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

)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1772
Issued: April 14, 2011

Case Submitted on the Record

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

JURISDICTION
On June 22, 2010 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ schedule award decision dated May 4, 2010. Pursuant to the Federal
Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant has more than a two percent impairment of his right lower
extremity, for which he received a schedule award.
FACTUAL HISTORY
Appellant, a 38-year-old mail processor, was struck in the right knee by a protruding mail
drawer while carrying mail on November 28, 2005. He filed a claim for benefits on
November 29, 2005, which the Office accepted for right knee strain, sprain and contusion.
1

5 U.S.C. § 8101 et seq.

On September 19, 2006 appellant underwent an arthroscopy of the right knee for a partial
lateral meniscectomy. The procedure was performed by Dr. William A. Matarese, a Boardcertified orthopedic surgeon.
In a January 24, 2009 report, Dr. Arthur Becan, Board-certified in orthopedic surgery,
found that appellant had a 15 percent impairment of the right lower extremity pursuant to the
American Medical Association, Guides to the Evaluation of Permanent Impairment (fifth
edition) (A.M.A., Guides). He based this finding on a four out of five strength deficit of the right
quadriceps, which yielded a 12 percent impairment under Table 17-8 at page 532 of the A.M.A.,
Guides and a 3 percent impairment for pain at Table 18-1 at page 574.
On March 30, 2009 appellant filed a claim for a schedule award based on a partial loss of
use of his right lower extremity.
By letters dated July 28, 2009 and February 22, 2010, the Office advised Dr. Becan that
he needed to submit a new report and impairment rating in conformance with the sixth edition of
the A.M.A., Guides, which became effective as of May 1, 2009.2
In a March 5, 2010 report, Dr. Becan found that appellant had a two percent permanent
impairment of the right lower extremity pursuant to the sixth edition of the A.M.A., Guides. He
determined that appellant had a default impairment of Class 1, which yielded a Grade C
impairment of two percent at Table 16-3, page 509 of the A.M.A., Guides.3 Applying the net
adjustment formula at pages 521-22 of the A.M.A., Guides,4 Dr. Becan found that appellant had
a Class 1 impairment, the rating utilized for a mild problem for right knee, status post medial
meniscectomy. He found that the grade at Table 16-6 for functional history was two, for a
moderate problem; the grade for physical examination at Table 16-7 was one, for a mild
problem; and the grade at Table 16-8 for clinical studies was one, for a mild problem. Dr. Becan
then subtracted the grade modifier of one from Grade 2 at Table 16-6 and from Grade 1 at Table
16-7 and Table 16-8; this yielded a two percent impairment of the right lower extremity
impairment for partial meniscectomy.
In an April 18, 2010 report, an Office medical adviser agreed with Dr. Becan’s
impairment rating conclusions of two percent.
By decision dated May 4, 2010, the Office granted appellant a schedule award for a two
percent permanent impairment of the right lower extremity for the period January 24 to March 5,
2009 or a total of 5.76 weeks of compensation.

2

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).
The effective date of the sixth edition of the A.M.A., Guides is May 1, 2009. FECA Bulletin No. 09-03 (issued
March 15, 2008).
3

A.M.A., Guides 509.

4

Id. at 521-22.

2

LEGAL PRECEDENT
The schedule award provision of the Act5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.8
ANALYSIS
The Office granted appellant a schedule award for a two percent right lower extremity
impairment based on a partial meniscectomy, using the applicable table of the sixth edition of the
A.M.A., Guides. The section of the A.M.A., Guides which rates diagnosis-based impairments
for the lower extremities is located at Chapter 16, which states at page 497, Section 16.2a that
impairments are defined by class and grade. This section states:
“The Impairment Class (IC) is determined first, by using the corresponding
diagnosis-based regional grid. The grade is then determined using the adjustment
grids.
“Once the impairment class has been determined, based on the diagnosis, the
grade is initially assigned the default value, C. The final impairment grade,
within the class, is calculated using the grade modifiers, or nonkey factors, as
described in Section 16.3. Grade modifiers include functional history, physical
examination, and clinical studies. The grade modifiers are used on the net
adjustment formula described in Section 16.3d to calculate a net adjustment. The
final impairment grade is determined by adjusting the grade up or down the
default value C, by the calculated net adjustment….”9
Using the formula above and the net adjustment formula outlined at pages 516-18 and
521-22 of the A.M.A., Guides, Dr. Becan found that appellant had a Class 2 impairment for
functional history at Table 16-6, which yielded a grade of two. He then applied the net
adjustment formula at pages 521-22 of the A.M.A., Guides, subtracting a grade modifier of one
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404. Effective May 1, 2009, the Office began using the A.M.A., Guides (6th ed. 2009).

7

Id.

8

Veronica Williams, 56 ECAB 367, 370 (2005).

9

A.M.A., Guides 497.

3

from two, for a net, adjusted total of one. Dr. Becan then applied the net adjustment formula for
physical examination and clinical studies at Table 16-7 and Table 16-8, finding that appellant
had a grade modifier of one for physical examination and clinical studies at Table 16-7 and Table
16-8, which he subtracted from the grade of one at each table. This equaled a net zero
impairment for physical examination and clinical history, as adjusted. Based on this calculation
Dr. Becan found that appellant had an adjusted two percent right lower extremity impairment for
partial meniscectomy.
The Board finds that the weight of medical evidence establishes a two percent permanent
impairment of appellant’s right lower extremity. This rating was based on the applicable
protocols and tables of the sixth edition of the A.M.A., Guides. As appellant did not submit any
medical evidence to support an additional schedule award greater than the two percent for the
right lower extremity already awarded, the Board will affirm the Office’s May 4, 2010 decision.
On appeal, appellant’s representative argues that appellant reached maximum medical
improvement on January 24, 2009 and therefore the fifth edition of the A.M.A., Guides should
have been used to rate appellant’s permanent impairment. In Harry D. Butler,10 the Board noted
that Congress delegated authority to the Director regarding the specific methods by which
permanent impairment is to be rated. Pursuant to this authority, the Director adopted the
A.M.A., Guides as a uniform standard applicable to all claimants and the Board has concurred in
the adoption.11 On March 15, 2009 the Director exercised authority to advise that as of May 1,
2009 all schedule award decisions of the Office should reflect use of the sixth edition of the
A.M.A., Guides.12 The applicable date of the sixth edition is as of the schedule award decision
reached. It is not determined by either the date of maximum medical improvement or when the
claim for such award was filed.
CONCLUSION
The Board finds that appellant has no more than a two percent permanent impairment of
the right lower extremity, for which he received a schedule award.

10

43 ECAB 859 (1992).

11

Id. at 866.

12

FECA Bulletin No. 09-03 (March 15, 2009). The FECA Bulletin was incorporated in the Federal (FECA)
Procedure Manual, Part 2 -- Claims, Schedule Award & Permanent Disability Claims, Chapter 2.808.6(a)
(January 2010).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 4, 2010 is affirmed.
Issued: April 14, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1076
Issued: September 18, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 8, 2014 appellant, through counsel, filed a timely appeal from a March 12, 2014
merit decision of an Office of Workers’ Compensation Programs’ (OWCP) hearing
representative denying her occupational disease claim. 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 appellant met her burden of proof to establish that she sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On March 23, 2013 appellant, then a 47-year-old letter carrier, filed an occupational
disease claim alleging that she developed a right shin strain and anterior compartment syndrome
1

5 U.S.C. § 8101 et seq.

in the performance of duty. She stated that the pain began two hours into her route and
intensified as she worked. Appellant first became aware of her condition and its relation to her
employment on March 19, 2013. She stopped work on March 20, 2013.
In a March 19, 2013 disability status report, Dr. Donald B. Baird, an osteopath, placed
appellant on a no walking restriction and referred her to an orthopedic surgeon. In a separate
March 19, 2013 report, he diagnosed anterior compartment syndrome. Dr. Baird noted that
appellant had right shin pain with no prior episodes of similar symptoms.
In a March 20, 2013 statement, Alice Walker, a customer service supervisor, noted that
appellant informed her that she injured the top part of her ankle. She stated that appellant related
that her pain began as she was delivering mail. Appellant did not know what was causing the
pain.
In a March 27, 2013 statement, appellant explained that on March 19, 2013 she began
experiencing pain two hours into her mail delivery route. She continued on her route because
she thought the pain was just a cramp. Appellant explained that she did not fall or twist her
ankle, but walking became more difficult as she continued her shift.
In a March 28, 2013 letter, OWCP advised appellant that the evidence received was
insufficient to support her claim. It advised that she needed to list the specific employmentrelated activities that contributed to her condition and to submit a physician’s rationalized
opinion addressing how work factors caused or aggravated her claimed condition.
In response, appellant submitted an April 1, 2013 physical therapy report. In an undated
statement, she reiterated that she began experiencing pain two hours into her shift and that she
did not fall or twist her ankle. Appellant detailed the conditions that she believed led to her
condition. She cited the harsh terrain of her route, the heavy mail volume in her saddle bag,
frequently walking up stairs and various hazardous conditions found in customers’ yards.
Appellant also noted that she did not experience any pain prior to the start of her shift that day.
In an April 10, 2013 Family Medical Leave Act (FMLA) medical certification report,
Dr. Francis Bean, a podiatrist, diagnosed anterior tibial tendinitis and synovitis. Dr. Bean
advised that appellant would be incapacitated for approximately eight weeks. He also advised
that she was unable to lift, bend, squat, climb or drive. In a May 1, 2013 disability certificate,
Dr. Bean advised that appellant was unable to work.
By decision dated June 6, 2013, OWCP denied appellant’s claim. It found that the
medical evidence failed to establish her right shin condition was causally related to work-related
events.
Appellant filed a request for review of the written record on June 14, 2013 and provided
new evidence. In physical therapy reports dated April 1 to May 7, 2013, cosigned by Dr. Bean,
the physician diagnosed anterior tibial tendinitis and synovitis. The reports indicated that
appellant was progressing and the podiatrist recommended additional therapy.
In an April 10, 2013 report, Dr. Bean diagnosed anterior tibial tendinitis and synovitis of
the right leg. He advised that x-rays were negative for fracture and dislocation. Dr. Bean also
2

noted that appellant began experiencing pain while walking her postal route. He advised that she
exhibited severe pain in the right anterior lower leg eight centimeters proximal to the central
ankle on palpation and forced dorsiflexion. Dr. Bean further stated that appellant had pitting
edema at the anterior medial right ankle. Appellant was advised to decrease ambulation, use a
boot walker and crutches, apply moist heat and perform stretches. In handwritten treatment
notes, Dr. Bean noted that a magnetic resonance imaging (MRI) scan revealed minimal tendinitis
of the anterior tibial tendon without evidence of tendon tear. He also noted that appellant was
treated with cortisone injections. Dr. Bean also provided treatment notes dated April 10 to
May 8, 2013.
In a March 21, 2013 report, Dr. Christopher Bales, a Board-certified orthopedic surgeon,
reported findings and diagnosed distal tibia pain. He noted that appellant worked as a mail
carrier who walked for extended periods. Appellant’s pain started on March 19, 2013 while she
was walking her mail route. Dr. Bales advised that she was experiencing constant sharp pain for
extended periods that worsened with ambulation. He also noted that appellant complained that
the pain kept her awake at night and that moving her ankle sent sharp pain to her mid dorsal foot.
In a July 15, 2013 report, Dr. Mihir Patel, a Board-certified orthopedic surgeon and an
associate of Dr. Bales, diagnosed anterior tibial tendinitis. He acknowledged that the pain
occurred during appellant’s mail route and that she had not experienced any pain prior to
beginning her mail route. Dr. Patel discussed the possibility of surgery to treat appellant. In an
August 5, 2013 report, he advised that an MRI scan revealed degenerative joint disease across
the talonavicular joint. In an August 16, 2013 surgical report, Dr. Patel noted performing a right
brostrom procedure, right repair with tenosynovectomy of the tibialis anterior tendon and a
fluoroscopy.
On March 12, 2014 a hearing representative affirmed the June 6, 2013 decision of
OWCP. He found that the medical evidence of record was not sufficient to establish causal
relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden to establish the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions 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 upon a traumatic injury or an occupational disease.3
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established. To establish an occupational disease
claim, an employee must submit: (1) a factual statement identifying employment factors alleged
2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

3

to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.4
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is generally required to establish causal relationship. The opinion of the physician must
be based on a complete factual and medical background, 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.5
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.6
ANALYSIS
Appellant claimed that she experienced right shin pain on March 19, 2013 while
delivering mail on foot. There is no dispute that she walked as part of her job and OWCP
accepted these work factors. The Board finds, however, that the medical evidence is insufficient
to establish that her right foot condition was causally related to the accepted work activities as a
letter carrier.
In his July 15, 2013 report, Dr. Patel diagnosed anterior tibial tendinitis and degenerative
joint disease. He advised that the pain occurred during appellant’s mail route and that she had
not experienced any pain prior to the start of her shift. The Board has held that the mere fact that
a condition manifests itself or is worsened during a period of employment does not raise an
inference of causal relationship between the two.7 The Board has also held that an opinion that a
condition is causally related to an employment injury because the employee was asymptomatic
before the injury but symptomatic after it is insufficient, without supporting rationale, to
establish causal relationship.8 Dr. Patel did not provide sufficient reasoning to explain how
appellant’s walking at work caused or contributed to her diagnosed right foot condition. As a
result, his report is insufficient to discharge her burden of proof.
In his March 21, 2013 report, Dr. Bales diagnosed distal tibia pain. He noted that
appellant worked as a mail carrier who walked for extended periods of time. Dr. Bales also
indicated that her pain began on March 19, 2013 while she was on her mail route. He is merely
relating the history as stated by appellant. To the extent that this represents Dr. Bales’ opinion
4

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

5

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 3.

6

James Mack, 43 ECAB 321 (1991).

7

Patricia Bolleter, 40 ECAB 373 (1988).

8

Thomas D. Petrylak, 39 ECAB 276 (1987).

4

on causal relationship, it is insufficient to establish appellant’s claim. He did not provide any
medical reasoning to explain how walking on the job caused or aggravated the diagnosed
medical condition.
In his April 10, 2013 report, Dr. Bean diagnosed anterior tibial tendinitis and synovitis of
the right leg. He stated that appellant initially began experiencing pain as she walked her postal
route. However, his report is insufficient as he failed to explain how her federal work duties
caused or aggravated her diagnosed condition. In other reports, Dr. Bean also failed to state a
clear opinion on causal relationship.
In his March 19, 2013 report, Dr. Baird diagnosed presumptive anterior compartment
syndrome and sprain/strain of the right shin. He failed to state a medical opinion as to how
appellant’s federal work duties caused her diagnosed condition. The Board has held that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.9
Appellant also submitted physical therapy records. However, records from a physical
therapist do not constitute competent medical opinion in support of causal relation. A physical
therapist is not a “physician” as defined under FECA.10 Thus, records from physical therapists
are insufficient to establish the claim.11
The Board finds that appellant has not submitted sufficient medical evidence to establish
her claim. As noted, causal relationship is a medical question that must be established by
probative medical opinion from a physician.12 The physician must accurately describe
appellant’s work duties and medically explain the pathophysiological process by which these
duties would have caused or aggravated her condition.13 Because appellant has not provided
such medical opinion evidence in this case, she has failed to meet her burden of proof.
Appellant may submit new evidence or argument as part of a formal 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 10.607.14

9

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

10

A.C., Docket No. 08-1453 (issued November 18, 2008). Under FECA, a “physician” includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by State law. 5 U.S.C. § 8101(2).
11
12

Allen C. Hundley, 53 ECAB 551 (2002); Lyle E. Dayberry, 9 ECAB 369 (1998).
See supra note 5.

13

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket No.
11-237 (issued September 9, 2011).
14

Appellant submitted new evidence after issuance of the March 12, 2014 decision. However, the Board lacks
jurisdiction to review evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

5

CONCLUSION
The Board finds that appellant did not establish that she sustained an occupational disease
caused by work-related events.
ORDER
IT IS HEREBY ORDERED THAT the March 12, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 18, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.R., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
NATIONAL GUARD, Saint Paul, MN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-91
Issued: March 13, 2014

Case Submitted on the Record

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

JURISDICTION
On October 21, 2013 appellant filed a timely appeal from the September 23, 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 appellant met his burden of proof to establish that he has more than
a 20 percent permanent impairment of his left leg and a 20 percent permanent impairment of his
right leg.
FACTUAL HISTORY
In May 2001, OWCP accepted that appellant, then a 42-year-old heavy mobile equipment
repairer, sustained aggravation of preexisting degenerative arthritis in both knees due to his work
duties, including engaging in walking, kneeling and climbing stairs and ladders. He continued to
work for the employing establishment on a full-time basis.
1

5 U.S.C. §§ 8101-8193.

On January 17, 2005 appellant filed a claim for a schedule award due to his accepted
work-related condition.
On June 15, 2007 OWCP requested that appellant obtain an impairment rating from his
attending physician which was based on a current physical examination.
In a June 28, 2007 report, Dr. Bruce E. Piatt, an attending Board-certified orthopedic
surgeon, reported the findings of June 28, 2007 x-rays of appellant’s knees which showed
patellofemoral and medial compartment degenerative arthritic changes (including cartilage
intervals of two millimeters in both knees). He detailed the findings of the physical examination
noting that appellant had 1+ effusion in his right knee, no effusion in his left knee and flexion in
both knees of about 125 to 130 degrees. Appellant had 5/5 strength in both legs upon manual
testing and there was no significant varus, valgus, anterior or posterior laxity. Dr. Piatt indicated
that appellant had reached maximum medical improvement and stated that, under the fourth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment, he would give appellant “an impairment rating of eight percent whole body for each
knee based on the fact that his arthritis (Table 62, page 83) shows that cartilage interval is only
about [two millimeters] in both knees.”
No further documents were added to the record until August 15, 2013 when OWCP
produced a letter in which it requested that an OWCP medical adviser review the medical record,
including Dr. Piatt’s June 28, 2007 findings and impairment rating, and provide an impairment
rating of appellant’s legs based on the sixth edition of the A.M.A., Guides.
On August 19, 2013 Dr. David H. Garelick, a Board-certified orthopedic surgeon serving
as an OWCP referral physician, determined that appellant had a 20 percent permanent impairment
of his left leg and a 20 percent permanent impairment of his right leg under the sixth edition of
the A.M.A., Guides. Dr. Piatt detailed the June 28, 2007 examination findings of Dr. Garelick and
the June 28, 2007 x-ray findings and stated that, under Table 16-3 of the sixth edition of the
A.M.A., Guides, appellant would have a 20 percent permanent impairment of his left leg and a 20
percent permanent impairment of his right leg due to the two millimeter cartilage interval in each
knee. He stated, “There would be no change to this award with use of the net adjustment formula.
The date of [maximum medical improvement] would have occurred as of the date of Dr. Piatt’s
examination, June 28, 2007.”2
In a September 23, 2013 decision, OWCP granted appellant a schedule award for a 20
percent permanent impairment of his left leg and a 20 percent permanent impairment of his right
leg. The award ran for 115.2 weeks from June 28, 2007 to September 11, 2009. It was based on
the August 19, 2013 impairment calculations of Dr. Garelick which used the June 28, 2007
findings of Dr. Piatt.

2

Dr. Garelick indicated that he was disregarding the June 2007 impairment rating of Dr. Piatt because it was
based on an edition of the A.M.A., Guides that was no longer in effect.

2

LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.6 The Board has held that an impairment rating that is not
based on reasonably current examination findings is of little probative value.7
While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence.8 Accordingly, once OWCP undertakes
to develop the medical evidence further, it has the responsibility to do so in the proper manner.9
ANALYSIS
In May 2001, OWCP accepted that appellant sustained aggravation of preexisting
degenerative arthritis in both knees due to his work duties. On January 17, 2005 appellant filed a
claim for a schedule award due to his accepted work-related condition.
On August 19, 2013 Dr. Garelick determined that appellant had a 20 percent permanent
impairment of his left leg and a 20 percent permanent impairment of his right leg under the sixth
edition of the A.M.A., Guides. In reaching this determination, he used examination findings that
were obtained on June 28, 2007 by Dr. Piatt, an attending Board-certified orthopedic surgeon.
The Board finds that, in August 2013, it was inappropriate for Dr. Garelick to base his
impairment rating on the June 2007 findings of Dr. Piatt, findings which were more than six years
old at the time of Dr. Garelick’s impairment calculations. The June 2007 findings constituted stale
medical evidence and would not represent the type of reasonably current medical evidence to be
used in calculating permanent impairment.10 In August 2013, OWCP developed the medical
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

6

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

7

See W.M., Docket No. 12-773 (issued March 29, 2013) (where a physician sought in June 2011 to update a prior
impairment rating, but the Board found that the May 2004 findings which served as the basis for the updated rating
constituted stale medical evidence); P.S., Docket No. 12-649 (issued February 14, 2013) (the Board found that a
physician’s January 2010 impairment rating was of reduced probative value because the physician relied on
October 2007 findings as the basis for this updated impairment rating).
8

Russell F. Polhemus, 32 ECAB 1066 (1981).

9

See Robert F. Hart, 36 ECAB 186 (1984).

10

See supra note 7.

3

evidence by referring the case to an OWCP medical adviser. After undertaking such
development, OWCP had a responsibility to do so in the proper manner.11
Therefore, the case should be remanded to OWCP for further development of the medical
evidence, to include an attempt to obtain reasonably current medical evidence for the purpose of
evaluating the permanent impairment of appellant’s legs. After such development as deemed
necessary, OWCP shall issue an appropriate decision regarding appellant’s entitlement to schedule
award compensation.
CONCLUSION
The Board finds that the case is not in posture regarding whether appellant has more than
a 20 percent permanent impairment of his left leg and a 20 percent permanent impairment of his
right leg.
ORDER
IT IS HEREBY ORDERED THAT the September 23, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: March 13, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

11

See supra note 9.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.W., Appellant
and
U.S. POSTAL SERVICE, CHARLOTTE
PROCESSING & DISTRIBUTION CENTER,
Charlotte, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Daniel F. Read, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1007
Issued: October 4, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 5, 2012 appellant filed a timely appeal from a November 2, 2011 decision of the
Office of Workers’ Compensation Programs (OWCP) regarding a schedule award.1 Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained more than a 10 percent
impairment of the left arm, for which he received a schedule award.

1

Counsel did not appeal an August 31, 2011 schedule award for a 10 percent impairment of the right arm. In his
correspondence to the Board, he indicated that the right arm was related to a separate claim for a traumatic back
injury under File No. xxxxxx076, appealed to the Board on March 28, 2012 and docketed as No. 12-969. Therefore,
the Board will not review the issue of permanent impairment of the right arm on the present appeal.
2

5 U.S.C. § 8101 et seq.

On appeal, counsel explained that appellant filed the present claim because OWCP
denied a traumatic March 27, 2010 back injury under a separate claim.
FACTUAL HISTORY
OWCP accepted that on or before June 9, 2010 appellant, then a 53-year-old mail
processing clerk, sustained bilateral acromioclavicular impingement due to repetitive lifting at
work.
Dr. Jeffrey A. Knapp an attending Board-certified orthopedic surgeon, submitted reports
dated April 7 to June 18, 2010 diagnosing severe left thoracic and scapular pain.3 Appellant was
then seen by Dr. Ranjan Maitra, an attending Board-certified orthopedic surgeon, who diagnosed
bilateral acromioclavicular arthrosis on July 28, 2010. As conservative measures failed to
relieve appellant’s symptoms, on October 1, 2010, Dr. Maitra performed a left shoulder
arthroscopy with subacromial decompression and distal clavicle resection, approved by OWCP.
In a February 7, 2011 report, Dr. Maitra diagnosed resolved impingement of the left shoulder and
released appellant to full duty with no restrictions. He opined that appellant had attained
maximum medical improvement. Dr. Maitra assessed 10 percent impairment of the left arm.
On July 6, 2011 appellant claimed a schedule award. On August 31, 2011 OWCP
referred the medical record and a statement of accepted facts to a medical adviser to determine
the percentage of permanent impairment to the left arm utilizing the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter,
“A.M.A., Guides”).
In an August 31, 2011 report, Dr. H.P. Hogshead, an OWCP medical adviser, reviewed
the medical record. He concurred with Dr. Maitra’s finding that appellant had reached maximum
medical improvement. Referring to Table 15-5, page 4034 of the sixth edition of the A.M.A.,
Guides, Dr. Hogshead found a class 1 diagnosis-based impairment (CDX) for a distal clavicle
resection, entailing a default rating of 10 percent. He noted a grade modifier for Functional
History (GMFH) of 1 according to Table 15-7, page 4065 as appellant was released to full duty
and a grade modifier for Physical Examination (GMPE) of 1 according to Table 15-8.6 The
medical adviser noted that the grade modifier for Clinical Studies (GMCS) was not applicable
according to Table 15-97 as appellant had no residuals after surgery. Using the net adjustment
formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), or (1-1) + (1-1) + (0-1), he
calculated a grade adjustment of zero, resulting in a 10 percent impairment of the left upper
extremity.
3

An April 22, 2010 magnetic resonance imaging (MRI) scan of the cervical spine showed mild left C5-6
foraminal stenosis. A June 10, 2010 thoracic MRI scan showed multilevel degenerative disc disease.
4

Table 15-5, page 403 of the A.M.A., Guides is entitled “Shoulder Regional Grid.”

5

Table 15-7, page 406 of the A.M.A., Guides is entitled “Adjustment Grid Summary.”

6

Table 15-8, page 408 of the A.M.A., Guides is entitled “Physical Examination Adjustment: Upper Extremities.”

7

Table 15-9, page 410 of the A.M.A., Guides is entitled “Clinical Studies Adjustment: Upper Extremities.”

2

By decision dated November 2, 2011, OWCP granted appellant a schedule award for a 10
percent permanent impairment of the left upper extremity. The period of the award ran from
October 20, 2011 to May 25, 2012.
LEGAL PRECEDENT
The schedule award provisions of FECA8 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a mater which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
American Medical Association, Guides to the Evaluation of Permanent Impairment has been
adopted by OWCP as a standard for evaluation of schedule losses and the Board has concurred in
such adoption.9 For schedule awards after May 1, 2009, the impairment is evaluated under the
sixth edition of the A.M.A., Guides, published in 2008.10
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).11 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on GMFH, GMPE
and GMCS.12 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX). The A.M.A., Guides divides the upper extremity into regions for rating purposes. The
shoulder is one of the designated regions.13
ANALYSIS
OWCP accepted that appellant sustained bilateral acromioclavicular impingement.
Dr. Maitra, an attending Board-certified orthopedic surgeon, performed a left rotator cuff repair
with subacromial decompression and distal clavicle resection on October 1, 2010, approved by
OWCP. Appellant claimed a schedule award on July 6, 2011.
In support of his claim for a permanent impairment of the left upper extremity, appellant
submitted a February 7, 2011 report from Dr. Maitra finding that he had attained maximum
8

5 U.S.C. § 8107.

9

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

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
11

A.M.A., Guides 3 (6th ed. 2008), section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
12

Id. at 494-531.

13

Id. at 384, Figure 15-1, “Upper Extremity Regions.”

3

medical improvement, with a 10 percent impairment of the left arm. However, Dr. Maitra did
not refer to the A.M.A., Guides or address how he rated the impairment to appellant’s left arm.
To determine the appropriate percentage of permanent impairment, OWCP referred the medical
record and statement of accepted facts to an OWCP medical adviser.
In an August 31, 2011 report, Dr. Hogshead found that according to Table 15-5 of the
A.M.A., Guides, appellant had a class 1 CDX for a distal clavicle resection, with a default rating
of 10 percent. He opined that as appellant had an excellent surgical result with no residual
symptoms, the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX),
or (1-1) + (1-1) + (0-1), resulted in a grade adjustment of zero. This resulted in a 10 percent
impairment of the left upper extremity.
The Board finds that the medical adviser applied the appropriate tables and grading
schemes of the A.M.A., Guides in determining the 10 percent impairment using the diagnosisbased rating method. Dr. Hogshead based his opinion on the medical record and a statement of
accepted facts. He correctly applied the A.M.A., Guides’ net adjustment formula to calculate a
10 percent diagnosis-based impairment of the right upper extremity. Dr. Maitra also found a 10
percent impairment of the left upper extremity. Therefore, OWCP’s November 2, 2011 schedule
award determination is appropriate under the law and facts of this case.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he sustained more than a 10
percent impairment of the left upper extremity, for which he received a schedule award.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 2, 2011 is affirmed.
Issued: October 4, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Daytona Beach, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Ronald S. Webster, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-849
Issued: February 7, 2007

Case Submitted on the Record

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

JURISDICTION
On February 27, 2006 appellant filed a timely appeal of a November 29, 2005 decision of
the Office of Workers’ Compensation Programs which denied merit review. Because more than
one year has elapsed between the most recent merit decision dated April 22, 2004 and the filing
of this appeal on February 27, 2006, the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
This is the second appeal before the Board. In a December 21, 2004 decision, the Board
affirmed the Office’s decision dated April 22, 2004. The Board determined that appellant did
not meet his burden of proof in establishing that he developed a loss of lung capacity and chronic

fatigue syndrome in the performance of duty. The facts and the circumstances of the case up to
that point are set forth in the Board’s prior decision and incorporated herein by reference.1
On November 17, 2005 appellant requested reconsideration.
He submitted a
November 7, 2005 report from Dr. Mohammad A. Latif, a Board-certified internist, who noted
first treating him in January 2002 and that appellant reported working in a “sick building” for
several years. Dr. Latif noted a history of heart attack in 1996, a shunt replacement twice in
1998, a back injury in 1998 and asthma as a child. He indicated that appellant had been
diagnosed with noninsulin-dependent diabetus mellitus, chronic obstructive pulmonary disease
and hypertension. Appellant further reported that he was treated for persistent sinus drainage,
shortness of breath, wheezing, swelling in the legs/feet and fatigue. Dr. Latif listed appellant’s
complaints of numbness and tingling of the hands which caused him to drop things, memory
loss, weight gain and depression. He advised that appellant’s workplace was declared a “sick
building” in 1997. Dr. Latif noted that reports show that fungi infections of Penicillium could
cause respiratory and allergic diseases such as allergic rhinitis, asthmas and hypersensitivity
pneumonitis. He indicated that occupational asthma and pneumonitis have been documented in
working environments where spores of fungi are predominate and some of these organisms are
opportunistic and can cause secondary diseases in immunocompromised persons. Dr. Latif
opined that appellant was permanently disabled.
By decision dated November 29, 2005, the Office denied appellant’s reconsideration
request on the grounds that his request neither raised substantive legal questions nor included
new and relevant evidence and was therefore insufficient to warrant review of the prior decision.
LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act,2 the Office has the
discretion to reopen a case for review on the merits. The Office must exercise this discretion in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulation,3 which provides that a claimant may obtain review of the merits of his or her written
application for reconsideration, including all supporting documents, sets forth arguments and
contain evidence that:
“(i) shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) advances a relevant legal argument not previously considered by the
[Office]; or
“(iii) constitutes relevant and pertinent new evidence not previously considered by
[the Office].”
1

Docket No. 04-1657 (issued December 21, 2004).

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b).

2

Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.4
ANALYSIS
Appellant’s November 17, 2005 request for reconsideration neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, he did not advance a relevant legal argument not previously considered by the
Office. Consequently, appellant is not entitled to a review of the merits of his claim based on the
first and second above-noted requirements under section 10.606(b)(2).
With respect to the third requirement, submitting relevant and pertinent new evidence not
previously considered by the Office, appellant submitted a November 7, 2005 medical report
from Dr. Latif. However, this report is not relevant because Dr. Latif did not specifically address
whether the diagnosed conditions of persistent sinus drainage, shortness of breath, wheezing,
swelling in the legs/feet and fatigue are causally related to specific employment factors.
Additionally, this report is essentially duplicative of Dr. Latif’s prior reports dated March 5 and
December 31, 2002 already of record and previously considered by the Office.5 Therefore, the
Office properly determined that this evidence did not constitute a basis for reopening the case for
a merit review. Appellant neither showed that the Office erroneously applied or interpreted a
point of law; advanced a point of law or fact not previously considered by the Office; nor did he
submit relevant and pertinent evidence not previously considered by the Office.”6
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his November 17, 2005 request for reconsideration.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration.

4

20 C.F.R. § 10.608(b).

5

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case; see Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393,
398 (1984); Bruce E. Martin, 35 ECAB 1090, 1093-94 (1984).
6

20 C.F.R. § 10.606(b).

3

ORDER
IT IS HEREBY ORDERED THAT the November 29, 2005 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 7, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, INTERNATIONAL
SERVICE CENTER, Los Angeles, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-0081
Issued: April 23, 2019

Case Submitted on the Record

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

JURISDICTION
On October 15, 2018 appellant filed a timely appeal from an August 24, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s medical
benefits, effective August 24, 2018.

1
The Board notes that appellant submitted additional evidence on appeal and OWCP also received additional
evidence subsequent to tis August 24, 2018 decision. However, the Board’s Rules of Procedure provides: “The
Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final
decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R.
§ 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 21, 2017 appellant, then a 59-year-old clerk, filed an occupational disease claim
(Form CA-2) alleging that she experienced pain in her low back, left shoulder, and the left side of
her neck causally related to factors of her federal employment. She did not stop work. The
employing establishment indicated that appellant was last exposed to the work factors alleged to
have caused her condition on April 17, 2017. OWCP accepted the claim for impingement
syndrome of the left shoulder, lumbar intervertebral disc degeneration, and lumbar spinal stenosis.
OWCP noted that it had previously accepted that appellant sustained contusions of the right
hand and wrist on November 11, 2016. It assigned OWCP File No. xxxxxx822. OWCP indicated
that appellant had performed modified employment beginning November 6, 2014 due to her right
hand and wrist condition.
On September 22, 2017 OWCP referred appellant to Dr. Richard A. Rogachefsky, a
Board-certified orthopedic surgeon, for a second opinion examination.
In a report dated September 28, 2017, Dr. James T. Tran, a Board-certified internist,
discussed appellant’s history of injury and her current complaints of back pain radiating into her
left thigh. He diagnosed lumbar spinal stenosis and lumbar intervertebral disc degeneration that
had failed conservative treatment. Dr. Tran requested authorization for a lumbar laminectomy and
foraminotomy at L3-4 and L4-5.
In a report dated October 5, 2017, Dr. Rogachefsky reviewed appellant’s history of injuries
to her right wrist on November 11, 2016 and to her left shoulder and spine moving mail and sorting
parcels in April 2017. On examination he found a positive left shoulder impingement test and
noted that x-rays of the right wrist showed Kienbock’s disease and degenerative arthritis at the
distal radial ulnar nerve. Dr. Rogachefsky opined, “The conditions of the left and right hand,
lumbosacral spine, and left shoulder are resolved with regards to the work injuries of
November 2016 and April 2017.” He found that appellant could resumed her usual employment
and required no further medical treatment.
OWCP determined that a conflict existed between Dr. Tran and Dr. Rogachefsky regarding
whether the accepted conditions had resolved. It noted that Dr. Tran had found that appellant
required lumbar surgery due to her employment injury.
On May 10, 2018 OWCP referred appellant to Dr. Charles Sadler, a Board-certified
orthopedic surgeon, for an impartial medical examination. It provided Dr. Sadler with the medical
record along with a statement of accepted facts (SOAF) indicating that it had accepted the claim
for left shoulder impingement syndrome, lumbar intervertebral disc degeneration, and lumbar
spinal stenosis.
In a report dated June 18, 2018, Dr. Sadler reviewed appellant’s history of injury and the
medical evidence of record, including the results of diagnostic testing. He disagreed with OWCP’s
acceptance of left shoulder impingement syndrome, asserting that the June 21, 2017 magnetic
resonance imaging (MRI) scan showed tenosynovitis without impingement. Dr. Sadler proposed
instead a diagnosis of left shoulder biceps tenosynovitis. He found that diagnostic testing

2

established the diagnoses provided in the SOAF of lumbar spinal stenosis and lumbar disc
degeneration but opined that these conditions were unrelated to the accepted employment.
Dr. Sadler determined that none of the diagnosed conditions set forth in the SOAF were causally
related to the accepted employment injury. He advised that appellant had no need for further
medical treatment and no employment-related disability.
On July 23, 2018 OWCP notified appellant of its proposed termination of her entitlement
to medical benefits as the evidence established that she had no residuals of her accepted left
shoulder impingement syndrome, intervertebral disc degeneration, and lumbar spinal stenosis.
Thereafter, appellant submitted a July 16, 2018 progress report from Dr. Christopher P.
DeCarlo, an attending physiatrist, who evaluated her for continued left shoulder and low back pain.
Dr. DeCarlo diagnosed degenerative disc disease of the lumbar spine, facet arthropathy, neural
foraminal stenosis, and tenosynovitis and impingement syndrome of the left shoulder.
By decision dated August 24, 2018, OWCP terminated appellant’s medical benefits,
effective that date. It found that the opinion of Dr. Sadler represented the weight of the evidence
and established that she had no need for further medical treatment due to her accepted employment
injury.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.3 The right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability.4 To terminate
authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition, which would require further medical treatment.5
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.6 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.7

3

M.M., Docket No. 17-1264 (issued December 3, 2018).

4

S.M., Docket No. 18-0673 (issued January 25, 2019).

5

D.M., Docket No. 17-1052 (issued January 24, 2019).

6

5 U.S.C. § 8123(a); L.T., Docket No. 18-0797 (issued March 14, 2019).

7

D.W., Docket No. 18-0123 (issued October 4, 2018).

3

OWCP’s procedures provide as follows:
“The [claims examiner] is responsible for ensuring that the SOAF is correct,
complete, unequivocal, and specific. When the [medical adviser], second opinion
specialist or referee physician renders a medical opinion based on a SOAF which
is incomplete or inaccurate or does not use the SOAF as the framework in forming
his or her opinion, the probative value of the opinion is seriously diminished or
negated altogether.”8
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s
medical benefits, effective August 24, 2018.
OWCP properly found a conflict existed between Dr. Tran, appellant’s treating physician,
and Dr. Rogachefsky, an OWCP referral physician, regarding whether she had continued residuals
of her employment injury, accepted for left shoulder impingement syndrome, lumbar intervertebral
disc degeneration, and lumbar spinal stenosis. It referred her to Dr. Sadler, a Board-certified
orthopedic surgeon, for an impartial medical examination, pursuant to 5 U.S.C. § 8123(a).
When there exists a conflict in medical opinion and the case is referred to an impartial
medical examiner (IME) 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
OWCP provided Dr. Sadler with a SOAF advising that it had accepted left shoulder
impingement syndrome, lumbar intervertebral disc degeneration, and lumbar spinal stenosis as
employment related. In a report dated June 18, 2018, Dr. Sadler found that appellant had not
sustained left shoulder impingement syndrome. He further determined that she had lumbar disc
degeneration and lumbar spinal stenosis but that the conditions were unrelated to the accepted
employment injury.
The Board finds that the opinion of Dr. Sadler is not entitled to the special weight afforded
an IME as it is outside of the SOAF.10 While he reviewed the medical evidence in detail, Dr. Sadler
did not accept the facts as presented in the SOAF in rendering his medical opinion. It is OWCP’s
responsibility to provide a complete and proper framework for a physician by preparing a SOAF.11
OWCP procedures and Board precedent dictate that, when an OWCP medical adviser, second
opinion specialist, or referee physician renders a medical opinion based on a SOAF which is

8
Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990); see also R.P., Docket No. 18-0900 (issued February 5, 2019).
9

M.S., Docket No. 18-1228 (issued March 8, 2019).

10

M.D., Docket No. 18-0468 (issued September 4, 2018).

11

D.E., Docket No. 17-1794 (issued April 13, 2018).

4

incomplete or inaccurate or does not use the SOAF as the framework in forming his or her opinion,
the probative value of the opinion is seriously diminished or negated altogether.12
Dr. Sadler indicated that he had reviewed the SOAF and concluded that none of the
accepted conditions were employment related. The Board has explained that the report of an IME
who disregards a critical element(s) of the SOAF and disagrees with the medical basis for
acceptance of a condition is defective and insufficient to resolve the existing conflict of medical
opinion evidence.13 Dr. Sadler’s report is of diminished probative value as his opinion did not rely
on the SOAF and contradicted critical elements of the SOAF. The Board notes that it is the
function of a medical expert to give an opinion only on medical questions, not to find facts.14
Dr. Sadler did not rely on the SOAF and as such his report is not based on an accurate history of
injury. His report is therefore insufficient to meet OWCP’s burden of proof to terminate medical
benefits.15
Accordingly, OWCP improperly terminated appellant’s medical benefits, effective
August 24, 2018.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s
medical benefits, effective August 24, 2018.

12

Supra note 9.

13

J.S., Docket No. 17-0626 (issued January 22, 2019).

14

R.P., Docket No. 18-0900 (issued February 5, 2019).

15

B.B., Docket No. 18-1121 (issued January 8, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the August 24, 2018 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: April 23, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
U.S. POSTAL SERVICE, NETWORK
DISTRIBUTION CENTER, Atlanta, GA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-1696
Issued: March 26, 2019

Case Submitted on the Record

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

JURISDICTION
On September 10, 2018 appellant, through counsel, filed a timely appeal from a May 9,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction 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 his burden of proof to establish that his cervical
condition was causally related to the accepted September 6, 2016 employment incident.
FACTUAL HISTORY
On September 12, 2016 appellant, then a 67-year-old mail handler/equipment operator,
filed a traumatic injury claim (Form CA-1) alleging that on September 6, 2016 he sustained a
skull/head injury while in the performance of duty. He stopped work on September 6, 2016.
In a September 15, 2016 development letter, OWCP informed appellant that the evidence
of record was insufficient to establish his claim. It advised him of the factual and medical evidence
necessary to establish his claim and also provided a questionnaire for completion. OWCP afforded
appellant 30 days to provide the necessary factual information and medical evidence.
OWCP subsequently received a September 6, 2016 employing establishment accident
report, which described that on September 6, 2016 appellant was observed passed out on a forklift
just before he hit a stationary concrete pillar. It indicated that appellant was not wearing his seat
belt and fell off the forklift, hitting his head on the concrete floor.
OWCP received various hospital records. In a report dated September 6, 2016,
Dr. David M. Bradberry, Jr., an osteopath specializing in physical medicine and rehabilitation,
related that appellant was driving a forklift when he hit a concrete pole, fell from the forklift, and
struck his head. He reported that diagnostic imaging testing was negative for signs of ischemia,
but showed severe spinal canal stenosis at C3-4. Dr. Bradberry diagnosed cervical stenosis of the
spinal canal, central cord syndrome, bilateral arm weakness, and reactive depression.
On September 7, 2016 appellant underwent further diagnostic testing. A neurological
spine computerized tomography (CT) report showed no findings of acute intracranial hemorrhage
or large vascular territory infarction. A cervical spine magnetic resonance imaging (MRI) scan
report showed mild congenital narrowing of the spinal canal, moderate to large disc osteophyte
complex compressing the spinal cord at C3-4, mild-to-moderate posterior disc osteophyte complex
at C4-5, mild posterior disc osteophyte at C5-6, and minimal disc osteophyte complex at C6-7.
In an examination report dated September 7, 2016, Dr. Antonio Wehbeh, an internist,
indicated that appellant was seen as the hospital as a stroke alert. He related that, prior to his
arrival, appellant was driving a fork lift, hit a tree, and fell to the ground. Dr. Wehbeh noted that
appellant had positive medical history for strokes. He reviewed diagnostic testing and reported
that sensory examination showed anterior sensory level at the C4 innervation area. Dr. Wehbeh
reported that the etiology of appellant’s symptoms appeared most consistent with cord contusion
after trauma due to severe stenosis, with cord edema and some degree of cord compression.
On September 12, 2016 appellant underwent unauthorized anterior cervical discectomy
and fusion at C3-4 and C4-5 surgery. The operative report noted a preoperative diagnosis of
central cord syndrome with cervical stenosis.

2

Appellant remained in the hospital for continued postoperative treatment and
rehabilitation. Hospital records dated September 7 to October 12, 2016 document appellant’s daily
laboratory results, vitals, postoperative examination notes, and rehabilitation progress notes. The
diagnoses listed were cervical stenosis of spinal canal, bilateral arm weakness, central cord
syndrome, closed head injury, hyperglycemia, leukocytosis, and anemia.
In an examination report dated September 15, 2016, Dr. Anuradha Subramanian, a critical
care specialist, related that appellant had suffered an injury at C3-4 after a forklift crash. She
described that on September 6, 2016 appellant was driving a forklift when it crashed into a pole.
Dr. Subramanian reported a possible syncope episode and diagnosed C3-4 severe spinal canal
stenosis with spinal cord compression, resulting in central cord syndrome. She provided an
assessment that appellant “suffered an injury status post forklift crash with the following injuries:
C3-4 severe spinal canal stenosis with spinal cord compression, resulting in central cord
syndrome.” Dr. Subramanian continued to treat appellant and provided examination notes dated
September 20 to October 12, 2016.
On October 13, 2016 OWCP received appellant’s response to its development letter.
Appellant described that on September 6, 2016 he was operating his forklift and “crossing the
loop.” He indicated that he looked left and right checking for mail and as he turned his head, his
fork lift collided with a pole. Appellant related that the crash caused him to be ejected from his
forklift and he landed on the concrete floor. He noted that he did not have any similar disabilities
or symptoms before this injury.
In an October 13, 2016 letter, T.G., a human resource specialist for the employing
establishment, indicated that she was attaching a list of appellant’s prescriptions prior to his
admission to the hospital. She alleged that the medications that appellant was taking may have
contributed to his injury. T.G. noted that appellant had previously been diagnosed with diabetes.
By decision dated October 21, 2016, OWCP denied appellant’s traumatic injury claim,
finding that the factual evidence of record was insufficient to establish that the alleged incident
occurred as described due to factual discrepancies.
On November 28, 2016 appellant requested a hearing before an OWCP hearing
representative. A hearing was held on June 20, 2017.
OWCP received hospital progress notes dated September 6 to October 24, 2016 regarding
appellant’s medical treatment and rehabilitation after surgery to treat his diagnosed C3-4 severe
spinal canal stenosis with spinal cord compression, resulting in central cord syndrome.
In a progress note dated November 17, 2016, Renee L. Thomas, a physician assistant,
related that appellant had a closed head injury status post trauma in September 2016, which
resulted in extremity weakness, cervical stenosis of spinal canal, and central cord syndrome.
By decision dated September 5, 2017, an OWCP hearing representative affirmed the
October 21, 2016 decision with modification. He accepted that the September 6, 2016
employment incident occurred as alleged, but denied appellant’s claim finding that the medical
evidence of record failed to establish a diagnosed condition due to the accepted incident. The
hearing representative also determined that the medical evidence was insufficient to establish that
3

appellant’s fall at work on September 6, 2016 was due to an idiopathic condition. He further found
that because appellant was driving a tow motor at work at the time of the accepted incident, the
incident occurred in the performance of duty.
On January 22, 2018 appellant, through counsel, requested reconsideration of the
September 5, 2017 decision.
In a letter dated November 9, 2017, Dr. Jonathan A. Grossberg, a Board-certified
neurological surgeon, indicated that appellant was treated at a hospital for a traumatic injury that
occurred in early September. He related that appellant was involved in a forklift accident and
subsequently complained of weakness in his upper and lower extremities. Dr. Grossberg reported
that physical examination findings were consistent with central cord syndrome. He noted that
appellant’s CT and MRI scans showed no acute fractures, but severe cervical stenosis with cord
signal change “likely representing a contusion from the injury.” Dr. Grossberg opined: “It is likely
that the trauma led to worsening of his cervical stenosis with a contusion of his spinal cord (central
cord syndrome) which was responsible for his weakness.”
By decision dated May 9, 2018, OWCP denied modification of the September 5, 2017
decision. It found that the medical evidence of record was insufficient to establish causal
relationship between appellant’s diagnosed cervical condition and the accepted September 6, 2016
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
In order to determine whether a federal employee has sustained a traumatic injury in the
performance of duty, OWCP must first determine whether fact of injury has been established.6
There are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the

3

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

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

4

time, place, and in the manner alleged.7 Second, the employee must submit evidence, generally
only in the form of probative medical evidence, to establish that the employment incident caused
a personal injury.8 An employee may establish that the employment incident occurred as alleged,
but fail to show that his or her disability or condition relates to the employment incident.9
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.10 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.11 The weight of the 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.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his
diagnosed cervical condition was causally related to the accepted September 6, 2016 employment
incident.
Appellant submitted several hospital reports dated September 6 to October 24, 2016. In a
September 6, 2016 report, Dr. Bradberry related that appellant was driving a forklift when he hit a
concrete pole, fell down, and struck his head. He diagnosed cervical stenosis of the spinal canal,
central cord syndrome, bilateral arm weakness, and reactive depression. Dr. Bradberry did not,
however, specifically address the cause of appellant’s cervical stenosis, central cord syndrome,
bilateral arm weakness, or depression nor provide an opinion on causal relationship. The Board
has held that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.13
Likewise, the diagnostic examination reports, including the September 7, 2016 cervical
spine CT and MRI scans also fail to establish appellant’s claim as they do not include an opinion
on the causal relationship between appellant’s diagnosed cervical conditions and the accepted
September 6, 2016 employment incident. The Board has held that reports of diagnostic tests are of

7

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

8

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

9

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

10

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

12

James Mack, 43 ECAB 321 (1991).

13

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

5

lack probative value as they fail to provide an opinion on the causal relationship between
appellant’s employment duties and the diagnosed conditions.14
In her reports dated September 15 to October 12, 2016, Dr. Subramanian accurately
described the September 6, 2016 employment incident and noted diagnosis of C3-4 severe spinal
canal stenosis with spinal cord compression, resulting in central cord syndrome. She provided an
assessment that appellant “suffered an injury status post forklift crash with the following injuries:
C3-4 severe spinal canal stenosis with spinal cord compression, resulting in central cord
syndrome.” Although Dr. Subramanian attributed appellant’s cervical conditions to the accepted
September 6, 2016 employment incident, she did not provide an affirmative opinion explaining
how the described forklift crash at work resulted in the diagnosed medical conditions. The Board
has held that a report is of limited probative value regarding causal relationship if it does not
contain medical rationale explaining how a given medical condition/disability was related to
employment factors.15 Because Dr. Subramanian did not provide a reasoned opinion explaining
how the September 6, 2016 employment incident caused or contributed to appellant’s cervical
conditions, her reports are insufficient to establish his claim.
In a November 9, 2017 letter, Dr. Grossberg related that appellant was involved in a forklift
accident in early September and reported that physical examination findings were consistent with
central cord syndrome. He opined: “It is likely that the trauma led to worsening of his cervical
stenosis with a contusion of his spinal cord (central cord syndrome) which was responsible for his
weakness.” The Board finds that Grossberg’s opinion is speculative in nature.16 He did not
specifically describe the September 6, 2016 employment incident nor definitively opine that
appellant’s employment caused or contributed to his cervical conditions.17 The Board has held
that medical opinions that are speculative or equivocal in nature are of diminished probative
value.18
Similarly, Dr. Wehbeh’s opinion in his September 7, 2016 report that appellant’s
symptoms appeared “most consistent” with cord contusion after trauma is speculative and
equivocal and is also insufficient to establish causal relationship. An award of compensation may
not be based on surmise, conjecture, speculation or upon appellant’s own belief that there is causal
relationship between his claimed condition and his employment.19

14

See A.B., Docket No. 17-0301 (issued May 19, 2017).

15
See Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale describing the relation between work factors and
a diagnosed condition/disability).
16

Roy L. Humphrey, 57 ECAB 238, 242 (2005); Michael E. Smith, 50 ECAB 313 (1999).

17

A physician’s opinion on causal relationship must be based on a complete factual and medical background.
Victor J. Woodhams, supra note 13.
18

Z.B., Docket No. 17-1336 (issued January 10, 2019); D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB
206 (2004).
19

Robert A. Boyle, 54 ECAB 381 (2003); Patricia J. Glenn, 53 ECAB 159 (2001).

6

OWCP also received a November 17, 2016 report by Ms. Thomas, a physician assistant.
This report does not constitute competent medical evidence because a physician assistant is not
considered a “physician” as defined under FECA.20 As such, this evidence is also insufficient to
meet appellant’s burden of proof.
On appeal, counsel contends that appellant’s claim should have been accepted for spinal
cord contusion. For the reasons set forth above appellant has not met his burden of proof to
establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his cervical
condition was causally related to an accepted September 6, 2016 employment incident.

20
See M.M., Docket No. 17-1641 (issued February 15, 2018); K.J., Docket No. 16-1805 (issued February 23,
2018); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law).

7

ORDER
IT IS HEREBY ORDERED THAT the May 9, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 26, 2019
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Reno, NV, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-346
Issued: April 23, 2008

Case Submitted on the Record

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

JURISDICTION
On November 20, 2006 appellant filed a timely appeal from a September 13, 2006
decision of the Office of Workers’ Compensation Programs which affirmed his wage-earning
capacity.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the appeal.
ISSUE
The issue is whether the Office properly determined that appellant’s actual earnings as a
security guard fairly and reasonably represented his wage-earning capacity.

1

The record contains a March 6, 2006 decision of the Office denying appellant’s claim for a schedule award.
Appellant requested review of the written record before the Office’s Branch of Hearings and Review. In his appeal
to the Board, he did not request an appeal of the schedule award denial. See Douglas E. Billings, 41 ECAB 880
(1990) (the Board and the Office may not exercise simultaneous jurisdiction over the same issue).

FACTUAL HISTORY
On July 16, 2004 appellant, then a 50-year-old transportation security screener, sustained
injury to his right hip and low back while loading heavy bags onto a belt. The Office accepted
his claim for a lumbar sprain/strain, sciatica and displacement of a lumbar disc. Appellant
stopped work and underwent a lumbar discectomy at L5-S1 on April 24, 2005. He received
appropriate compensation and medical benefits.
On August 4, 2005 Dr. James R. Rappaport, an attending Board-certified orthopedic
surgeon, addressed appellant’s condition following low back surgery. He noted that appellant
had done well with physical therapy and listed an impression of low back pain due to lumbar
spondylosis. Dr. Rappaport advised that appellant would be unable to return to his usual
occupation with the employing establishment and recommended limitations of lifting no greater
than 10 pounds with the opportunity to change from seated to standing at least five minutes every
hour. He recommended vocational rehabilitation, noting that appellant was at maximum
improvement and ratable.
The employing establishment was unable to accommodate appellant’s physical
limitations and he was referred for a functional capacity evaluation. On September 1, 2005 an
occupational therapist advised the Office that appellant had been evaluated and that the results
would be forwarded to Dr. Rappaport for review. On September 8, 2005 Dr. Rappaport provided
updated work restrictions. He advised that appellant could work an 8-hour shift with sitting for 4
hours in 45-minute shifts; standing for 5 hours in 60-minute shifts, and walking for 4 to 5 hours
at frequent, moderate distances. Dr. Rappaport limited appellant to occasional (zero to three
hours/day) bending, crouching, kneeling, climbing and seated right foot motions. Appellant
could engage in frequent (three to six hours/day) of low repetitious squatting, crawling, reaching
and balancing. Frequent lifting above the shoulders was limited to 20 pounds with a maximum
carrying weight of 32 pounds.2
The record reflects that appellant returned to full-time employment as a security
guard/escort in the private sector on January 4, 2006 earning $10.00 an hour. On January 6,
2006 the rehabilitation consultant confirmed appellant’s employment with the private sector
employer, noting that appellant was hired as a permanent employee working in Reno at $10.00
an hour. On January 19, 2006 the Office notified appellant that it would be reducing his wageloss benefits to reflect his actual earnings as a security guard. It determined that he had 62
percent wage-earning capacity, noting that his pay rate when disability began was $572.23 per
week; the updated weekly pay rate for the job and step when injured was $584.16 and that his
actual weekly wages were $400.00 per week.
Appellant was referred by the Office for a second opinion examination to Dr. M.P.
Reddy, Board-certified in physical medicine and rehabilitation. In a January 23, 2006 report,
Dr. Reddy reviewed appellant’s history of injury and medical treatment, noting the discectomy
performed by Dr. Rappaport. He noted that appellant still had complaints of chronic low back
pain across the lower lumbar area without any radiation into the lower extremities. Dr. Reddy
2

Appellant was referred to vocation rehabilitation on October 18, 2005. He filed a claim for a schedule award on
that date.

2

noted that appellant had returned to work as a security guard in a light-duty capacity. He set
forth findings on physical examination, noting there was no soft tissue tenderness over the
lumbar spine or paraspinal region. Dr. Reddy listed an impression of discogenic lumbar pain
following appropriate medical treatment. He found no neurological, strength or sensory deficits
in the lower extremities.
On February 19, 2006 Dr. Leonard A. Simpson, an Office medical consultant Boardcertified in orthopedic surgery, reviewed the medical record. Based on the report of Dr. Reddy,
the medical consultant advised that appellant did not have any impairment to either lower
extremity based on his accepted condition and surgery.
By decision dated March 6, 2006, the Office denied appellant’s claim for a schedule
award. It advised appellant that back pain was not compensable under a schedule award and that
the medical evidence did not establish any permanent impairment of his lower extremities.
On April 27, 2006 the Branch of Hearings and Review received appellant’s request for a
review of the written record of the schedule award denial.3
In an April 27, 2006 decision, the Office adjusted appellant’s compensation, finding that
his actual earnings as a security guard fairly and reasonably represented his wage-earning
capacity. Appellant requested a review of the written record.
By decision dated September 13, 2006, an Office hearing representative affirmed the
April 27, 2006 decision, finding that appellant’s actual earnings fairly and reasonably
represented his wage-earning capacity.
LEGAL PRECEDENT
Once the Office has made a determination that a claimant is totally disabled as a result of
an employment injury and pays compensation benefits, it has the burden of justifying a
subsequent reduction in benefits.
Under section 8115(a) of the Federal Employees’
Compensation Act, wage-earning capacity is determined by the actual wages received by an
employee if such earnings fairly and reasonably represent his wage-earning capacity.4
Generally, wages actually earned are the best measure of a wage-earning capacity and, in the
absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, will be accepted as such measure.5
When an employee cannot return to the date-of-injury job because of disability due to
work-related injury or disease, but does return to alternative employment with an actual wage
loss, the Office must determine whether the earnings in the alternative employment fairly and

3

See supra note 1, this issue is not before the Board in the present appeal.

4

Sherman Preston, 56 ECAB 607 (2005). See 5 U.S.C. § 8115(a).

5

Lottie M. Williams, 56 ECAB 302 (2005).

3

reasonably represent the employee’s wage-earning capacity.6 The procedure manual notes that
reemployment may not be suitable if the job is part time, seasonal or of a temporary nature.7
After the employee has worked for 60 days, the Office will determine whether his actual
earnings represent his wage-earning capacity. In so doing, the Office will apply the Shadrick
formula in determining the claimant’s monetary entitlement.8
ANALYSIS
Appellant’s claim was accepted for a low back injury for which he underwent a
discectomy at L5-S1 on April 25, 2005. He was treated by Dr. Rappaport, who noted that
appellant would not be able to return to his date-of-injury position with the employing
establishment. However, Dr. Rappaport advised that appellant was not totally disabled and could
return to full-time employment within specified work restrictions. Appellant was referred to
vocational rehabilitation and subsequently found employment in the private sector commencing
January 4, 2006 as a security guard. The evidence of record reflects that the security guard
position was full time and not a part time, seasonal or a makeshift position. The Office
confirmed with appellant’s employer that he was a permanent employee earning $10.00 an hour.
On January 19, 2006 the Office properly notified appellant that it would be reducing his
compensation benefits to reflect his actual earnings.
In an April 27, 2004 decision, the Office reduced appellant’s wage-loss compensation
benefits, finding that his actual earnings as a security guard fairly and reasonably represented his
wage-earning capacity. The Office properly applied the Shadrick formula, listing his pay rate
when disability began as $572.23 per week; the updated weekly pay rate for the job and step
when injured as $584.16 and that he had actual earnings of $400.00 per week. The Board finds
that appellant’s actual earnings fairly and reasonably reflect that he has a 62 percent wageearning capacity. There is no evidence that his employment as a security guard in the private
sector was a temporary, part time or makeshift position. His employer verified full-time
employment in Reno as a permanent employee earning $10.00 an hour. There is no medical
evidence of record which establishes that appellant remains totally disabled due to the residuals
of his accepted back injury and surgery. At the time of the Office’s final decision, he had
worked as a security guard for well over 60 days. The evidence of record is persuasive that
appellant’s actual earnings as a security guard fairly and reasonably represent his wage-earning
capacity.
CONCLUSION
The Board finds that the Office properly complied with its procedures in determining
appellant’s wage-earning capacity based on his actual earnings as a security guard in the private
sector.
6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(a) (May 1997).
7

Id. See Connie L. Potratz-Watson, 56 ECAB 316 (2005).

8

Id. See Albert C. Shadrick, 5 ECAB 376 (1953). This has been codified by regulation at 20 C.F.R. § 10.403.

4

ORDER
IT IS HEREBY ORDERED THAT the September 13, 2006 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: April 23, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5