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

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

Docket No. 20-0310
Issued: April 21, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On November 25, 2019 appellant, through counsel, filed a timely appeal from an
October 30, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 30, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish disability from work
on November 3, 2018 and for the period December 8 through 11, 2018 causally related to her
accepted March 6, 2015 employment injury.
FACTUAL HISTORY
On March 6, 2015 appellant, then a 42-year old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on that date, she sustained right knee sprain when she slipped on an
icy walkway while in the performance of duty. On April 16, 2015 OWCP accepted the claim for
right knee sprain of the medial collateral ligament. Appellant worked full time with restrictions
until July 9, 2015, when she returned to full-duty work. By decision dated September 4, 2015,
OWCP expanded acceptance of the claim to include right chondromalacia except for the patella,
and tear of the right knee medial meniscus. On February 24, 2016 appellant underwent an OWCPapproved partial medial meniscectomy and arthroscopic patellofemoral chondroplasty. She
stopped work subsequent to the February 24, 2016 surgery and OWCP paid her wage-loss
compensation from February 24 through March 7, 2016. On March 8, 2016 appellant accepted an
offer of a modified assignment as a rural carrier with the employing establishment. On March 8,
2017 she underwent an OWCP-approved partial medial meniscectomy and medial compartment
microfracture down to bleeding bone. Appellant again stopped work and OWCP paid her wageloss compensation on the supplemental rolls from March 7 through April 29, 2017, on the periodic
rolls from April 30 through October 14, 2017, and on the supplemental rolls from October 15
through 28, 2017. She returned to part-time work with restrictions on October 20, 2017 and
accepted an offer of full-time work with restrictions on November 4, 2017.
On June 7, 2018 Dr. Justin Gent, a Board-certified orthopedic surgeon, released appellant
to return to work without restrictions. He repeated his recommendation that she work without
restrictions on July 12, 2018.
In a report dated November 8, 2018, Dr. Gent followed up with appellant for orthopedic
treatment of her right knee. Appellant stated that her pain remained persistent with episodes of
instability and use of a knee brace. On physical examination of the right knee, Dr. Gent observed
tenderness to palpation over the medial and lateral joint lines, range of motion to 120 degrees, full
flexion and extension strength, stability to varus and valgus stress, patellofemoral crepitus with
range of motion, and full ability to bear weight on the right lower extremity with a normal gait.
He diagnosed right knee pain, status post right knee arthroscopy with partial medial meniscectomy
and patellofemoral chondroplasty, status post right knee arthroscopy with partial medial
meniscectomy and medial compartment microfracture down to bleeding bone, and right knee
osteoarthritis. Dr. Gent recommended continuation of work without restrictions.
In a report dated December 3, 2018, Dr. Gent examined appellant for complaints of right
knee pain. He observed that x-rays of the right knee obtained on that date revealed medial joint
space narrowing and early arthritic change with no acute fractures or dislocations. On physical
examination of the right knee, Dr. Gent noted moderate effusion, small medial joint space opening
with valgus stress but an otherwise stable endpoint, range of motion to 120 degrees, full strength
of the quadriceps and big toe extension, full ankle dorsiflexion and plantar flexion, and no
lymphedema in the leg or foot. He diagnosed end-stage arthritis of the right knee despite
2

conservative treatment. Appellant expressed interest in a total knee replacement and Dr. Gent
recommended that procedure once all other options were exhausted, noting that, partial right knee
replacement was also an option.
On January 16, 2019 appellant filed claims for wage-loss compensation (Form CA-7) for
disability on November 3, 2018 and from December 8 through 11, 2018. On the reverse sides of
the Forms CA-7, a supervisor noted that appellant had returned to work and that there was no
medical evidence to support temporary total disability.
In a development letter dated January 24, 2019, OWCP requested additional medical
evidence supporting a recurrence of disability on November 3, 2018 and from December 8 through
11, 2018 and continuing. It noted that appellant returned to full-duty work on June 7, 2018,
continued working until November 3, 2018 when she began working reduced hours, and stopped
work completely on December 8, 2018. OWCP informed her that the medical evidence was
insufficient to establish her claim for recurrence because it did not provide an explanation stating
what work factors occurred on the claimed dates to prevent her from working in a limited-duty
capacity. It afforded appellant 30 days to submit additional evidence.
In a report dated January 14, 2019, Dr. Brian P. Flanagan, an orthopedic surgery specialist,
consulted with appellant regarding total right knee arthroplasty. On physical examination of the
right knee, he observed full range of motion, pain in the medial joint line, small opening on the
medial side to valgus stress, no lymphedema, full quadriceps strength, sensation to light touch
throughout the leg, and a negative Homans sign. Dr. Flanagan recommended total right knee
arthroplasty and noted that appellant stated that she wished to undergo this procedure.
By decision dated April 23, 2019, OWCP denied appellant’s claim for a recurrence of
disability, finding that she had not submitted medical evidence sufficient to establish a return or
increase of disability due to a change/worsening of her accepted work-related conditions.
On April 30, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. During the hearing held on
August 15, 2019 appellant explained that she took intermittent days off in November and
December because she still experienced pain in her knee. She asserted that the pain was so great,
that she was unable to perform her job. Appellant stated that she had not experienced any
intervening injuries and that she currently worked regular duty.
By decision dated October 30, 2019, the representative of OWCP’s Branch of Hearings
and Review affirmed the April 23, 2019 OWCP decision, finding that there was no medical
evidence of record establishing disability for work on November 3, 2018 or from December 8
through 11, 2018.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the preponderance of the evidence.4 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
4

See B.O., Docket No. 19-0392 (issued July 12, 2019); D.W., Docket No. 18-0644 (issued November 15, 2018).

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from work as a result of the accepted employment injury.5 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.6
Under FECA, the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.7 Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.8
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability from
work on November 3, 2018 and for the period December 8 through 11, 2018 causally related to
her accepted March 6, 2015 employment injury.
In support of her claim, appellant submitted reports from Dr. Gent and Dr. Flanagan. On
June 7, 2018 Dr. Gent released appellant to return to work without restrictions, and he continued
to recommend that appellant work without restrictions on July 12 and November 8, 2018. On
December 3, 2018 he recommended total knee replacement when all other options have been
exhausted, noting that partial right knee replacement was also an option. Dr. Gent, however, did
not address appellant’s work status. On January 14, 2019 Dr. Flanagan recommended total right
knee arthroplasty and noted that appellant stated that she wished to undergo this procedure. He
also did not address appellant’s work status.
The Board finds that none of the contemporaneous medical evidence from Drs. Gent and
Flanagan related that appellant was disabled from work on November 3, 2018 and for the period
December 8 through 11, 2018. The record is devoid of evidence establishing that appellant was
disabled due to the accepted employment injury for the claimed dates.10 As noted above, the Board
will not require OWCP to pay compensation for disability in the absence of medical evidence
5

Id.

6

20 C.F.R. § 10.5(f); B.O., supra note 4; N.M., Docket No. 18-0939 (issued December 6, 2018); Fereidoon
Kharabi, 52 ECAB 291 (2001).
7

Id. at § 10.5(f); see B.K., Docket No. 18-0386 (issued September 14, 2018).

8

Id.

9

R.A., Docket No. 19-1752 (issued March 25, 2020); A.W., Docket No. 18-0589 (issued May 14, 2019); Fereidoon
Kharabi, supra note 6.
10

See A.B., Docket No. 19-0185 (issued July 24, 2020).

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directly addressing the specific dates of disability for which compensation is claimed.11 The Board
has held that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition or disability is of no probative value on the issue of causal relationship.12 Therefore, the
above-noted reports are of no probative value with regard to the issue of appellant’s disability for
the claimed period, and are insufficient to establish her claim for wage-loss compensation.
As the medical evidence of record does not include a rationalized opinion regarding causal
relationship between appellant’s claimed disability and her accepted March 6, 2015 employment
injury, the Board finds that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability from
work on November 3, 2018 and for the period December 8 through 11, 2018 causally related to
her accepted March 6, 2015 employment injury.

11

Supra note 9.

12
See E.B., Docket No. 19-1548 (issued July 14, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the October 30, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 21, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
U.S. POSTAL SERVICE, NORTH TEXAS
PROCESSING & DISTRIBUTION CENTER,
Coppell, TX, Employer
__________________________________________

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

Docket No. 18-0925
Issued: June 11, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 2, 2018 appellant filed a timely appeal from a March 16, 2018 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated October 20, 2014, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 3, 2014 appellant, then a 49-year-old automation clerk, filed an occupational
disease claim (Form CA-2) for carpal tunnel syndrome (CTS). She indicated that she first became
aware of her condition on July 1, 2014 and realized it was related to factors of her federal
employment on July 17, 2014. On the portion of the claim form that requested an explanation of
the relationship between her employment and the claimed condition appellant described her
symptoms and identified objective studies that she believed supported a diagnosis of CTS. On the
reverse side of the claim form the employing establishment indicated that appellant had not
stopped working and there were no changes to her work assignment.
A July 1, 2014 bilateral upper extremity electromyography and nerve conduction velocity
(EMG/NCV) study revealed evidence of bilateral carpal tunnel syndrome which was severe on the
right side and moderate on the left side. There was no evidence of cervical radiculopathy,
plexopathy, or neuropathy. However, there was evidence of spasm in the cervical paraspinal.
In a development letter dated September 17, 2014, OWCP acknowledged receipt of
appellant’s claim and informed her that additional evidence was necessary to establish her claim.
It requested that she respond to an attached questionnaire in order to substantiate the factual
element of her claim. OWCP also requested medical evidence to establish a diagnosed medical
condition causally related to her federal employment. It afforded appellant 30 days to provide the
requested information.
In a July 17, 2014 report, Dr. Ronnie D. Shade, a Board-certified orthopedic surgeon,
indicated that appellant had been employed for 22 years as an automation clerk. Appellant’s duties
consisted of pushing all-purpose containers (APC) weighing up to 1,100 pounds, repetitive lifting
and grasping, moving back and forth, twisting to swipe mail, bending, and stooping. She reported
that she performed these duties repetitively on a daily basis and that her bilateral wrist pain had
progressed over a period of time. Dr. Shade related appellant’s complaints of pain, numbness,
tingling sensation, and stiffness radiating into the left forearm/elbow. He noted that the July 1,
2014 EMG/NCV results revealed bilateral CTS and evidence of spasms in the cervical paraspinals.
Dr. Shade diagnosed bilateral CTS, bilateral thumb tenosynovitis (trigger finger), and left cubital
tunnel syndrome. He reported that he had reviewed the physical requirements of an automation
clerk. Dr. Shade opined that appellant’s “complaints and diagnoses are directly related to the
compensable injury for the date of [July 1, 2014].” He explained that appellant’s injuries were
caused by pushing APC’s that weigh up to 1,100 pounds, repetitive lifting and grasping, moving
back and forth, twisting to swipe mail, bending, and stooping. Dr. Shade reported that appellant’s
mechanism of injury was directly causally related to the injury that appellant sustained.
By decision dated October 20, 2014, OWCP denied appellant’s claim finding that she had
not met her burden of proof to establish the factual component of fact of injury. It noted that
appellant had not responded to its September 17, 2014 factual questionnaire regarding the specific
employment duties she believed caused or contributed to her condition. OWCP concluded,
therefore, that he had not met the requirements to establish an injury as defined by FECA.
Additional medical evidence was submitted after OWCP’s October 20, 2014 denial
decision. In reports dated November 7, 2014 to January 7, 2015, Dr. Shade related that appellant

2

continued to experience numbness and a tingling sensation in her bilateral hands and wrists in
addition to pain, numbness, and a tingling sensation in her left elbow. He also noted appellant’s
complaint of left knee pain as a result of constant twisting while moving 15- to 20-pound trays.
Dr. Shade reported examination findings of tenderness upon manual palpation of the left knee and
reviewed diagnostic testing results. He diagnosed bilateral CTS, tenosynovitis of the bilateral
thumbs, left cubital tunnel syndrome, left elbow mild bursitis, chondromalacia of left knee patella,
and left knee osteoarthritis. Dr. Shade noted that appellant was incapacitated from work beginning
December 3, 2014.
No additional evidence was submitted into the record until 2017.
OWCP received a September 5, 2017 work status note by Dr. Shade who indicated that
appellant could return to full duty on September 5, 2017.
On September 8, 2017 appellant filed a notice of recurrence (Form CA-2a) alleging that on
August 31, 2017 she sustained a recurrence of her claimed July 1, 2014 employment injury. She
related that the recurrence occurred when lifting trays from pallets weighing up to 25 pounds and
loading them on the ledge. Appellant stopped work on September 1, 2017 and returned on
September 2, 2017.
In a letter dated September 18, 2017, OWCP informed appellant that it could not consider
a recurrence on a denied claim. It advised her that no further action would be taken concerning
her claim.
OWCP received a Family and Medical Leave Act (FMLA) certification form dated
September 20, 2017. Appellant noted a date of injury of July 1, 2014. She reported diagnoses of
bilateral CTS, tenosynovitis of the bilateral thumbs, bilateral cubital tunnel syndrome, and left
elbow bursitis.
Additional medical reports from Dr. Shade were submitted. In an October 16, 2017 report,
Dr. Shade related that he examined appellant for a work injury to the bilateral wrists on
July 1, 2014. He indicated that appellant was employed as an automation clerk and described her
repetitive duties. Dr. Shade noted that appellant complained of pain, numbness, tingling sensation,
and stiffness radiating into the left forearm/elbow and pain associated with grasping objects. He
diagnosed bilateral CTS, tenosynovitis of the bilateral trigger fingers, and left cubital tunnel
syndrome. Dr. Shade opined that appellant’s injuries were caused by pushing APC’s that weigh
up to 1,100 pounds, repetitive lifting and grasping, moving back and forth, twisting to swipe mail,
bending, and stooping.
In a February 5, 2018 report, Dr. Shade noted appellant’s continued symptoms of her
bilateral hands and wrists, left elbow, and left knee. He related that appellant had worked as a mail
processing clerk since 1991 and described her employment duties. Neurological examination
showed altered gait due to pain. Dr. Shade diagnosed bilateral carpal tunnel syndrome,
tenosynovitis of the bilateral thumbs, left elbow mild bursitis, left knee chondromalacia, and
osteoarthritis of the left knee.
According to a Form CA-110 memorandum of a phone bank call dated February 12, 2018,
OWCP advised appellant to exercise the appeal rights provided with the October 20, 2014
3

decision. It sent appellant a copy of the October 20, 2014 OWCP decision with attached appeal
rights.
On March 2, 2018 appellant requested reconsideration. She explained that, since her injury
on July 1, 2014, she had worked full duty, 10 to 12 hours a day, since and before April 1991.
Appellant asserted that all of her duties consisted of her doing repetitive movement on a daily basis
for almost 28 years. She resubmitted Dr. Shade’s October 16 and November 17, 2017 and
February 5, 2018 reports.
By decision dated March 16, 2018, OWCP denied appellant’s reconsideration request as it
was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.2 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.3 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.4
Timeliness is determined by the document receipt date of the request for reconsideration as is
indicated by the “received date” in the integrated Federal Employees’ Compensation System
(iFECS).5 OWCP will consider an untimely request for reconsideration only if the request
demonstrates clear evidence of error on the part of OWCP in its most recent decision.6 The request
must establish on its face that such decision was erroneous.7 Where a request is untimely and fails
to demonstrate clear evidence of error, OWCP will deny the request for reconsideration without
reopening the case for a review of the merits.8
OWCP, however, may not deny an application for reconsideration solely because the
application was untimely filed. It may consider an untimely application for reconsideration if the
evidence or argument contained in the reconsideration request demonstrates clear evidence of error
on the part of OWCP.9 In this regard, OWCP will conduct a limited review of how the newly

2

This section provides in pertinent part: the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.607.

4

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
5

Id. at Chapter 2.1602.4(b).

6

20 C.F.R. § 10.607(b).

7

Id.

8

Id. at § 10.608(b).

9

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

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submitted evidence bears on the prior evidence of record.10 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error.11
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest
on its face that OWCP committed an error.12 It is not enough merely to show that the evidence
could be construed so as to produce a contrary conclusion.13 The evidence submitted must not
only be of sufficient probative value to create a conflict in medical opinion or demonstrate a clear
procedural error, but must be of sufficient probative value to shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.14
The Board has held that even a report such as a detailed, well-rationalized medical report which,
if submitted before the denial was issued, would have created a conflict in medical evidence
requiring further development is insufficient to demonstrate clear evidence of error.15 OWCP
procedures further provide that the term clear evidence of error is intended to represent a difficult
standard.16 If clear evidence of error has not been presented, OWCP should deny the application
by letter decision, which includes a brief evaluation of the evidence submitted and a finding made
that clear evidence of error has not been shown.17
The Board makes an independent determination of whether a claimant has demonstrated
clear evidence of error on the part of OWCP such that it abused its discretion in denying merit
review in the face of such evidence.18
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
OWCP regulations establish a one-year time limit for requesting reconsideration, which
begins on the date of the original merit decision. The most recent merit decision was OWCP’s
October 20, 2014 decision, which denied appellant’s occupational disease claim. OWCP received
her request for reconsideration on March 2, 2018, which was outside the one-year time limit.
10

See id.; Nelson T. Thompson, 43 ECAB 919 (1992).

11

Jimmy L. Day, 48 ECAB 652 (1997).

12

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997).

13

See Leona N. Travis, 43 ECAB 227, 240 (1991).

14

Annie L. Billingsley, 50 ECAB 210 (1998).

15

A.R., Docket No. 15-1598 (issued December 7, 2015).

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.5a (October 2011).

17

Id.

18

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765, 770 (1993).

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Consequently, appellant must demonstrate clear evidence of error by OWCP in denying her claim
for compensation.19
The Board finds that the evidence submitted by appellant in support of her request for
reconsideration does not raise a substantial question as to the correctness of OWCP’s October 20,
2014 merit decision or shift the weight of the evidence of record in her favor.
In support of her reconsideration request, appellant submitted medical reports by Dr. Shade
dated November 7, 2014 to February 5, 2018 regarding her treatment for diagnosed bilateral CTS,
tenosynovitis of the bilateral thumbs, left cubital tunnel syndrome, left elbow mild bursitis,
chondromalacia of left knee patella, and left knee osteoarthritis. Dr. Shade noted that appellant
worked as an automation clerk and described his employment duties. He reiterated his previous
opinion that appellant’s injuries were causally related to the repetitive duties of her employment.
These medical reports, however, are repetitive and substantially similar to Dr. Shade’s July 17,
2014 report, previously of record, and does not show error with respect to the October 20, 2014
decision.20 The Board has held that repetitive or cumulative evidence is insufficient to shift the
weight of the evidence in favor of the claimant.21
Appellant also submitted a statement explaining that she worked 10 to 12 hours a day since
April 1991 and that her job required repetitive movement on a daily basis. The new evidence does
not show error with respect to OWCP’s October 20, 2014 merit decision, which found that the
evidence submitted was insufficient to establish fact of injury. Appellant has not explained how
the submission of this evidence raises a substantial question concerning the correctness of OWCP’s
decision. Her claim was denied because she failed to establish her employment factors. Therefore,
this evidence does not, on its face, show that OWCP erred when it denied her occupational disease
claim.22
The Board finds that the evidence appellant submitted on reconsideration is insufficient to
shift the weight of the evidence in favor of her claim or raise a substantial question that OWCP
erred in its October 20, 2014 decision. Thus, OWCP properly denied her request for
reconsideration because it was untimely filed and failed to demonstrate clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

19

Supra note 6.

20

See L.M., Docket No. 14-1738 (issued March 2015).

21

See D.E., 59 ECAB 438 (2008); see also A.F., Docket No. 11-1297 (issued December 20, 2011).

22

See J.E., Docket No. 15-0131 (issued September 9, 2015).

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ORDER
IT IS HEREBY ORDERED THAT the March 16, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 11, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees' Compensation Appeals Board

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

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

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

Docket No. 11-1955
Issued: April 17, 2012

Case Submitted on the Record

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

JURISDICTION
On August 25, 2011 appellant, through her attorney, filed a timely appeal from the
June 28, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
concerning a schedule award. 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 has more than a 59 percent permanent impairment of her
left leg, for which she received schedule awards.
FACTUAL HISTORY
OWCP accepted that on December 24, 2001 appellant, then a 54-year-old rural carrier,
sustained multiple left leg injuries when she slipped on a porch and twisted her left knee. OWCP
accepted that she sustained a left knee sprain, left knee medial meniscus tear, left knee
1

5 U.S.C. §§ 8101-8193.

osteochondral effect, aggravation of patellofemoral arthritis of the left knee, permanent
aggravation of osteoarthritis of the left medial compartment and a consequential closed spiral
fracture of the left distal femur. It authorized several left knee surgeries between 2002 and 2009,
including a partial medial meniscectomy and two total left knee replacements.
In a September 9, 2008 decision, OWCP granted appellant a schedule award for a 50
percent permanent impairment of her left leg.
Appellant claimed entitlement to a greater amount of schedule award compensation and
submitted October 28 and November 3, 2010 reports in which Dr. Vincent Kiesel, an attending
Board-certified orthopedic surgeon, indicated that she had a 100 percent impairment of her right
leg. Dr. Kiesel referenced Table 13-12 (Station and Gait Disorders) on page 336 of the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(6th ed. 2009) as well as Table 16-10 (Impairment Values Calculated From Lower Extremity
Impairment) on page 530.
On November 5, 2010 Dr. James W. Dyer, a Board-certified orthopedic surgeon serving
as an OWCP medical adviser, reviewed the reports of Dr. Kiesel and provided an opinion that
appellant had a 59 percent permanent impairment of her left leg. He discussed appellant’s
medical history and stated:
“The claimant now walks with a limp and permanent cane and has 12 degrees
valgus deformity. The [attending physician] assigned a [schedule award] of 100
percent [left lower extremity (LLE)] but did not use the A.M.A., Guides [sixth
edition] correctly and used the wrong table to determine [whole person
impairment] that was converted to impairment LLE in the amount of 100 percent
[permanent impairment] LLE.
“Based on the correct use of the A.M.A., Guides [sixth edition], the impairment
LLE equals 59 percent minus 50 percent (already paid) equals 9 percent
additional impairment LLE.”
In a December 22, 2010 decision, appellant was granted an additional schedule award for
a nine percent permanent impairment of her left leg.
Appellant requested a telephone hearing before an OWCP hearing representative. During
the April 20, 2011 hearing, her counsel argued that Dr. Dyer did not adequately explain the basis
for his impairment rating or the reason why Dr. Kiesel’s impairment rating was improper.
In a June 28, 2011 decision, OWCP’s hearing representative affirmed OWCP’s
December 22, 2010 decision.

2

LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 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.4 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.5
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.6
ANALYSIS
In the present case, OWCP accepted that appellant sustained several work-related
conditions relating to her left knee and leg. It authorized several left knee surgeries between
2002 and 2009, including a partial medial meniscectomy and two total left knee replacements.
Appellant received schedule awards compensating her for a total left leg impairment of
59 percent. She claimed that she was entitled to a greater amount of schedule award
compensation but OWCP denied her claim for an increased award. In support of her claim,
appellant submitted a November 3, 2010 report in which Dr. Kiesel, an attending Board-certified
orthopedic surgeon, indicated that she had a 100 percent impairment of her right leg.
OWCP based its schedule award determination on the November 5, 2010 report of
Dr. Dyer, a Board-certified orthopedic surgeon serving as an OWCP medical adviser. The Board
finds, however, that Dr. Dyer did not adequately explain the basis for his impairment rating or
the reason why Dr. Kiesel’s impairment rating was improper. Dr. Dyer acknowledged that
appellant walked with a limp and permanent cane and had a valgus deformity, but he did not
adequately explain why it was inappropriate for Dr. Kiesel to apply Table 13-12 (Station and
Gait Disorders) on page 336 of the sixth edition of the A.M.A., Guides. Dr. Dyer did not clearly
explain why he felt that she only had a 59 percent impairment of her left leg.

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

4

Id.

5

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

6

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

3

For these reasons, the case shall be remanded to OWCP for further development of the
medical evidence regarding the extent of appellant’s left leg impairment. After such
development it deems necessary, OWCP shall issue an appropriate decision regarding this
matter.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
has more than a 59 percent permanent impairment of her left leg, for which she received
schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the June 28, 2011 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: April 17, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Macon, GA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-931
Issued: November 9, 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 March 2, 2011 appellant, through his representative, filed a timely appeal from the
February 24, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which increased his schedule award. Pursuant to the Federal Employees’ Compensation
Act (FECA)1 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 seven percent impairment of his left leg,
for which he received a schedule award.
FACTUAL HISTORY
On June 5, 2007 appellant, then a 31-year-old letter carrier, filed an occupational disease
claim for compensation alleging that he had increasing left knee pain for over a year and that the
1

5 U.S.C. § 8101 et seq.

swelling and pain would worsen after walking his route. OWCP accepted his claim for internal
derangement, chondromalacia and tendinitis of the left knee. Appellant received a schedule
award for a two percent impairment of his left lower extremity.
In the prior appeal,2 the Board found that further development of the medical evidence
was warranted. Appellant’s orthopedic surgeon, Dr. Norman M. Heyman, had rated a 29 percent
impairment of his left leg, but improperly combined impairments from four diagnoses. An
OWCP medical adviser noted that the selection of the most applicable single diagnosis required
medical judgment. Dr. Alexander Doman, an orthopedic surgeon and OWCP referral physician,
based his two percent rating on the diagnosis of partial medial meniscectomy, but he did not
explain why he chose that diagnosis over the others. The Board set aside appellant’s schedule
award and remanded the case for a supplemental report from Dr. Doman.
Unable to obtain clarification from Dr. Doman, OWCP referred appellant, together with
the medical record and a statement of accepted facts, to Dr. Harold H. Alexander, a Boardcertified orthopedic surgeon, for a second opinion. On January 26, 2011 Dr. Alexander related
that appellant sustained a traumatic left knee injury on January 30, 2005 when, walking
downhill, he twisted his left knee on a wet surface, his right leg slipped, and he hit the ground
with hyperflexed left knee. He noted that appellant subsequently had pain and swelling that
worsened after walking his route. A magnetic resonance imaging (MRI) scan in May 2006
showed mild degenerative changes in the posterior horn of the medial meniscus but no definite
tear. There was some mild tendinosis of the patellar tendon, otherwise the study was intact. Xrays over a year old, were reported normal. Arthroscopic surgery in February 2007 showed a
tear of the medial meniscus, chondromalacia patella and an osteochondral injury to the articular
surface and anterior aspect of the tibia. A second surgery in May 2008 showed degenerative
changes with osteochondral injury in the anteromedial aspect of the tibia with chondromalacia
patella and a meniscal tear. Appellant switched to a sedentary job. Walking and using the stairs
caused pain and swelling. Appellant complained of a constant dull ache.
Dr. Alexander described his findings on physical examination. An x-ray showed no
significant abnormalities. Dr. Alexander rated appellant’s impairment on the diagnosis of tibial
plateau fracture “because of the osteochondral injury or fracture that he had, which presumably
occurred at the time of his fall.” Appellant stated that the fracture fell into the class 1 category
with a default impairment value of 10 percent, but mild functional history and physical findings,
together with normal clinical studies, modified the default impairment value to 7 percent. An
OWCP medical adviser agreed.
On February 24, 2011 OWCP issued a schedule award for an additional five percent
impairment of the left lower extremity (seven percent total). It found that the weight of the
medical evidence rested with Dr. Alexander’s referee medical opinion. The decision stated,
“This second opinion medical evaluation is deemed an independent medical evaluation or referee
for these purposes.”
On appeal, appellant’s representative argues that Dr. Alexander was a second-opinion
examiner and not a referee examiner. He asks that the Board modify OWCP’s decision to reflect
2

Docket No. 10-908 (issued November 18, 2010).

2

the rating given by Dr. Heyman or direct OWCP to resolve the conflict between those
physicians.
LEGAL PRECEDENT
Section 8107 of FECA authorizes the payment of schedule awards for the loss or loss of
use of specified members, organs or functions of the body.3 Such loss or loss of use is known as
permanent impairment. OWCP evaluates the degree of permanent impairment according to the
standards set forth in the specified edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment.4
ANALYSIS
Diagnosis-based impairment is the primary method of evaluation for the lower extremity.
Once the impairment class has been determined based on the diagnosis, the grade is initially
assigned the default value, which may then be modified slightly based on such nonkey factors as
functional history and physical examination. This process is repeated for each separate
diagnosis. In most cases, only one diagnosis in a region, such as the knee, will be appropriate. If
a patient has two significant diagnoses, the examiner should use the diagnosis with the highest
impairment rating in that region that is causally related.5
The first step in determining an impairment rating is to choose the diagnosis that is most
applicable for the region being assessed. Reliability of the diagnosis is essential and the
diagnosis should be consistent with the clinical history and findings at the time of the impairment
assessment. Selecting the optimal diagnosis requires judgment and experience. If more than one
diagnosis in a region can be used, the one that provides the most clinically accurate and causally
related impairment rating should be used. This will generally be the more specific diagnosis.
Typically, one diagnosis will adequately characterize the impairment and its impact on activities
of daily living.6
In the event that a specific diagnosis is not listed in the impairment grid, the examiner
should identify a similar listed condition to be used as a guide to the impairment calculation.
The rationale for this decision should be described.7
OWCP accepted appellant’s occupational injury claim for internal derangement,
chondromalacia and tendinitis of the left knee caused by walking his route. Dr. Heyman,
appellant’s orthopedic surgeon, did not choose the most applicable diagnosis. Instead, he
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404. As of May 1, 2009, any decision regarding a schedule award must be based on the sixth
edition. Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6.a (January 2010).
5

A.M.A., Guides 497 (6th ed. 2009).

6

Id. at 499.

7

Id.

3

combined the impairments of several diagnoses. OWCP’s medical adviser correctly noted that
this was inconsistent with the methodology of the A.M.A., Guides and that the selection of the
most applicable single diagnosis required medical judgment. Dr. Doman, the second-opinion
orthopedic surgeon, selected the diagnosis of partial medial meniscectomy, but he did not
explain why that diagnosis was most applicable for rating appellant’s impairment.
Dr. Alexander, the most recent second-opinion orthopedic surgeon, made the same error.
He based appellant’s impairment rating on a diagnosis of tibial plateau fracture, but he offered no
rationale for selecting that diagnosis over other internal derangements as the best reflection of
appellant’s impairment. For that reason alone, further development of the medical evidence is
once again warranted.
There are other problems with Dr. Alexander’s report. Dr. Alexander related a history of
traumatic injury occurring on January 30, 2005. OWCP did not accept such an injury. When
appellant filed his claim for workers’ compensation and explained the employment factors that
he believed were responsible for his left knee condition, he made no mention of twisting his knee
or slipping and falling on a hyperflexed knee on January 30, 2005. Dr. Alexander’s history of
injury, therefore, is not supported by the record or consistent with the statement of accepted
facts.
When he rated appellant’s impairment, Dr. Alexander stated that it fit into the tibial
plateau fracture diagnosis “because of the osteochondral injury or fracture that he had, which
presumably occurred at the time of his fall.” There was no fall, at least OWCP accepted no fall
as factual and causally related to appellant’s federal employment. Dr. Alexander did not explain
what findings supported a diagnosis of tibial plateau fracture, or why the osteochondral lesion
described during appellant’s surgeries was physically or symptomatically more similar to a
fractured bone than to the cartilage defects found under “primary knee joint arthritis” on page
511 of the A.M.A., Guides, or how he determined the angulation of the displacement to be
something less than nine degrees when x-rays were normal.
The Board finds that medical evidence remains insufficient to establish the impairment of
appellant’s left lower extremity. The Board will set aside OWCP’s February 24, 2011 decision
and remand the case for a supplemental report from Dr. Alexander, one that accurately reflects
the accepted history of injury and the accepted medical conditions,8 one that provides medical
rationale for selecting the one accepted diagnosis that most accurately reflects appellant’s lower
extremity impairment, and one that explains how he used Table 16-3 of the A.M.A., Guides to
determine that impairment. After such further development of the evidence as might become
necessary, OWCP shall issue an appropriate final decision on appellant’s entitlement to a
schedule award.
Appellant’s representative correctly observes that Dr. Alexander was a second-opinion
examiner, not an impartial medical specialist or referee examiner under section 8123(a) of
FECA. There was no true conflict between Dr. Heyman and Dr. Doman because neither
8

The accepted condition of internal derangement is nonspecific. If OWCP accepts that appellant’s partial medial
and lateral meniscectomies and osteochondral lesion were causally related to the physical demands of his letter
carrier position, it should clarify its acceptance in the statement of accepted facts.

4

physician offered a probative assessment of impairment under the A.M.A., Guides. The matter
currently rests with Dr. Alexander, who must provide rationale for his selection of the most
applicable accepted diagnosis and for his determination of impairment under the A.M.A.,
Guides.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of the
medical evidence is warranted.
ORDER
IT IS HEREBY ORDERED THAT the February 24, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: November 9, 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
__________________________________________
S.R., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
INSTALLATIONS COMMAND, Norfolk, VA,
Employer
__________________________________________

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

Docket No. 10-523
Issued: September 21, 2010

Case Submitted on the Record

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

JURISDICTION
On December 14, 2009 appellant filed a timely appeal from the November 12, 2009 merit
decision of the Office of Workers’ Compensation Programs terminating his compensation
benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation effective
October 29, 2008 on the grounds that he refused an offer of suitable work.

FACTUAL HISTORY
The Office accepted that on September 21, 2004 appellant, then a 40-year-old police
officer, sustained a left knee contusion when he jumped over a concrete barricade to chase a
suspect.1 Appellant received compensation for periods of disability.
In June 2005 appellant underwent left ACL repair surgery. On September 13, 2005
Dr. Daniel R. Cavazos, an attending Board-certified orthopedic surgeon, advised that appellant
was totally disabled from all work. He noted that appellant needed to aggressively exercise his
hamstring muscles in order to strengthen them.
In 2007 the Office referred appellant to Dr. Alexander L. Lambert, II, a Board-certified
orthopedic surgeon, for evaluation of his ability to work. In a July 5, 2007 report, Dr. Lambert
diagnosed left knee persistent ACL instability, left knee chondromalacia and left knee pain. He
found that appellant could not return to his regular work as a police officer or a job that required
any type of running, jumping, crawling, squatting or performing medium-to-heavy labor.
However, appellant could perform limited-duty work for eight hours a day. On a July 5, 2007
work restriction form, Dr. Lambert advised that appellant could perform the following actions
for up to one hour at a time: walking, standing, bending, stooping, pushing up to 40 pounds,
pulling up to 30 pounds and lifting up to 25 pounds. He could not engage in kneeling, climbing,
running, jumping, crawling, squatting or medium-to-heavy labor.2
On May 9, 2008 the employing establishment offered appellant a modified job as a
security clerk on a full-time basis. The job involved providing customer service with respect to
the issuance of vehicle decals and required the performance of the following actions for up to
one hour at a time: walking, standing, bending, stooping, pushing up to 40 pounds, pulling up to
30 pounds and lifting up to 25 pounds. It did not require squatting, kneeling or climbing.
On May 28, 2008 appellant spoke to the Office rehabilitation counselor and advised that
he did not wish to accept the offered position because it involved taking a pay cut from his police
officer job. His counselor notified him that the offered position was vocationally suitable and
that taking the position would not require a pay cut.
In an August 6, 2008 letter, the Office advised appellant of its determination that the
security clerk position offered by the employing establishment was suitable. It informed him
that his compensation would be terminated if he did not accept the position or provide good
cause for not doing so within 30 days of the date of the letter.3
In a September 11, 2008 letter, appellant stated, “This is written notification of my desire
to terminate workers comp and commence my retirement effective immediately.”
1

Appellant underwent three surgeries on his left anterior cruciate ligament (ACL) in the late 1980s and early
1990s.
2

Dr. Cavazos was asked to provide an opinion on appellant’s ability to work but it does not appear that such a
report was obtained.
3

On June 24, 2008 the employing establishment confirmed that the position was still available.

2

In a September 23, 2008 letter, the Office advised appellant that his reasons for not
accepting the security clerk position were unjustified. It notified him that his compensation
would be terminated if he did not accept the position within 15 days of the date of the letter.
Appellant did not accept the security clerk position offered by the employing establishment.
In an October 29, 2008 decision, the Office terminated appellant’s monetary
compensation effective October 29, 2008 on the grounds that he refused an offer of suitable
work.
In a May 15, 2009 letter, counsel requested reconsideration arguing that the Office did
not follow the standards for termination based on refusal of suitable work.4
In a November 12, 2009 decision, the Office affirmed the October 29, 2008 decision. It
noted that appellant’s concern about taking a pay cut to accept the offered security clerk position
and his pursuit of disability retirement benefits from OPM were not valid reasons for failing to
accept the position.
LEGAL PRECEDENT
Section 8106(c)(2) of the Federal Employees’ Compensation Act provides in pertinent
part, “A partially disabled employee who ... (2) refuses or neglects to work after suitable work is
offered ... is not entitled to compensation.”5 However, to justify such termination, the Office
must show that the work offered was suitable.6 An employee who refuses or neglects to work
after suitable work has been offered to him has the burden of showing that such refusal to work
was justified.7
ANALYSIS
The Office accepted that on September 21, 2004 appellant, then a 40-year-old police
officer, sustained a left knee contusion when he jumped over a concrete barricade to chase a
suspect. Appellant received compensation from the Office for periods of disability. It
terminated his monetary compensation effective October 29, 2008 on the grounds that he refused
an offer of suitable work.
The evidence of record established that appellant was capable of performing the security
clerk position offered by the employing establishment in May 2008 and determined by the
Office to be suitable. The job involved providing customer service with respect to the issuance
of vehicle decals and allowed for the following actions for up to one hour at a time: walking,
standing, bending, stooping, pushing up to 40 pounds, pulling up to 30 pounds and lifting up to
4

Appellant submitted a document electing a disability retirement effective October 31, 2008 as well as other
materials relating to his transfer from the Act to Office of Personnel Management (OPM) benefits.
5

5 U.S.C. § 8106(c)(2).

6

David P. Camacho, 40 ECAB 267, 275 (1988); Harry B. Topping, Jr., 33 ECAB 341, 345 (1981).

7

20 C.F.R. § 10.124; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

3

25 pounds. It did not require squatting, kneeling or climbing. The record does not reveal that
the security clerk position was temporary or seasonal in nature.8
In determining that appellant was physically capable of performing the security clerk
position, the Office properly relied on the July 5, 2007 opinion of Dr. Lambert, a Board-certified
orthopedic surgeon who served as an Office referral physician.9 Dr. Lambert stated that
appellant could perform the following actions for up to one hour at a time: walking, standing,
bending, stooping, pushing up to 40 pounds, pulling up to 30 pounds and lifting up to 25 pounds.
He could not engage in kneeling, climbing, running, jumping, crawling, squatting, or medium-toheavy labor. The Board notes that the duties of the security clerk position are within the work
restrictions provided by Dr. Lambert. There is no medical evidence to establish that appellant
could not physically perform the position. Moreover, the vocational rehabilitation counselor
approved the position and noted that appellant had previously worked as a police officer, a much
more complex job involving security.
The Board finds that the Office has established that the security clerk position offered by
the employing establishment is suitable. As noted, once the Office has established that a
particular position is suitable, an employee who refuses or neglects to work after suitable work
has been offered to him has the burden of showing that such refusal to work was justified. In
rejecting the offered position, appellant raised issues relating to possible loss of pay and his
election to receive disability retirement, but he did not explain how these matters supported his
rejection of the offered position.10 The Board has carefully reviewed the evidence and argument
submitted by appellant in support of his refusal of the security clerk position and finds that it is
not sufficient to justify his refusal of the position.
For these reasons, the Office properly terminated appellant’s compensation effective
October 29, 2008 on the grounds that he refused an offer of suitable work.11
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
October 29, 2008 on the grounds that he refused an offer of suitable work.

8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4b (July 1997).
9

It was appropriate to refer appellant to Dr. Lambert as the Office was unable to obtain a current report from
appellant’s attending orthopedic surgeon.
10

The Board notes that the record reflects that appellant would not have taken a pay cut by accepting the security
clerk position.
11

The Board finds that the Office complied with its procedural requirements prior to terminating appellant’s
compensation, including providing appellant with an opportunity to accept the security clerk position after informing
him that his reasons for initially refusing the position were not valid; see generally Maggie L. Moore, 42 ECAB 484
(1991), reaff’d on recon., 43 ECAB 818 (1992).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 12, 2009 is affirmed.
Issued: September 21, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

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

Docket No. 10-1977
Issued: June 14, 2011

Case Submitted on the Record

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

JURISDICTION
On July 27, 2010 appellant filed a timely appeal from March 11 and July 2, 2010
decisions of the Office of Workers’ Compensation Programs denying continuation of pay.
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.
ISSUES
The issues are: (1) whether appellant is entitled to continuation of pay from October 10
to November 9, 2007 for an accepted traumatic injury; and (2) whether the Office properly
denied his request for reconsideration.
On appeal, appellant contends that the Office wrongly discounted the opinion of an
emergency room physician and an attending chiropractor regarding the period of claimed
disability.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The Office accepted that on September 25, 2007 appellant, then a 32-year-old letter
carrier, sustained cervical and lumbar strains in a work-related motor vehicle accident.2
Appellant claimed continuation of pay for continuous work absence from October 10 to
November 9, 2007.
Immediately after the accident, appellant was transported to a hospital emergency
department for treatment. Dr. David L. Sincavage, an attending physician Board-certified in
emergency medicine, diagnosed back pain and held appellant off work from September 25 to
30, 2007. Dr. Michael L. Puckett, a Board-certified radiologist, opined that x-rays taken at the
hospital on September 25, 2007 showed normal contour and alignment of the cervical and
lumbar spine.
Dr. Lynn A. Liston Owens, an attending chiropractor, who first treated appellant on
September 28, 2007, held appellant off work from September 25 to November 24, 2007. She
provided chiropractic manual manipulation three times a week. In October 12 and 15, 2007 form
reports, Dr. Owens diagnosed a cervical and lumbar sprain/strain due to the September 25, 2007
motor vehicle accident. In a November 26, 2007 attending physician’s report, she diagnosed
“[c]ervical [and] lumbar subluxation on x-ray taken [September 25, 2007].” Dr. Owens released
appellant to full duty as of February 1, 2008. Appellant returned to light duty in early 2008, then
to full duty in July 2008.
In a June 10, 2008 report, Dr. Thomas J. Sabourin, a Board-certified orthopedic surgeon
and second opinion physician, provided a history of injury and treatment. He related appellant’s
symptoms of neck pain with paresthesias into the right arm, lumbar pain and spasm. On
examination, Dr. Sabourin observed tenderness to palpation in the right trapezius. He obtained
x-rays showing mild facet changes at L5-S1 and C5-6 but otherwise within normal limits.
Dr. Sabourin diagnosed cervical and lumbar spine strains. He found appellant able to work eight
hours a day with restrictions.
Dr. Edward A. Venn-Watson, attending Board-certified orthopedic surgeon, submitted
reports from July 16 to August 1, 2008 diagnosing a hyperflexion injury of the cervical and
lumbar spine due to the September 25, 2007 car accident. He noted work restrictions.
By decision dated August 8, 2008 and reissued August 12, 2008, the Office denied
continuation of pay from October 10 to November 9, 2007 on the grounds that the medical
evidence did not establish total disability for the claimed period. It found that Dr. Owens was
not a physician for the purposes of appellant’s case as she did not diagnose a spinal subluxation
from her own x-rays.

2

The Office had denied the claim by November 16, 2007 and March 21, 2008 decisions on the grounds that fact
of injury was not established due to a lack of medical evidence. Following additional development, it accepted the
claim on July 2, 2008.

2

In a November 8, 2008 letter, appellant requested reconsideration. He submitted reports
from Dr. Venn-Watson dated from August 20 to November 19, 2008 addressing his condition for
that period.
By decision dated February 11, 2009 and reissued February 26, 2009, the Office denied
modification on the grounds that the evidence submitted was insufficient to establish the claimed
period of total disability.
In December 19 and 30, 2009 letters, appellant requested reconsideration. He submitted
new reports from Dr. Venn-Watson. In a July 22, 2009 report, Dr. Venn-Watson related
appellant’s account of a flare-up of lumbar symptoms. In a December 9, 2009 report, he stated
that appellant “would have been temporarily totally disabled from working from [September 25]
to November 9, 2007 based on Dr. Owens’ reports.”
By decision dated March 11, 2010, the Office denied modification on the grounds that the
new evidence submitted did not support that appellant was totally disabled for work from
October 10 to November 9, 2007 due to the accepted cervical and lumbar strains. It found that
Dr. Venn-Watson merely expressed agreement with Dr. Owens, who was not a physician for the
purposes of the case.
In a May 25, 2010 letter, appellant requested reconsideration. He asserted that Dr. VennWatson’s December 9, 2009 report was sufficient to establish that he was disabled from work
from October 10 to November 9, 2007. Appellant also submitted an unsigned duty status report
Form CA-17 dated April 8, 2010.
By decision dated July 2, 2010, the Office denied reconsideration, finding that the
evidence submitted in support of the May 25, 2010 request for reconsideration was irrelevant to
the medical issue in the case.
LEGAL PRECEDENT -- ISSUE 1
The Act authorizes continuation of pay for an employee who has filed a valid claim for a
traumatic injury.3 Continuation of pay requires the employing establishment to continue the
employee’s regular pay during any periods of disability, up to a maximum of 45-calendar days.
This is paid by the employing establishment, not the Office. However, the ultimate decision as
to whether appellant is eligible for continuation of pay rests with the Office.4
Continuation of pay is payable only for time lost from work due to an initial traumatic
injury.5 To be eligible for continuation of pay, an employee must: “(1) have a traumatic injury
which is job related and the cause of the disability, and/or the cause of lost time due to the need
for medical examination and treatment; (2) file Form CA-1 within 30 days of the date of the
injury; and (3) begin losing time from work due to the traumatic injury within 45 days of the
3

5 U.S.C. § 8118(a).

4

20 C.F.R. § 10.200.

5

Id. at § 10.205(a)(3). See also Carol A. Lyles, 57 ECAB 265 (2005).

3

injury.”6 Whether a particular injury caused an employee disability from employment is a
medical issue, which must be resolved by competent medical evidence.7
Services rendered by chiropractors are generally not reimbursable by the Office except
“to the extent that their reimbursable services are limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist….”8 A
chiropractor may interpret his or her own x-rays to the same extent as any other physician.9
However, a chiropractor may not interpret the x-rays of other physicians where the x-ray was not
obtained for or performed on behalf of the chiropractor.10 To be given any weight, the medical
report must state that x-rays support the finding of a spinal subluxation.11 The Office’s
regulations further provide: “A chiropractor may also provide services in the nature of physical
therapy under the direction of a qualified physician.”12
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained cervical and lumbar sprains in a
September 25, 2007 motor vehicle accident. Appellant thus established a traumatic injury. He
was off work through November 9, 2007, the end of the 45-day period commencing
September 26, 2007. Appellant must then submit sufficient medical evidence to establish that he
was disabled for work for the claimed period due to the accepted traumatic injury.13
In support of his claim for continuation of pay from October 10 to November 9, 2007,
appellant submitted reports from Dr. Owens, an attending chiropractor. To qualify as a
physician under the Act, Dr. Owens must diagnose a spinal subluxation by x-rays she took or
ordered.14 Instead, she diagnosed spinal subluxations by hospital x-rays taken on September 25,
2007, three days before she began treating appellant on September 28, 2007. Therefore,
Dr. Owens does not qualify as a physician for the purposes of this case and her opinion carries
no medical weight.15

6

Id. at § 10.205(a)(1-3). See also J.M., Docket No. 09-1563 (issued February 26, 2010).

7

Carol A. Lyles, supra note 5.

8

See 5 U.S.C. § 8101(2).

9

Sean O’Connell, 56 ECAB 195 (2004).

10

Id.; Constance J. Perez, Docket No. 04-1182 (issued March 4, 2005); Brenda J. Core, Docket No. 04-1741
(issued February 9, 2005).
11

20 C.F.R. § 10.311(c). See also George E. Williams, 44 ECAB 530 (1993).

12

Id. at § 10.311(d).

13

Carol A. Lyles, supra note 5.

14

Supra note 10.

15

George E. Williams, supra note 11.

4

Appellant also submitted a December 9, 2009 report from Dr. Venn-Watson, an attending
Board-certified orthopedic surgeon, agreeing with Dr. Owens that appellant was totally disabled
for work from September 25 to November 9, 2007. However, Dr. Venn-Watson did not support
this opinion with any medical evidence or reasoning. The Board notes that he did not begin
treating appellant until July 16, 2008, after the claimed period of October 10 to
November 9, 2007. Therefore, Dr. Venn-Watson’s opinion is insufficient to establish total
disability for the claimed period.16
As appellant did not submit sufficient medical evidence to establish the claimed period of
total disability, the Office properly denied his claim for continuation of pay.
On appeal, counsel contends that the Office wrongly discounted the opinion of an
emergency room physician and an attending chiropractor regarding the period of claimed
disability. As stated, Dr. Owens is not a physician for the purposes of this case. Dr. Sincavage,
the physician who treated appellant in the emergency room, did not opine that appellant was
disabled for work after September 30, 2007.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that a
claimant must: (1) show that the Office erroneously applied or interpreted a specific point of
law; (2) advance a relevant legal argument not previously considered by the Office; or
(3) constitute relevant and pertinent new evidence not previously considered by the Office.18
Section 10.608(b) provides that when an application for review of the merits of a claim does not
meet at least one of the three requirements enumerated under section 10.606(b)(2), the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.19
17

In support of a request for reconsideration, a claimant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.20 He or she need only
submit relevant, pertinent evidence not previously considered by the Office.21 When reviewing
an Office decision denying a merit review, the function of the Board is to determine whether the
Office properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.22
16

Carol A. Lyles, supra note 5.

17

5 U.S.C. § 8128(a).

18

20 C.F.R. § 10.606(b)(2).

19

Id. at § 10.608(b). See also D.K., 59 ECAB 141 (2007).

20

Helen E. Tschantz, 39 ECAB 1382 (1988).

21

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

22

Annette Louise, 54 ECAB 783 (2003).

5

ANALYSIS -- ISSUE 2
The Office denied appellant’s claim for continuation of pay by merit decisions dated
August 12, 2008, February 26, 2009 and March 11, 2010. In a May 25, 2010 letter, appellant
requested reconsideration of the March 11, 2010 decision.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring the Office to reopen the case for review of the merits of the
claim. In his May 25, 2010 application for reconsideration, appellant did not show that the
Office erroneously applied or interpreted a specific point of law. He did not identify a specific
point of law or show that it was erroneously applied or interpreted. Appellant did not advance a
new and relevant legal argument. His argument was that Dr. Venn-Watson’s December 9, 2009
report was sufficient to establish his claim for continuation of pay. As the Office explained in its
March 11, 2010 merit decision, Dr. Venn-Watson’s December 9, 2009 report was insufficient to
meet appellant’s burden of proof. The unsigned April 8, 2010 duty status report does not qualify
as medical evidence as its author cannot be identified.23 A claimant may be entitled to a merit
review by submitting new and relevant evidence, but appellant did not submit any new and
relevant medical evidence in this case.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that the Office erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by the
Office, or submit relevant and pertinent evidence not previously considered. Pursuant to 20
C.F.R. § 10.608, the Office properly denied merit review.
CONCLUSION
The Board finds that the Office properly denied appellant’s claim for continuation of pay.
The Board further finds that it did not abuse its discretion by denying appellant’s request for
reconsideration.

23

Vickey C. Randall, 51 ECAB 357 (2000); Merton J. Sills , 39 ECAB 572, 575 (1988).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 2 and March 11, 2010 are affirmed.
Issued: June 14, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Greenfield, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-879
Issued: September 9, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On March 7, 2014 appellant filed a timely appeal from a January 24, 2014 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 has more than two percent permanent impairment of each
upper extremity, for which he received schedule awards.
On appeal, appellant contends that he has five percent impairment of each upper
extremity as Dr. John A. Schneider, an attending Board-certified orthopedic surgeon, provided
sufficient reasoning for his rating. Dr. Schneider explained that appellant had dead nerves as a
result of his carpal tunnel syndrome that would never regenerate.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that appellant, then a 67-year-old letter carrier, sustained bilateral carpal
tunnel syndrome under OWCP File No. xxxxxx440 and right thumb A1 trigger finger under
OWCP File No. xxxxxx435 as a result of his repetitive work duties.2 Appellant underwent
authorized left carpal tunnel release on June 3, 2011, right carpal tunnel release on September 13,
2011 and right thumb trigger finger release on March 9, 2012 performed by Dr. Schneider. On
April 16, 2012 he filed a claim for a schedule award.
By letter dated April 23, 2012, OWCP advised appellant that the medical evidence was
insufficient to establish his schedule award claim. It requested that he submit a medical report
determining the extent of his impairment under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).
In a Wisconsin state form report dated May 7, 2012, Dr. Schneider advised that appellant
had five percent impairment of each hand due to his accepted employment-related severe
bilateral carpal tunnel syndrome. In a May 21, 2012 Wisconsin state form report, he stated that
appellant’s five percent impairment of each hand was based on the sixth edition of the A.M.A.,
Guides.
On November 25, 2012 Dr. Christopher Gross, an OWCP medical adviser, reviewed the
medical record. He noted appellant’s authorized surgeries and stated that no recent physical
examination findings were provided from March 21 to May 21, 2012. Dr. Gross stated that,
when these reports were provided, he would be happy to determine the extent of permanent
partial impairment and date of maximum medical improvement.
By letter dated December 4, 2012, OWCP requested that Dr. Schneider provide his
physical examination findings for the period noted by Dr. Gross.
Dr. Schneider submitted a copy of his May 21, 2012 Wisconsin state form report.
On February 11, 2013 Dr. Gross again reviewed the medical record and reiterated his
prior finding that he could not determine the extent of permanent impairment and date of
maximum medical improvement in the absence of recent physical examination findings from
March 21 to May 21, 2012.
By letter dated April 19, 2013, OWCP requested that appellant contact Dr. Schneider to
provide a report regarding the extent of his employment-related permanent impairment based on
the sixth edition of the A.M.A., Guides.
In a May 16, 2013 Wisconsin state form report, Dr. Schneider reiterated that appellant
had five percent impairment of each wrist. He advised that appellant had one percent
impairment of the right thumb based on the sixth edition of the A.M.A., Guides. In a narrative
report also dated May 16, 2013, Dr. Schneider found that physical examination of the bilateral
2

On June 11, 2012 OWCP doubled appellant’s claims under File Nos. xxxxxx440 and xxxxxx435 into a master
file assigned File No. xxxxxx440, as both claims involved right wrist/hand injuries and the same treating physician.

2

upper extremities revealed 2+ radial pulse with brisk capillary refill to the fingertips. There was
intact sensation including, two-point discrimination at five millimeters throughout the radial and
ulnar aspect of all fingers which were symmetrical bilaterally. Grip strength average was
94 pounds on the right and 79 pounds on the left. Pinch strength average was 21 pounds on the
right and 20 pounds on the left. There was full composite finger flexion and extension. There
was no triggering. The right thumb surgical incision at the Al pulley was well healed and
nontender. There was no hypersensitivity. The bilateral carpal tunnel surgical incisions were
well healed and nontender. There was no hypersensitivity or dysesthesias. Range of motion of
the wrist and forearm was full and nontender. Dr. Schneider assessed status post bilateral carpal
tunnel releases and right thumb Al pulley release. He concluded that appellant’s preoperative
carpal tunnel symptoms and right trigger thumb had resolved.
On July 21, 2013 Dr. Gross reviewed the medical record. He noted Dr. Schneider’s
finding that appellant had resolved preoperative carpal tunnel symptoms and right trigger thumb.
Dr. Gross determined that a resolution of triggering following surgery resulted in a class 0
diagnosis with zero percent permanent impairment. In contrast, he stated that Dr. Schneider
incorrectly assigned one percent impairment for this diagnosis. Dr. Gross stated that, on
examination, appellant had normal sensation with no mention of positive Phalen’s and Tinel’s
signs. No muscle atrophy was noted. Based on Table 15-23 on page 449 of the sixth edition of
the A.M.A., Guides,3 Dr. Gross determined that appellant had mild bilateral carpal tunnel
syndrome. He noted that appellant no longer had pain or numbness/tingling and therefore
assessed a grade modifier of zero. Dr. Gross stated that the base impairment did not need to be
adjusted, resulting in two percent impairment of each upper extremity. He concluded that
appellant reached maximum medical improvement on May 21, 2012, the date of Dr. Schneider’s
prior examination.
In an August 8, 2013 decision, OWCP granted appellant a schedule award for two
percent impairment of each upper extremity.
On September 3, 2013 appellant requested a review of the written record by an OWCP
hearing representative.
In a January 24, 2014 decision, an OWCP hearing representative affirmed the August 8,
2013 decision. He found that Dr. Gross’ July 21, 2013 report constituted the weight of the
medical opinion evidence.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing federal regulations5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
3

Table 15-23, page 449 of the sixth edition of the A.M.A., Guides is entitled Entrapment/Compression
Neuropathy Impairment.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

3

FECA, however, does not specify the manner by which the percentage loss of a member,
function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.6 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.7 Effective May 1, 2009,
FECA adopted the sixth edition of the A.M.A., Guides8 as the appropriate edition for all awards
issued after that date.9
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).10 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through the medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.12
ANALYSIS
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome and right thumb
A1 trigger finger and authorized his left carpal tunnel release performed on June 3, 2011, severe
right carpal tunnel release performed on September 13, 2011 and right thumb trigger finger
release performed on March 9, 2012 by Dr. Schneider. Appellant received a schedule award for
two percent impairment to each upper extremity. The Board finds that appellant failed to
establish greater permanent impairment to either upper extremity.
Appellant has failed to submit any evidence by a treating physician finding greater
impairment to the right and left upper extremities related to the accepted conditions.
Dr. Schneider’s May 16, 2013 Wisconsin state form report found that appellant had five percent
impairment of each wrist and one percent impairment of the right thumb due to the accepted
employment-related injuries under the sixth edition of the A.M.A., Guides. In a narrative report
also dated May 16, 2013, he indicated that the bilateral upper extremities had 2+ radial pulse
6

Ausbon N. Johnson, 50 ECAB 304 (1999).

7

20 C.F.R. § 10.404; Mark A. Holloway, 55 ECAB 321, 325 (2004).

8

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

9

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
10

A.M.A., Guides 494-531.

11

Id. at 521.

12

See C.K., Docket No. 09-2371 (issued August 18, 2010); see Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(d) (January 2010). Frantz Ghassan,
57 ECAB 349 (2006).

4

with brisk capillary refill to the fingertips. Dr. Schneider found intact sensation including,
two-point discrimination at five millimeters throughout the radial and ulnar aspect of all fingers
which were symmetrical bilaterally. He reported that grip strength average was 94 pounds on the
right and 79 pounds on the left. Dr. Schneider advised that pinch strength average was
21 pounds on the right and 20 pounds on the left. He found full composite finger flexion and
extension, no triggering or hypersensitivity and a well healed and nontender right thumb surgical
incision at the Al pulley. Dr. Schneider stated that the bilateral carpal tunnel surgical incisions
were also well healed and nontender with no hypersensitivity or dysesthesias. He further stated
that range of motion of the wrist and forearm was full and nontender. Dr. Schneider assessed
status post bilateral carpal tunnel releases and right thumb Al pulley release. He concluded that
appellant’s preoperative carpal tunnel symptoms and right trigger thumb had resolved.
Although Dr. Schneider found that appellant had five percent impairment of each upper
extremity and one percent impairment of the right thumb under the sixth edition of the A.M.A.,
Guides, this finding did not relate the physical findings nor did he cite to any of the tables or
figures of the A.M.A., Guides to support his rating of appellant’s impairment. As he did not
explain in his May 16, 2013 report how his impairment rating comported with the A.M.A.,
Guides, it is of limited probative value.13 Similarly, Dr. Schneider’s remaining reports which
found that appellant had five percent impairment of each hand based on the A.M.A., Guides, did
not explain the basis for his rating.
The file was then properly routed to Dr. Gross, the medical adviser, for an opinion
concerning the nature or percentage of permanent impairment in accordance with the A.M.A.,
Guides.14 On July 21, 2013 he utilized Dr. Schneider’s May 16, 2013 findings, referenced the
sixth edition of the A.M.A., Guides and found that appellant had two percent impairment to each
upper extremity and reached maximum medical improvement on May 21, 2013. Dr. Gross
determined that a resolution of triggering following surgery resulted in a class 0 diagnosis with
zero percent permanent impairment.15 He stated that, in contrast Dr. Schneider incorrectly
assigned a one percent impairment rating for this diagnosis. Dr. Gross explained that appellant
had normal sensation with no mention of positive Phalen’s and Tinel’s signs or muscle atrophy.
Utilizing Table 15-23 on page 449 of the A.M.A., Guides, he determined that appellant had mild
bilateral carpal tunnel syndrome. Dr. Gross assessed a grade modifier of zero as appellant no
longer had pain or numbness/tingling. He stated that there was no need to adjust the base
impairment, which resulted in a two percent bilateral upper extremity impairment.

13

I.F., Docket No. 08-2321 (issued May 21, 2009) (an opinion which is not based upon the standards adopted by
OWCP and approved by the Board as appropriate for evaluating schedule losses is of diminished probative value in
determining the extent of permanent impairment); Linda Beale, 57 ECAB 429 (2006) (when the attending physician
fails to provide an estimate of impairment conforming to the A.M.A., Guides, his or her opinion is of diminished
probative value in establishing the degree of permanent impairment); Tommy R. Martin, 56 ECAB 273 (2005)
(where the Board found that a physician’s impairment calculation not sufficiently supported by the A.M.A., Guides
is of diminished probative value).
14

See supra note 12.

15

A.M.A., Guides, Table 15-2, pages 392, Digit Regional Grid: Digit Impairments.

5

The Board finds that Dr. Gross’ July 21, 2013 report properly applied the May 16, 2013
findings of Dr. Schneider to the A.M.A., Guides and established that appellant had no more than
two percent permanent impairment of each upper extremity under the sixth edition of the
A.M.A., Guides.
On appeal, appellant contended that Dr. Schneider had explained that he had dead nerves
as a result of his carpal tunnel syndrome that would never regenerate. As stated, however,
Dr. Schneider’s reports are insufficient to establish entitlement to a greater amount of schedule
award compensation because he did not cite to any of the tables or figures of the A.M.A., Guides
to support his rating of appellant’s impairment.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has failed to establish that he has more than two percent
impairment of each upper extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the January 24, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 9, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6