United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Forest Park, IL, Employer
__________________________________________

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

Docket No. 09-1530
Issued: February 22, 2010

Case Submitted on the Record

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

JURISDICTION
On May 12, 2009 appellant filed a timely appeal from the March 4, 2009 merit decision
of the Office of Workers’ Compensation Programs, which denied an additional schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
the case.
ISSUE
The issue is whether appellant is entitled to an additional schedule award.
FACTUAL HISTORY
On April 13, 2000 appellant, then a 48-year-old clerk/keyer, sustained an injury in the
performance of duty while picking up heavy letter trays and nonmachinable or manually handled
mail. The Office accepted her claim for left shoulder strain and left shoulder impingement
syndrome. On July 9, 2004 appellant received a schedule award for a 25 percent impairment of

her left upper extremity. That impairment included a 12 percent impairment due to loss of
shoulder motion.1
Dr. Jacob Salomon, a surgeon, evaluated appellant on March 25, 2008. He reported 110
degrees abduction, 20 degrees adduction and 20 degrees external rotation. Dr. Salomon added a
three percent impairment for abduction to a 15 percent impairment for abduction (he meant
adduction) and a 1 percent impairment for external rotation, for a 19 percent total impairment of
the left upper extremity due to loss of shoulder motion.
An Office medical adviser reviewed Dr. Salomon’s findings and determined that the
measurements represented only five percent impairment due to loss of shoulder motion. He
noted that Dr. Salomon offered two percentages for abduction and did not document range of
motion in all planes. The Office therefore referred appellant, together with the medical record
and a statement of accepted facts, to Dr. David H. Trotter, a Board-certified orthopedic surgeon,
for a second-opinion evaluation.
On November 27, 2008 Dr. Trotter reported his findings on physical examination, which
included 140 degrees flexion, 130 degrees abduction, and 70 degrees external and internal
rotation. He noted discrepancies, however, in observed versus unobserved behaviors during the
evaluation, including inconsistencies in her apparent range of motions. Dr. Trotter stated that
appellant’s symptoms and examination findings, along with ancillary test results, did not support
that she had any evidence of active or recurrent or residual left shoulder strain, left shoulder
impingement syndrome, bilateral carpal tunnel syndrome or de Quervain’s tenosynovitis. He
concluded that appellant appeared to have no significant evidence of any abnormal impairment
or permanency.
The Office medical adviser reviewed Dr. Trotter’s findings and reported no evidence to
warrant an additional impairment rating.
In a decision dated March 4, 2009, the Office denied an additional schedule award.
On appeal, appellant argues that bone spurs were discovered in her left shoulder after
surgery, and that her doctor, Dr. Salomon, has found 10 percent impairment due to loss of
shoulder motion.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act2 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of

1

On May 17, 2007 appellant received a schedule award for an additional 11 percent impairment of her left upper
extremity due to carpal tunnel syndrome and de Quervain’s tenosynovitis under OWCP File No. xxxxxx502.
2

5 U.S.C. § 8107.

2

permanent impairment according to the standards set forth in the specified edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment.3
ANALYSIS
In his March 25, 2008 report, Dr. Salomon, appellant’s surgeon, reported 110 degrees
abduction, 20 degrees adduction and 20 degrees external rotation. These measurements
represent upper extremity impairments of three percent, one percent and one percent
respectively, or a total upper extremity impairment of five percent due to loss of motion.4 This is
substantially less than the 12 percent impairment for loss of motion found in appellant’s July 9,
2004 schedule award. So Dr. Salomon’s report fails to establish that appellant has any greater
impairment.5
Dr. Trotter, the orthopedic surgeon and second-opinion physician, reported 140 degrees
flexion, 130 degrees abduction, and 70 degrees external and internal rotation. These findings
represent upper extremity impairments of three percent, two percent, zero percent and one
percent respectively, or a total upper extremity impairment of six percent due to loss of motion.6
This is, again, substantially less than the 12 percent impairment for loss of motion found in
appellant’s July 9, 2004 schedule award. Dr. Trotter was of the opinion that these findings were
unreliable due to inconsistencies and that appellant appeared, in fact, to have no significant
evidence of any injury-related residuals or impairment.
The medical evidence, therefore, does not support that appellant has any greater
impairment of her left upper extremity than she did when she received her July 9, 2004 schedule
award. Accordingly, the Board will affirm the Office’s March 4, 2009 decision denying an
additional schedule award.
On appeal, appellant submits an April 8, 2009 report from Dr. Salomon to support that
she has a 10 percent impairment of her left upper extremity due to loss of shoulder motion. The
Board cannot review this new evidence for the first time on appeal. The Board’s jurisdiction is
limited to reviewing the evidence that was in the case record before the Office at the time of the
March 4, 2009 decision.7 The Board will note, however, that the Office based appellant’s July 9,
2004 schedule award on a 12 percent impairment due to loss of shoulder motion. So any
evidence that she now has less than 12 percent impairment due to loss of shoulder motion would
not, by itself, show that she is entitled to an additional schedule award.

3

20 C.F.R. § 10.404.

4

A.M.A., Guides 477 (Figure 16-43), 479 (Figure 16-46).

5

Dr. Salomon misread Figure 16-43, page 477 of the A.M.A. Guides when he reported 15 percent impairment for
adduction.
6

A.M.A., Guides 476 (Figure 16-40), 477 (Figure 16-43), 479 (Figure 16-46).

7

20 C.F.R. § 501.2(c).

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CONCLUSION
The Board finds that appellant is not entitled to an additional schedule award.
ORDER
IT IS HEREBY ORDERED THAT the March 4, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 22, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.G., Appellant
and
DEPARTMENT OF THE ARMY, BROOKE
ARMY MEDICAL CENTER,
Fort Sam Houston, TX, Employer
__________________________________________

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

Docket No. 19-0176
Issued: February 23, 2021

Case Submitted on the Record

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

JURISDICTION
On October 31, 2018 appellant filed a timely appeal from a May 31, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
has elapsed from OWCP’s last merit decision, dated April 17, 2018, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this case.3

1

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated September 3,
2019, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately
be addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-0176 (issued
September 3, 2019).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 31, 2018 decision and on appeal, 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 OWCP properly denied appellant’s request for a prerecoupment
hearing as untimely filed.
FACTUAL HISTORY
On February 18, 2003 appellant, then a 52-year-old general facilities officer, filed a
traumatic injury claim (Form CA-1) alleging that on that date she was sitting in an office chair that
broke, causing her to fall on the floor, while in the performance of duty.4 On April 2, 2003 OWCP
accepted the claim for contusion of both hips and thighs. It subsequently expanded acceptance of
the claim to include cervical and lumbar sprain, thoracic or lumbosacral neuritis or radiculitis, and
incisional hernia. OWCP paid appellant wage-loss compensation on the supplemental rolls as of
December 1, 2003 and on the periodic rolls as of June 10, 2007.
On March 14, 2018 OWCP advised appellant of its preliminary determination that she had
received an overpayment of compensation in the amount of $44,039.05 because her wage-loss
compensation payments for the period December 1, 2012 through February 3, 2018 had not been
reduced to offset her Social Security Administration (SSA) age-related retirement benefits that
were attributable to federal service. It determined that appellant was without fault in the creation
of the overpayment because she could not have reasonably known that an improper payment had
occurred. OWCP requested that appellant submit a completed overpayment recovery
questionnaire (Form OWCP-20) to determine a reasonable repayment schedule, and advised her
that she could request a waiver of the repayment. It further requested that she provide supporting
financial documentation, including copies of income tax returns, bank account statements, bills,
pay slips, and any other records to support income and expenses. Additionally, OWCP notified
appellant that, within 30 days of the date of the letter, she could request a telephone conference, a
final decision based on the written evidence, or a prerecoupment hearing. No response was
received.
By decision dated April 17, 2018, OWCP finalized its preliminary determination that
appellant received an overpayment of compensation in the amount of $44,039.05 for the period
December 1, 2012 through February 3, 2018 because she concurrently received SSA age-related
retirement benefits and FECA wage-loss compensation benefits without an appropriate offset. It
also found that she was without fault in the creation of the overpayment, but denied waiver of
recovery of the overpayment. OWCP noted that no response had been received to the preliminary
overpayment questionnaire and that appellant had not requested waiver of recovery of the
overpayment. It required recovery of the overpayment by deducting $358.00 every 28 days from
appellant’s continuing compensation payments.
On April 24, 2018 OWCP received an overpayment action request form, dated April 17,
2018 and postmarked April 18, 2018, in which appellant requested a prerecoupment hearing.

4
The record also contains a Standard Form-50 indicating under retirement plan Federal Insurance Contributions
Act and Civil Service Retirement System (Partial), rather than the Federal Employees Retirement System. However,
as noted previously, the Board does not have jurisdiction to review the merits of the final overpayment determination.

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Appellant requested waiver of recovery of the overpayment and asserted that she was being treated
unfairly and would suffer severe financial and emotional hardship in attempting to repay the debt.
By decision dated May 31, 2018, OWCP denied appellant’s request for a prerecoupment
hearing as untimely filed. It found that, because her request was not filed within 30 days of the
March 14, 2018 preliminary overpayment determination, she was not entitled to a prerecoupment
hearing as a matter of right.
LEGAL PRECEDENT
OWCP’s regulations provide that a claimant may request a prerecoupment hearing with
respect to an overpayment.5 The date of the request is determined by the postmark or other
carrier’s date marking.6 Failure to request the prerecoupment hearing within 30 days constitutes a
waiver of the right to a hearing.7 The only right to a review of a final overpayment decision is
with the Board.8 The hearing provisions of section 8124(b) of FECA do not apply to final
overpayment decisions.9
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for a prerecoupment
hearing as untimely filed.
OWCP issued a preliminary overpayment determination on March 14, 2018. It advised
appellant that she had 30 days from that date to request a prerecoupment hearing. The record
indicates that OWCP properly mailed its preliminary determination to appellant’s last known
address of record.
Appellant did not request a prerecoupment hearing within 30 days of March 14, 2018.
Consequently, by decision dated April 17, 2018, OWCP properly finalized its preliminary
overpayment determination.
On April 24, 2018 OWCP received an overpayment action request form, dated April 17,
2018 and postmarked April 18, 2018, in which appellant requested a prerecoupment hearing. The
timeliness of a request for a prerecoupment hearing is determined by the postmark date or other
carrier’s marking showing when the request was sent to OWCP.10 As appellant’s request for a
prerecoupment hearing was postmarked on April 18, 2018, more than 30 days after the March 14,
5
20 C.F.R. § 10.432; see S.O., Docket No. 20-0753 (issued October 28, 2020); E.M., Docket No. 19-0857 (issued
December 31, 2019); D.H., Docket No. 19-0384 (issued August 12, 2019).
6

Id. at §§ 10.439, 10.616(a); see A.B., Docket No. 18-1172 (issued January 15, 2019); see also B.W., Docket No.
18-1004 (issued October 24, 2018); C.R., Docket No. 15-0525 (issued July 20, 2015).
7

Id.

8

20 C.F.R. § 10.440(b).

9

5 U.S.C. § 8124(b); see G.L., Docket No. 19-0297 (issued October 23, 2019).

10

B.W, supra note 6.

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2018 preliminary overpayment determination, it was untimely filed. Therefore, OWCP properly
denied appellant’s request for a prerecoupment hearing as untimely filed.11
The Board further finds that, as appellant’s request form was mailed to OWCP’s Branch
of Hearings and Review, it was properly treated as a request for a hearing. As noted, the hearing
provisions of section 8124(b) are not applicable to final overpayment decisions. OWCP’s
regulations provide that when a final overpayment decision is issued, there is no right to a hearing
or a review of the written record, and OWCP does not have discretion to grant such a request.12
The only right to appeal is with the Board.13 As appellant’s April 18, 2018 request for a
prerecoupment hearing was made after the final overpayment determination, the Board finds that
OWCP properly denied appellant’s request for a hearing after issuance of the final overpayment
determination.14
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a prerecoupment
hearing as untimely filed.

11

See B.W., supra note 6; E.V., Docket No. 17-1328 (issued December 11, 2017); see also R.U., Docket No.
16-0027 (issued March 24, 2017).
12

Supra note 7.

13

5 U.S.C. § 8124(b); see S.O., supra note 5; G.L., supra note 9.

14

See E.M., supra note 5; D.H., supra note 5.

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ORDER
IT IS HEREBY ORDERED THAT the May 31, 2018 nonmerit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 23, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sunnyvale, CA, Employer
__________________________________________

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

Docket No. 10-553
Issued: February 22, 2011

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 23, 2009 appellant filed a timely appeal of the January 15 and
November 27, 2009 nonmerit decisions of the Office of Workers’ Compensation Programs.
Because more than one year elapsed from the last merit decision dated August 31, 2001 to the
filing of this appeal, the Board lacks jurisdiction to review the merits of this case pursuant to 20
C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s requests for reconsideration
because they were untimely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
On September 30, 1994 appellant, then a 30-year-old letter carrier, filed an occupational
disease claim, alleging bilateral foot conditions caused by his job. The Office accepted his claim
for bilateral foot tenosynovitis, bilateral tarsal tunnel syndrome and related surgery and bilateral
medial nerve impingement. Appellant filed a claim for disability beginning November 12, 1995.

By decision dated December 15, 1995, the Office denied his claim on the grounds that
the medical evidence established that he was able to work eight hours a day as of
November 12, 1995. By decision dated January 22, 1997, an Office hearing representative
affirmed the December 15, 1995 decision.
Appellant resigned from his job effective November 17, 1997. In an August 31, 2001
merit decision, the Office denied his claim for disability beginning November 12, 1995. By
decision dated June 27, 2002, it denied appellant’s request for reconsideration.
On
September 25, 2003, July 12, 2004 and March 10, 2006 the Office denied appellant’s
reconsideration requests as untimely and lacking clear evidence of error in the merit decision of
August 31, 2001.
On October 13, 2008 appellant requested reconsideration and submitted 289 pages of
medical and factual documents. The evidence submitted included a May 26, 2006 report from
Dr. Kenneth G. Venos, a Board-certified orthopedic surgeon, who reviewed the medical history
and provided findings on physical examination. Dr. Venos diagnosed bilateral flexor hallucis
tenosynovitis, flexible pes planus with heel valgus and status post tarsal tunnel release without
evidence of neurologic residue. In reports dated July 26, 2006 and October 6 and November 10,
2008, Dr. Steven N. Klein, a Board-certified podiatrist, reviewed the medical history and
provided findings on physical examination. He diagnosed status post bilateral tarsal tunnel
release, chronic mild bilateral Achilles tendinitis, flexible pes planovalgus, bilateral flexor
hallucis longus stenosing tenosynovitis and chronic plantar fasciitis.
On January 15, 2009 the Office denied appellant’s reconsideration request on the grounds
that it was not filed within one year of the August 31, 2001 merit decision and failed to show
clear evidence of error.
On August 25, 2009 appellant requested reconsideration. He argued that the employing
establishment’s October 4, 1995 job offer should be revised to include an adjustable stool and a
pushcart. Appellant contended that the position was not in accordance with his medical
restrictions. In an August 24, 2009 report, Dr. Klein provided findings on physical examination
and diagnosed improved bilateral Achilles tendinitis, tarsal tunnel syndrome and chronic plantar
fasciitis. He also submitted an October 14, 2008 report of a left ankle magnetic resonance
imaging (MRI) scan.
By decision dated November 27, 2009, the Office denied appellant’s request for
reconsideration on the grounds that the request was untimely and failed to establish clear
evidence of error in the merit decision of August 31, 2001.
LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607
provides that an application for reconsideration must be sent within one year of the date of the
Office decision for which review is sought. The Office will consider an untimely application
only if the application demonstrates clear evidence on the part of the Office in its most recent

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merit decision. The application must establish, on its face, that such decision was erroneous.1
To establish clear evidence of error, a claimant must submit evidence relevant to the issue which
was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.2
ANALYSIS
The merits of appellant’s case are not before the Board. His requests for reconsideration
were dated October 13, 2008 and August 25, 2009, more than one year after the Office’s most
recent merit decision dated August 31, 2001 and, therefore, were not timely. The issue to be
determined is whether appellant established clear evidence of error in the Office’s August 31,
2001 decision.
The Office’s merit decision on August 31, 2001 denied appellant’s claim on the grounds
that the medical evidence established that he was able to work eight hours a day as of
November 12, 1995.
On October 13, 2008 and August 25, 2009 appellant requested
reconsideration and submitted medical and factual evidence. The issue in this case is medical in
nature, whether he was disabled on and after November 12, 1995 causally related to his accepted
bilateral foot conditions. In the May 26, 2006 report, Dr. Venos reviewed the medical history
and provided findings on physical examination. He diagnosed bilateral flexor hallucis
tenosynovitis, flexible pes planus with heel valgus and status post tarsal tunnel release without
evidence of neurologic residue. In reports dated July 26, 2006, October 6 to November 10, 2008
and August 24, 2009, Dr. Klein reviewed the medical history and provided findings on physical
examination. He diagnosed status post bilateral tarsal tunnel release, chronic mild bilateral
Achilles tendinitis, flexible pes planovalgus, bilateral flexor hallucis longus stenosing
tenosynovitis, chronic plantar fasciitis and tarsal tunnel syndrome. Dr. Venos and Dr. Klein did
not address the underlying issue in this case, whether appellant was able to work for eight hours
a day as of November 12, 1995. Their reports do not raise a substantial question as to the
correctness of the Office’s August 31, 2001 merit decision or establish clear evidence of error.
Appellant argued that the employing establishment’s October 4, 1995 job offer should be
revised to include an adjustable stool and a pushcart. He alleged that the offered position was
not in accordance with his medical restrictions. As noted, the issue in the case is medical.
Appellant’s arguments are not medical evidence addressing the issue of whether he was able to
work eight hours a day as of November 12, 1995. His contentions are not probative on the issue
in this case and does not show clear evidence of error in the August 31, 2001 merit decision.
Because appellant’s untimely requests for reconsideration did not demonstrate clear
evidence of error in the August 31, 2001 merit decision, the Office properly denied his
reconsideration requests.
On appeal, appellant argues that the position he was offered on October 4, 1995 was not
consistent with his medical restrictions. As noted, the issue in this case is whether the medical
1

20 C.F.R. § 10.607.

2

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004).

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evidence established that he was able to work eight hours a day as of November 12, 1995.
Appellant’s lay opinion that the offered job was not in accordance with his work restrictions is
not probative. He failed to raise a substantial question as to the correctness of the Office’s
August 31, 2009 merit decision or establish clear evidence of error. The Office properly denied
appellant’s reconsideration requests in its January 15 and November 27, 2009 decisions.
CONCLUSION
The Board finds that the Office properly denied appellant’s requests for reconsideration
on the grounds that they were untimely and failed to demonstrate clear evidence of error in the
August 31, 2001 merit decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 27 and January 15, 2009 are affirmed.
Issued: February 22, 2011
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Livonia, MI, Employer
__________________________________________

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Appearances:
Paul H. Kullen, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-2149
Issued: July 6, 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 September 20, 2006 appellant, through her attorney, filed a timely appeal from a
June 16, 2006 merit decision of the Office of Workers’ Compensation Programs denying
modification of its termination of her compensation and medical benefits. Pursuant to 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 the Office properly terminated appellant’s compensation
effective August 15, 2002 on the grounds that she had no further disability due to her accepted
employment injury; (2) whether the Office properly terminated authorization for medical
treatment; and (3) whether appellant has established that she sustained additional employmentrelated conditions or disability due to the accepted employment factors.
FACTUAL HISTORY
On July 4, 2000 appellant, then a 47-year-old distribution clerk, filed an occupational
disease claim alleging that she sustained severe pain in her right wrist radiating to her arm and

elbow due to factors of her federal employment. The Office accepted the claim for tendinitis of
the right hand and wrist and a sprain of the right shoulder, arm, elbow and forearm. Appellant
stopped work on July 5, 2000 and returned to part-time employment on July 31, 2000. She again
stopped work on October 26, 2000 and returned to work for four hours per day beginning
November 27, 2000.
On January 10, 2002 the Office referred appellant to Dr. Norman L. Pollack, a Boardcertified orthopedic surgeon, for a second opinion evaluation. In a report dated February 6,
2002, Dr. Pollack found no objective findings of any diagnosed condition and no physical
limitations. He opined that appellant could resume her usual employment.
In a report dated February 7, 2002, Dr. Pramod Raval, an internist and appellant’s
attending physician, diagnosed “acute tendinitis of [her] right wrist, hand, arm, elbow, shoulder
and right upper extremities secondary to repetitive and continuous movement of [the] right hand,
wrist, forearm, shoulder and right upper extremities at work causing chronic pain.” He found
that appellant could work part time with restrictions.
A magnetic resonance imaging (MRI) scan study of the cervical spine dated February 24,
2002 showed a disc abnormality with impingement at C4-5 and C6-7 on the left side. An MRI
scan study of the cervical spine dated March 17, 2002 revealed large disc herniations at C4-5 and
C6-7 and a disc bulge at C3-4.
In a report dated March 26, 2002, Dr. Miguel A. Lis-Planells, a neurosurgeon, diagnosed
disc herniations at C4-5 and C6-7 “slightly larger and eccentric to the left.” He attributed the
herniations to repetitive lifting at work.
Appellant stopped work on March 26, 2002. In a progress report dated March 28, 2002,
Dr. Raval discussed the findings of the March 17, 2002 MRI scan study and opined that
appellant was totally disabled from employment due to her herniated discs.
The Office determined that a conflict existed between Dr. Raval and Dr. Pollack on the
extent of appellant’s work-related disability. On April 26, 2002 the Office referred appellant to
Dr. Richard Krugel, a Board-certified orthopedic surgeon, for an impartial medical examination.
On May 9, 2002 Dr. Raval discussed appellant’s employment injury and work history. He
stated:
“[Appellant] has a diagnosis of disc herniation at C4-5 [and] C6-7 causing pain in
[the] neck and bilateral upper extremities secondary to repetitive heavy lifting,
pulling, pushing, bending to lift heavy mail, sorting and casing of various mail at
work since July 3, 2000. She has a[n] acute tendinitis of her right wrist, hand,
arm, elbow, shoulder and right upper extremities secondary to repetitive and
continuous movement of [the] right upper extremities at work causing chronic
pain. At the present time, [appellant] will continue to have a pain in her bilateral
upper extremities and neck due to her injury on July 3, 2000.”
In a report dated May 10, 2002, Dr. Dhia Louis Yousif, a Board-certified internist, noted
that an electromyogram (EMG) was negative and an MRI scan study showed disc bulging with
evidence of impingement on the left side at C4-5 and C6-7. He diagnosed tendinitis of the upper
2

extremities which he attributed to her “continuous and repetitive use of her bilateral upper
extremities at work since July 3, 2000.” Dr. Yousif also diagnosed cervical disc herniations and
impingement of the spinal cord at C4-5 and C6-7 “due to repetitive heavy handling of mail at
work….”
In a report dated May 13, 2002, Dr. Krugel discussed appellant’s history of injury and
current complaints. He listed findings on examination of tenderness of the trapezius muscles on
both sides without muscle spasm. Dr. Krugel further found scapulae tenderness but “no real
tenderness about the shoulder girdles to palpation” and no atrophy. He determined that appellant
had no motor or sensory deficits in the upper extremities. Dr. Krugel diagnosed cervical pain
with disc pathology by MRI scan study and bilateral upper extremity pain, greater on the right,
with no objective findings. He noted that her complaints were mostly on the right side but that
the MRI scan findings showed left cervical disc disease. Dr. Krugel stated:
“Based on the positive clinical objective findings today, I am unable to support
[appellant’s] severe pain complaints and significant espoused limitation of
function. I do believe that she is restricted from returning to work. I believe this
is more on a psychogenic basis rather than physiologic basis, again noting the lack
of objective findings to support physiologic disease in [her].”
On June 11, 2002 the Office requested that Dr. Krugel clarify whether appellant had any
residuals of her accepted conditions and whether her cervical disc disease was caused or
aggravated by employment factors. In a June 14, 2002 response, Dr. Krugel found continued
subjective right upper extremity complaints unsupported by objective findings. He asserted:
“Other than subjective tenderness on examination, the exam[ination] was
otherwise normal and, therefore, based on a reasonable degree of medical
certainty, I cannot support the ongoing diagnosis of tendinitis or sprain in the right
upper extremity.
“I do not believe that her cervical disc disease was caused by her work at the
[employing establishment], although some of her symptoms may be aggravated
by such work. She does continue to be symptomatic even without doing the work
and, therefore, I do not believe that this aggravation has materially worsened her
cervical disc disease, which I believe is unrelated in a causal effect to her work
again.”
On July 11, 2002 the Office notified appellant that it proposed to terminate her
compensation and medical benefits on the grounds that her accepted conditions had resolved.
The Office further determined that the evidence was insufficient to show that she sustained a
cervical condition due to her employment injury.1
On August 7, 2002 appellant argued that the medical evidence from her physicians
established that she had residuals from her employment injury. She submitted a report dated
1

In a report dated July 31, 2002, Dr. Kasturi B. Puri, a Board-certified physiatrist, diagnosed cervical
myofibrositis and listed work restrictions.

3

May 4, 2002 from Dr. Surindar Jolly, a Board-certified neurologist, who noted that a
March 2002 MRI scan study of the cervical spine showed left-sided paracentral disc herniations
at C4-5 and C6-7. Dr. Jolly stated: “[Appellant’s] symptoms have been constant and
attributable to [her] work, which involved repetitive heavy lifting, pushing, pulling and constant
wear and tear on [the] cervical spine.” In a report dated May 6, 2002, Dr. Charles Frederick
Harvey, a Board-certified neurosurgeon, diagnosed a cervical disc herniation and findings
consistent with carpal tunnel syndrome. He recommended a myeologram and repeat EMG.2
By decision dated August 15, 2002, the Office terminated appellant’s compensation and
entitlement to medical benefits effective that date after finding that the opinion of Dr. Krugel
represented the weight of the medical evidence and established that she had no further
employment-related disability.
In a report dated August 6, 2002, received by the Office on August 21, 2002, Dr. John B.
Ryan, a Board-certified orthopedic surgeon, noted that he last treated appellant in 1998.
Dr. Ryan referred her for an ultrasound to rule out rotator cuff tendinitis of the right shoulder.
An ultrasound of appellant’s right upper extremity, obtained on August 14, 2002, showed a
“large partial thickness bursal[-]sided tear” of the supraspinatus tendon and subacromial
subdeltoid bursitis of the right shoulder. In a progress report dated October 30, 2002, Dr. Ryan
diagnosed a partial rotator cuff tear and bursitis of the right shoulder. On January 15, 2003 he
diagnosed rotator cuff tendinitis, a partial rotator cuff tear on the bursal side and possible
C5 radiculitis.
On September 9, 2002 appellant requested an oral hearing which was held on
May 18, 2003.3 She related that she experienced a previous employment injury in 1985 to the
right upper extremity. Appellant returned to work full time in January 2000 but again
experienced right upper extremity symptoms in June 2000.
In a report dated January 13, 2003, Dr. A.N. Sinha, an orthopedic surgeon, evaluated
appellant for the employing establishment. He reviewed the diagnostic studies, including the
ultrasound and myeologram. Dr. Sinha diagnosed “severe impingement syndrome of her right
shoulder associated with chronic subacromial bursitis as well as a partial thickness tear of the
supraspinatur tendon of the superficial surface.” He found that appellant was totally disabled
from her usual employment but could perform light duty. Dr. Sinha opined: “Her shoulder
condition, in my opinion, has resulted from not a single injury but recurrent strain to the shoulder
resulting from lifting on the job over a long period of time.”

2

Appellant also submitted progress reports from Dr. Raval dated July 11 and 20, 2002. A postmyelogram
computerized tomography (CT) scan of the cervical spine dated May 28, 2002 revealed a small bone spur at C4-5
without cervical cord compression.
3

An MRI scan of appellant’s left shoulder obtained on June 9, 2003 showed a partial tear.

4

In a progress report dated June 18, 2003, Dr. Ryan discussed appellant’s complaints of
bilateral upper extremity pain and listed findings on examination. He noted that a CT arthrogram
of the right shoulder did not show a rotator cuff tear. Dr. Ryan diagnosed impingement of the
right shoulder with no rotator cuff tear and left shoulder bursitis with mild impingement.
By decision dated August 21, 2003, the Office hearing representative affirmed the
August 15, 2002 decision.
In a report dated November 3, 2003, Dr. Jacquelyn G. Lockhart, a Board-certified
physiatrist, discussed the history of injury and the results of the diagnostic studies of record. She
diagnosed bilateral impingement syndrome of the shoulders and a partial rotator cuff tear of the
left shoulder, post-traumatic myofascitis, cervical spondylosis and chronic pain syndrome.
Dr. Lockhart opined that appellant’s work aggravated and contributed to the diagnosed
conditions and that she was permanently disabled from her usual employment. She provided
progress reports dated January 5 and April 7, 2004 discussing the results of physical therapy.
Dr. Lockhart found, in the April 7, 2004 report, that appellant had a chronic overuse syndrome
and a permanent impairment. In a progress note dated January 5, 2004, she noted that appellant
was improving with physical therapy. On April 7, 2004 Dr. Lockhart listed permanent work
restrictions.4 A CT arthrogram of appellant’s right shoulder obtained on June 1, 2004 showed no
evidence of a complete tear but small irregular areas indicating partial tears and “an element of
tendinopathy.” In a progress report dated July 28, 2004, Dr. Lockhart diagnosed chronic pain
syndrome, bilateral shoulder impingement, a partial rotator cuff tear of the left shoulder, posttraumatic myofascitis and cervical spondylosis. She again found permanent work restrictions.
In a progress report dated August 11, 2004, Dr. Ryan diagnosed impingement of the right
shoulder and chronic myofascial pain. He noted that a CT arthrogram of the right shoulder
showed no rotator cuff tear but “some fraying consistent with a partial rotator cuff tear.” In an
accompanying form report, Dr. Ryan listed work restrictions.
On August 17, 2004 appellant requested reconsideration. By decision dated March 25,
2005, the Office denied modification of its August 15, 2002 decision.
On March 21, 2006 appellant, through her attorney, again requested reconsideration. In a
report dated May 26, 2005, Dr. D. Bradford Barker, a Board-certified physiatrist, diagnosed
bilateral shoulder impingement with a partial rotator cuff tear, a severe myofascial strain of the
cervical spine, multiple cervical herniated discs and bilateral bicipital tendinitis. He stated:
“[Appellant] clearly has cumulative trauma disorder. These disorders are brought
on by the injury of repetitive work. [She] has a long history of lifting heavy
objects including lifting bags of mail up to 70 pounds. The abnormalities are all
found in the shoulders and neck. The constant lifting, including lifting over her
head, has caused cervical disc herniations in the cervical spine. [Appellant] has
developed bicipital tendinitis in both shoulders from chronic repetitive work, as
4

In a progress report dated July 28, 2004, Dr. Lockhart diagnosed bilateral shoulder impingent syndrome, a
partial rotator cuff tear of the left shoulder, post-traumatic myofascitis and cervical spondylosis. She opined that
appellant required permanent work restrictions.

5

well as partial tearing in the rotator cuffs bilaterally and bursitis of the left
shoulder.”
In a supplemental report dated March 13, 2006, Dr. Barker discussed his diagnoses and
explained how repetitive work during the course of her employment caused appellant’s
cumulative trauma disorder. He stated:
“In conclusion, [appellant] has sustained bilateral shoulder impingement
secondary to partial bilateral rotator cuff tears (documented by MRI [scan]
studies). She has a severe myofascial strain injury to both upper trapezius
muscles, bilateral scapula, bilateral deltoids and bilateral forearm, as noted on
physical examination on at least two occasions. The areas involved are precisely
those areas that one would expect to be involved in a patient who routinely lifted
mail weighting (sic) up to 70 [pounds].”
Dr. Barker further attributed appellant’s right ulnar nerve entrapment as seen on a
November 21, 2005 EMG study, cervical herniated discs and bilateral bicipital tendinitis to
repetitive lifting at work.
By decision dated June 16, 2006, the Office denied modification of its prior decisions.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. The Office may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.5 The Office’s burden of proof in terminating compensation includes the necessity
of furnishing rationalized medical opinion evidence based on a proper factual and medical
background.6
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.7 The implementing regulation states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.8 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

5

Gloria J. Godfrey, 52 ECAB 486 (2001).

6

Gewin C. Hawkins, 52 ECAB 242 (2001).

7

5 U.S.C. § 8123(a).

8

20 C.F.R. § 10.321.

6

opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.9
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained tendinitis of the right hand and wrist and a
sprain of the right shoulder, arm, forearm and elbow causally related to factors of her federal
employment. Appellant sustained intermittent periods of disability until November 27, 2000,
when she resumed part-time employment. She stopped work on March 28, 2002.
The Office determined that a conflict in medical opinion arose between Dr. Raval, her
attending physician, and Dr. Pollack, an Office referral physician, on the extent of her
employment-related disability. The Office referred her to Dr. Krugel for resolution of the
conflict.
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.10 The Board finds that the opinion of Dr. Krugel, a
Board-certified orthopedic surgeon selected to resolve the conflict in opinion, is well rationalized
and based on a proper factual and medical history. Dr. Krugel accurately summarized the
relevant medical evidence, provided detailed findings on examination and reached conclusions
about appellant’s condition which comported with his findings.11 In a report dated May 13,
2002, he reviewed the medical evidence of record, including the results of diagnostic studies. On
examination Dr. Krugel found no muscle spasm or motor or sensory deficit. He diagnosed left
cervical disc disease by MRI scan study. Dr. Krugel noted that appellant’s complaints were
predominately on the right side. He found that she had no further residuals of her right upper
extremity tendinitis or sprain. Dr. Krugel provided rationale for his opinion by noting that
appellant’s examination showed essentially normal findings and that her subjective complaints
were unsupported by objective findings. He noted that any restriction from work would be on a
psychogenic rather than physiological basis. As Dr. Krugel’s report is detailed, well rationalized
and based on a proper factual background, his opinion is entitled to the special weight accorded
an impartial medical examiner. The Office thus met its proof to terminate appellant’s
compensation benefits for the accepted conditions of right hand and wrist tendinitis and a right
shoulder, arm, elbow and forearm sprain.

9

David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003).

10

Id.

11

Manuel Gill, 52 ECAB 282 (2001).

7

Appellant submitted numerous medical reports in response to the Office’s proposed
termination of compensation and subsequent to the termination decision. The reports submitted,
however, do not address whether she had any further condition or disability due to the conditions
already accepted by the Office as employment related.12 Thus, the reports are of diminished
probative value.
LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.13 To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.14
ANALYSIS -- ISSUE 2
The Office met its burden of proof to terminate authorization for medical benefits
through the opinion of Dr. Krugel, the impartial medical examiner, who found that appellant had
no residuals of her accepted conditions. Dr. Krugel explained that, based on his physical
examination and the diagnostic studies, she had no “ongoing diagnosis of tendinitis or sprain in
the right upper extremity.” As his opinion is detailed and well rationalized, it is entitled to the
special weight accorded an impartial medical examiner and establishes that appellant has no
further residuals of her accepted employment injury.
LEGAL PRECEDENT -- ISSUE 3
Where an employee claims that a condition not accepted or approved by the Office was
due to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.15 To establish a causal relationship between the
condition claimed, as well as any attendant disability and the employment event or incident, an
employee must submit rationalized medical evidence based on a complete medical and factual
background supporting such a causal relationship.16 Causal relationship is a medical issue and
the medical evidence required to establish a causal relationship is rationalized medical
evidence.17 Rationalized medical evidence is evidence which includes a physician’s rationalized
medical opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationalize explaining the nature
12

The content of the reports will be discussed in the analysis relevant to the third issue on appeal.

13

Pamela K. Guesford, 53 ECAB 727 (2002).

14

Id.

15

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

16

Jennifer Atkerson, 55 ECAB 317 (2004).

17

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8

of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.18 Neither the fact that a disease or condition manifests itself during a
period of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.19
Proceedings under the Federal Employees’ Compensation Act are not adversarial in
nature, nor is the Office a disinterested arbiter.20 While the claimant has the responsibility to
establish entitlement to compensation, the Office shares responsibility in the development of the
evidence. It has the obligation to see that justice is done.21 Accordingly, once the Office
undertakes to develop the medical evidence further, it has the responsibility to do so in the
proper manner.22
ANALYSIS -- ISSUE 3
In a report dated March 26, 2002, Dr. Lis-Planells diagnosed C4-5 and C5-6 disc
herniations, which he attributed to repetitive lifting. On May 4, 2002 Dr. Jolly noted that a
March 2002 MRI scan study revealed disc hernations at C4-5 and C6-7. He attributed her
cervical spine condition to repetitive lifting, pushing and pulling at work. In a report dated
May 9, 2002, Dr. Raval diagnosed cervical disc herniations at C4-5 and C6-7 by MRI scan study.
He attributed the disc herniations to “repetitive heavy lifting, pulling, pushing, bending to lift
heavy mail, sort and casing of various mail at work since July 3, 2000.” On May 10, 2002
Dr. Yousif diagnosed impingement and disc herniations at C4-5 and C6-7 “due to repetitive
heavy handling of mail at work….”
On July 11, 2002 the Office requested that Dr. Krugel address whether appellant’s
cervical condition was caused or aggravated by her employment. The Board notes that, as the
record contained no conflict in medical opinion on the cause of appellant’s cervical condition,
Dr. Krugel’s opinion was that of a second opinion examiner rather than an impartial medical
specialist. In a report dated June 14, 2002, Dr. Krugel found that appellant’s employment did not
cause her condition but may have aggravated her symptoms. He stated: “…I do not believe that
this aggravation has materially worsened her cervical disc disease, which I believe is unrelated in
a causal effect to her work again.” Dr. Krugel’s opinion that appellant’s condition was not
“materially worsened” by her employment is insufficient to negate causal relationship. Where
the medical evidence reveals that factors of employment contributed in any way to a disabling
condition, such condition is considered employment related for purposes of compensation under
the Act.23
18

Leslie C. Moore, 52 ECAB 132 (2000).

19

Ernest St. Pierre, 51 ECAB 623 (2000).

20

Vanessa Young, 55 ECAB 575 (2004).

21

Richard E. Simpson, 55 ECAB 490 (2004).

22

Melvin James, 55 ECAB 406 (2004).

23

Jack L. St. Charles, 42 ECAB 809 (1991).

9

Once the Office undertakes development of the evidence, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.24 The report from
Dr. Krugel is insufficient to resolve whether appellant’s cervical condition is caused or
aggravated by her employment duties; therefore, the Office did not properly discharge its
responsibilities in developing the record.25 The case will, therefore, be remanded for further
development of the issue of whether appellant’s cervical disc herniations were caused or
aggravated by her employment.
The remaining medical evidence addresses other medical conditions not accepted by the
Office as employment related. Appellant thus has the burden of proof to show that the condition
is due to her employment through the submission of rationalized medical evidence.26 In a report
dated January 13, 2003, Dr. Sinha reviewed the objective evidence of record and diagnosed right
shoulder severe impingement syndrome with bursitis and a partial thickness tear of the
supraspinatur tendon.27 He opined that appellant could work with restrictions. Dr. Sinha
attributed the diagnosed conditions to “recurrent strain to the shoulder resulting from lifting on
the job over a long period of time.”
On November 3, 2003 Dr. Lockhart discussed appellant’s history of injury and diagnosed
bilateral impingement syndrome of the shoulders, a partial rotator cuff tear on the left side, posttraumatic myofascitis, cervical spondylosis and chronic pain syndrome. She asserted that
appellant was permanently disabled and that her employment duties caused or aggravated the
diagnosed conditions. In a report dated May 26, 2005, Dr. Barker diagnosed bilateral shoulder
impingement, a partial rotator cuff tear, cervical disc herniations and bilateral bicipital tendinitis.
He found that the diagnosed conditions resulted from the performance of repetitive employment
duties and stated: “[Appellant] has a long history of lifting heavy objects including lifting bags
of mail up to 70 pounds. The abnormalities are all found in the shoulders and neck. The
constant lifting, including lifting over her head, has caused cervical disc herniations in the
cervical spine.” Dr. Barker additional attributed her bilateral shoulder tendinitis and partial
rotator cuff tears to performing repetitive work. In a report dated March 13, 2006, he diagnosed
a cumulative trauma disorder which he explained resulted from her repetitive employment
duties.
Dr. Barker further diagnosed right ulnar nerve entrapment, bilateral shoulder
impingement, partial rotator cuff tears by MRI scan studies, myofascial strain injuries and
bicipital tendinitis due to appellant’s employment duties.

24

Richard F. Williams, 55 ECAB 343 (2004).

25

Id.

26

See Jaja K. Asaramo, supra note 15.

27

In reports dated October 30, 2002 and January 13, 2003, Dr. Ryan diagnosed a partial rotator cuff tear of the
right shoulder. In a report dated June 18, 2003, he diagnosed right shoulder impingement with no rotator cuff tear
and bursitis of the left shoulder. In a report dated August 11, 2004, Dr. Ryan diagnosed a partial rotator cuff tear
and impingement of the right shoulder on the right and chronic myofascial pain.

10

It is well established that proceedings under the Act are not adversarial in nature and that
while the claimant has the burden to establish entitlement to compensation, the Office shares
responsibility in the development of the evidence.28 The Board finds that the reports of
Drs. Sinha, Lockhart and Barker, although not sufficient to meet appellant’s burden of proof to
show that she sustained additional employment conditions and disability due to the accepted
employment factors, raise an inference of causal relationship sufficient to require further
development.29 Additionally, there record does not contain contradictory medical evidence.
On remand, the Office should prepare an updated statement of accepted facts describing
appellant’s employment duties and refer her to an appropriate specialist for an opinion on
whether she has a cervical or upper extremity condition causally related to factors of her federal
employment and, if so, the nature of and extent of any disability or need for medical treatment.
After such further development as the Office deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation and
authorization for medical benefits effective August 15, 2002 on the grounds that she had no
further disability due to her accepted employment injury. The Board further finds that the case is
not in posture for decision on the issue of whether appellant has established that she sustained
additional employment-related conditions or disability due to the accepted employment factors.

28

Allen C. Hundley, 53 ECAB 551 (2002).

29

Philip L. Barnes, 55 ECAB 476 (2004).

11

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 16, 2006 is affirmed in part and set aside in part and the case
is remanded for further proceedings consistent with this opinion of the Board.
Issued: July 6, 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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
DEPARTMENT OF THE ARMY, TRIPLER
ARMY MEDICAL CENTER, Fort Shaftner, HI,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0365
Issued: March 4, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On January 8, 2021, appellant sought an appeal from a purported June 2, 2017 decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-0365.
The Board, having duly considered the matter, notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.1
This jurisdiction encompasses any final decision issued by OWCP within 180 days of the date
appellant filed his appeal.2 The case record as transmitted to the Board does not contain a final
adverse decision of OWCP issued within 180 days from the date of docketing of the current
appeal.3 As there is no final adverse decision issued by OWCP over which the Board may properly

1

5 U.S.C. §101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
2

3

Id.

exercise jurisdiction, the Board concludes that the appeal docketed as No. 21-0365 must be
dismissed. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0365 is dismissed.
Issued: March 4, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Ridgeville, OH, Employer
__________________________________________

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

Docket No. 16-0369
Issued: March 11, 2016

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 December 22, 2015 appellant, through counsel, filed a timely appeal from a July 21,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than four percent left leg or zero percent right leg
permanent impairment.
FACTUAL HISTORY
On January 19, 2011 appellant, then a 43-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 18, 2011 he sustained a left knee and back injury in
the performance of duty. He indicated that he fell on ice after being chased by a dog.
1

5 U.S.C. § 8101 et seq.

By decision dated March 4, 2011, OWCP denied the claim for compensation, finding the
medical evidence was insufficient to establish the claim. Appellant requested reconsideration
and submitted a March 7, 2011 report from Dr. Kim Stearns, a Board-certified orthopedic
surgeon. Dr. Stearns provided a history and indicated that a magnetic resonance imaging (MRI)
scan revealed a partial tear of the left medial meniscus.
OWCP accepted the claim on March 14, 2011 for left knee sprain, and left knee medial
meniscus tear. The record indicates that OWCP has also accepted a displacement of lumbar
intervertebral disc without myelopathy. Appellant stopped work and began receiving wage-loss
compensation. He underwent left knee surgery on July 7, 2011 and L4-5 surgery on
August 15, 2012. The July 7, 2011 surgical report from Dr. Stearns indicated that appellant had
a grade 3 chondral flap tear and the medial meniscus was found intact.
Appellant was referred for a second opinion examination by Dr. Manhal Ghanma, a
Board-certified orthopedic surgeon. In a report dated October 17, 2012, Dr. Ghanma provided a
history and results on examination. He noted 120 degrees of flexion in the left knee, positive
Waddell’s signs to rotation but negative to resisted leg lifts, no instability and normal motor
strength. Dr. Ghanma reported knee reflexes were fine bilaterally but ankle reflexes were
depressed bilaterally. He reported that left knee sprain had resolved, no medial meniscus tear
was found at surgery, and the L4-5 disc herniation had been surgically excised. Dr. Ghanma
indicated that appellant likely had some degenerative changes in the posterior horn of the left
knee medial meniscus. He opined that appellant could return to work with a 50-pound lifting
restriction based on lumbar disc surgery. On January 14, 2013 appellant returned to full-time
work with restrictions.
Appellant submitted a January 2, 2013 report from a chiropractor, Dr. Brian Bennett,
providing results on examination of the back and lower extremities. Dr. Bennett reported that
clinical impressions were consistent with postsurgical lumbar disc surgery. By report dated
June 7, 2013, he again provided results on examination of the back and lower extremities.
Dr. Bennett reported that clinical impressions were consistent with appellant’s work-related
accident.
In a report dated May 23, 2013, Dr. Martin Fritzhand, a Board-certified urologist,
provided a history and results on examination. He indicated flexion of the left knee was 150
degrees, with tenderness to patellar compression. Dr. Fritzhand reported pinprick and light touch
were diminished over the medial aspect of the lower legs, the medial aspect of the left foot as
well as the dorsum of the right foot. He opined that appellant had sensory loss in both legs and
that appellant had ongoing discomfort in the low back and left knee. With respect to permanent
impairment, Dr. Fritzhand identified Table 16-3 of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (sixth edition) for a meniscal injury and found two
percent left leg permanent impairment. He then indicated that under Table 16-11, appellant had
five percent permanent impairment to each leg. Dr. Fritzhand opined that under The Guides
Newsletter, appellant had a severe L5 nerve root impairment. He combined five percent and one
percent under the Combined Values Chart of the A.M.A., Guides for six percent left leg, and five
percent right leg permanent impairment.

2

OWCP referred the case to an OWCP medical adviser, Dr. Morley Slutsky, who is
Board-certified in occupational medicine, for review. In a report dated September 9, 2013,
Dr. Slutsky opined that appellant had one percent permanent impairment to the left leg under
Table 16-3. He found there was no documented meniscal tear and the proper diagnosis was soft
tissue lesion. As to an impairment based on a spinal nerve, the medical adviser noted that a
January 2, 2013 report from a chiropractor found only a mildly reduced sensitivity in the left L5
dermatome affecting the left leg. The medical adviser then indicated that the chiropractor on
June 7, 2013 found no new neurologic changes. According to Dr. Slutsky, appellant should be
rated for moderate sensory loss with three percent permanent impairment. He concluded that
appellant had four percent left leg permanent impairment.
On April 16, 2014 OWCP prepared a statement of accepted facts (SOAF), which
recorded six prior claims from September 1, 1999 to May 25, 2010. OWCP indicated that the
claim dated September 1, 1999 was accepted for aggravation of bilateral bunions of the fifth
metatarsal heads, bilateral Morton’s neuroma, and bilateral plantar fasciitis. By letter dated
April 16, 2014, OWCP requested that the OWCP medical adviser review the SOAF and provide
an opinion as to permanent impairment.
In a report dated April 18, 2014, Dr. Slutsky again found four percent left leg permanent
impairment. As to the right leg, he found there was no impairment as there was no MRI scan
evidence, intraoperative findings, or clinical evidence by other physicians of right lumbar nerve
root deficits. Dr. Slutsky opined that Dr. Fritzhand’s findings of right leg issues were
inconsistent with objective evidence. With respect to conditions from the 1999 claim, he found
there were no recent evaluations regarding these conditions.
By decision dated December 3, 2014, OWCP issued a schedule award for four percent
left leg permanent impairment. The period of the award was 11.52 weeks from May 23, 2013.
OWCP found there was no permanent impairment to the right leg.
Appellant, through counsel, requested a hearing before an OWCP hearing representative.
At the June 9, 2015 hearing, appellant argued that the medical adviser, Dr. Slutsky, should not
have relied on reports from the chiropractor.
By decision dated July 21, 2015, the hearing representative affirmed the December 3,
2014 decision. She found that it was appropriate for the medical adviser to utilize the
chiropractor’s reports, and his reports represented the weight of the medical evidence.
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.2 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
2

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).

3

determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.3 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.4
ANALYSIS
In the present case the accepted conditions, with respect to a January 18, 2011 slip and
fall, are left knee sprain, left knee medial meniscus tear, and displacement of lumbar
intervertebral disc without myelopathy. The attending physician, Dr. Fritzhand, provided a
May 23, 2013 report that found appellant had six percent left leg permanent impairment, and a
five percent permanent impairment to the right leg. OWCP, however, found that the weight of
the medical evidence was represented by the medical adviser, Dr. Slutsky. In his September 9,
2013 and April 18, 2014 reports, Dr. Slutsky found appellant had four percent left leg permanent
impairment. In the April 18, 2014 report, he also found appellant was not entitled to a schedule
award for the right leg.
Dr. Slutsky found that, for the left leg, appellant would have one percent permanent
impairment under Table 16-3. In this regard he provided a more reasoned opinion than
Dr. Fritzhand, who used the diagnosis of a meniscal injury. Under Table 16-3, a meniscal injury
would be appropriate for a partial medial meniscectomy, meniscal tear, or meniscal repair.5 As
noted by Dr. Slutsky, the July 7, 2011 surgical report from Dr. Stearns clearly reported that the
meniscus was found intact. Dr. Fritzhand does not explain why the diagnosis under Table 16-3
for meniscal injury would be appropriate. Dr. Slutsky used a soft tissue lesion, with a grade B
impairment of one percent.6
As to the issue of an additional impairment based on sensory loss, the Board finds the
medical adviser’s opinion is of diminished probative value.
Dr. Slutsky finds that
Dr. Fritzhand’s use of a “severe” sensory deficit for the L5 nerve root was not appropriate, citing
the examination results of chiropractor’s reports dated January 2 and June 7, 2013. It is well
established that 5 U.S.C. § 8101(2) provides that the term ‘“physician’ … includes chiropractors
only 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.”7
Dr. Bennett did not diagnose a subluxation as demonstrated by an x-ray, nor has OWCP accepted
a subluxation.

3

A. George Lampo, 45 ECAB 441 (1994).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
5

A.M.A., Guides 509, Table 16-3.

6

Id.

7

5 U.S.C. § 8101(2).

4

Since Dr. Bennett did not diagnose a subluxation as demonstrated by x-rays, he is not
considered a physician under FECA and his reports are of no probative medical value.8 An
evaluation by a chiropractor of an impairment to an extremity is of no probative medical value to
the schedule award issue.9 If appellant had submitted the reports of Dr. Bennett in support of a
claim for a schedule award, OWCP would properly find the reports of no probative medical
value. It is inappropriate for OWCP to rely in part on Dr. Bennett’s reports in determining the
degree of permanent impairment for the left leg in this case. Dr. Fritzhand is a physician and
provided results on examination. Dr. Bennett is not a physician under FECA and his findings on
examination are of no probative medical value as to a permanent impairment to the lower
extremities.
As to the right leg, the OWCP medical adviser found the findings of Dr. Fritzhand were
“inconsistent with objective evidence.” Dr. Fritzhand provided results on examination with
respect to sensory loss in both legs, and noted pinprick and light touch results. If the OWCP
medical adviser felt that such findings were insufficient, then he could have requested
clarification from Dr. Fritzhand or referral for a second opinion on the issue of permanent
impairment to the lower extremities.10
The Board finds that the reports from OWCP medical adviser Dr. Slutsky are not
sufficient to resolve the issue presented. The case will be remanded to OWCP to properly
determine the employment-related permanent impairment to the legs. After such further
development as is necessary, OWCP should issue a de novo decision.
CONCLUSION
The Board finds the case is not in posture for decision and is remanded to OWCP for
further development of the evidence.

8

See Jack B. Wood, 40 ECAB 95, 109 (1988).

9

J.W., Docket No. 13-1212 (issued September 20, 2013) (reports from a chiropractor regarding an impairment to
the upper extremity were of no probative value, and a functional capacity evaluation (FCE) by a physical therapist
was also of no probative value); see also Thomas J. Grejda, Docket No. 03-1097 (issued October 1, 2003).
10

See generally, H.K., Docket No. 13-1925 (issued April 9, 2014).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 21, 2015 is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: March 11, 2016
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
__________________________________________
D.T., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Washington, DC, Employer
__________________________________________

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Appearances:
William Robitsek, for the appellant
Office of Solicitor, for the Director

Docket No. 12-923
Issued: February 25, 2013

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 March 19, 2012 appellant, through his representative, filed a timely appeal of a
February 27, 2012 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).1 As more than 180 days have lapsed from the issuance of OWCP’s last merit decision
dated August 30, 2011 to the filing of the current appeal on March 19, 2012, the Board has no
jurisdiction over the merits of the case.2 Pursuant to the Federal Employees’ Compensation Act3
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the nonmerit
decision.
1

On appeal appellant and his representative contend that appellant could not attend the hearing due to “a serious
unexpected family issue” and that he did not receive the notice of oral hearing because he had a communication
issue at his home. As these arguments were not before OWCP at the time it issued its February 27, 2012 decision,
the Board is precluded from reviewing them for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).
2

An appeal of final adverse OWCP decisions issued on or after November 19, 2008 must be filed within 180
days of the decision. See 20 C.F.R. § 501.3(e).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly determined that appellant abandoned his request for
a hearing.
FACTUAL HISTORY
On July 18, 2011 appellant, then a 44-year-old air traffic control specialist, filed a
traumatic injury claim (Form CA-1) alleging that he sustained stress and mental trauma, that
same day, due to loss of separation between aircraft under his control, which nearly resulted in a
mid-air collision.
By decision dated August 30, 2011, OWCP denied the claim on the basis that appellant
failed to establish fact of injury.
On September 9, 2011 appellant, through his representative, requested an oral hearing
before an OWCP hearing representative arguing that the incident occurred as alleged.
In a December 16, 2011 notice, OWCP’s Branch of Hearings and Review scheduled an
oral hearing for 4:00 p.m. on February 13, 2012. It provided appellant with an address in New
York, New York for the hearing. OWCP advised appellant that postponement of the hearing
would only be permitted upon receipt of documentation showing his nonelective hospitalization
or that the death of a spouse, parent or child prevented his attendance. The notice was mailed to
appellant’s address of record.
On February 13, 2012 appellant failed to appear at and participate in the hearing.
By decision dated February 27, 2012, an OWCP hearing representative found that
appellant failed to appear at the hearing and had abandoned his request.
On appeal, appellant’s representative indicated that appellant failed to appear for the
scheduled hearing because he was not aware of the notice of hearing due to a communication
issue at his home.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.4 Unless
otherwise directed in writing by the claims examiner, an OWCP hearing representative will mail
a notice of the time and place of the hearing to the claimant and any representative at least 30

4

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

2

days before the scheduled date.5 OWCP has the burden of proving that it mailed notice of a
scheduled hearing to a claimant.6
Section 10.622(f) of OWCP regulations provide that a claimant who fails to appear at a
scheduled hearing may request in writing within 10 days after the date set for the hearing that
another hearing be scheduled.7 Where good cause for failure to appear is shown, another hearing
will be scheduled and conducted by teleconference. The failure of the claimant to request
another hearing within 10 days, or the failure of the claimant to appear at the second scheduled
hearing without good cause shown, shall constitute abandonment of the request for a hearing.
Where good cause is shown for failure to appear at the second scheduled hearing, review of the
matter will proceed as a review of the written record.8 Where it has been determined that a
claimant has abandoned his or her right to a hearing, OWCP will issue a formal decision finding
that the claimant has abandoned his or her request for a hearing.9
ANALYSIS
The Board finds that OWCP properly determined that appellant abandoned his request for
a hearing.
The record establishes that, on December 16, 2011, in response to appellant’s timely
request for an oral hearing, the Branch of Hearings and Review mailed an appropriate notice of
the scheduled hearing to be held on February 13, 2012 at 4:00 p.m. in New York, New York.
The hearing notice was properly mailed to appellant’s last known address of record. As the
Board has held, in the absence of evidence to the contrary, a letter properly addressed and mailed
in the due course of business is presumed to have arrived at the mailing address in due course.
This is known as the mailbox rule.10 The Board finds that the notice was sent more than 30 days
prior to the scheduled hearing date of February 13, 2012. The record establishes that appellant
did not appear at the appointed time. Further, he did not request a postponement of the hearing
prior to February 13, 2012 or explain his failure to appear at the hearing within 10 days of the
scheduled hearing.
Based on the evidence of the record, appellant did not request postponement of the
hearing date, failed to appear at the scheduled hearing and failed to provide any notification for
such failure within 10 days of the scheduled date of the hearing. Thus, the Board finds that
OWCP properly determined that appellant abandoned his request for an oral hearing before an
OWCP hearing representative.
5

20 C.F.R. § 10.617(b).

6

See M.B., Docket No. 10-1077 (issued March 17, 2011).

7

20 C.F.R. § 10.622(f).

8

Id.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (October 2011).
10

See e.g., Kenneth E. Harris, 54 ECAB 502 (2003).

3

Appellant further argues the merits of his claim on appeal. As noted above, since more
than 180 days have lapsed from the issuance of OWCP’s last merit decision dated August 30,
2011 to the filing of the current appeal, on March 19, 2012, the Board has no jurisdiction over
the merits of the case.11
CONCLUSION
The Board finds that OWCP properly determined that appellant abandoned his request for
a hearing.
ORDER
IT IS HEREBY ORDERED THAT the February 27, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 25, 2013
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 2.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Baltimore, MD, Employer
__________________________________________

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

Docket No. 09-1111
Issued: December 15, 2009

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 March 18, 2009 appellant, through her attorney, filed a timely appeal from a
November 7, 2008 schedule award decision of the Office of Workers’ Compensation Programs
and a January 22, 2009 nonmerit decision. Pursuant to 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 has more than 10 percent impairment of her right
upper extremity; and (2) whether the Office properly refused to reopen her claim for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 26, 2000 appellant, then a 54-year-old food service worker, filed an occupational
disease claim for carpal tunnel syndrome (CTS) that she attributed to factors of her federal

employment. The Office accepted her claim for bilateral carpal tunnel on August 15, 2000.1
Dr. Errol L. Bennett, an orthopedic surgeon, performed right carpal tunnel release surgery on
September 5, 2000.
Appellant requested a schedule award on December 17, 2007. The Office requested
medical evidence in support of her claim of permanent impairment. Appellant did not respond.
In a March 6, 2008 decision, the Office denied a schedule award on the grounds that she
failed to submit any medical evidence in support of her claim.
Appellant, through her attorney, requested reconsideration on March 21, 2008. In an
August 30, 2007 report, Dr. Steven M. Allon, an orthopedic surgeon, provided an impairment
rating. He diagnosed cumulative and repetitive trauma disorder; bilateral CTS; bilateral trigger
fingers of the index fingers and thumbs; right polyneuropathy and cubital tunnel syndrome. On
physical examination Dr. Allon found positive Tinel’s and Phalen’s signs and carpal
compression. He found right wrist dorsiflexion of 25 degrees; flexion of 60 degrees and radial
deviation of 18 degrees and ulnar deviation of 25 degrees. Dr. Allon noted hypothenar atrophy
bilaterally with nodules on the flexor surface at the trigger of the index fingers bilaterally. He
performed grip strength testing, which was 16 kilograms (kg) of force on the right hand and
pinch key testing was five kg. Dr. Allon correlated his findings with the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). He rated
loss of range of motion of the right wrist as 7 percent impairment, pinch strength deficit of
20 percent, sensory deficit of 10 percent of the median nerve and 2 percent of the ulnar nerve, or
a total 34 percent impairment to the right upper extremity. Dr. Allon advised that appellant
reached maximum medical improvement on August 30, 2007.
In a report dated August 3, 1999, Dr. Ira D. Gelb, a Board-certified orthopedic surgeon,
noted appellant’s history of right upper extremity pain, triggering of her right ring finger and a
small tender nodule in the flexor tendon. The electrodiagnostic testing suggested median and
ulnar nerve polyneuropathy compatible with her diabetes. Dr. Gelb diagnosed CTS of the right
wrist, mild trigger finger right ring finger, diabetic polyneuropathy right upper extremity and
mild right lateral epicondylitis.
On March 8, 2000 Dr. Garth A.S. Samuels, a surgeon, diagnosed right thoracic outlet
syndrome. He reviewed appellant’s February 2, 2000 electrodiagnostic studies and found
peripheral diabetic neuropathy, right CTS and right thoracic outlet syndrome.
The district medical adviser reviewed the medical evidence on April 19, 2008 and noted
that the accepted conditions included right CTS and bilateral trigger fingers. He found that
appellant had 10 percent impairment to the right upper extremity and that she reached maximum
medical improvement on August 30, 2007. The district medical adviser found no impairment for
loss of motion, pinch strength or of the right ulnar nerve. He recommended that the Office
obtain a second opinion evaluation as the rating by Dr. Allon was not reliable.

1

Appellant has a separate claim regarding her left upper extremity.

2

On April 23, 2008 the Office granted appellant a schedule award for 10 percent
impairment of her right upper extremity.
Appellant requested an oral hearing which was held on August 21, 2008. Following the
oral hearing, she submitted a September 12, 2008 report from Dr. Allon who stated that he used
three measurements in assessing pinch strength loss. Dr. Allon advised that constricted
tenosynovitis of the right index and middle fingers resulted in an additional eight percent
impairment of the right upper extremity.
By decision dated November 7, 2008, the Office hearing representative affirmed the
April 23, 2008 schedule award. The hearing representative found that the impairment rating of
the Office medical adviser was the weight of the medical evidence as Dr. Allon failed to provide
the findings on pinch strength measurement or other physical findings supporting finger
triggering.
Appellant, through her attorney, requested reconsideration on December 15, 2008 and
contended that an Office medical adviser should have reviewed Dr. Allon’s most recent report.
In a January 22, 2009 decision, the Office requested further reconsideration of the merits
on appellant’s claim.
On appeal, counsel contends that the Office failed to properly consider Dr. Allon’s
September 12, 2008 report.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act2 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, 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.4 Effective
February 1, 2001, the Office adopted the fifth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.5

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

4

Id.

5

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

3

Grip strength is used to evaluate power weaknesses related to the structures in the hand
wrist or forearm.6 The A.M.A., Guides do not encourage the use of grip strength as an
impairment rating because strength measurements are functional tests influenced by subjective
factors that are difficult to control and the A.M.A., Guides is primarily based on anatomic
impairment. The A.M.A., Guides do not assign a large role to such measurements. Only in rare
cases should grip strength be used and only when it represents an impairing factor that has not
been otherwise considered adequately.7 The A.M.A., Guides state, “Otherwise, the impairment
ratings based on objective anatomic findings take precedence.”8 (Emphasis in the original.) The
A.M.A., Guides provide that it is improper to combine impairments for decreased strength when
there is decreased range of motion.9
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for right CTS and bilateral trigger fingers. In
evaluating CTS, the A.M.A., Guides provide that, if after an optimal recovery time following
surgical decompression, an individual continues to complain of pain, paresthesias or difficulties
in performing certain activities three possible scenarios can be present. The first situation is:
“Positive clinical finding of median nerve dysfunction and electrical conduction delay(s): The
impairment due to residual CTS is rated according to the sensory and/or motor deficits as
described earlier.”10 In this situation, the impairment due to residual CTS is evaluated by
multiplying the grade of severity of the sensory or motor deficit by the respective maximum
upper extremity impairment value resulting from sensory or motor deficits of each nerve
structure involved. When both sensory and motor functions are involved the impairment values
derived for each are combined.11 In the second scenario: “Normal sensibility and opposition
strength with abnormal sensory and/or motor latencies or abnormal electromyogram testing of
the thenar muscles: a residual CTS is still present and an impairment rating not to exceed [five]
percent of the upper extremity may be justified.” In the final situation: “Normal sensibility
(two-point discrimination and Semmes-Weinstein monofilament testing), opposition strength and
nerve conduction studies: there is no objective basis for an impairment rating.”12

6

A.M.A., Guides 508, 16.8b.

7

Id. at 507, 16.8 Strength Evaluation; Cerita J. Slusher, 56 ECAB 532 (2005); Mary L. Henninger, 52 ECAB
408, 409 (2001).
8

Id. at 508.

9

Id. at 526, Table 17.2; Slusher, supra note 7; Patricia J. Horney, 56 ECAB 256 (2005).

10

Id. at 495.

11

Id. at 494, 481.

12

Id. at 495.

4

To accurately evaluate sensory impairment clinically and reduce the subjective nature of
these findings,13 the A.M.A., Guides recommend either the two-point test for fine discrimination,
the monofilament touch-pressure threshold test or the pinprick test.14
There is no evidence in the record that appellant has undergone additional diagnostic
testing following her right carpal tunnel release. The case is not in posture for a decision
regarding appellant’s right upper extremity due to the accepted condition of right CTS. In his
2007 report, Dr. Allon did not adequately provide findings supporting her bilateral trigger
fingers. Before the A.M.A., Guides can be properly utilized, an examining physician must
provide a description of appellant’s impairment in order that the Office and subsequent reviewers
of the record can visualize the nature and extent of impairment.15 In obtaining medical evidence
required for a schedule award, the evaluation should include the loss in degrees of active and
passive motion of the affected member or function, the amount of any atrophy or deformity,
decreases in strength or disturbance of sensation or other applicable descriptions of the
impairment upon which a rating is made. The present medical evidence does not provide
sufficient description of the nature or extent of appellant’s permanent impairment to her right
arm. The district medical adviser stated that he agreed with an impairment rating for sensory
loss for right median nerve dysfunction as postsurgical sensory residuals commonly remained.
He rated impairment of the median nerve below the forearm, noting that the maximum sensory
loss at Table 16-15 was 39 percent to the upper extremity. The district medical adviser allowed a
Grade 4 sensory deficit under Table 16-10, which corresponds to a 25 percent deficit.
Multiplying the grade by the maximum allowed totaled 9.75 percent which was rounded to
10 percent. To this extent, he incorporated the rating of Dr. Allon; however, he did not address
whether the range of motion findings resulted in permanent impairment or explain why sensory
deficit of the right ulnar nerve should be excluded. Dr. Allon stated that the loss of range of
motion to the right wrist totaled seven percent based on loss of dorsiflexion and ulnar deviation.
His report September 12, 2008 does not cure the deficiencies noted in his prior impairment
rating.
On remand, the Office should refer appellant to a physician for testing to establish the
extent of permanent impairment of her right upper extremity due to the accepted conditions.
After such development as it deems necessary, it should issue an appropriate decision of her
claim for a schedule award.
CONCLUSION
The Board finds that the case is not in posture for a decision.16

13

Id. at 446.

14

Id. at 445.

15

Robert B. Rozelle, 44 ECAB 616, 618 (1993).

16

Due to the resolution of the initial issue, it is not necessary for the Board to address the nonmerit issue in this
appeal.

5

ORDER
IT IS HEREBY ORDERED THAT January 22, 2009 and November 7, 2008 and
decisions of the Office of Workers’ Compensation Programs are set aside and remanded for
further development consistent with this decision of the Board.
Issued: December 15, 2009
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

6