United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.O., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Wichita, KS, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-39
Issued: April 2, 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 14, 2013 appellant, through her attorney, filed a timely appeal of the May 31,
2013 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.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
medical benefits on October 24, 2012.
On appeal, counsel contends that OWCP improperly terminated appellant’s compensation
benefits based on the report of the impartial medical examiner, who was not properly selected in
accordance with OWCP procedure. He further contends that the impartial medical specialist’s
report is insufficient to carry the special weight of the medical evidence.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. By decision dated February 27, 2012,
the Board reversed the May 17, 2011 OWCP decision affirming the February 8, 2011
termination of appellant’s compensation benefits.2 The Board found an unresolved conflict in
medical opinion between appellant’s attending physician, Dr. Edmond Michael Young, a Boardcertified psychiatrist, and Dr. Sanford Pomerantz, a Board-certified psychiatrist and an OWCP
referral physician, as to whether her ongoing residuals and disability were due to the accepted
May 1998 injury. The Board found the evidence of record contained inadequate documentation
pertaining to the selection of Dr. Mahmoud Wahba, a Board-certified psychiatrist, as the
impartial medical specialist. The history of the case from the prior decision is hereby
incorporated by reference.3
On remand, OWCP placed appellant on the periodic rolls for temporary total disability
following her election to receive benefits under FECA.
On April 4, 2012 OWCP referred appellant to Dr. Bert S. Furmansky, a Board-certified
psychiatrist, to resolve the conflict in medical opinion. Regarding Dr. Furmansky’s selection,
the record contains an iFECS Report: ME023 Appointment Schedule Notification referring
appellant to Dr. Furmansky for an impartial medical examination, a Form ME-M Memorandum
of Referral to Specialist and Bypass Doctor screenshots from September 2010.
On March 22, 2012 OWCP received a letter from appellant objecting to the referral to an
impartial medical specialist on the grounds that the conflict was nearly two years old and she had
new medical determinations accepted by the Office of Personnel Management for Disability
Retirement. Appellant requested an examination by a second opinion physician. By letter dated
April 18, 2012, OWCP advised the medical documentation in her file was current.
In an April 20, 2012 report, Dr. Furmansky examined appellant and reviewed a history of
the May 24, 1998 employment injury and appellant’s medical treatment, social and family
background. He also reviewed the statement of accepted facts and listed findings on physical
examination. Dr. Furmansky diagnosed generalized anxiety disorder, cannabis abuse and
nonspecific mood disorder, all nonwork related. He stated that appellant was status post posttraumatic stress disorder (PTSD) resolved with mild residual avoidance of airplanes.
Dr. Furmansky opined that she was no longer disabled by PTSD based on her ability to
withstand full-blown reexposure to an airplane on several occasions in the air. He indicated that
appellant has taken a minimum of seven airplane flights voluntarily as per the medical record,
which was equivalent to seven full exposures to the stressful stimuli. Additionally, medical
records indicate that she has shown improvement from her psychotherapy and psychotropic
medications regarding her PTSD symptoms. Appellant’s therapist, Fowler Jones, Ph.D.,
reported that appellant flew in airplanes about seven times in the previous few years since the
1998 event. He also reported that she overcame her fear of the airport and flying.
Dr. Furmansky opined that the accepted work injury as related to an emotional condition had
2

Docket No. 11-1627 (issued February 27, 2012), petition for recon., denied August 31, 2012.

3

OWCP accepted appellant’s May 28, 1998 claim for PTSD arising from a May 24, 1998 incident in which she
was an air traffic controller on duty when an aircraft crashed. Appellant stopped work and was placed on the
periodic compensation rolls.

2

resolved with probably mild residual of avoidance. He stated that appellant has coexisting
underlying psychiatric disorders that are causing her symptoms and are partially disabling.
Dr. Furmansky opined that she cannot return to her usual high stress employment duties due to
her cannabis abuse, generalized anxiety disorder, probabic mood disorder and prescribed
medications. He concluded that appellant’s PTSD, which is her only accepted work-related
disorder, did not prevent her from working full time in another position. Dr. Furmansky noted
that the medical record indicated that she has falsely reported information regarding her
substance abuse, education and recent symptomatology (based on Dr. Fowler’s report). Since
the diagnosis of PTSD relies mainly on subjective self-reporting of symptoms, he opined that the
intensity and chronicity of the diagnosis as a self-reported problem by someone who has falsified
information was questionable. Dr. Furmansky noted that appellant’s other psychiatric conditions
were not causally related to the work event of May 24, 1998 and were currently partially
disabling, limiting her to work approximately 19 to 20 hours a week in a low stress position.
The evidence received after the Board’s decision included an August 2, 2011 report from
James Reeves, LPC CAC III and a January 11, 2012 report from Dr. Allan B. Willett, a Boardcertified psychiatrist. Mr. Reeves provided an update on appellant’s condition to the Office of
Personnel Management.
In the January 11, 2012 report, Dr. Willett noted that he first treated appellant on
August 10, 2011. He related a history of injury as reported by her and diagnosed bipolar
disorder and PTSD. Dr. Furmansky stated that appellant’s prognosis was guarded because her
symptoms had persisted for 13 years despite fairly aggressive treatment. He indicated that he
saw her a second time in November 2011 and listed her reported symptoms. Dr. Furmansky
indicated that reports from appellant’s therapist indicate that she is practicing her anxiety
management techniques and has had some diminished reactivity to fly over aircraft. He opined
that her work capacity was markedly limited by unpredictable anxiety symptoms (causing
avoidance and withdrawal) and possibly some outbursts of irritability that have been reported to
her therapist. Dr. Furmansky opined that the emotional reactions were highly unpredictable at
this time and that it would be a very gradual transition to competitive employment if ever.
By decision dated October 24, 2012, OWCP finalized the termination of appellant’s
compensation benefits for the accepted condition effective October 24, 2012.
On November 20, 2012 appellant’s counsel requested an oral hearing, which was held on
March 18, 2013. He argued that Dr. Furmansky was not properly selected as his office was 34
miles from appellant’s home and there were several psychiatrists bypassed in the selection
process. Counsel further argued that the ME023 was the only documentation of the selection.
He further argued that Dr. Furmansky’s opinion was equivocal.
In an April 9, 2013 letter, the employing establishment stated that OWCP’s termination
of appellant’s compensation benefits should be upheld. In an April 19, 2013 letter, counsel
reiterated the arguments regarding referee selection and that Dr. Furmansky’s report was not
sufficient to resolve the conflict of medical opinion.
By decision dated May 31, 2013, OWCP’s hearing representative affirmed the
October 24, 2012 termination decision.

3

LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his or her employment, it may not terminate compensation without establishing that the disability
had ceased or that it was no longer related to the employment.4 OWCP’s burden of proof
includes the necessity of furnishing rationalized medical opinion evidence based on a proper
factual and medical background.5 Furthermore, the right to medical benefits for an accepted
condition is not limited to the period of entitlement for disability. To terminate authorization for
medical treatment, it must establish that a claimant no longer has residuals of an employmentrelated condition that requires further medical treatment.6
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.7 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. 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.8 In situations where there exist opposing medical 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.9
Congress did not address the manner by which an impartial medical referee is to be
selected.10 Under FECA Procedure Manual, the Director of OWCP has exercised discretion to
implement practices pertaining to the selection of the impartial medical referee. Unlike second
opinion physicians, the selection of referee physicians is made from a strict rotational system.11
OWCP will select a physician who is qualified in the appropriate medical specialty and who has
no prior connection with the case.12
In turn, the Director has delegated authority to each district Office for selection of the
referee physician by use of the Medical Management Application (MMA) within iFECS.13 This
4

Jason C. Armstrong, 40 ECAB 907 (1989).

5

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

7

5 U.S.C. § 8123(a).

8

20 C.F.R. § 10.321.

9

Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

10

J.S., Docket No. 12-1343 (issued April 22, 2013).

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b) (July 2011).

12

Id. at Chapter 3.500.4(b)(1).

13

Id. at Chapter 3.500.4(b)(6).

4

application contains the names of physicians who are Board-certified in over 30 medical
specialties for use as referees within appropriate geographical areas.14 The MMA in iFECS
replaces the prior PDS method of appointment.15 It provides for a rotation among physicians
from the American Board of Medical Specialties, including the medical boards of the American
Medical Association and those physicians Board-certified with the American Osteopathic
Association.16
Selection of the referee physician is made through use of the application by a medical
scheduler. The claims examiner may not dictate the physician to serve as the referee examiner.17
The medical scheduler imputes the claim number into the application, from which the claimant’s
home zip code is loaded.18 The scheduler chooses the type of examination to be performed
(second opinion or impartial referee) and the applicable medical specialty. The next physician in
the roster appears on the screen and remains until an appointment is scheduled or the physician is
bypassed.19 If the physician agrees to the appointment, the date and time are entered into the
application. Upon entry of the appointment information, the application prompts the medical
scheduler to prepare a Form ME023, appointment notification report for imaging into the case
file.20 Once an appointment with a medical referee is scheduled the claimant and any authorized
representative is to be notified.21
ANALYSIS
The Board finds that this case is not in posture for decision. The evidence does not
establish that OWCP properly selected Dr. Furmansky as the impartial medical specialist.
It is well established that OWCP has an obligation to verify that it selected
Dr. Furmansky in a fair and unbiased manner.22 The current record contains the Form ME023, a
Form ME-M Memorandum of Referral to Specialist and Bypass Doctor screenshots from
September 2010. While the Form ME023 serves as documentary evidence that the referee
appointment was scheduled through the MMA, the record does not contain any iFECS screen
shots substantiating the selection of Dr. Furmansky.23 The Bypass Doctor screenshots from
September 2010 are from the previous selection of the first impartial medical specialist,
Dr. Wahba, which are not relevant to the selection of Dr. Furmansky.
14

Id. at Chapter 3.500.4(b)(6)(a).

15

Id. at Chapter 3.500.5.

16

Id. at Chapter 3.500.5(a).

17

Id. at Chapter 3.500.5(b).

18

Id. at Chapter 3.500.5(c).

19

Id. Upon entry of a bypass code, the MMA will present the next physician based on specialty and zip code.

20

Id. at Chapter 3.500.5(g).

21

Id. at Chapter 3.500.4(d).

22

J.W., Docket No. 12-331 (issued January 14, 2013).

23

E.S., Docket No. 12-916 (issued September 3, 2013); see also A.V., Docket No. 12-1377 (issued
August 6, 2013).

5

The Board has placed great importance on the appearance as well as the fact of
impartiality, and only if the selection procedures which were designed to achieve this result are
scrupulously followed may the selected physician carry the special weight accorded to an
impartial specialist. OWCP has not met its affirmative obligation to establish that it properly
followed its selection procedures.24 Its decision terminating appellant’s compensation benefits
must be reversed due to an unresolved conflict in medical opinion.25
The Board will remand the case to OWCP for proper selection of a referee physician.
After such further development as necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether OWCP properly
terminated appellant’s compensation benefits on October 24, 2012 due to an unresolved conflict
in medical opinion.
ORDER
IT IS HEREBY ORDERED THAT the May 31, 2013 decision of the Office of
Workers’ Compensation Programs is reversed and the case remanded for further proceedings
consistent with this decision of the Board.
Issued: April 2, 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

24

L.B., Docket No. 13-968 (issued September 11, 2013); C.P., Docket No. 10-1247 (issued September 28, 2011).

25

Due to the disposition of this case, appellant’s arguments on appeal will not be addressed.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 06-1850
Issued: March 9, 2007

Case Submitted on the Record

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

JURISDICTION
On August 8, 2006 appellant filed a timely appeal from a merit decision of an Office of
Workers’ Compensation Programs’ hearing representative dated June 19, 2006 finding that
appellant did not establish a back injury on December 3, 2003. 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 met her burden of proof in establishing that she sustained a
back injury on December 3, 2003.
FACTUAL HISTORY
On December 10, 2003 appellant, then a 32-year-old tax examining technician, filed a
traumatic injury claim alleging that she injured her left shoulder, left elbow and hip while in the
performance of duty on December 3, 2003 when she fell over a partition wall floor brace onto
her left side. She sought treatment from the St. Elizabeth Medical Center on December 3, 2005
and was diagnosed with a contusion to the left shoulder and hip. Appellant was instructed to

follow-up with her physician and was given work restrictions of no lifting or carrying more than
10 pounds.1 She stopped work on December 3, 2003 and did not return. Appellant subsequently
filed for disability retirement in May 2004. She had a preexisting back condition along with a
history of depression and stress.
In a December 11, 2003 note, Dr. Gary Shearer, a Board-certified family practitioner,
advised that appellant was not to work for 45 days as the December 3, 2003 fall exacerbated her
back condition. In CA-20 reports dated December 16, 2003 and February 17, 2004, Dr. Shearer
noted the history of appellant’s December 3, 2003 fall and found lumbosacral spasms on
examination. He also noted that appellant had a prior history of chronic lumbar strain and
lumbar disc syndrome. Dr. Shearer opined, by placing a checkmark in the appropriate box, that
appellant’ lumbosacral spasms or exacerbation of her lumbar injury were causally related to her
December 3, 2003 fall at work and that she was totally disabled beginning December 5, 2003.
By letter dated January 28, 2004, the Office informed appellant of the medical evidence
needed to develop her claim, including a physician’s opinion supported by a medical explanation
as to how the reported work incident caused or aggravated the claimed injury. It noted that, as
there was prior history of cervical and lumbar conditions, the attending physician must provide
objective evidence to demonstrate an aggravation or worsening of the preexisting conditions. In
response, appellant submitted various copies of requests for accommodation and medical
evidence prior to her December 3, 2003 fall.
By decision dated March 29, 2004, the Office found that the medical evidence submitted
was insufficient to establish appellant’s claim that her cervical and lumbar spinal condition was
aggravated by the December 3, 2003 fall.
On April 22, 2004 appellant requested a review of the written record. Additional reports
dated April 21 and June 1, 2004 from Dr. Shearer were submitted. On April 21, 2004
Dr. Shearer noted that he examined appellant on December 5, 2003 for her December 3, 2003
fall at work. He advised that she had tripped over a partition at work, fell to the floor on her left
side and sustained injury to her back, arm, elbow and hip. Dr. Shearer noted that appellant had
some tingling in her back and neck as a result of the fall and received trigger point injections,
pain medication, muscle relaxants and anti-inflammatory medication. He stated that appellant
had a history of low back problems prior to this injury and opined that the fall caused additional
injury due to the escalation of pain in her back and hip. Dr. Shearer opined that the fall on
December 3, 2003 caused a worsening of the preexisting condition and rendered her disabled.
On June 1, 2004 Dr. Shearer stated that a magnetic resonance imaging (MRI) scan of
March 9, 2004 showed a more prominent disc protrusion of the L5-S1 than on the 2001 MRI
scan study. He indicated that “this is objective evidence that the fall on December 3, 2003
resulted in additional injury to her low back.” Dr. Shearer further stated that, since the fall,
appellant had more muscle spasm and more muscle guarding on examination. A copy of the
March 9, 2004 MRI scan report was submitted together with additional CA-20 form reports from
Dr. Shearer and reports of lumbar epidural steroid injections dated March 12, April 6 and
August 5, 2004.
1

The signature of the physician who signed the emergency room report is illegible.

2

By decision dated October 26, 2004, the Office hearing representative set aside the
March 29, 2004 Office decision and remanded the case for further development of the medical
evidence.
The Office referred appellant, together with a statement of accepted facts, a set of
questions and the medical record, to Dr. Richard Sheridan, a Board-certified orthopedic surgeon,
for a second opinion evaluation. In a January 17, 2005 report, Dr. Sheridan reviewed the record,
including diagnostic testing and x-ray/MRI scan films and presented his examination findings.
He concluded that there was no objective evidence to establish that any specific medical
condition resulted from appellant’s fall at work on December 3, 2003. Dr. Sheridan stated that
there was no medical evidence establishing that the claimed conditions were the result of the
accepted incident and no evidence demonstrating that appellant sustained a worsening of any
preexisting medical condition. He further noted that, when appellant submitted her CA-1 form,
she did not indicate any injury to her lumbar area or to her neck. Dr. Sheridan also stated that the
evidence did not support that appellant sustained an injury to her left elbow, hip, or shoulder as
claimed. He opined that appellant did not need any work limitations because of or secondary to
the incident of December 3, 2003.
Additional progress reports from Dr. Shearer were received along with reports of lumbar
epidural steroid injections, physical therapy reports and handwritten pain management notes
from St. Luke’s hospital.
By decision dated February 8, 2005, the Office found the medical evidence insufficient to
establish appellant’s claim. On February 14, 2005 appellant requested an oral hearing.
Additional reports regarding lumbar epidural steroid injections were received.
By decision dated September 8, 2005, an Office hearing representative set aside the
Office’s February 8, 2005 decision on the basis that there was a conflict of medical opinion
between Dr. Shearer and Dr. Sheridan.
In a July 18, 2005 Form CA-20 report, Dr. W. Ford Threlkeld, a Board-certified family
practitioner, noted the history of the December 3, 2003 fall at work. He opined that appellant’s
chronic lower back pain was causally related to the work injury “per history.” Additional CA-20
form reports were also received from Dr. Shearer along with MRI scan reports of June 7, 2005
and an addendum MRI scan report of July 7, 2005, which indicated that the disc protrusion at
L5-S1 had increased in size slightly in comparison to the March 10, 2004 prior study.
On September 19, 2005 the Office referred appellant, together with a statement of
accepted facts, a set of questions and the medical record, to Dr. LeRoy Shouse, a Board-certified
orthopedic surgeon, for an impartial medical evaluation. In an October 12, 2005 report,
Dr. Shouse noted appellant’s complaints, the history of injury and his review of the record,
including diagnostic MRI scans of the lumbar and cervical spine. He noted appellant’s MRI
scans showed a mild disc protrusion at L5-S1 which seemed to become more significant on the
June 7, 2005 examination. Dr. Shouse compared the June 7, 2005 MRI scan to the March 10,
2004 MRI scan and noted that both examinations were after her date of injury. He further noted
that appellant had prior low back pain since a motor vehicle accident in 1999. Dr. Shouse also
noted that appellant was offered surgery but the neurosurgeon wanted her to lose a significant

3

amount of weight, which she was not able to do. On objective evaluation, he indicated that
appellant had a decrease in her left ankle jerk, but had essentially symmetric calf size which
indicated no significant muscle loss in her left calf. Dr. Shouse opined that appellant’s trip and
fall at work on December 3, 2003 could not be blamed for her continued and worsening back
pain according to her history. He noted that appellant had back pain due to a motor vehicle
accident prior to her injury, she did not complain of back pain at the time of the injury, and her
back pain seemed to have progressed along with the disc protrusion at L5-S1, which became
more prominent from the MRI scan taken March 10, 2004, as noted by the June 7, 2005 MRI
scan. Dr. Shouse opined that the disc protrusion occurred well after the December 3, 2003
incident and was not due to her trip and fall at work.
By decision dated October 28, 2005, the Office denied the claim on the basis that the
weight of the medical evidence, as represented by the opinion of Dr. Shouse, established that
appellant’s worsening low back condition was not causally related to the December 3, 2003
incident.
On December 10, 2005 appellant disagreed with the Office’s decision and requested an
oral hearing, which was held April 20, 2006. In a May 9, 2006 report, Dr. Gregory A. Benbow,
a Board-certified emergency medicine practitioner for the employing establishment, noted his
concerns about the case and generally negated the causal relationship between appellant’s pain
and the December 3, 2003 fall.
By decision dated June 19, 2006, an Office hearing representative affirmed the Office
decision of October 28, 2005. The Office hearing representative accorded determinative weight
the impartial medical evaluation of Dr. Shouse.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act 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 States within the meaning of the Act; that the claim was
filed within the applicable time limitation; that an injury was sustained while in the performance
of duty as alleged; and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.2 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.3
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. First, the employee must submit sufficient evidence to establish
that he or she actually experienced the employment incident that is alleged to have occurred.4
2

Joe D. Cameron, 41 ECAB 153 (1989).

3

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

4

Gary J. Watling, 52 ECAB 278 (2001).

4

Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.5 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.6
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.7 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.8 Neither the mere fact that a disease or
condition manifests itself during a period of employment nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.9
Section 8123(a) of the Act 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.10 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.11
ANALYSIS
The Office denied appellant’s claim on the grounds that she failed to establish that she
sustained an injury on December 3, 2003. The Office found that appellant fell over a partition
wall on December 3, 2003. Appellant sought treatment for the fall the same day at the
St. Elizabeth Medical Center and provided a consistent history of the injury as reported on
medical reports. The Board finds that appellant’s statements are consistent with the surrounding

5

Deborah L. Beatty, 54 ECAB 340 (2003).

6

Michael E. Smith, supra note 3.

7

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

8

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
9

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

10

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

11

Manuel Gill, 52 ECAB 282 (2001).

5

facts and circumstances and, thus, she has established that she experienced the employment
incident on December 3, 2003.
The Board finds, however, that the medical evidence is insufficient to establish that
appellant sustained an injury on December 3, 2003 causally related to her accepted fall. Initial
emergency room records diagnosed shoulder and hip contusions but did not specifically address
causal relationship. Thereafter, appellant sought treatment from Dr. Shearer who opined that the
employment incident caused or aggravated her back condition. After referring the matter to
Dr. Sheridan for a second opinion, the Office properly found that a conflict existed in the
medical opinion evidence between, Dr. Shearer, for appellant, and Dr. Sheridan, for the Office,
regarding whether the accepted fall worsened her preexisting low back condition. Accordingly,
the Office referred appellant to Dr. Shouse to resolve the conflict.12
The Board finds Dr. Shouse’s October 12, 2005 report sufficiently well rationalized to
establish that appellant’s back condition was not caused or aggravated by the December 3, 2004
work-related fall.13 In a comprehensive October 12, 2005 report, Dr. Shouse noted appellant’s
complaints and history of injury. He reviewed the record, including MRI scans of the cervical
and lumbar spines, which confirmed the diagnosis of a disc protrusion at L5-S1. Dr. Shouse
noted that appellant had prior back pain due to a 1999 motor vehicle accident. He advised that
appellant’s back pain was secondary to the preexisting degenerative condition and unrelated to
her fall at work. Dr. Shouse noted that the initial medical records from the hospital on
December 3, 2003 contained no reference to back pain. Appellant had back pain prior to
December 3, 2003 due to a nonwork-related 1999 motor vehicle accident. Dr. Shouse stated that
the progression of the disc protrusion at L5-S1 shown on the December 7, 2005 MRI scan
occurred well after the fall on December 3, 2003. The Board finds his report sufficiently
rationalized to accord it special weight.14 The Office properly found that appellant failed to
establish an injury related to her fall at work.
The additional medical evidence from Dr. Threlkeld is insufficient to establish that
appellant’s back condition was caused by her employment incident. On July 18, 2005
Dr. Threlkeld submitted a form report and indicated that appellant’s chronic low back pain was
due to the December 3, 2003 fall. He described appellant’s history of injury on December 3,
2003 and indicated with a checkmark “yes” that he believed that appellant’s condition was
caused or aggravated by an employment activity “per history.” The Board has held that an
opinion on causal relationship which consists only of a physician checking yes to a medical form
report question on whether the claimant’s condition was related to the history given is of little
probative value. Without any explanation or rationale for the conclusion reached, such a report
is insufficient to establish causal relationship.15 Dr. Threlkeld did not submit any specific
findings or medical reasoning explaining why appellant’s chronic low back pain was caused or
12

See 5 U.S.C. § 8123(a); Geraldine Foster, supra note 10.

13

Manuel Gill, supra note 11.

14

Id.

15

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

6

aggravated by the employment injury. This report is not sufficient to meet appellant’s burden of
proof and is insufficient to create a conflict with Dr. Shouse’s impartial medical opinion.
Dr. Shearer’s subsequent reports are also insufficient to overcome the weight given the
report of the impartial medical specialist. The Board notes that Dr. Shearer was on one side of
the conflict giving rise to the referral to Dr. Shouse. Accordingly, his reports are not sufficient to
overcome the weight given the opinion of the impartial specialist.16 The additional evidence
submitted by appellant fails to offer a medical opinion regarding the cause of appellant’s low
back condition. Medical evidence which does not offer an opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.17
Therefore, these reports are insufficient to meet appellant’s burden to establish that her back
condition was caused or aggravated by the December 3, 2003 fall.
The weight of the medical evidence establishes that appellant’s low back condition is not
caused or aggravated by the December 3, 2003 fall. Appellant, therefore, failed to meet her
burden of proof as she failed to submit a reasoned medical opinion supporting causal
relationship.18
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she had
any employment-related disability or medical condition causally related to her December 3, 2003
fall.

16

See John D. Jackson, 55 ECAB 465 (2004).

17

Michael E. Smith, supra note 3.

18

Albert C. Brown, 52 ECAB 152 (2000).

7

ORDER
IT IS HEREBY ORDERED THAT the June 19, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 9, 2007
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Corpus Christi, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-1713
Issued: February 10, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 18, 2011 appellant filed a timely appeal of a January 27, 2011 Office of
Workers’ Compensation Programs’ (OWCP) merit schedule award decision. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than five percent impairment to each upper
extremity for which he received schedule awards.
FACTUAL HISTORY
On March 6, 2009 appellant, then a 60-year-old letter carrier technician, filed an
occupational disease claim alleging that he developed carpal tunnel syndrome due to factors of

1

5 U.S.C. § 8101 et seq.

his federal employment. By decision dated May 7, 2009, OWCP accepted his claim for bilateral
carpal tunnel syndrome.
In a report dated June 10, 2009, Dr. Christopher Miskovsky, a Board-certified orthopedic
surgeon, diagnosed bilateral carpal tunnel syndrome based on nerve conduction studies. He
noted that nerve conduction studies in 2007 revealed a right median motor latency of 5.85 and
sensory latency of 4.45 and on the left nonresponsive left median motor and sensory latency with
electromyelogram evidence of changes in the musculature on the left side. Dr. Miskovsky
recommended left surgical intervention. He performed a left carpal tunnel release on
July 16, 2009. Dr. Miskovsky performed a right carpal tunnel release on September 10, 2009.
Appellant requested a schedule award on January 20, 2010. He submitted a report from
Dr. Charles W. Kennedy, Jr., a Board-certified orthopedic surgeon, dated January 12, 2010
finding that appellant had reached maximum medical improvement. Dr. Kennedy noted that
appellant’s carpal tunnel had been confirmed electrodiagnostically. He applied Table 15-23
Entrapment/Compression Neuropathy Impairment2 finding that appellant had six percent
impairment of each upper extremity due to motor conduction block and significant intermittent
symptoms, decreased sensation and severe impairment of the functional scale. Dr. Kennedy
listed appellant’s right hand two-point discrimination as 10 millimeters on the third through fifth
fingers, 9 millimeters on the index finger and 7 millimeters on the thumb. In the left hand,
appellant’s two-point discrimination was 10 on the thumb and 9 on fingers 2 through 5.
Dr. Kennedy found positive Tinel’s signs on both wrists and noted that appellant’s QuickDASH
score was 42.
Dr. Ronald Blum, an OWCP medical adviser, reviewed the medical evidence on
October 26, 2010. He found that appellant reached maximum medical improvement on
January 12, 2010 and applied the A.M.A., Guides finding that appellant had five percent
impairment of each upper extremity. Dr. Blum found that appellant had grade modifiers of test
findings 2, history 2, and physical findings 2, with a default value of five percent due to carpal
tunnel syndrome.3 He stated that QuickDASH was 42 resulting in grade modifier 2 yielding five
percent impairment of each upper extremity. Dr. Blum stated, “Dr. Kennedy recommends six
percent for each upper extremity. He seems to have used the total of grade modifiers instead of
using the average grade modifier value to determine the default value for upper extremity
impairment that should be used.”
By decision dated January 27, 2011, OWCP granted appellant schedule award for five
percent impairment of each of his upper extremities.

2

American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th ed. (2009) p.449, Table
15-23.
3

Id.

2

LEGAL PRECEDENT
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 of loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.6
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.7 In
Table 15-23, grade modifiers levels (ranging from 0 to 4) are described for the categories test
findings, history and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.8
ANALYSIS
OWCP accepted that appellant sustained work-related bilateral carpal tunnel syndrome
and authorized the performance of bilateral carpal tunnel release surgeries. Appellant filed a
claim for a schedule award due to his work injuries.
In a report dated January 12, 2010, Dr. Kennedy found that appellant had reached
maximum medical improvement. He noted that appellant’s carpal tunnel had been confirmed
electrodiagnostically and provided physical findings including two-point discrimination greater
than six millimeters in each finger as well as positive Tinel’s sign on the median nerve at both
wrists. Dr. Kennedy applied Table 15-23 Entrapment/Compression Neuropathy Impairment
finding that appellant had motor conduction block a grade modifier 2 for test findings.9 He noted
significant intermittent symptoms also grade modifier 2 for history and decreased sensation
4

5 U.S.C. §§ 8101-8193, 8107.

5

20 C.F.R. § 10.404.

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 2.808.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
7

Supra note 3.

8

A survey completed by a given claimant, known by the name QuickDash, may be used to determine the
functional scale score. A.M.A., Guides 448-49.
9

Supra note 3.

3

grade modifier 2 for physical findings.10 The A.M.A., Guides require that the average grade
modifier for test findings, history and physical findings be found, which in this case is two for
the final rating category. The A.M.A., Guides provide that the range of impairments for the
grade is modified up or down from the default value based on the functional scale grade.
Appellant’s QuickDASH score was 42, within the moderate, 41-60, score on the functional scale
resulting in grade modifier 2 or a grade modifier equal to the grade assigned for the condition.11
Dr. Kennedy stated that appellant had severe impairment on the functional scale; however, the
Board notes that this assignment is not borne by the QuickDASH score. Utilizing the increased
impairment on the functional scale, Dr. Kennedy reached an impairment rating of six.
Dr. Blum, OWCP’s medical adviser, chose grade modifiers from the table for the various
categories, including test findings, history and physical findings, based on Dr. Kennedy’s
findings. He then averaged the grade modifiers and chose the default value of five under grade
modifier 2. Dr. Blum determined the functional scale and found that appellant’s QuickDASH
score of 42 maintained his rating of the default value of 5 in Table 15-23. Therefore, the Board
finds that he properly concluded that appellant had five percent permanent impairment of each
upper extremity under the standards of the sixth edition of the A.M.A., Guides.
CONCLUSION
The Board finds that appellant has no more than five percent impairment of each of his
upper extremities for which he received a schedule award.

10

Id.

11

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the January 27, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 10, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Troy, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-2036
Issued: August 29, 2012

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 September 13, 2011 appellant, by counsel, filed a timely appeal of a July 8, 2011
merit decision of the Office of Workers’ Compensation Programs (OWCP) denying modification
of a loss of wage-earning capacity (LWEC) determination. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly denied modification of the July 10, 2006 wageearning capacity determination.
FACTUAL HISTORY
On February 10, 2005 appellant, then a 41-year-old mail processing clerk, filed an
occupational disease claim alleging that he developed a back condition as a result of federal
1

5 U.S.C. § 8101 et seq.

employment activities. OWCP accepted his claim for lumbosacral degenerative intervertebral
disc disease and spondylolisthesis and approved L4-5 spinal fusion, which occurred on
March 18, 2005.
On December 13, 2005 appellant’s treating physician, Dr. David M.
Montgomery, a Board-certified orthopedic surgeon, released him to return to work with
restrictions, including no lifting above 10 pounds, no repetitive bending and a “sit/stand” option.
On May 4, 2006 appellant accepted a position as a modified clerk, which conformed to
restrictions provided by Dr. Montgomery. The written job offer outlined appellant’s duties of
manually sorting and casing mail and indicated that he was restricted from lifting more than 10
pounds, bending, truncal twisting, reaching, reaching above shoulder level, pushing, pulling,
squatting, kneeling, bending, stooping or climbing.
By decision dated July 10, 2006, OWCP issued a formal wage-earning capacity decision,
finding that the wages appellant actually earned in the modified position fairly and reasonably
represented his wage-earning capacity.
Appellant worked in his limited-duty job until September 28, 2010, when the employing
establishment informed him that, pursuant to the guidelines established by the National
Reassessment Process (NRP), it could find no necessary tasks for him to perform that were
within his restrictions. On September 29, 2010 he filed a notice of recurrence of disability, based
on the employing establishment’s withdrawal of his limited-duty position pursuant to the NRP.
In a letter dated October 14, 2010, OWCP advised appellant that it was treating his
compensation claim as a request to modify the July 10, 2006 LWEC decision. Appellant was
asked whether he was alleging a change in the nature and extent of his injury-related condition,
that he was rehabilitated or retrained, or that the original LWEC decision was erroneous.
In a letter dated October 19, 2010, appellant contended that the July 10, 2006 LWEC
decision was erroneous because it was based on a makeshift position that was not available in the
community at large. He alleged that the position was created for him based upon his medical
restrictions and was designed to disappear when he left the employing establishment. Appellant
further contended that the position consisted of various sub-jobs and was temporary in nature, as
evidenced by the fact that it had been eliminated because its ascribed duties were no longer
necessary.
In a December 29, 2010 decision, OWCP denied modification of the July 10, 2006
LWEC determination. It found that the limited-duty position was not makeshift, as the duties
that comprised the modified position were bona fide postal activities that are required in the day
to day business of the postal service.
Appellant requested an oral hearing, which was conducted on April 18, 2011. He
testified that the duties he performed in the modified position were not those of a regular postal
employee and reiterated his contention that the rehabilitation position was an odd-lot job.
By decision dated July 8, 2011, an OWCP hearing representative found that the lightduty position on which the July 10, 2006 LWEC determination was based, fairly and reasonably
represented appellant’s wage-earning capacity and was not makeshift in nature and that the
medical evidence was insufficient to establish a material worsening of his accepted condition.
2

LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.2 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.3
FECA Bulletin No. 09-05 outlines very specific procedures for light-duty positions
withdrawn pursuant to the NRP. Regarding claims for total disability when a wage-earning
capacity decision has been issued, OWCP should develop the evidence to determine whether a
modification of that loss of wage-earning capacity position is appropriate.
ANALYSIS
The Board finds this case is not in posture for decision. OWCP accepted appellant’s
claims for lumbosacral degenerative intervertebral disc disease and spondylolisthesis and
approved L4-5 spinal fusion. Based upon the medical restrictions recommended by appellant’s
treating physician, the employing establishment offered him a modified clerk position, which he
accepted on May 4, 2006. By decision dated July 10, 2006, OWCP found that appellant’s actual
earnings in the modified position fairly and reasonably represented his wage-earning capacity
and reduced his compensation benefits to zero.
The record reflects that appellant worked in the full-time modified position until
September 28, 2010, when the employing establishment informed him that there was no
productive work available for him within his restrictions. He filed a claim for a recurrence of
disability based on the withdrawal of his job offer under the NRP. Appellant argued that the
original LWEC decision was erroneous because the position on which it was based was
makeshift in nature and that his condition had worsened since the decision was issued.
In his July 8, 2011 decision, the hearing representative affirmed OWCP’s decision
denying modification of the original LWEC decision, finding that the modified clerk position
was not makeshift in nature and that the evidence did not establish a worsening of appellant’s
condition. The claims examiner did not, however, acknowledge that the original modified
position was withdrawn pursuant to the NRP or make any relevant findings on the issue. In this
regard, there are specific guidelines for developing the issue of modification of a wage-earning
capacity determination when the job has been withdrawn pursuant to NRP.4
In light of the requirements of FECA Bulletin No. 09-05, OWCP did not discuss the
medical evidence of record as it pertains to appellant’s residuals due to the accepted back
condition. The case will be remanded to OWCP to properly analyze the modification issue
2

Sue A. Sedgwick, 45 ECAB 211 (1993).

3

Id.

4

FECA Bulletin No. 09-05 (issued August 18, 2009).

3

presented in accord with FECA Bulletin No. 09-05. After such further development as OWCP
deems necessary, it should issue an appropriate decision.
The Board finds the case is not in posture for decision and will be remanded to OWCP.
On remand, OWCP should follow the procedures found in FECA Bulletin No. 09-05 and issue
an appropriate decision on appellant’s claim.
CONCLUSION
The Board finds that the case is not in posture for decision and will be remanded to
OWCP for further development.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 8, 2011 is set aside and the case remanded for further action
consistent with this decision of the Board.5
Issued: August 29, 2012
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

5

Due to the disposition of this case, the second issue, pertaining to the denial of appellant’s hearing request, is
rendered moot.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Leavenworth, KS,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-568
Issued: January 5, 2011

Case Submitted on the Record

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

JURISDICTION
On December 28, 2009 appellant timely appealed the December 8, 2009 merit decision of
the Office of Workers’ Compensation Programs, which determined her pay rate. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether the Office properly determined appellant’s effective pay rate for
schedule awards issued on January 30, 2004 and October 18, 2006.

FACTUAL HISTORY
Appellant, a 47-year-old safety and occupational health specialist, injured her left lower
extremity in the performance of duty on August 12, 2002.1 The Office initially accepted her
claim for left knee sprain, and later expanded the claim to include aggravation of left knee
osteoarthritis and joint ankylosis, left lower leg. Additionally, it authorized a November 14,
2002 arthroscopic chondroplasty and a December 17, 2007 left total knee arthroplasty.
Thus far appellant has received three schedule awards totaling 78 percent impairment of
the left lower extremity. On January 30, 2004 the Office awarded 25 percent impairment, which
covered a 72-week period from August 6, 2003 through December 21, 2004. Appellant received
an additional three percent impairment on October 18, 2006. This award covered 8.64 weeks
from December 22, 2004 until February 20, 2005. The Office granted an additional 50 percent
impairment of the left lower extremity on October 8, 2008. This latest award covered a 144week period beginning September 17, 2008.2
The current appeal stems from the pay rate the Office utilized in awarding compensation
pursuant to the January 30, 2004 and October 18, 2006 schedule awards. Both decisions relied
on a weekly pay rate of $849.18, effective November 14, 2002. It is not readily discernible from
the record how the Office determined appellant’s weekly pay rate of $849.18. The
November 14, 2002 effective date was chosen because it coincided with appellant’s Officeapproved surgery and represented the first date she stopped work following her August 12, 2002
injury.
The August 13, 2002 Form CA-1 indicated that appellant’s then-current hourly pay rate
was $19.84, which represented a weekly rate of $793.60. An October 7, 2002 notification of
personnel action (Standard Form/SF 50-B) confirmed the pay rate information provided on the
CA-1.3
Appellant was reassigned to another facility in Montgomery, AL effective
October 6, 2002. Due to a difference in locality pay, the reassignment resulted in a slight

1

Appellant continued to work following her August 12, 2002 employment injury. In October 2002, she
transferred from the U.S. Penitentiary (USP) in Leavenworth, KS to a federal prison camp in Montgomery, AL.
Appellant remained with the employing establishment until September 2005, when she accepted a position with the
Department of the Army.
2

The October 8, 2008 award was based on the district medical adviser’s September 26, 2008 finding of 75
percent impairment of the left lower extremity. The Office reduced the latest award by the 25 percent impairment
previously awarded in 2004, but neglected to similarly offset the 3 percent award appellant received on
October 18, 2006.
3

Prior to transferring to the federal prison camp in Montgomery, AL appellant had an annual salary of
$41,412.00, which when divided by 2,087 hours represents an hourly rate of $19.84.

2

decrease in salary. Rather than earning a base salary of $41,412.00 as she did in Leavenworth,
KS, appellant earned only $41,169.00 in Montgomery, AL. This new pay rate corresponded to
an hourly rate of $19.73, and a weekly rate of $789.20.4
On January 9, 2003 appellant filed a claim for compensation (Form CA-7) beginning
November 14, 2002.5 The employing establishment indicated that appellant’s base pay at the
time of injury (August 12, 2002) was $19.84 per hour. When she stopped work on
November 14, 2002, her hourly rate was $19.73.6 The employing establishment provided
identical pay rate information in a June 12, 2003 Form CA-7 appellant had filed for a schedule
award.
A February 7, 2003 request for personnel action (SF 52) indicated that appellant’s thencurrent annual adjusted basic pay rate was $43,733.00, which corresponded to a weekly rate of
$838.20, and an hourly rate of $20.95.7 The request was for a “career promotion” to GS-11,
step 1 effective February 9, 2003, with a new adjusted basic pay of $46,689.00.
The October 7, 2002 SF 50-B and the February 7, 2003 SF 52 revealed that appellant’s
base weekly pay rate increased from $789.20 to $838.20 at some point prior to her
February 2003 promotion to GS 11, step 1. This evidence also clearly contradicted the Office’s
prior determination that appellant earned $849.18 when she stopped work on November 14, 2002
to undergo surgery.
By decision dated July 20, 2007, the Branch of Hearings and Review vacated the Office’s
October 18, 2006 schedule award. Although the hearing representative concurred with the
additional award of three percent for the left lower extremity, she found that the record required
further development in order to determine appellant’s pay rate effective November 14, 2002.
On remand, the Office requested additional information from the employing
establishment regarding appellant’s pay rate as of November 14, 2002. In an October 10, 2007
e-mail, William G. Howell, Jr., appellant’s previous supervisor at USP Leavenworth, stated that
she was a GS-9, step 4 on November 14, 2002, and that she worked a full-time schedule,
Monday through Friday, 7:30 a.m. to 4:00 p.m. He also indicated that appellant was not entitled
to any night differential and/or Sunday premium pay at the time. Mr. Howell submitted a copy
of the February 7, 2003 SF 52. He noted that effective November 14, 2002 appellant’s base pay

4

The October 7, 2002 SF 50-B listed appellant as a GS-9, step 3, but according to the Office of Personnel
Management (OPM) 2002 salary table “2002-RUS” (Locality Pay Area -- Rest of U.S.) her new base salary of
$41,169.00 corresponded to a GS-9, step 4. The listed basic pay of $37,895.00 also corresponded to a GS-9, step 4
under OPM’s 2002 general schedule salary table.
5

She wanted to repurchase sick leave used for her November 14, 2002 surgery and subsequent recuperation.

6

The employing establishment also noted that additional pay for night differential was 10 percent of base pay and
Sunday premium pay was 25 percent of base. During pay period 22 (November 3 to 16, 2002) appellant earned
eight hours of Sunday premium pay ($39.44) and three hours of night differential ($5.91).
7

The SF 52 identified appellant as a GS-9, step 4. However, the listed basic pay of $40,255.00 is equivalent to a
GS-9, step 5 according to OPM’s 2003 general schedule salary table.

3

rate, including locality pay, was $43,733.00. Mr. Howell further noted that effective February 9,
2003 appellant was promoted to GS-11, step 1, with an annual salary of $46,689.00.
The Office also received a November 8, 2007 letter from Michele Cottingham, employee
services manager at USP Leavenworth. She indicated that appellant was a GS-9, step 3 on
November 14, 2002. Ms. Cottingham provided a computer printout of appellant’s October 7,
2002 SF 50-B showing an annual salary of $41,169.00. She also noted that, while she did not
have any of appellant’s time and attendance records for the referenced period, it was unlikely
that appellant would have been entitled to night differential and/or Sunday premium pay.
In a November 15, 2007 e-mail, Mr. Howell indicated that between August 2001 and
August 2002 appellant received $96.20 for holiday pay and $23.42 for night differential.
By decision dated November 19, 2007, the Office found that appellant’s pay rate
effective November 14, 2002 was $794.01. It accepted Ms. Cottingham’s annual salary
information ($41,169.00) as it was consistent with the pay rate information included on the
January 9 and June 12, 2003 CA-7 forms. The Office also credited appellant with premium pay
of $119.62 based on Mr. Howell’s November 15, 2007 e-mail. This figure did not include the
eight hours of Sunday premium pay ($39.44) and three hours of night differential ($5.91)
appellant received during pay period 22 (November 3 to 16, 2002).
In a decision dated July 15, 2008, the Branch of Hearings and Review set aside the
Office’s November 19, 2007 decision and remanded the case for further development. The
hearing representative agreed with the Office’s determination that appellant’s base annual salary
as of November 14, 2002 was $41,169.00. However, the hearing representative remanded the
case for further development regarding the amount of premium pay appellant received during the
one-year period that preceded her November 14, 2002 work stoppage.
On remand, the Office twice requested that the employing establishment provide
information regarding appellant’s receipt of premium pay. The employing establishment did not
respond. Appellant submitted earnings and leave statements for several pay periods between
September 9, 2001 and November 16, 2002. She documented 35 hours of night differential, 8
hours of Sunday premium pay and 5 hours of holiday pay.
By decision dated December 15, 2008, the Office found that appellant’s weekly pay rate
as of November 14, 2002 was $795.19. It relied on an annual base salary of $41,169.00 and
premium pay of $180.95 for the period November 14, 2001 through November 13, 2002.8 In a
decision dated December 8, 2009, the Branch of Hearings and Review affirmed the Office’s
December 15, 2008 decision.

8

The premium pay included 23 hours of night differential ($45.31), 8 hours of Sunday pay ($39.44) and 5 hours
of holiday pay ($96.20).

4

LEGAL PRECEDENT
The amount of compensation paid is a function of the injured employee’s pay rate.9
Monthly pay for compensation purposes means the “monthly pay at the time of injury, or the
monthly pay at the time disability begins, or the monthly pay at the time compensable disability
recurs…, whichever is greater.”10
ANALYSIS
The Office paid both the January 30, 2004 and October 18, 2006 schedule awards based
on a weekly pay rate of $849.18 that presumably was in effect on November 14, 2002. The
record, however, does not support such a finding. Citing the February 7, 2003 SF 52, appellant
argued that the Office should have paid her based on an annual salary of $43,733.00 effective
November 14, 2002. This annual salary represented a weekly pay rate of $838.20, which was
less than the pay rate upon which the Office previously relied. The record does not support a
weekly base salary of $838.20 effective November 14, 2002. While it is clear appellant earned
that amount just prior to her February 2003 promotion, the precise date when her salary
increased from $41,169.00 to $43,733.00 is not evident from the record.
The October 7, 2002 SF 50-B showed that appellant’s weekly salary decreased from
$793.60 to $789.20 effective October 6, 2002. This was due to a locality pay adjustment when
appellant was reassigned to the federal prison camp in Montgomery, AL. The Office properly
relied on the October 7, 2002 SF 50-B to establish appellant’s base annual salary ($41,169.00) as
of November 14, 2002. However, this figure was lower than what appellant earned as of
August 12, 2002 when she was injured ($41,412.00). The Act provides that monthly pay for
compensation purposes means the “monthly pay at the time of injury, or the monthly pay at the
time disability begins, or the monthly pay at the time compensable disability recurs…,
whichever is greater.”11 In this instance the Office chose the date disability began, which was
approximately three months after appellant injured herself on August 12, 2002 but it overlooked
the fact that appellant’s November 14, 2002 base salary was less than her August 12, 2002 date
of injury salary.
Because appellant’s base salary was greater when she sustained injury on August 12,
2002, this figure should have been used for purposes of determining her compensation under the
January 30, 2004 and October 18, 2006 schedule awards. In addition to her base annual salary of
$41,412.00 ($793.60 per week), she documented 32 hours of night differential and 5 hours of
holiday pay for the one-year period preceding her August 12, 2002 injury. Appellant’s earnings
and leave statements corroborated Mr. Howell’s November 15, 2007 e-mail that indicated she
received $96.20 for holiday. However, her 32 hours of night differential would exceed the
$23.42 Mr. Howell credited her with receiving between August 2001 and August 2002.

9

20 C.F.R. §§ 10.401(b), 10.404(b) (2009).

10

5 U.S.C. § 8101(4) (2006); see Samuel C. Miller, 55 ECAB 119, 120 (2003).

11

5 U.S.C. § 8101(4) (Emphasis added).

5

According to the employing establishment, night differential represented 10 percent of
the base hourly wage. Appellant documented 32 hours of night differential between
September 9, 2001 and January 12, 2002. Her highest annual salary during that time frame was
$35,335.00 (GS-7), which represents an hourly rate of $16.93. Thus, appellant’s night
differential premium will be calculated based on $1.69 per hour. Her total night differential (32
hours) is $54.08. Combined with her holiday pay of $96.20, appellant’s total premium pay was
$150.28 for the year preceding August 12, 2002. Her annual salary and premium pay totaled
$41,562.28, which represents a date-of-injury weekly pay rate of $796.40.12 This figure exceeds
the $795.19 weekly salary the Office found in its December 8, 2009 decision. Accordingly, the
Office’s latest decision shall be modified to reflect a date-of-injury weekly pay rate of $796.40.13
CONCLUSION
Appellant’s date-of-injury pay rate was $796.40. The January 30, 2004 and October 18,
2006 schedule awards were based on an incorrect weekly pay rate of $849.18 presumably in
effect on November 14, 2002. Those awards and the Office’s December 8, 2009 decision are
modified to reflect an applicable weekly pay rate of $796.40 effective August 12, 2002.

12

$41,562.28 ÷ 2,087 = 19.91 × 40 = $796.40

13

Appellant claimed she did not receive a copy of the September 15, 2009 hearing transcript. The record
indicates that the Office mailed her a copy on September 23, 2009. On February 11, 2010 the Office sent appellant
a copy of the entire case record. Although she initially argued she was deprived the opportunity to review the
transcript to determine if it was correct, appellant has now had a copy of the transcript for at least six months and she
has not since provided any additional information, comments or argument to suggest that the transcript was either
incomplete or inaccurate.

6

ORDER
IT IS HEREBY ORDERED THAT the December 8, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: January 5, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Largo FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-262
Issued: April 26, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 7, 2006 appellant filed a timely appeal from the November 29, 2005 and
October 20, 2006 merit decisions of the Office of Workers’ Compensation Programs, which
denied his claim for a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to review the schedule award issue.
ISSUE
The issue is whether appellant has more than a five percent permanent impairment of
each upper extremity as a result of his accepted carpal tunnel syndrome (CTS).
FACTUAL HISTORY
On the prior appeal,1 the Board remanded the case to the Office for a fully explained
medical opinion on appellant’s impairment, with specific references to the criteria on page 495
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
1

Docket No. 03-1370 (issued September 12, 2003).

(A.M.A., Guides) (5th ed. 2001).2 The facts of this case as set forth in the Board’s prior decision
are hereby incorporated by reference.
On remand, the Office referred appellant, together with the case record and a statement of
accepted facts, to Dr. V.G. Raghavan, a Board-certified orthopedic surgeon. On December 3,
2003 Dr. Raghavan reported that appellant reached maximum medical improvement on
February 2, 2002. He offered his evaluation of impairment:
“Clinical examination of the right hand shows that he still has some abnormal
sensation in the affected right hand, but two-point discrimination is still within
normal limits for the median nerve. No evidence of thenar atrophy but still has
evidence on EMG [electromyogram] of sensory delay of the median nerve on the
right. Using the A.M.A., [Guides] (5th [ed.]), the examinee is given five percent
for the upper extremity for the abnormal sensory latencies on the EMG done on
the right hand.
“Regarding the left wrist and hand, since I did not see any definite objective
evidence on physical examination with negative Phalen, negative reverse Phalen
and negative Tinel’s signs, but still there is abnormal sensory latencies as noted
on EMG and examinee is entitled to five percent left upper extremity for the
allowed claim of carpal tunnel syndrome on the left.”
On January 29, 2004 Dr. Raghavan clarified that he evaluated impairment using the
second of three scenarios described on page 495 of the A.M.A., Guides: “Normal sensibility and
opposition strength with abnormal sensory and/or motor latencies or abnormal EMG testing of
the thenar muscles: a residual CTS is still present and an impairment rating not to exceed five
percent of the upper extremity may be justified.”
In a decision dated February 9, 2004, the Office denied additional schedule award
compensation. The Office found that Dr. Raghavan’s opinion was fully explained with specific
references to the criteria used in the A.M.A., Guides and established that appellant had a five
percent impairment of each upper extremity due to the accepted CTS. As appellant previously
received a schedule award for 10 percent impairment of both arms, the Office found that he was
not entitled to further schedule award compensation.
On March 23, 2005 Dr. John N. Harker, the attending orthopedic surgeon, reported that
electrodiagnostic testing showed appellant’s CTS “is certainly progressing and electrically he is
deteriorating.” He completed Office forms indicating that appellant had a five percent
impairment of each upper extremity due to decreased strength and a five percent impairment of
each upper extremity due to sensory deficit, pain or discomfort. On March 30, 2005 appellant
filed a claim for an increased schedule award.
2

On August 1, 2001 appellant, then a 53-year-old city carrier, filed a claim alleging that he developed CTS in the
performance of duty: “Repetitive motion of both hands by: A. Lifting trays of mail (approximately 10 pounds).
B. Lifting tubs of flats (approximately 15 pounds). C. Casing mail twisting both hands (five [to] six hours).
D. Driving postal vehicle (five days per week).” The Office accepted his claim for bilateral CTS and appellant filed
a claim for a schedule award.

2

In a decision dated November 29, 2005, the Office denied appellant’s claim for an
increased schedule award. The Office found that the evidence failed to demonstrate an increased
impairment.
On September 7, 2006 Dr. David J. Kaler, appellant’s new orthopedic surgeon,
completed the Office’s impairment rating forms. He indicated that appellant had a 30 percent
impairment of his right upper extremity and a 28 percent impairment of his left upper extremity
due to sensory deficit, pain or discomfort. Appellant filed another claim for a schedule award.
On September 27, 2006 the Office medical adviser reviewed Dr. Kaler’s rating and found
no basis for an increase in appellant’s schedule award. He noted that the nerve conduction
studies obtained on August 16, 2006 were essentially the same as those obtained on July 9, 2001
and March 15 and 23, 2005. Further, the medical adviser noted that the August 16, 2006 studies
revealed subtle evidence suggestive of a right C6-7 radiculopathy, which innervates the same
area of the hand as the median nerve. The medical adviser concluded that the rating of
30 percent was not scientifically documented and that appellant’s rating should stand at 5 percent
for each upper extremity, as per scenario two, page 495 of the A.M.A., Guides.
In a decision dated October 20, 2006, the Office denied modification of its prior decision.
The Office found that the evidence clearly demonstrated that appellant had not additional
impairment of the right or left upper extremities due to work-related factors.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the
body.3 Such loss or loss of use is known as permanent impairment. The Office evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.4
To support a schedule award, the file must contain competent medical evidence that
describes the impairment in sufficient detail for the adjudicator to visualize the character and
degree of disability.5 The report of the examination must always include a detailed description
of the impairment which includes, where applicable, the loss in degrees of active and passive
motion of the affected member or function, the amount of any atrophy or deformity, decreases in

3
4

5 U.S.C. § 8107.

20 C.F.R. § 10.404 (1999).
(5 ed. 2001).

Effective February 1, 2001, the Office began using the A.M.A., Guides

th

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.b(2) (August 2002).

3

strength or disturbance of sensation or other pertinent description of the impairment.6 The Office
should advise any physician evaluating permanent impairment to use the fifth edition of the
A.M.A., Guides and to report findings in accordance with those guidelines.7
A claimant seeking compensation under the Act has the burden of establishing the
essential elements of his claim by the weight of the reliable, probative and substantial evidence.8
ANALYSIS
The impairment rating forms that appellant’s orthopedists completed on March 23, 2005
and September 7, 2006 do not explain how the physicians evaluated the impairment using the
A.M.A., Guides. There is no reference to the procedure or criterion or tables used to calculate
the ratings reported. This makes the ratings impossible for the Office or the Board to review.
This is the same problem the Board found on the prior appeal, when appellant’s initial
orthopedist, Dr. Harker, earlier completed the same impairment rating forms. Dr. Harker did not
specifically identify which criteria of the A.M.A., Guides applied to appellant’s impairment and
he provided no rationale for the ratings he reported.
The Board remanded the case for a fully explained medical opinion on appellant’s
impairment, with specific references to the criteria on page 495 of the A.M.A., Guides.
Dr. Raghavan provided such an opinion on December 3, 2003 and January 29, 2004. He
explained that appellant’s findings fell within the second of three scenarios listed on page 495,
thus indicating that a residual CTS was still present. Under this scenario impairment rating “not
to exceed 5 percent of the upper extremity” may be justified.
Dr. Harker’s March 23, 2005 impairment rating forms and the September 7, 2006
impairment rating forms of Dr. Kaler, appellant’s second orthopedist, are of little probative or
evidentiary value in showing that appellant has a greater impairment under the standards of the
A.M.A., Guides. They do not establish that a greater impairment than the maximum impairment
rating allowed under scenario two, page 495.
Dr. Harker reported on March 23, 2005 that EMG and nerve conduction studies showed
that appellant’s CTS was “certainly progressing and electrically he is deteriorating.” But this is
no basis for an increased schedule award. The A.M.A., Guides directly addresses this on page
493: “The severity of conduction slowing has no correlation with the severity of clinical
symptoms.” The A.M.A., Guides further states:
“Only individuals with an objectively verifiable diagnosis should qualify for a
permanent impairment rating. The diagnosis is made not only on believable
symptoms but, more important, on the presence of positive clinical findings and
loss of function. The diagnosis should be documented by electromyography as
well as sensory and motor nerve conduction studies. However, it is critical to
6

Id. at Chapter 2.808.6.c(1).

7

Id. at Chapter 2.808.6.a (noting exceptions).

8

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

4

understand that there is no correlation between the severity of conduction delay
on nerve conduction velocity testing and the severity of either symptoms or, more
important, impairment rating.”9
The weight of the medical evidence rests with the opinion of Dr. Raghavan and
establishes that appellant has no more than a five percent permanent impairment of each upper
extremity causally related to his employment-related bilateral CTS. The Board will affirm the
Office’s decisions denying an increased award.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he has
more than a five percent permanent impairment of each upper extremity as a result of his
employment-related bilateral CTS.
ORDER
IT IS HEREBY ORDERED THAT the October 20, 2006 and November 29, 2005
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 26, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

9

A.M.A., Guides 493.

5