11.b of the
sixth edition of the A.M.A., Guides, Table 13-9 found a class 1 impairment of the trigeminal nerve
due to pain and diminished sensation, equal to two percent whole person impairment.
As appellant’s physicians had not provided an impairment rating in accordance with the
A.M.A., Guides, OWCP referred her for a second opinion report from Dr. Victoria Langa, a Boardcertified orthopedic surgeon. In a report dated February 6, 2017, Dr. Langa reviewed the medical
record and a statement of accepted facts. She related appellant’s complaints of occasional aching
and stiffness in her neck, and “crunching” with movement. Appellant’s discomfort sometimes
radiated to the upper back, but never to the upper extremities. On examination, Dr. Langa found
mild paravertebral tenderness to palpation, rotation of the cervical spine at 60 degrees left and 80
degrees right, and a normal neurologic examination of both upper extremities. She diagnosed
status post cervical sprain/strain. Dr. Langa found that the accepted cervical spine sprain had
resolved without residuals. She opined that according to The Guides Newsletter, “Rating Spinal
Nerve Extremity Impairment Using the Sixth Edition” (July/August 2009) (The Guides
Newsletter), appellant had no permanent impairment of a scheduled member as she had no
radicular symptoms in either upper extremity attributable to the cervical spine. Dr. Langa noted
that appellant had no work limitations due to the resolved cervical spine sprain.
On March 19, 2017 Dr. Morley Slutsky, a Board-certified occupational medicine specialist
serving as an OWCP district medical adviser, reviewed Dr. Langa’s report and concurred with her
rating. He noted that as Dr. Langa found no evidence of sensory or motor deficits of the upper
extremities related to the cervical spine, there was no basis for an upper extremity impairment
rating using the A.M.A., The Guides Newsletter. Dr. Slutsky also explained that cervical spine
sprains did not result in permanent sensory or motor deficits of the upper extremities. He found
that appellant had attained MMI as of February 6, 2017, the date of Dr. Langa’s examination.
By decision dated March 29, 2017, OWCP denied appellant’s schedule award claim,
finding that the medical evidence of record was insufficient to establish permanent impairment of
a scheduled member or function of the body attributable to the accepted October 6, 2010
employment injury. It accorded the weight of the medical evidence to Dr. Langa’s February 6,
2017 opinion as reviewed by Dr. Slutsky.
On April 4, 2017 appellant, through counsel, requested a telephonic oral hearing before an
OWCP hearing representative. During the hearing, held on October 5, 2017, appellant testified
that she had not sustained cervical spine injury either prior or subsequent to the October 6, 2010
employment injury. She noted that she had been working part time in a private sector clerical

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position. Counsel requested that the record be left open for 30 days to obtain clarification from
Dr. Fritzhand regarding his January 10, 2017 opinion that appellant had sustained two percent
permanent impairment of the whole person based on Table 13-19.
Following the hearing, counsel submitted a November 1, 2017 report from Dr. Scheatzle
diagnosing postconcussion syndrome. Dr. Scheatzle did not address the issue of permanent
impairment.
By decision dated December 11, 2017, OWCP’s hearing representative affirmed the prior
decision. He accorded the weight of the medical evidence to Dr. Langa’s opinion as reviewed by
Dr. Slutsky. The hearing representative found that Dr. Fritzhand’s report of record was
insufficient to establish permanent impairment of a scheduled member or function of the body as
there was no provision under FECA for whole person impairment.
LEGAL PRECEDENT
The schedule award provisions of FECA5 provide for compensation to employees sustaining
impairment from loss or loss of use of specified members of the body. It, 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 OWCP. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so that
there may be uniform standards applicable to all claimants. The A.M.A., Guides has been adopted
by OWCP as a standard for evaluation of schedule losses and the Board has concurred in such
adoption.6 For schedule awards after May 1, 2009, the impairment is evaluated under the sixth
edition of the A.M.A., Guides.
No schedule award is payable for a member, function, or organ of the body not specified
in FECA or in the regulations.7 Because neither FECA nor the regulations provide for the payment
of a schedule award for the permanent loss of use of the back,8 no claimant is entitled to such an
award.9 However, in 1966, amendments to FECA modified the schedule award provision to
provide for an award for permanent impairment to a member of the body covered by the schedule
regardless of whether the cause of the impairment originated in a scheduled or nonscheduled
member. As the schedule award provision of FECA includes the extremities, a claimant may be
entitled to a schedule award for permanent impairment to an extremity even though the cause of
the impairment originated in the spine.10

5

Supra note 2 at § 8107.

6

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

7

Henry B. Floyd, III, 52 ECAB 220 (2001).

8

FECA specifically excludes the back from the definition of “organ.” 5 U.S.C. § 8101(19).

9

Thomas Martinez, 54 ECAB 623 (2003).

10

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

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OWCP’s procedures provide that, to support a schedule award, the record must contain
competent medical evidence which shows that the impairment has reached a permanent and fixed
state and indicates the date on which this occurred (date of MMI), describes the impairment in
sufficient detail for the claims examiner to visualize the character and degree of disability, and
gives a percentage of impairment, based on a specific diagnosis, not the body as a whole, except
for impairment to the lungs.11 When the examining physician does not provide an estimate of
impairment confirming to the A.M.A., Guides, OWCP may rely on the impairment rating provided
by its medical adviser.12
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides
Newsletter is to be applied.13 The Board has long recognized the discretion of OWCP to adopt
and utilize various editions of the A.M.A., Guides for assessing permanent impairment.14 In
particular, 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.15
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
In support of her claim, appellant submitted a report dated October 10, 2016 from
Dr. Scheatzle who found that she had 24 percent whole person permanent impairment under the
fifth edition of the A.M.A., Guides. After OWCP notified Dr. Scheatzle of the necessity to utilize
the sixth edition of the A.M.A., Guides and to address permanent impairment of the upper
extremities related to the cervical spine, he submitted a November 30, 2016 report finding five
percent permanent impairment of the whole person due to a class 1 cervical sprain. However, a
schedule award is only payable for permanent impairment originating in the spine if permanent
impairment of an extremity is established.16 Dr. Scheatzle did not indicate that appellant had
sustained any permanent impairment of the upper extremities due to the accepted cervical sprain.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5.c.1 (March 2017). See also R.F., Docket No. 16-0192 (issued November 8, 2016).
12

J.Q., 59 ECAB 366 (2008).

13
See G.N., Docket No. 10-0850 (issued November 12, 2010); see also supra note 11 at Chapter 3.700, Exhibit 1,
note 5 (January 2010). The Guides Newsletter is included as Exhibit 4.
14

D.S., Docket No. 14-0012 (issued March 18, 2014).

15

See A.R., Docket No. 17-1504 (issued May 25, 2018); E.D., Docket No. 13-2024 (issued April 24, 2014); D.S.,
Docket No. 13-2011 (issued February 18, 2014).
16

Supra note 8.

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Thereafter, OWCP referred the case for a second opinion on the appropriate percentage of
permanent impairment to Dr. Langa, a Board-certified orthopedic surgeon. Dr. Langa submitted
a February 6, 2017 report finding no sensory or motor impairment of either upper extremity. She
therefore opined that appellant had no permanent impairment attributable to the accepted cervical
sprain.
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP 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.17 Dr. Slutsky, an OWCP district medical
adviser, reviewed Dr. Langa’s report on March 19, 2017 and concurred with her findings. He
explained that a cervical spine sprain was not competent to cause permanent sensory or motor
deficits of the upper extremities.
The Board finds that Dr. Langa properly determined that appellant had no permanent
impairment of her upper extremities under the standards of the sixth edition of the A.M.A., Guides
and The Guides Newsletter. In her February 6, 2017 report, Dr. Langa properly indicated that no
schedule award was warranted according to The Guides Newsletter as appellant had no sensory or
motor impairment of either arm. She found no basis under The Guides Newsletter to rate
impairment of either upper extremity as there were no neurologic deficits in either arm.
Because Dr. Scheatzle’s impairment evaluation was not conducted in accordance with the
standards of the sixth edition of the A.M.A., Guides and The Guides Newsletter, it is of limited
probative value and insufficient to establish that appellant has upper extremity impairment
attributable to her accepted conditions.18
Dr. Fritzhand, a Board-certified urologist, opined on January 10, 2017 that she had two
percent permanent impairment of the whole person due to trigeminal nerve impairment caused by
the accepted left orbital fracture. However, there is no provision under FECA for whole person
impairments other than those involving the lungs.19 Dr. Fritzhand’s opinion is therefore of limited
probative value and insufficient to establish permanent impairment of a scheduled member or
function of the body.20
On appeal, counsel contends that the A.M.A., Guides “require[s] whole person rating for
the body parts recognized in the claim.” However, as noted above, there is no provision under
FECA which provides for a whole person impairment rating other than for impairment of the

17

See supra note 11 at Chapter 2.808.6(f) (February 2013).

18

A.R., supra note 15. See also Carl J. Cleary, 57 ECAB 563, 568 at note 14 (2006) (an opinion which is not based
upon the standards adopted by OWCP 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).
19

Supra note 11 at Chapter 2.808.5.c.1. See also R.F., supra note 11.

20

Supra note 16.

6

lungs.21 The Board notes that in the case at bar, appellant did not claim, nor did OWCP accept,
pulmonary condition of any kind.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the December 11, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 28, 2018
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

21

Supra note 17.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
East Brunswick, NJ, Employer
__________________________________________

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Appearances:
Jason S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-108
Issued: September 17, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 15, 20121 appellant, through counsel, filed a timely appeal of an April 16,
2012 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.
ISSUES
The issue are: (1) whether appellant forfeited her right to compensation for the periods
May 24 through June 17, 2011 and July 16 through 29, 2011 because she knowingly failed to
1

By order dated February 12, 2014, the Board dismissed appellant’s appeal finding that it was not filed within the
requisite 180 days, pursuant to 20 C.F.R. § 501.3(e). See Order Dismissing Appeal, Docket No. 13-108 (issued
February 12, 2014). Appellant’s counsel timely filed a petition for reconsideration and submitted evidence of timely
mailing. See 20 C.F.R. § 501.3(f)(1). By order dated July 22, 2014, the Board granted appellant’s petition for
reconsideration and reinstated the appeal docketed as No. 13-108. See Order Granting Petition for Reconsideration¸
Docket No. 13-108 (issued July 22, 2014).
2

5 U.S.C. § 8101 et seq.

report earnings from self-employment; (2) whether appellant received an overpayment of
compensation in the amount of $4,322.37 because she knowingly failed to report earnings from
self-employment; and (3) whether OWCP properly determined that appellant was at fault in the
creation of the overpayment, thereby precluding waiver of the recovery.
On appeal counsel contends that the decision was based on flawed conclusions of law and
findings of fact.
FACTUAL HISTORY
On March 19, 2011 appellant, then a 37-year-old city carrier, filed a traumatic injury
claim alleging that she injured her right shoulder that day when she closed the door of her postal
vehicle and heard her shoulder pop. OWCP accepted the claim for right shoulder and upper arm
sprain.
On June 3, 17 and July 29, 2011 appellant completed CA-7 forms to claim compensation
for the periods May 24 through June 17, 2011 and July 16 through 29, 2011. Each form asked
her to respond to the following:
“You must report all earnings from employment (outside your federal job);
include any employment for which you received a salary, wages, income, sales
commissions, piecework, or payment of any kind during the period(s) claimed in
Section 2. Include self-employment, involvement in business enterprises, as well
as service with the military forces. Fraudulent concealment of employment or
failure to report income may result in forfeiture of compensation benefits and/or
criminal prosecution. Have you worked outside your federal job for the
period(s) claimed in Section 2?” (Emphasis in the original.)
If appellant had worked outside her federal job, the form asked her to provide the name and
address of the business, the dates worked and the type of work performed. On each form she
answered “No.”
In computer printouts dated June 13 and 27, 2011, OWCP issued supplemental roll
payments to appellant for the period May 24 to June 3, 2011 in the amount of $1,118.73 and for
the period June 4 to 17, 2011 in the amount of $1,601.82.
In a July 13, 2011 letter, postal investigators stated that an investigation of appellant
revealed that she performed in a band called the “Take 5” band as a singer. The investigation
covered the period April 15 to July 13, 2011 during which appellant performed at various
restaurants and clubs on the dates of May 21, June 1 and July 7, 2011 based on information
obtained from a social media page for “Take 5” band and surveillance by the postal investigators.
The report noted that she completed three claims in which she represented that she earned no
income and was not involved in any business activity. Appellant was observed and videotaped
moving her shoulders, twisting her body, singing, standing, dancing, clapping her hands and
performing other activities. The investigation revealed that she performed at various locations in
New Jersey during the period April 3 to June 24, 2011.

2

OWCP also issued a supplemental rolls payment to appellant for the period July 16 to
July 29, 2011 in the amount of $1,601.82.
On August 31, 2011 postal investigators submitted a supplemental report which stated
that appellant had provided false information on three CA-7 claims for compensation forms
when she stated she was not involved in any business activity, employment or self-employment.
The CA-7 forms were dated June 3, 17 and 29, 2011 and covered the periods May 24 through
June 17, 2011 and July 16 through 29, 2011. Attached to the report were invoices and statements
from managers of the places where appellant performed with her band on May 21, June 4 and
July 29, 2011.
On October 24, 2011 OWCP found that appellant had forfeited her entitlement to
compensation for the periods May 24 through June 17, 2011 and July 16 through 29, 2011 on the
grounds that she knowingly failed to report earnings as required on her CA-7 forms. It
determined that appellant knowingly omitted her earnings from performing in the band on each
of her CA-7 forms dated May 24 through June 17, 2011 and July 16 to July 29, 2011. Therefore
she forfeited all compensation for that period. OWCP also issued a preliminary determination
that an overpayment was created in the amount of $4,322.273 due to appellant’s failure to report
her earnings from outside employment on the CA-7 forms. It further found her with fault in the
creation of the overpayment because she knowingly omitted her earnings from outside
employment.
OWCP informed appellant that, if she disagreed with the preliminary
determination, she could, within 30 days, submit evidence or argument to OWCP, or request a
prerecoupment hearing with the Branch of Hearings and Review. Appellant did not respond.
On November 1, 2011 appellant’s counsel requested a hearing before an OWCP hearing
representative, which was held on February 8, 2012.
By decision dated April 16, 2012, an OWCP hearing representative affirmed the finding
of forfeiture for the periods May 24 through June 17, 2011 and July 16 to 29, 2011 due to
appellant’s failure to report her employment activities as required by the CA-7 forms. He
finalized the overpayment in the amount of $4,322.37 overpayment as a result of the forfeiture.
OWCP found appellant at fault in the creation of the overpayment and found the entire amount
due and payable.
LEGAL PRECEDENT -- ISSUE 1
The Secretary of Labor may require a partially disabled employee to report her earnings
from employment or self-employment, by affidavit or otherwise, in the manner and at the time
the Secretary specifies. An employee who knowingly omits or understates any part of her
earnings forfeits her right to compensation with respect to any period for which the affidavit or
report was required.4

3

There appears to be an error in addition as the correct total should reflect an overpayment in the amount of
$4,322.37 not $4,322.27.
4

5 U.S.C. § 8106(b)(2); 20 C.F.R. § 10.529. See Joan Ross, 57 ECAB 694 (2006).

3

The employee, however, can only be subjected to the forfeiture provision of 5 U.S.C.
§ 8106 if he or she knowingly failed to report employment or earnings. It is not enough merely
to establish that there were unreported earnings. The Board has recognized that forfeiture is a
penalty and thus must be narrowly construed.5 The term knowingly is defined by regulations as
with knowledge, consciously, willfully or intentionally.6
ANALYSIS -- ISSUE 1
OWCP found that appellant forfeited her right to compensation from May 24 to June 17,
2011 and July 16 to 29, 2011 on the basis that she knowingly failed to report employment
activities and earnings on three CA-7 forms.
On the CA-7 forms dated and signed by appellant on June 3, 17 and July 29, 2011, she
answered “No” to section 3 which instructed her to report all earnings, whether from
employment or self-employment or involvement in a business enterprise and not just salary or
wages, but income, sales commissions, piecework or payment of any kind. The memoranda of
the postal inspectors provided dates and places where appellant and her band performed on
May 21, June 4 and July 29, 2011 and documented invoices and statements from the managers at
locations where appellant and the band performed. The evidence establishes that appellant
knowingly failed to report earnings from her self-employment from these periods. Therefore,
she is subject to the forfeiture provision of section 8106(b).
On appeal counsel contends that appellant did not consider the earnings her band
received as earnings. He stated that her participation was limited, the bookings sporadic and the
actual remuneration was minimal. Counsel also argued that the earnings were de minimis and,
thus, insufficient to trigger the penalty provisions of section 8106(b)(2). The Board notes,
however, that the plain language of Form CA-7, section 3, was sufficient to put appellant on
notice that she was required to report all earnings outside her federal job even if considered de
minimis.7 Appellant knew that she had earnings from her band engagements, but answered “No”
to section 3 on the forms submitted to OWCP.
The clear language of section 3 instructed appellant to report all earnings, whether from
employment or self-employment or involvement in a business enterprise and not just salary or
wages, but income, sales commissions, piecework or payment of any kind. The purpose was one
of full disclosure so that OWCP could determine whether the earnings, under the circumstances,
made any difference to the amount of compensation appellant should receive. Claimants must
report all earnings outside their federal jobs, no matter the amount or source. The Board finds
that appellant knowingly omitted her earnings from her singing in a band and thereby forfeited
her entitlement to compensation for the period in question.
5

P.M., Docket No. 07-2169 (issued March 3, 2009); Anthony A. Nobile, 44 ECAB 268 (1992).

6

20 C.F.R. § 10.5(n). See J.J., 59 ECAB 542 (2008); Harold F. Franklin, 57 ECAB 387 (2006).

7

Cf. Kenneth T. Truhlar, Docket No. 05-1500 (issued January 12, 2006) (Have you worked outside your federal
job during the period(s) claimed in [s]ection 2?) (Include salaried, self-employed, commissioned, volunteer, etc.);
Karen Spurling, 56 ECAB 189 (2004); Billy J. McCamey, Docket No. 00-2725 (issued June 11, 2002) (finding that
the Form CA-8s that the claimant completed were insufficient to support a forfeiture of compensation).

4

LEGAL PRECEDENT -- ISSUE 2
Section 10.529 of OWCP’s implementing regulations provide as follows:
“(a) If an employee knowingly omits or understates any earnings or work activity
in making a report, he or she shall forfeit the right to compensation with respect to
any period for which the report was required. A false or evasive statement,
omission, concealment or misrepresentation with respect to employment activity
or earnings in a report may also subject an employee to criminal prosecution.
“(b) Where the right to compensation is forfeited, OWCP shall recover any
compensation already paid for the period of forfeiture pursuant to 5 U.S.C. § 8129
[recovery of overpayments] and other relevant statues.”8
ANALYSIS -- ISSUE 2
If a claimant has any earnings during a period covered by CA-7 forms which she
knowingly failed to report, she is not entitled to any compensation for any portion of the period
covered by the report, even though, as here, she may only have had earnings during a small
portion of that period.9 Statutory and regulatory provisions require that OWCP recover all
compensation for the period of forfeiture.10
CA-7 forms submitted by appellant for the periods May 24 through June 17, 2011 and
July 16 to 29, 2011 reflected no other earnings from employment. OWCP paid her
compensation in the amount of $4,322.37, for the periods May 24 to June 17, 2011 and July 16
to 29, 2011. It properly found that appellant forfeited her entitlement to compensation during
this time because she failed to report employment activities and earnings as a singer in a band.
The record contains documentation of OWCP’s calculations and there is no contrary evidence.
Therefore, there exists an overpayment of compensation, due to the forfeiture, in the amount of
$4,322.37.11
LEGAL PRECEDENT -- ISSUE 3
OWCP may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments appellant
received from OWCP are proper. The recipient must show good faith and exercise a high degree
of care in reporting events which may affect entitlement to or the amount of benefits. A recipient
who has done any of the following will be found to be at fault with respect to creating an
8

20 C.F.R. § 10.429. See Harold F. Franklin, supra note 6.

9

Robert Ringo, 53 ECAB 258 (2001).

10

5 U.S.C. § 8129; see M.C., Docket No. 10-881 (issued February 7, 2011); B.T., Docket No. 09-2190 (issued
August 6, 2010); Joan Ross, supra note 4.
11

T.O., Docket No. 12-426 (issued July 23, 2012).

5

overpayment: (1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; (2) Failed to provide information which he or she knew or
should have known to be material; or (3) Accepted a payment which he or she knew or should
have known to be incorrect (this provision applies only to the overpaid individual).12
Whether or not OWCP determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances of the overpayment. The degree of
care expected may vary with the complexity of those circumstances and the individual’s capacity
to realize that he or she is being overpaid.13
ANALYSIS -- ISSUE 3
The Board finds that appellant is at fault in the creation of the overpayment.
In this case, OWCP applied the first and second standards in determining that appellant
was at fault in creating the overpayment. Appellant signed CA-7 forms dated June 3, 17 and
July 29, 2011 where she indicated that she did not have any other earnings from employment.
As she indicated that she had no employment or earnings from employment during the covered
periods, she made an incorrect statement as to a material fact which she knew or should have
known to be incorrect and failed to furnish information which she knew or should have known to
be material to OWCP.14
CONCLUSION
The Board finds that appellant forfeited her right to compensation for the periods May 24
to June 17, 2011 and July 16 to 29, 2011 and that an overpayment was created in the amount of
$4,322.37. The Board further finds that OWCP properly found her at fault in creating the
overpayment, thereby precluding waiver of recovery.

12

20 C.F.R. § 10.433(a).

13

Id. at 10.433(b).

14

Supra note 12.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 16, 2012 is affirmed.
Issued: September 17, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lake Mary, FL, Employer
__________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1109
Issued: March 3, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 18, 2009 appellant filed a timely appeal from a January 23, 2009 merit
decision of the Office of Workers’ Compensation Programs affirming a June 17, 2008 merit
decision. 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 satisfied her burden of proof to establish that she sustained
a recurrence of total disability on or after May 13, 2005 causally related to her accepted
employment injury.

FACTUAL HISTORY
On July 18, 2000 appellant, a 53-year-old mail handler, filed a traumatic injury claim
(Form CA-1) for right shoulder and hand pain that she sustained while handling a bag of mail on
July 13, 2000. The Office accepted her claim for cervical strain and right shoulder strain.1
On January 9, 2004 appellant’s treating physician, Dr. Graham F. Whitfield, an
orthopedist, performed right shoulder arthroscopic surgery with debridement, bursal endoscopy,
decompression, ligament release and partial acromionectomy.
On February 9, 2004 appellant filed a claim for a January 14, 2004 recurrence of
disability alleging she experienced pain and was “having problems doing my duties.”
Appellant filed a schedule award claim and by decision dated March 18, 2004 the Office
granted appellant’s schedule award claim for five percent impairment of her right arm.
On June 1, 2004 Dr. Whitfield reported findings on examination and diagnosed extensive
debridement of the right shoulder with subacromial decompression, cervical sprain and right
carpal tunnel syndrome. On July 5, 2004 he reported that appellant continued to have residual
symptoms from her accepted employment injury. On August 3, 2004 Dr. Whitfield released
appellant to modified-duty work for four hours per day and could increase her hours to six hours
per day.
On August 4, 2004 the employing establishment offered appellant a modified-duty
position as a mail handler. The position consisted of patching mail and facing letters and flats
for four to six hours. The offer restricted lifting to less than 10 pounds and involved four to six
hours of intermittent sitting, standing and walking, as tolerated by appellant. Appellant accepted
this position.
Appellant returned to modified duty in a part-time status on August 5, 2004, missing brief
intermittent periods.
In a report dated August 5, 2004, Dr. Whitfield expanded his work restrictions, limiting
pushing and lifting activities to no more than 20 pounds. All other activities were limited to four
to six hours, as tolerated.
On August 24, 2004 Dr. Whitfield diagnosed cervical sprain.
On August 30, 2004 the employing establishment offered appellant a modified-duty
position as a mail handler. The position consisted of patching mail, facing letters and flats and
prepping flats for zero to six hours. This offer restricted lifting to less than 10 pounds and
involved six hours of intermittent sitting, standing and walking. Appellant refused this position.

1

The November 19, 2004 and April 20, 2005 statement of accepted facts prepared by the Office included right
shoulder rotator cuff tear as an accepted condition. In its June 17, 2008 decision, the Office listed rotator cuff sprain
as an accepted condition.

2

On September 28, 2004 Dr. Whitfield opined that appellant could perform modified-duty
work five hours per day. He restricted appellant from performing work activities involving
repetitive motions using her right upper extremity.
On October 1, 2004 Dr. Whitfield reported:
“[Appellant] has informed me that her regular assignment at the [employing
establishment] involves repetitive heavy lifting up to and including 70 (seventy)
[sic] pounds. A functional capacity assessment performed [May 27, 2004]
revealed that she is unable to work in this classification…. In addition [appellant]
has advised me that she has been given assignments to work on a flat belt
machine, which involves cutting bundles of mail and shrink wrap and repetitive
use of the right upper extremity. This type of work is clearly contraindicated [sic]
on a medical basis.”
Dr. Whitfield restricted activities involving repetitive motions requiring appellant to use her right
upper extremity and any heavy lifting. He opined that she could lift up to 20 pounds on an
occasional basis only. On November 1, 2004 Dr. Whitfield took appellant off work until
November 29, 2004.
The Office referred appellant, together with a statement of accepted facts and a list of
questions, to Dr. Robert Green, a Board-certified orthopedic surgeon, for a second opinion
examination. In a December 14, 2004 report, Dr. Green reported findings on examination and
opined:
“Diagnosis of the [July 13, 2000] work injury: cervical strain and shoulder strain
with possible partial rotator cuff tear. This is based on the records that I have
reviewed and the MRI [magnetic imaging resonance] [scan] findings and x-ray
findings.
“After work[-]related cervical strain of right shoulder condition resolved. [sic] I
believe the majority of [appellant’s] symptoms had resolved although she still
complains of some discomfort. I do not find any objective findings however, I
believe a great deal of cervical problems is [sic] related to the significant cervical
degenerative changes related [sic] that are noted above. It means that the current
condition is due more to the natural aging process rather than [the] 2000 work
injury. This is based on the x-ray findings that I have seen and [appellant’s]
complaints and physical findings. I do believe her subjective complaints
outweigh the objective findings. [Appellant] has no spasm in the cervical region,
[sic] she has no real tenderness around the shoulder and has good strength.
“I believe that [appellant] is not totally disabled. I believe she is capable of
performing most of the duties of her position.”
Dr. Green opined that appellant could work eight hours per day and limited activities requiring
reaching above her shoulder and lifting activities to no more than 20 pounds. He opined that
these restrictions should be imposed for three months.

3

On December 20, 2004 Dr. Whitfield opined that appellant could work four hours per day
with restrictions. On December 22, 2004 appellant returned to limited-duty work for five hours
per day.
The Office paid compensation for intermittent wage loss subsequent to
December 21, 2004. On December 28, 2004 appellant began working four hours per day. On
January 20, 2005 Dr. Whitfield opined that appellant could return to modified-duty work for six
hours per day. On January 22, 2005 appellant increased her work hours to six and received
compensation for the remaining two hours.
In a note dated January 24, 2005, Dr. Merrill W. Reuter, a Board-certified orthopedic
surgeon, expanded appellant’s work restrictions, restricting activities requiring her to look down,
lift and repetitive use of her upper extremities.
On February 3, 2005 Dr. Whitfield opined that appellant could work four to six hours per
day with restrictions.
On February 10, 2005 the Office sought a clarifying opinion from Dr. Green concerning
appellant’s disability status. On February 14, 2005 Dr. Green opined:
“I feel the cervical strain resolved at some point in time before I saw [appellant].
I do not know the exact date.
“This was based on my findings of no real objective findings. There was no
spasm in the neck, there was no tenderness around the shoulders, she has good
strength.”
In a note dated February 28, 2005, Dr. Reuter reviewed appellant’s history of injury,
noting that appellant attributed her neck pain to a July 13, 2000 incident and presented findings
on examination.
Appellant submitted a collection of reports and notes signed by Dr. Rolando Garcia, a
Board-certified orthopedic surgeon. On February 28, 2005 Dr. Garcia reported findings on
examination, a review of appellant’s history of injury and diagnosed cervical herniated nucleus
pulposus, cervical degenerative disc disease, cervical radiculopathy and possible early
myelopathy. He attributed the onset of appellant’s symptoms to her July 13, 2000 work injury.
On March 11, 2005 Dr. Marc A. Engel, a radiologist, reported an MRI scan of appellant’s
cervical spine which revealed mild to moderate spondylosis with broad-based posterior disc
bulge at the C5-C6 and C6-C7 levels.
On March 17 and May 13, 2005 Dr. Garcia took appellant off work and recommended
she undergo a cervical discectomy and fusion at C5-C7.
On April 18, 2005 Dr. Whitfield took appellant off work. On May 9, 2005 he reported
that an MRI scan of appellant’s cervical spine revealed a large herniated nucleus pulposus at the
C6-C7 level with possible cord compression. Dr. Whitfield diagnosed cervical sprain, C6-C7
nerve root irritation, bulging C3-C4 discs, herniated discs at the C4-C5, C5-C6 and C6-C7 levels,

4

C6-C7 spinal stenosis and neural foraminal stenosis and facet hypertrophy at the C3-C4, C4-C5,
C5-C6 and C6-C7 levels.
On May 13, 2005 Dr. Michael M. Koonin, an orthopedist, reported findings on
examination and diagnosed radiculopathy. He opined that appellant’s symptoms, neck pain and
radiating arm pain, are consistent with herniation at the C5-C6 and C6-C7 level and he
recommended surgery.
On May 13, 2005 appellant accepted disability retirement.
The Office referred appellant, together with a list of questions, to Dr. Jerry S. Sher, a
Board-certified orthopedic surgeon, for a second opinion examination to resolve the extent and
degree of appellant’s remaining disability, if any, attributable to her accepted employment injury.
The statement of accepted facts provided that the limited-duty position required intermittent
lifting of up to 70 pounds and, further, that all other limited activities, such as intermittent
stooping, bending, reaching above the shoulder, to two hours per day.
In a June 20, 2005 report, Dr. Sher reported findings on examination, reviewed
appellant’s medical history and diagnosed cervical strain, cervical degenerative disc disease and
a right rotator cuff tear. He opined that the degenerative disc disease was a preexisting condition
and not work related. Appellant’s cervical strain was work related and the July 13, 2000 incident
aggravated her preexisting degenerative disc disorder which had not resolved. Her right shoulder
condition resolved, with no residuals, as of August 3, 2004.
Dr. Sher opined that appellant’s latest work stoppage was related to her accepted work
injury because her symptoms and his findings were consistent with aggravation of preexisting
degenerative disc disease. He diagnosed cervical strain superimposed on underlying cervical
degenerative disc disease with cervical spasm. This condition precluded appellant from meeting
the lifting requirements of the mail handler position. Dr. Sher opined that appellant could
perform sedentary office-type work. He limited work activities requiring pushing, pulling and
lifting to .5 hours per day and to no more than five pounds. Dr. Sher also restricted appellant
from performing activities requiring squatting, kneeling and climbing. He also opined that
appellant was a candidate for cervical spine surgery which could allow her to return to work with
decreased restrictions.
By decision dated August 19, 2005, the Office accepted appellant’s claim for aggravation
of cervical degenerative disc disease. Appellant received total disability compensation from
March 17 through May 13, 2005, less that previously paid for partial disability for the same
period. Further, the Office authorized the requested cervical fusion surgery. The record contains
no evidence that appellant had cervical spine surgery.
On September 7, 2005 appellant submitted a collection of wage-loss (CA-7) claims for
wages lost during 2003, 2004 and 2005 attributable to her neck condition. She requested that the
Office compute the difference between the benefits she would receive from the Office of
Personnel Management (OPM) and what she could receive from the Office under the Federal
Employees’ Compensation Act.
On July 14, 2006 appellant filed a claim for compensation for leave without pay incurred
August 5, 2004 through July 14, 2006.
5

In an August 6, 2006 report, Dr. Gabriella Gerstle, a Board-certified neurologist, reported
that a nerve conduction study was suggestive of bilateral cervical radiculopathy.
By report dated August 11, 2006, Dr. Engel diagnosed, among other conditions, mild to
moderate spondylosis with slight retrolisthesis and disc bulge.
On October 19, 2006 Dr. Whitfield reported that appellant was involved in a motor
vehicle accident. He stated:
“Another vehicle hit the drivers [sic] side front [sic] of [appellant’s] vehicle.
[Appellant’s] vehicle was thrown airborne across the highway and onto the grass.
Her car landed on top of a cement utility pole. [Appellant] sustained injuries to
her neck and [low back].”
Dr. Whitfield diagnosed lumbosacral sprain, sacroiliitis, radiculitis and facet arthropy. He
released appellant to full-time work, as tolerated, for 25 to 35 hours per week provided she did
not do any heavy lifting, bending or stooping. In subsequent reports, Dr. Whitfield diagnosed
several conditions including cervical and lumbosacral sprain, rhomboid levelator, trapezius
myalgia, neck sprain and shoulder sprain.
On January 12, 2007 Dr. Gerstle reported that a nerve conduction study revealed active
denervation in the right triceps, endoscopic retrograde cholangiography (ERC) and right C6-C7
paraspinal muscles consistent with active right cervical radiculopathy.
By decision dated February 7, 2007, the Office denied appellant’s compensation claim as
it pertained to the period August 5, 2004 through May 13, 2005 because the record demonstrated
that appellant was previously compensated for this period.
On February 20, 2007 appellant, through her attorney, requested that the Office review
the record and issue a decision concerning the period May 14, 2005 through July 14, 2006.
Counsel also requested proof of the amount of wage-loss compensation paid August 5, 2004
through May 13, 2005.
On March 13, 2007 appellant, through her attorney, elected to receive benefits for the
period May 14, 2005 through July 14, 2006 from the Office rather than OPM.
By decision dated April 5, 2007, the Office denied the claim because she received
payment from OPM for the period May 14, 2005 through July 14, 2006 because appellant had
elected OPM disability retirement benefits and could not receive benefits from both the Office
and OPM.
Appellant disagreed and on April 10, 2007, through her attorney, requested a hearing.
In a narrative report dated April 11, 2007, Dr. Whitfield noted that the chief conditions
requiring appellant’s retirement were “primarily the injuries to the neck and right shoulder
sustained in the work-related accident [on July 13, 2000].” He noted:
“[Appellant’s] bid position involves repetitive heavy lifting up to and including
70 pounds. A functional capacity assessment however performed [sic] [May 27,
2004], revealed that the patient is unable to work in this classification.
6

[Appellant] was noted to be capable of lifting approximately 20 pounds on an
occasional basis only. Accordingly, from a medical perspective, it would be
inadvisable for the patient to return to a position similar to the one from which she
retired. In addition … [appellant] has sustained additional injuries in an MVA
[motor vehicle accident] (neck and lower back injuries). This is another factor
which would render it inadvisable for the patient to return to a position similar to
the one from which she retired.”
Dr. Whitfield opined that appellant could perform a light-duty position as a substitute teacher
with restrictions limiting the amount of time spent sitting and standing.
Appellant submitted copies of notes and reports from Drs. Garcia and Whitfield.
By decision dated May 17, 2007, the hearing representative vacated the Office’s April 5,
2007, remanding the case to the Office to determine whether appellant’s alleged disability
subsequent to May 13, 2005 was causally related to her July 13, 2000 accepted injury.
On July 21, 2007 Dr. Whitfield reported that appellant’s right shoulder condition and
neck injury was causally related to her July 13, 2000 injury. He noted that appellant sustained
additional neck injuries from a motor vehicle accident. Dr. Whitfield also opined that this
accident exacerbated her original neck injury. He opined that appellant was permanently
disabled from work because of conditions caused by her July 13, 2000 work-related injury.
In a July 23, 2007 report, Dr. Whitfield opined that appellant was permanently disabled.
He diagnosed neck, shoulder, upper arm and rotator cuff sprain. Dr. Whitfield opined that
appellant could occasionally lift up to 30 pounds.
On July 26, 2007 the Office reversed its April 5, 2007 decision and granted compensation
for the period May 14, 2005 through July 14, 2006.
By decision dated June 17, 2008, the Office denied the claim because the evidence of
record demonstrated that appellant’s disability after March 17, 2005 was not causally related to
her accepted injury.
On July 2, 2008 appellant requested a hearing.
On July 11, 2008 Dr. Whitfield reported findings on examination, reviewed appellant’s
medical history and diagnosed conditions including cervical sprain, nerve root irritation,
herniated disc with compression, spinal stenosis, lumbosacral sprain and facet hypertrophy.
A hearing was conducted on November 4, 2008 at which appellant described her job
duties and responsibilities. Appellant accepted disability retirement on May 13, 2005 because
she was trying to get a job that was better for her, the employing establishment did not
accommodate her and the employing establishment was “pressur[ing] … [her] to take a regular
job and mentally [she] was very disturbed.” She testified the limited-duty position to which she
was assigned occasionally required lifting trays of mail that she estimated weighed “like around
25 pounds.” Appellant also testified that these trays weighed “between 30 and 25 [sic] pounds.”
Her representative asserted that the employment duties performed by appellant at the time of
retirement exceeded her medical restrictions and that the evidence of record demonstrated a
7

change in appellant’s employment-related condition sufficient to establish entitlement to
recurrent disability compensation.
On December 8, 2008 the employing establishment reported that appellant’s position was
not withdrawn nor had it advised her that the position was no longer available. It noted that
repairing mail is considered the most sedentary position within its operation, requiring merely
applying tape to a damaged parcel. Employees assigned to this task work at their own pace, are
not timed, and are not subject to production requirements concerning the number of parcels
repaired per day. It noted that the medical evidence established that she was capable of working
eight hours per day.
Appellant also submitted a November 13, 2008 report in which Dr. Eric S. Grimm, an
orthopedist, reported findings on examination following an MRI scan of appellant’s cervical
spine. Dr. Grimm diagnosed degenerative disc disease and other conditions.
By decision dated January 23, 2009, the hearing representative affirmed the Office’s
June 17, 2008 decision, finding that the evidence of record did not establish that appellant
sustained a recurrence of disability on or after May 13, 2005 causally related to her accepted
employment injury.2 The hearing representative noted that its holding modified the Office’s
prior decision to reflect denial of recurrent disability on or after May 13, 2005 rather than
May 17, 2005.
LEGAL PRECEDENT
The Office’s regulations defines the term recurrence of disability as follows:
“Recurrence of disability means an inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition, which had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness. This term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn or when the physical requirements of such an
assignment are altered so that they exceed his or her established physical limitations.”3
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a

2

Appellant submitted additional evidence on appeal. The Board may not consider evidence for the first time on
appeal which was not before the Office at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c). See
J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008) (holding the Board’s jurisdiction is limited to
reviewing the evidence that was before the Office at the time of its final decision.)
3

J.F., 58 ECAB 124 (2006); Elaine Sneed, 56 ECAB 373, 379 (2005); 20 C.F.R. § 10.5(x).

8

change in the nature and extent of the light-duty requirements.4 To establish a change in the
nature and extent of the injury-related condition, there must be probative medical evidence of
record. The evidence must include a medical opinion, based on a complete and accurate factual
and medical history supported by sound medical reasoning, that the disabling condition is
causally related to employment factors.5
ANALYSIS
The Board finds this case is not in posture for a decision.
The Office initially accepted appellant’s claim for neck, shoulder and upper arm sprain,
cervical strain, right shoulder strain, shoulder rotator cuff tear and rotator cuff sprain. Appellant
subsequently filed a recurrence of disability claim alleging that her work-related conditions had
worsened causing total disability as of May 13, 2005. Appellant’s burden is to submit evidence
establishing, for example, a spontaneous change in the nature and extent of the injury-related
condition, without an intervening injury or new exposure to the work environment causing total
disability on or after May 13, 2005.6 This is a medical issue.7
As of February 28, 2005 Dr. Garcia diagnosed herniated cervical disc and cervical
degenerative disc disease. On May 9, 2005 Dr. Whitfield also diagnosed cervical bulging and
herniated discs, with cervical spinal stenosis. On May 13, 2005 Dr. Koonin diagnosed cervical
radiculopathy and herniation. On June 20, 2005 Dr. Sher, the Office’s second opinion physician,
diagnosed cervical strain, cervical degenerative disc disease and a right rotator cuff tear. He
opined the cervical strain was work related and the July 13, 2000 incident aggravated appellant’s
preexisting degenerative disc disorder which had not resolved. Dr. Sher opined that appellant’s
latest work stoppage was related to her accepted work injury because her symptoms and his
4

Albert C. Brown, 52 ECAB 152, 154-155 (2000); Terry R. Hedman, 38 ECAB 222, 227 (1986); 20 C.F.R.
§ 10.5(x) provides, “Recurrence of disability means an inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition which had resulted from a previous injury or illness without
an intervening injury or new exposure to the work environment that caused the illness. This term also means an
inability to work that takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn (except when such withdrawal
occurs for reasons of misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical limitations.”
5

Mary A. Ceglia, 55 ECAB 626, 629 (2004); Maurissa Mack 50 ECAB 498, 503 (1999).

6

Albert C. Brown, 52 ECAB 152, 154-155 (2000); Terry R. Hedman, 38 ECAB 222, 227 (1986); 20 C.F.R.
§ 10.5(x) provides, “Recurrence of disability means an inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition which had resulted from a previous injury or illness without
an intervening injury or new exposure to the work environment that caused the illness. This term also means an
inability to work that takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn (except when such withdrawal
occurs for reasons of misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical limitations.”
7

Appellant submitted reports from a physical therapist. Because healthcare providers such as nurses,
acupuncturists, physician’s assistants and physical therapists are not considered physicians under the Act, their
reports and opinions do not constitute competent medical evidence. (5 U.S.C. § 8101(2); see also G.G., 58 ECAB
389 (2007); Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J. Williams, 40 ECAB 649 (1989); Jan A. White, 34
ECAB 515 (1983). Thus the physical therapy reports have no evidentiary value.

9

findings were consistent with aggravation preexisting degenerative disc disease. He diagnosed
cervical strain superimposed on underlying cervical degenerative disc disease with cervical
spasm. This condition precluded appellant from meeting the lifting requirements of the mail
handler position.
By decision dated August 19, 2005, the Office accepted appellant’s claim for aggravation
of cervical degenerative disc disease and authorized cervical fusion surgery.
In accepting this condition, the Office expanded appellant’s claim. Accordingly,
following this acceptance, it was required to consider whether these accepted conditions and
those previously accepted resulted in her total disability on or after May 13, 2005. The
subsequent Office’s decisions did not acknowledge or contain findings of fact concerning these
additionally accepted conditions in determining whether appellant had total disability.8 It
concluded that in the June 17, 2008 decision appellant had not established any worsening of her
condition in support of the May 13, 2005 recurrence claim. The Office essentially ignored the
medical evidence of record from Drs. Garcia, Whitfield, Koonin and Sher in finding that
appellant had not established any worsening of her condition on or about May 15, 2005.
On July 26, 2007 the Office granted compensation for the period May 14, 2005 through
July 14, 2006. Yet the hearing representative’s January 23, 2009 decision inexplicably denied
appellant’s claim after May 14, 2005, not acknowledging the acceptance through July 14, 2006.
The issue presented was recurrence of disability, yet the Office seemingly rescinded acceptance
of a period of disability. The Office did not provide proper findings of fact nor correct analysis
to determine whether appellant had established total disability after July 14, 2006.
Appellant is entitled to a merit decision with proper findings of fact and a statement of
reasons on the issue of her disability on or after July 14, 2006. After such further development
as the Office deems necessary, the Office shall issue a de novo decision as to whether the
employment-related conditions accepted by the Office caused or contributed to her disability on
or after July 14, 2006.
The decisions of the Office dated June 17, 2008 and January 23, 2009 are set aside and
the case remanded for further proceedings consistent with this decision.
CONCLUSION
The Board finds this case is not in a posture for decision.

8

The granting of OPM benefits is not relevant to appellant’s recurrence of disability claim. The Board notes that
this election is revocable. Further, even where an employee elects annuity benefits provided by OPM, they are
entitled to payment of medical expenses for treatment of the accepted condition. See Ernest J. Malagrida, 51 ECAB
287 (2000); Irene St. John, 50 ECAB 521 (1999); Wayne E. Boyd, 49 ECAB 202 (1997); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(4)(a) (July 1997); Federal (FECA) Procedure Manual,
Part 2 -- Claims, Dual Benefits, Chapter 2.1000. Exhibit 1: Restrictions on Payment of Benefits under the Act (I)
(July 1997). See also 20 C.F.R. § 10.500; 5 U.S.C. § 8116.

10

ORDER
IT IS HEREBY ORDERED THAT the January 23, 2009 and June 17, 2008 decisions
of the Office of Workers’ Compensation Programs are set aside and the case remanded to the
Office for further development in accordance with this decision.
Issued: March 3, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

11