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

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

Docket No. 15-1141
Issued: September 29, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 24, 2015 appellant filed a timely appeal from an October 31, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
and medical compensation benefits effective October 31, 2014 because she no longer had any
residuals or disability causally related to her accepted employment injuries.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the October 31, 2014 decision. Since
the Board’s jurisdiction is limited to evidence that, was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt,
57 ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration,
pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

FACTUAL HISTORY
On February 20, 2007 appellant, then a 53-year-old rural mail carrier, filed an
occupational disease claim alleging that she experienced noticeable left hip discomfort beginning
January 2006 due to repetitive twisting, bending, lifting, and reaching in order to process and
deliver mail. She did not stop work. OWCP accepted appellant’s claim for aggravation of
herniated disc disease at L5-S1 and aggravation of disc protrusion.
On August 30, 2011 appellant underwent an authorized L5 decompression and
discectomy surgery. She stopped work and filed a recurrence claim. On November 7, 2011
OWCP accepted appellant’s recurrence claim and paid compensation benefits.
OWCP expanded her claim to include right hip and thigh sprain, degeneration of
lumbosacral intervertebral disc, displacement of lumbar intervertebral disc without myelopathy,
postlaminectomy syndrome, and thoracic or lumbosacral radiculitis.
On November 2, 2013 appellant was examined by Dr. Amy D. Leland, Board-certified in
physical medicine and rehabilitation, who reviewed several medical reports regarding a
permanent nerve injury in appellant’s left leg, diagnostic reports, and her chart notes from
appellant’s last two visits in 2012. She opined that it was probable that appellant’s fall on
July 17, 2013 was the result of the permanent nerve damage in her left leg (chronic left L5
radiculopathy) caused by her January 2006 job injury. Dr. Leland explained that appellant’s
report of the July 17, 2013 incident had been consistent and fit with her diagnosis.
OWCP referred appellant, along with a statement of accepted facts (SOAF) and the
medical record, to Dr. Stanley W. Collis, a Board-certified orthopedic surgeon, for a second
opinion examination. In a report dated November 12, 2013, Dr. Collis reviewed her medical
records, including the SOAF, and noted her accepted conditions. He reported that appellant’s
physical examination was not remarkable at all except for some mild neuralgia at times in the
right leg. Dr. Collis opined that, in the absence of any objective findings on the physical
examination, appellant was able to return to work delivering mail in the rural area.
In a January 14, 2014 report, Dr. Leland discussed Dr. Collis’ November 12, 2013 report
and disagreed with his opinion. She pointed out that appellant had always complained of left leg
symptoms, but Dr. Collis’ report mentioned appellant’s right leg. Dr. Collis noted that in her
November 12, 2013 report she provided a narrative explaining the nature of appellant’s
permanent injuries related to her workers’ compensation injury from January 2006. Dr. Leland
opined that appellant was not capable of full-duty work.
OWCP determined that there was a conflict in the medical opinion evidence between
Dr. Collis and Dr. Leland regarding whether appellant continued to suffer residuals of her
employment injuries and was able to return to work. It referred appellant to Dr. Richard
Sheridan, a Board-certified orthopedic surgeon, in order to resolve the conflict in medical
opinion evidence regarding whether there continued to be a causal relationship between the
accepted work injuries and her current symptoms and inability to work.

2

In a June 10, 2014 report, Dr. Sheridan discussed appellant’s medical history, including
her diagnostic test results. Upon examination of the lumbar spine, he reviewed no abnormal
rotation or flexion of the trunk and no asymmetry. Dr. Sheridan found no points of tenderness in
the lumbar spinous processes and no lumbar paravertebral spasm. Range of motion of
appellant’s spine was full in all modes and straight leg raise testing was negative. Upon
examination of the lower extremities, Dr. Sheridan found no evidence of alopecia or pedal
edema. Homan and Battle tests were negative for deep venous thrombosis. Dr. Sheridan
reported that there were no objective findings on physical examination to support an active
diagnosis of status postmicrolumbar discectomy at L5-S1 or any of the accepted conditions
described in the SOAF. He indicated that any current disability was not due to the work injury,
but to preexisting lumbar degenerative disc disease. Dr. Sheridan stated that he reviewed the
date-of-injury job position and believed that appellant was capable of performing the duties of a
rural mail carrier position.
By letter dated July 1, 2014, OWCP requested clarification from Dr. Sheridan. It noted
that his opinion was unequivocal that appellant had an active diagnosis of postmicrolumbar
discectomy at L5-S1 and that any residuals were not due to her work injury. It clarified that
OWCP had authorized the surgery and any disability related to her August 30, 2011 surgery
would be considered work related. Dr. Sheridan was asked to clarify his findings in light of that
information.
In a July 2, 2014 addendum, Dr. Sheridan reported that appellant had a normal
examination of her low back and no longer had any residuals of her work-related conditions of
lumbago, sciatica, and right thigh strain. He further reported that she did not have residuals of
her authorized micro lumbar discectomy as performed on August 30, 2011 and explained that
she had no evidence of radiculopathy. Dr. Sheridan confirmed that appellant’s current diagnosis
was status post L5-S1 discectomy with no objective residuals. He opined that she was capable of
returning to her former duties as a rural letter carrier without physical limitations.
On September 10, 2014 OWCP proposed to terminate appellant’s wage-loss
compensation and medical benefits because the medical evidence demonstrated that she ceased
to have residuals of her accepted work injuries. Appellant was advised to submit additional
evidence or argument within 30 days if she disagreed with the preliminary determination.
On September 18, 2014 appellant retired from the employing establishment.
In a September 19, 2014 statement, appellant requested a current physical examination,
including an updated electromyogram and functional capacity evaluation, in order to ascertain
how Dr. Sheridan was able to come to the conclusion that she was able to return to her job with
no restrictions. She alleged that his opinion was based on past medical records that were at least
two years old and were not an accurate representation of her current condition. Appellant
contended that medical records from Dr. Leland confirmed that she had permanent nerve damage
to her lower left extremities that promoted tingling, numbness, stabbing pain, and total loss of
function in her left leg.
Appellant was examined by Dr. William C. Thompson, a family practitioner, who
discussed in reports dated May 30 to September 16, 2014, her history and conducted an

3

examination. Dr. Thompson observed pain with backward bending of the lumbar spine and pain
with straight leg raise testing of the left leg. He also reported good strength of extensor halluces
longus and a bit of weakness on left extensor halluces compared to the right. Dr. Thompson
diagnosed disc degeneration of the lumbar spine, displacement of lumbar intervertebral disc,
right thigh sprain, and sciatica. He opined that appellant’s condition had worsened in the last
two years. In a September 16, 2014 report, Dr. Thompson stated that there was a discrepancy
between the independent medical examiners and Dr. Leland regarding the left-sided neuropathic
pain.
By decision dated October 31, 2014, OWCP terminated appellant’s compensation for
wage-loss and medical benefits. It found that the weight of the medical evidence rested with
Dr. Sheridan’s June 10 and July 2, 2014 independent medical reports, which determined that she
no longer had residuals of her accepted work-related injuries.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s benefits.3 It may not terminate compensation
without establishing that the disability had ceased or that it was no longer related to the
employment.4 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.5 The right to
medical benefits for an accepted condition is not limited to the period of entitlement for
disability compensation.6 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.7
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary
shall appoint a third physician (known as a referee physician or impartial medical specialist) who
shall make an examination.8 This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.9 When there exists opposing medical reports of virtually equal weight and rationale and
3

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor,
37 ECAB 541 (1986).
5

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

6

A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).
7

A.P., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

8

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
9

20 C.F.R. § 10.321.

4

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
ANALYSIS
OWCP found that a conflict in medical opinion existed between appellant’s physician,
Dr. Leland, who opined that appellant remained totally disabled from work, and the second
opinion physician, Dr. Collis, who opined that appellant was capable of returning to full duty
delivering mail in the rural area. To resolve the conflict in medical opinion, it referred appellant
to Dr. Sheridan for an impartial medical examination. OWCP properly found that a conflict in
medical opinion existed and referred her for an impartial medical examination.
In a June 10, 2014 report, Dr. Sheridan discussed appellant’s medical history, including
reports and diagnostic test results, and reviewed the SOAF. Upon examination of the lumbar
spine, he observed no abnormal rotation or flexion of the trunk, no points of tenderness in the
lumbar spinous processes, and no lumbar paravertebral spasm. Range of motion of appellant’s
spine was full in all modes and straight leg raise testing was negative. Examination of the lower
extremities revealed no evidence of alopecia, pedal edema, or bruits. Homan and Battle tests
were negative for deep venous thrombosis. Dr. Sheridan reported that there were no objective
findings on physical examination to support an active diagnosis of status postmicrolumbar
discectomy at L5-S1 or any of the accepted conditions described in the SOAF. He indicated that
any current disability was not due to the work injury, but to preexisting lumbar degenerative disc
disease. Dr. Sheridan concluded that appellant was capable of performing the duties of a rural
mail carrier position. In a July 2, 2014 addendum, he clarified that she no longer had residuals of
her work-related conditions of lumbago, sciatica, and right thigh strain as evidenced by the
normal examination. Dr. Sheridan further reported that appellant did not have residuals of her
authorized micro lumbar discectomy as performed on August 30, 2011 and explained that she
had no evidence of radiculopathy. He confirmed that her current diagnosis was status post L5-S1
discectomy with no objective residuals and concluded that she was capable of returning to her
former duties as a rural letter carrier without physical limitations.
The Board finds that Dr. Sheridan’s opinion is sufficient to constitute the special weight
of the medical evidence and to justify the termination of appellant’s compensation and wage-loss
compensation benefits. Dr. Sheridan’s June 10, 2014 report and July 2, 2014 addendum were
based on the complete medical record and SOAF. He performed a thorough, clinical
examination, and provided findings on examination. Dr. Sheridan reported that appellant’s
examination was normal and opined that her accepted conditions had resolved. The Board finds
that he provided sufficient medical rationale explaining why she no longer suffered residuals of
her accepted conditions. Dr. Sheridan further reported that he reviewed appellant’s former duties
and concluded that she was capable of returning to full duty. The Board finds that his opinion is
sufficiently rationalized to represent the weight of medical evidence in this case and to justify
OWCP’s termination of compensation and medical benefits.11
10

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

11

See Melvina Jackson, 38 ECAB 443 (1987); Naomi Lilly, 10 ECAB 560 (1957).

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On appeal, appellant pointed out that her examinations with Dr. Collis and Dr. Sheridan
were very brief and alleged that the physicians lacked any knowledge of her case or the affected
body parts. As previously discussed, however, the Board finds that Dr. Sheridan’s examination
and subsequent report was based on the complete record and objective examination findings and,
accordingly, was sufficient to represent the special weight of medical evidence afforded to an
impartial medical examiner.
The Board further finds that the medical evidence submitted after Dr. Sheridan’s
impartial medical evaluation report does not overcome the weight of his report or create a
conflict in medical evidence.
Appellant submitted reports by Dr. Thompson dated May 30 to September 16, 2014.
Dr. Thompson described her history and conducted an examination. He reported pain with
backward bending of appellant’s lumbar spine and pain with straight leg raise testing of the left
hip. Examination of the left lower extremity demonstrated good strength of extensor halluces
and some weakness on left extensor halluces. Dr. Thompson diagnosed disc degeneration of the
lumbar spine, displacement of lumbar intervertebral disc, right thigh sprain, and sciatica. He
noted that appellant’s condition had worsened in the last two years. Dr. Thompson further
indicated that there was a discrepancy between the independent medical examiners and
Dr. Leland regarding appellant’s left-sided neuropathic pain. Although he provided several
medical diagnoses, he did not offer any opinion on whether appellant continued to be disabled
from work as a result of her accepted conditions or whether her current symptoms were causally
related to her work-related lumbar and right hip injuries. The Board has held that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.12
On appeal, appellant alleges that the weight and magnitude of the medical evidence
justifies continuing benefits. There is no medical evidence contemporaneous with the
termination of her benefits which supports that she has any continuing residuals related to her
accepted lumbar condition. The Board, therefore, finds that OWCP properly terminated
appellant’s rights to compensation and medical benefits.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
and medical compensation benefits effective October 31, 2014 because she no longer had any
residuals or disability causally related to her accepted employment injuries.

12

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the October 31, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 29, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 13-958
Issued: March 7, 2014

Case Submitted on the Record

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

JURISDICTION
On March 13, 2013 appellant filed a timely appeal from a March 4, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has more than five percent impairment of his right arm for
which he received a schedule award.
FACTUAL HISTORY
On March 10, 2009 appellant, then a 50-year-old distribution clerk, filed a Form CA-2,
notice of occupational disease, alleging that he injured his right shoulder as a result of repetitive
lifting of boxes and pushing mail containers and cans while in the performance of duty. OWCP
1

5 U.S.C. §§ 8101-8193.

accepted a sprain of the right shoulder, cervical spondylosis and sprains of both shoulders and
upper arms. It authorized arthroscopic surgery on the right shoulder on October 6, 2009 and the
left shoulder on June 29 and October 6, 2010.
In 2009 appellant was treated by Dr. Charles D. Marable, a Board-certified neurologist,
for the work-related shoulder injury. Dr. Marable diagnosed a cervical disc and right rotator cuff
tear. He opined that repetitive use of his shoulders and lifting boxes injured appellant’s neck,
shoulders and back. A February 27, 2009 magnetic resonance imaging (MRI) scan of the right
shoulder revealed a partial tear of the supraspinatus tendon, tendinosis with a partial tear of the
proximal infraspinatus and severe acromioclavicular spurring. Appellant came under the
treatment of Dr. Linden Dillin, a Board-certified orthopedic surgeon. On October 6, 2009
Dr. Dillin performed a right shoulder arthroscopy and superior labral repair and right anterior
labral repair and diagnosed right superior and anterior labral tear. On December 21, 2009 he
noted that appellant was progressing well postoperatively with excellent range of motion of the
right shoulder.
On April 12, 2010 appellant filed a claim for a schedule award. He submitted an
April 20, 2010 report from Dr. Marable, who opined that appellant sustained four percent
impairment of the right arm under the sixth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides).2 Dr. Marable noted a history of
injury and diagnosed status post right partial rotator cuff tear. He noted that appellant underwent
surgery on the right shoulder on October 6, 2009 for partial right rotator cuff tear. Dr. Marable
listed appellant’s complaints of pain, numbness and weakness in the right arm, movement
aggravated his right arm, he could not sleep on his right side, comb his hair, reach overhead or
do his usual work. A February 27, 2009 right shoulder MRI scan revealed a partial tear of the
supraspinatus tendon and tendinosis. Under Table 15-5, Shoulder Regional Grid, for the
diagnoses of right cuff partial thickness tear, appellant was a class 1 rating, grade C for painful
injury and residual symptoms without consistent objective findings for a default rating of three
percent impairment of the right upper extremity. Dr. Marable also noted range of motion (ROM)
for the right shoulder was: flexion of 130 degrees, extension was intact, abduction of 130
degrees, adduction of -10 degrees, internal rotation was intact and external rotation was -20
degrees. Pursuant to the Adjustment Grid: Functional History Adjustment, Table 15-7,
appellant was assigned a grade modifier 3 for consistent moderate symptoms despite continuous
treatment and intermittent severe symptoms despite continuous treatment; for Physical
Examination Adjustment, appellant was assigned a grade modifier 2 for constant mild physical
findings despite continuous and intermittent moderate findings; and for Clinical Studies
Adjustment, appellant was assigned a grade modifier 2 for persistent mild abnormalities despite
continuous treatment or intermittent moderate abnormalities. Dr. Marable added the net
adjustment of +4 to the default rating of three percent which equaled seven percent. He then
multiplied seven percent by .6 to determine that appellant had four percent whole person
impairment for the right shoulder.
In a May 21, 2010 report, an OWCP medical adviser reviewed Dr. Marable’s April 20,
2010 report and agreed that appellant reached maximum medical improvement on that date. The
2

A.M.A., Guides (6th ed. 2008).

2

medical adviser stated that, pursuant to Table 15-5, Shoulder Regional Grid, the diagnoses of
right rotator partial thickness tear and repair, appellant was a class 1 rating, grade C for three
percent default impairment of the right arm. He noted that, pursuant to the Adjustment Grid:
Functional History, Table 15-7, appellant was assigned a grade modifier 3. With regard to
Physical Examination Adjustment, appellant was assigned a grade modifier 2 and with regard to
the Clinical Studies Adjustment, he was assigned a grade modifier 2. The medical adviser noted
that this yielded a net adjustment of +4 which resulted in a grade E and five percent upper
extremity impairment under Table 15-5.
Appellant submitted reports from Dr. Dillin dated May 26, 2010 to June, 28, 2012, who
noted that appellant’s right shoulder was healing well but he had pain and discomfort of the left
shoulder. Dr. Dillin also diagnosed left shoulder impingement, acromioclavicular arthropathy
and possible labral tear. He advised that appellant had a significant left labral tear which needed
reconstruction.
In a decision dated September 26, 2012, OWCP granted appellant a schedule award for
five percent impairment for the right arm. The period of the award was from August 26 to
December 13, 2012.
On December 3, 2012 appellant requested reconsideration. In a November 2, 2012
statement, he asserted that OWCP’s referral physician, Dr. Shaffer,3 arrived one hour late and did
not perform a thorough examination. Appellant noted that his impairment rating for the right
shoulder was five percent for one surgery; however, he had two surgeries on his left shoulder and
the ratings provided by the second opinion physician were inadequate to compensate him for his
impairment. He submitted an October 18, 2012 report from Dr. Marable, who diagnosed history
of lumbar disease, cervical spondylosis, bilateral rotator cuff and status post surgery of both
shoulders. Dr. Marable advised that appellant was disabled.
In a decision dated
September 26, 2012 decision.

March 14,

2013,

OWCP

denied

modification

of

the

LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6
3

This appears to be a typographical error as the OWCP referral physician was Dr. John A. Sklar.

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

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For decisions after February 1, 2001, the fifth edition of the A.M.A., Guides is used to
calculate schedule awards.7 For decisions issued after May 1, 2009, the sixth edition of the
A.M.A., Guides will be used.8 It is the claimant’s burden to establish that he or she sustained a
permanent impairment of a scheduled member or function as a result of an employment injury.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).10 Under the sixth edition of the A.M.A., Guides, for upper extremity
impairments the evaluator identifies the impairment class for the diagnosed condition (CDX),
which is then adjusted by grade modifiers based on Functional History (GMFH), Physical
Examination (GMPE) and Clinical Studies (GMCS).11 The net adjustment formula is (GMFHCDX) + (GMPE-CDX) + (GMCS-CDX).12
ANALYSIS
On appeal, appellant contends that he has greater than five percent permanent impairment
of the right upper extremity. OWCP accepted his claim for sprain of the right shoulder, cervical
spondylosis and sprains of both shoulders and upper arms. On October 6, 2009 appellant
underwent a right shoulder arthroscopy, superior labral repair and right anterior labral repair.
In his April 20, 2010 report, Dr. Marable reviewed the medical evidence and applied the
sixth edition of the A.M.A., Guides. For the right shoulder, he determined that, pursuant to
Table 15-5, Shoulder Regional Grid, for the diagnoses of right cuff partial thickness tear,
appellant was a class 1 rating, grade C, page 402, for painful injury and residual symptoms
without consistent objective findings for a default rating of three percent impairment of the right
upper extremity. Dr. Marable noted that, pursuant to the Adjustment Grid: Functional History
Adjustment, Table 15-7, appellant was assigned a grade modifier 3 for consistent moderate
symptoms despite continuous treatment and intermittent severe symptoms despite continuous
treatment, for Physical Examination Adjustment, appellant was assigned a grade modifier 2 for
constant mild physical findings despite continuous and intermittent moderate findings, and for
Clinical Studies Adjustment, appellant was assigned a grade modifier 2 for persistent mild
abnormalities despite continuous treatment or intermittent moderate abnormalities. The Board
notes that Dr. Marable incorrectly added the amounts for the schedule award, specifically adding
the default value of three percent with the net adjustment formula of +4 for seven percent arm
impairment and then he improperly multiplied seven percent by .6 for a four percent right whole
7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

8

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

9

Tammy L. Meehan, 53 ECAB 229 (2001).

10

A.M.A., Guides, supra note 1 at 3, section 1.3, The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.
11

Id. at 385-419.

12

Id. at 411.

4

person impairment. This calculation does not conform to the A.M.A., Guides which provide for
a default value of three percent for class 1, grade C, and a maximum five percent impairment for
the class 1, grade E condition.13 The A.M.A., Guides are clear that in applying grade modifiers
to the net adjustment formula, a change is class is not permitted regardless of the net
adjustment.14 Furthermore, FECA does not provide for whole person impairment.15
The medical adviser reviewed the medical record. In a report dated May 21, 2010, he
noted that pursuant to Table 15-5, Shoulder Regional Grid, for the diagnoses of right rotator
partial thickness tear and repair, appellant was a class 1 rating, grade C for residual symptoms,
functional loss for a default rating of three percent impairment of the right arm. The medical
adviser noted that, pursuant to the Adjustment Grid: Functional History, Table 15-7, appellant
was assigned a grade modifier 3. With regard to Physical Examination Adjustment, he was
assigned a grade modifier 2 and with regard to the Clinical Studies Adjustment, he was assigned
a grade modifier 2 as the clinical studies confirmed the diagnoses of a partial rotator cuff tear.
The medical adviser noted that these adjustments yielded a net adjustment of +4. This resulted
in a grade E and five percent upper extremity impairment under Table 15-5.
The Board finds that the medical adviser properly applied the A.M.A., Guides to rate
impairment to appellant’s right shoulder as set forth by Dr. Marable. OWCP’s medical adviser
reviewed the medical evidence and determined that appellant had five percent impairment for the
right arm under the sixth edition of the A.M.A., Guides. There is no current medical evidence
that establishes any greater impairment under the A.M.A., Guides.16
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has five percent impairment of the right upper extremity
for which he received a schedule award.

13

Id. at 402

14

Id. at 409.

15

See B.P., Docket No. 08-1457 (issued February 2, 2009).

16

The Board notes that OWCP developed evidence with regard to whether appellant has employment-related left
arm impairment and he referenced this on appeal. However, the Board has no jurisdiction over the extent of any left
arm impairment as OWCP has not yet issued a final decision regarding left arm impairment. See. 20 C.F.R.
§ 501.2(c).

5

ORDER
IT IS HEREBY ORDERED THAT the March 14, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 7, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


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

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1460
Issued: December 28, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 12, 2006 appellant, through his attorney, filed a timely appeal from an August 5,
2005 merit decision of the Office of Workers’ Compensation Programs denying his occupational
disease claim. He also appealed a November 23, 2005 nonmerit decision denying his request for
reconsideration and an April 14, 2006 merit decision denying modification. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained a cervical condition
causally related to factors of his federal employment.
FACTUAL HISTORY
On December 31, 2004 appellant, then a 56-year-old rural carrier, filed an occupational
disease claim alleging that he sustained cervical bulging discs and nerve root compression due to
neck rotation performing his work duties. He stopped work on November 4, 2004. Appellant
related that he initially experienced left shoulder and arm pain on November 1, 2004. He

informed his supervisor of his condition on November 11, 2004. Appellant explained that he had
nerve damage in his right arm from a prior injury. He stated: “To compensate for this, I use my
left arm to sort and deliver mail. This causes an increase in the rotation of my neck.”
The employing establishment controverted appellant’s claim.
The employing
establishment maintained that he sustained a nonemployment-related injury on November 11,
2004 and noted that he also worked as a private farmer.
In a chart note dated November 4, 2004, Dr. Tim Penner, Board-certified in family
practice, discussed appellant’s history of left shoulder and neck pain for the prior two weeks. He
stated: “[Appellant] notices that his job at work, reaching back to take mail out of his ‘mule’
with the left arm is extremely painful at times. Even just sorting mail lately has caused him to
experience pain in his left shoulder. The pain is now radiating up into his neck.” Dr. Penner
diagnosed a possible cervical disc problem.
On November 17, 2004 Dr. Allan D. Holiday, Jr., a Board-certified orthopedic surgeon,
diagnosed left arm pain and cervical disc disease at C6-7. He opined that appellant’s condition
was most likely aggravated by his employment “due to neck rotation.” On December 17, 2004
Dr. Holiday asserted that his “current neck problems are work related.”
By letter dated January 28, 2005, the Office requested additional factual and medical
information from appellant, including a comprehensive medical report from his attending
physician addressing the causal relationship between any diagnosed condition and work factors.
The Office also requested that appellant describe his November 2004 nonemployment-related
injury. In a February 9, 2005 response, appellant explained that on November 6, 2004 he was
hooking a trailer to his truck. He experienced crush injury to his finger “when it was pinched
between the hitch and a concrete block used to support the hitch.” Appellant also described his
farm duties.
On February 18, 2005 the employing establishment again controverted the claim, noting
that appellant performed work on a farm. The employing establishment indicated that a
coworker witnessed him driving a truck loaded with two cows on February 17, 2005.
In a report dated March 7, 2005, Dr. Holiday discussed appellant’s problems at work
“reaching back to take mail out of his ‘mule’ with the left arm” and his left shoulder pain when
sorting mail. He interpreted an magnetic resonance imaging (MRI) scan of the cervical spine
obtained on November 7, 2004 as showed disc bulging and degeneration at C5-6, C6-7 and
C7-T1. A second cervical MRI scan study was unchanged. Dr. Holiday stated:
“[Appellant] reports that, when he turns his head far to the left to reach, his neck
is at an extreme range of motion and this can definitely aggravate or cause the
current symptom complex that he has in the upper extremity as well as in the
cervical spine. By rotating the neck from anterior to the extreme posterior left,
the openings in which the cervical roots exit the vertebral column are narrowed
and opened on a repetitive basis. It is my thought process that this repetitive
opening and closing of the neuroforamen related to his neck rotation aggravated
and caused the symptoms he has of his upper extremity.”

2

Dr. Holiday released appellant to resume limited-duty work on February 14, 2005 and to
his usual employment on April 4, 2005.
By letter dated May 25, 2005, the Office requested that Dr. Holiday review the statement
of accepted facts and clarify the etiology of appellant’s condition and the nature of any
underlying disease. The Office further requested that Dr. Holiday discuss whether he had
knowledge of appellant’s activities outside employment. On June 2, 2005 Dr. Holiday diagnosed
degeneration and narrowing of the cervical discs but no herniation. He opined that appellant’s
left shoulder and arm pain resulted from an aggravation of preexisting cervical degenerative
changes. Repetitive neck motions caused the aggravation but not the degeneration of the
cervical spine. Dr. Holiday noted that cervical degenerative changes were “common in middleaged adults.” He asserted that appellant’s “work in which he turns the neck side-to-side to look
over his shoulder and load the mail has aggravated this underlying condition.” Dr. Holiday
stated:
“The location of the pain correlates well with looking over the left shoulder. This
would open and close the neural foramen irritating the nerves primarily in the left
arm. The activities that [appellant] partakes in are within reasonable and normal
range for an adult male to pursue during his middle ages. The type of process he
has occurs gradually over time with repetitive turning of the neck and I cannot
provide evidence that this happened directly at work.”
Dr. Holiday opined that appellant could resume his usual employment avoiding similar repetitive
neck motions.
On June 24, 2005 the Office requested that Dr. Holiday specify exactly which cervical
discs had been aggravated and provide copies of the MRI scan studies.1
By decision dated August 5, 2005, the Office denied appellant’s claim on the grounds
that the evidence failed to establish that he sustained a condition due to factors of his federal
employment. On November 10, 2005 appellant requested reconsideration. In a decision dated
November 23, 2005, the Office denied his request on the grounds that the evidence was
insufficient to warrant merit review of the claim under 5 U.S.C. § 8128.
In a report dated October 6, 2005, received by the Office on November 30, 2005
Dr. Penner asserted that appellant’s neck, shoulder and upper back problems were “related
directly to his job.” On January 20, 2006 Dr. Holiday informed the Office that it was not
possible to determine precisely which cervical discs were aggravated.
On February 8, 2006 appellant, through his attorney, requested reconsideration. The
attorney argued that Dr. Holiday’s March 7 and June 2, 2005 reports established that work duties
aggravated the preexisting degenerative changes in appellant’s cervical spine. On March 24,
2006 the employing establishment maintained that his farming duties were more strenuous than
1

A cervical MRI scan study dated November 7, 2004 revealed mild disc bulges at C4-5, C5-6 and C6-7 flattening
the anterior thecal sac but not contracting the cord. An MRI scan of the cervical spine dated May 27, 2004 showed
minimal degenerative cervical changes.

3

his work duties. By decision dated April 14, 2006, the Office denied modification of its
August 5, 2005 decision. The Office determined that the newly submitted medical evidence was
insufficiently rationalized to show that he sustained a condition aggravated by his employment.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;5 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;6 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.7
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence, which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.8 The
opinion of the physician must be based on a complete factual and medical background of the
claimant,9 must be one of reasonable medical certainty10 explaining the nature of the relationship

2

5 U.S.C. §§ 8101-8193.

3

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Ellen L. Noble, 55 ECAB 530 (2004).

5

Michael R. Shaffer, 55 ECAB 386 (2004).

6

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

7

Beverly A. Spencer, 55 ECAB 501 (2004).

8

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

9

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

10

John W. Montoya, 54 ECAB 306 (2003).

4

between the diagnosed condition and the specific employment factors identified by the
claimant.11
Proceedings under the Act are not adversarial in nature and the Office is not a
disinterested arbiter. While the claimant has the burden to establish entitlement to compensation,
the Office shares responsibility to see that justice is done.12 Once the Office undertakes to
develop the medical evidence further, it has the responsibility to do so in a proper manner.13
ANALYSIS
Appellant attributed his cervical spine condition to repetitive neck motions while
performing his employment duties. He noted that due to a right upper extremity injury he used
his left arm to deliver mail. The employing establishment did not controvert that appellant
performed these duties. The issue, therefore, is whether the medical evidence establishes a
causal relationship between the claimed cervical condition and the identified employment
factors.
On November 17, 2004 Dr. Holiday diagnosed left arm pain and cervical disc disease at
C6-7 most likely aggravated by employment. On December 17, 2004 he attributed appellant’s
neck problems to his employment. In a report dated March 7, 2005, Dr. Holiday noted that
appellant experienced pain reaching with his left arm when turning to take mail out of his mule.
He interpreted an MRI scan study as revealing disc bulging and degeneration at C5-6, C6-7 and
C7-T1. Dr. Holiday opined that the repetitive neck rotation appellant performed could
aggravation his upper extremity and cervical spine symptoms. He stated: “By rotating the neck
from anterior to the extreme posterior left, the openings in which the cervical roots exit the
vertebral column are narrowed and opened on a repetitive basis.”
On June 2, 2005 Dr. Holiday found that appellant’s pain in his left shoulder and arm
resulted from an aggravation of preexisting cervical degenerative discs. He opined that
appellant’s repetitive neck movements aggravated but did not cause the degeneration, which was
common for a person his age. Dr. Holiday found that his “work in which he turns the neck sideto-side to look over his shoulder and load the mail has aggravated this underlying condition.” He
explained that the location of the pain correlated to “looking over the left shoulder. This would
open and close the neural foramen irritating the nerves primarily in the left arm.”14

11

Judy C. Rogers, 54 ECAB 693 (2003).

12

Jimmy A. Hammons, 51 ECAB 219 (1999).

13

Melvin James, 55 ECAB 406 (2004).

14

While Dr. Holiday indicated that he could not provide direct evidence that the neck rotation that aggravated
appellant’s cervical disc disease occurred at work, the Board has held that the opinion of a physician supporting
causal relationship does not have to reduce the cause or etiology of a disease or condition to an absolute certainty.
See generally Ellen L. Noble, 55 ECAB 530 (2004) (while the opinion of a physician supporting causal relationship
does not have to reduce the cause or etiology of a disease or condition to an absolute certainty, neither can such
opinion be speculative or equivocal).

5

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.15 Although Dr. Holiday does not provide
sufficient rationale to discharge appellant’s burden of proving by the weight of the reliable,
substantial and probative evidence his contention that he sustained an aggravation of
degenerative disc disease of the cervical spine due to employment factors, his opinion raises an
inference of causal relationship sufficient to require further development by the Office.16
Additionally, the record does not contain any contradictory medical evidence. The case will,
therefore, be remanded to the Office for further development of the medical evidence to
determine whether appellant sustained a cervical condition due to factors of his federal
employment and, if so, the nature 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 case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 14, 2006 and November 23 and August 5, 2005 are set
aside and the case is remanded for further proceedings consistent with this decision by the Board.
Issued: December 28, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
15

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

16

Phillip L. Barnes, 55 ECAB 426 (2004); John J. Carlone, 41 ECAB 354 (1989).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.D., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, New Cumberland, PA,
Employer
__________________________________________

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)
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)
)
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)
)
)

Appearances:
Howard L. Graham, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1654
Issued: February 19, 2021

Case Submitted on the Record

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

JURISDICTION
On August 1, 2019 appellant, through counsel, filed a timely appeal from a July 8, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a stress-related
condition in the performance of duty, as alleged.
FACTUAL HISTORY
On May 12, 2016 appellant, then a 57-year-old supervisory information technology
specialist, filed an occupational disease claim (Form CA-2) alleging that he developed
hypertension over the prior two years due to stress from having an excessive workload and
unrealistic deadlines. He advised that he first became aware of his claimed condition on May 15,
2015 and realized its relation to his federal employment on April 1, 2016. On the reverse side of
the form appellant’s immediate supervisor, B.M., expressed his belief that appellant had not
established causal relationship. Appellant stopped work on May 3, 2016.
Appellant submitted a May 6, 2016 statement in which he indicated that he began working
as a supervisor for the joint information operations branch of the employing establishment on
June 14, 2014. He noted that, in early2013, the branch had undergone a massive reorganization,
which merged five different systems together with 20 employees. Appellant recounted that the
branch conducted two major software installations per year prior to the reorganization, but
conducted 12 to 15 major software installations per year thereafter, thereby causing chaos because
the installations interfered with each other.3 He asserted that the prior supervisor of the branch,
C.J., did not like his positive progress supervising the branch and launched a campaign to
undermine him by using false statements to get the Office of Inspector General to investigate him
and by having upper management conduct an anonymous online survey in July 2015, entitled,
“Speak up -- make a difference,” which he believed focused on him. Appellant advised that there
were four computer development branches at the employing establishment, but maintained that his
branch had more incident tickets associated with software changes than the three other branches
combined. He asserted that he had to report an employee in his branch as potentially being an
active shooter in the workplace due to his erratic behavior. Appellant claimed that he did not have
a prehypertension condition until his branch reorganized in 2013 and asserted that his hypertension
was caused by “excessive workload, excessive workplace stress, completely unrealistic deadlines,
and upper management constantly harassing me and impeding my workplace efforts for the last
two years.”
Appellant submitted an April 22, 2016 report from Dr. Thomas Minora, a Board-certified
internist, who noted that appellant reported a correlation between stress from his job requirements
and high blood pressure. Dr. Minora diagnosed generalized anxiety disorder and recommended
that appellant take four weeks off work. On May 6, 2016 he indicated that he had treated appellant
for borderline hypertension since 2013 and hypertension since 2015. Dr. Minora opined that
appellant’s blood pressure was aggravated by workplace stress.

3
Appellant indicated that his branch also had to conduct software changes known as “incident reports” or “incident
tickets.”

2

In a May 11, 2016 letter received by OWCP on May 12, 2016, the employing establishment
controverted appellant’s claim on the basis that appellant had not established causal relationship
between his claimed condition and his federal employment.
In a June 15, 2016 development letter, OWCP requested that appellant submit additional
evidence in support of his claim, including a physician’s opinion supported by a medical
explanation as to how the claimed employment factors caused or aggravated his hypertension
condition. It provided him a questionnaire, which posed questions regarding his claimed
employment factors, as well as his claimed medical condition and its relationship to those factors.
OWCP afforded appellant 30 days to respond.
In separate June 15, 2016 development letter, OWCP requested that the employing
establishment provide comments from a knowledgeable supervisor on the accuracy of all
statements provided by appellant relative to his emotional condition claim. It requested that
various questions be answered, including whether there were aspects of his job that could be
perceived as stressful (e.g., overtime, deadlines, quotas, travel, intense assignments, any conflict
between appellant and coworkers/supervisors, etc.); whether accommodations had been made to
reduce stress (e.g., reassignment, training, deadline adjustments, etc.); and whether there were
staffing shortages or extra demands which affected appellant’s workload. OWCP requested that
the employing establishment indicate whether it concurred with appellant’s claims and, if there
were points of disagreement, to fully explain fully and provide appropriate supportive evidence.
It afforded the employing establishment 30 days to respond.
In response, appellant submitted a July 1, 2016 statement in which he asserted that, since
mid-2014, B.M. and another management official, J.C., created a hostile work environment and
conducted a campaign of harassment against him, actions that ultimately led to B.M. improperly
stripping him of handling the day-to-day operation of mid-tier applications commencing
March 9, 2016. He maintained that B.M. and J.C. undermined him on a daily basis in which they
assigned tasks and allocated resources/personnel impeded his ability to carry out his supervisory
responsibilities, including engaging in travel duty and implementing training for both himself and
his team members. Appellant asserted that the efforts to undermine him began when B.M.
transferred B.F. into his branch without his knowledge or consent, despite his knowledge that B.F.
was an employee with known problems. He claimed that on October 6, 2015 the fact that he orally
admonished another employee for wasting government funds was “improperly leaked” to a private
person and he was forced to apologize to the employee. As a result, the Office of Inspector General
launched an investigation against him. Appellant asserted that J.C. improperly allowed another
manager, D.G., to have unfettered access to employees of the four branches, an action which
hampered his ability to manage his branch by making the best employees unavailable to receive
assignments. He claimed that in 2015 he nominated five employees for performance awards, but
none of them received the awards, thereby blocking his ability to provide positive rewards.
Appellant further alleged that, since he started his supervisory position in June 2014, his
work branch had enormous problems with computer production servers, hardware, networks, and
databases because they were administered by another organization. In particular, he indicated that
production servers would run out of space for data and that the system designed to track workflow
had configuration flaws, which were so significant that “virtually no one can determine the status
of where a project is or how it was going.” Appellant maintained that J.C. did not provide adequate

3

resources to address these circumstances, but rather blamed programmers and other employees for
failing to fix problems beyond their control. He asserted that he advised B.M. and another
manager, M.S., about problems with the workflow tracking system, but nothing was done about
the problems and both individuals chastised him for bringing up the subject. Appellant indicated
that production servers became unstable three times between February 2015 and January 2016 and
that his team members uncovered several computers’ problems, including production servers,
which were running out of disc space and network load balancers that were sending all traffic to
one server. He noted that, in June 2015, B.M. approved mandatory supervisory training classes
for him, but that M.S. wrongly refused to sign the relevant paperwork and, as such, he was the
only supervisor who was unable to take the classes. Appellant provided further details about the
anonymous survey initiated by C.J., noting that results were sent by J.C. to other management
officials on July 10, 2015. He maintained that C.J. lobbied his former supervisees to submit survey
responses which were unfavorable to him and asserted that no others were subjected to such
conduct.4 Appellant claimed that, due to the survey responses, he had to temporarily switch jobs
with another manager. He indicated that, due to the fact that he was improperly relieved of
handling the day-to-day operation of mid-tier applications, commencing March 9, 2016, he was
not invited to a March 31, 2016 meeting regarding these applications.
In a July 13, 2016 statement, appellant claimed that 12 to 14 software installations were
conducted per year because the earlier installations were never ready as scheduled and
supplemental installations had to be created “on the fly.” He claimed that, at a June 26, 2014
meeting, J.C. screamed at the attending managers about their inability to complete a vendor system
module (VSM) project. Appellant asserted that, after C.J. “stormed out” of the meeting, she never
cooperated with him again and undermined him at every possible opportunity in the future. He
indicated that, at an August 29, 2014 meeting, J.C. was “ranting and raving” about outages of the
VSM and defense distribution system projects. Appellant asserted that, on that date, J.C. produced
e-mails in which he indicated that system outages would have repercussions and admitted that the
software bugs were caused by having too much work scheduled and by completing it too quickly.
Between July and December 2014, many employees complained to appellant about B.F. not
completing his assignments and appellant’s efforts to improve B.F.’s performance, including a
number of counseling sessions, were to no avail.5 Appellant asserted that on September 10, 2014
J.C., angrily demanded that he produce a situation report due to a computer outage. He claimed
that, in January and February 2015, he rated the performance of B.F. and another subordinate
employee as partially successful, but asserted that management improperly changed the ratings for
both to fully successful.
Appellant asserted that, in general, the complaints expressed by employees in the July 2015
anonymous survey were about the aggressive scheduling of work and procedures being “messed
up” since the 2013 reorganization. He claimed that he learned that J.C. was “livid” during a
meeting regarding the survey and had threatened to force him to discuss the matter in front of the
meeting attendees. In response to J.C.’s question regarding whether he had too much work,
4

Appellant also claimed that S.K., a friend of C.J., spent most of her free time harassing him.

5

Appellant claimed that a legal department official wrongly denied him access to B.F.’s internet browser history,
thereby frustrating his attempt to address B.F.’s improper use of the internet.

4

appellant responded that he had 140 active incident tickets while the other three programming
managers (T.K, D.E., and M.L.) collectively had 70.6 He asserted that, during an August 2015
investigation of B.F. for timecard fraud, J.C. and other managers “concocted a completely false
and fraudulent narrative.” Appellant indicated that, during an April 13, 2016 management
meeting, he expressed his concern that B.F. might become an active shooter. He asserted that a
manager told him that there was little that the human resources could do about B.F. unless he was
making threats about harming himself or others.
Appellant submitted the position description for a supervisory information technology
specialist, an agency organization chart, a handout from a July 15, 2015 “town hall” meeting, and
17 anonymous employee responses to questions from the survey entitled, “Speak up -- make a
difference.” A number of the employees who answered the survey asserted that the 2013
reorganization made communication among team members more difficult and that managers did
not adequately respond to their concerns. One employee emphasized that there was too much
work and that work deadlines were unreasonable.
Appellant submitted several e-mails documenting communications among management
officials. In a February 2, 2016 e-mail, a manager of civilian information operations, R.J.,
expressed his opinion to J.C. that the increased number of “releases” conducted since the
reorganization had led to “cutting corners” and a decrease in the quality of the releases. In a June 7,
2016 e-mail, B.M. asserted to J.C. and another manager that his March 9, 2016 relief of appellant
from the day-to-day operation of mid-tier applications did not cause or contribute to a hostile work
environment. Rather, he advised that appellant had a “very challenging set of duties” and that a
GS-13 project manager was hired to assist him with his duties as he was “getting overloaded.”
B.M. noted that appellant had the largest number of employees to manage among the four
branches. Regarding the change in appellant’s duties, he indicated, “This had nothing to do with
his abilities or skills or diligence in his position. It was simply to assist him with his duties in a
very challenging situation that would overload any supervisor to at least some degree.” B.M.
asserted that he had nothing to do with B.F. being transferred into appellant’s branch and that he
did not undermine the disciplinary actions appellant made with respect to his employees.
Appellant submitted an Equal Employment Opportunity Commission (EEOC) document,
signed on July 1, 2016, which effectuated his filing of a formal EEOC complaint. He also
submitted additional medical evidence in support of his claim, including an April 1, 2016 report
from Dr. Minora who diagnosed major depressive disorder (single episode).
In a July 13, 2016 letter, a human resources specialist for the employing establishment,
J.B., advised that some stress comes with holding a GS-13 supervisory position, but asserted that
appellant’s stress would be “nothing out of the ordinary.” She indicated that appellant never asked
to work overtime and that it was rare for appellant’s team members to ask to work overtime.
Appellant travelled very rarely for work, if at all. J.B. further maintained that appellant did not
have quotas/deadlines to meet and, although his team had deadlines, it was able to meet them
6

Appellant attached an active incident tickets chart, dated July 22, 2015, which shows that he had 140 active
incident tickets and that the other three managers he identified collectively had approximately 70. He asserted that
this report was representative of the amount of work he was assigned relative to other managers throughout his tenure
as a supervisor. Appellant later submitted another version of the July 22, 2015 chart with different graphics.

5

within normal working hours. She asserted that appellant’s branch did the same work as the other
three branches, although his branch had a few more people and required oversight of a more
diverse group of systems. Because of these circumstances, appellant was the only supervisor in
the four branches to have a GS-13 assistant to help with his workload. J.B. indicated that the
assistant was hired many months prior to the May 2016 filing of appellant’s claim and asserted
that the assistant provided significant aid. She maintained that appellant was not required to
perform duties outside of his job description and that he was not subject to any unusual work
demands or staffing shortages. J.B. indicated that, although she had to counsel appellant for being
a little abrupt and having conflicts with his team members regarding his management, he had been
working to improve his work relationships. She indicated that appellant was generally able to
perform his duties well.
By decision dated December 30, 2016, OWCP denied appellant’s claim, finding that he
had not met his burden of proof to establish an emotional condition in the performance of duty, as
alleged. It determined that he had not established a compensable employment factor with respect
to the claimed instances of harassment/discrimination and wrongdoing regarding administrative
matters.
On January 23, 2017 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative. During the hearing held on June 30, 2017 he testified that from
2014 onwards he worked more than 40 hours per week about 75 percent of the time, but was not
allowed to use overtime. Appellant claimed that he had to work as a supervisor for 19 weeks
before being aided by the GS-13 assistant and that he received work-related telephone calls at
home on weekends approximately 10 to 15 times per year. He claimed that he sustained
hypertension, depression, and anxiety due to work-related stress.
After the hearing, appellant submitted a June 12, 2017 statement in which he asserted that,
when he became supervisor of the joint information operations branch on June 14, 2014, he had to
supervise up to 20 employees. He alleged that he and his supervisees had to deal with severe
outage problems, which were outside the scope of their computer coding duties and that he lacked
the equipment software and support to do his job. Appellant claimed that he and other employees
were “under constant coercion” to provide computer support while off duty on weekends/holidays
and while using annual leave, but that overtime and compensatory time were “virtually banned”
to cover such time. Employees had to settle for credit time, which could not be accrued beyond
24 hours. Appellant asserted that in July 2012 he was forced to go on travel duty status to
Portsmouth, Virginia, and had to work 17 straight days, 12 hours per day, as a warehouse worker
and hazardous material handler in extremely hot temperatures. He claimed that on one occasion
J.C. tasked him with a project that was supposed to be handled by someone else and that he and
other employees routinely had to bring their laptops home to provide weekend support. Appellant
alleged that his branch was chronically understaffed.
In a June 28, 2017 statement, appellant provided responses to the July 13, 2016 statement
that J.B. provided on behalf of the employing establishment. He noted that, while it was
technically true he did not have to meet a personal quota, there was a very aggressive schedule,
which was greatly accelerated after the 2013 reorganization and which included having him work
on additional unscheduled projects. Appellant asserted that he was overloaded with work for the
19 months he served as supervisor before the GS-13 assistant was hired in January 2016.

6

Moreover, the GS-13 assistant had already worked in her branch and her old position remained
unfilled between the January 2016 promotion and April 2016, thereby leaving him short of an
employee for that period. Appellant also contested J.B.’s assertion that the GS-13 assistant “was
a very significant aid.” He insisted that he was, in fact, understaffed in that three employees would
not do any programming work and another employee was removed from his branch. Appellant
asserted that, while J.B. acknowledged that he oversaw a more diverse group of systems than the
other three branch managers, he managed six different types of computer systems while the other
managers each managed two types. He claimed that B.M. improperly charged him with being
absent without leave (AWOL) on September 26, 2014. Appellant also submitted a May 25, 2017
statement, which was similar to his previously submitted July 13, 2016 statement.
Appellant submitted an undated list of 20 employees which he identified as the employees
he supervised. He also submitted several additional e-mails documenting communications
between management officials. In an August 29, 2014 e-mail to several managers other than
appellant, J.C. indicated that code was being tested on that date and that it looked like personnel
would have to come in the next day, a Saturday, in order to finish the testing by September 2, 2014.
In a July 3, 2015 e-mail, an information operations manager, A.K., advised appellant that most of
the responses to the anonymous survey constituted complaints about the 2013 reorganization.
In a July 11, 2016 document, an EEOC counselor documented a June 7, 2016 interview he
conducted with B.M. The counselor advised that B.M. denied discriminating against appellant or
subjecting him to a hostile work environment. Regarding the relief of appellant from handling the
day-to-day operation of mid-tier applications in March 2016, B.M. noted that appellant was
assigned a GS-13 assistant because “he was getting overloaded.” He advised that appellant had
the largest number of employees to manage between the four branches and noted that “his duties
would overload any supervisor to some degree.” The counselor noted that B.M. maintained that
the assignment of the day-to-day operation of mid-tier applications to another employee had
nothing to do with appellant’s abilities, skills, or diligence and he indicated that appellant retained
supervisory authority over his branch after the reassignment of duties. B.M. explained that he did
not invite appellant to a meeting about VSM applications because he wished to reduce his
workload. He advised that he had nothing to do with B.F. being transferred into appellant’s branch
and asserted that he was within his rights as appellant’s supervisor to oversee appellant’s
supervision of B.F. B.M. maintained that he had no control over the selection of employees for
awards and that he had nothing to do with the nominations appellant made for his employees.
Appellant also submitted additional medical evidence in support of his claim, including a
July 11, 2017 report of Dr. William S. Chase, a clinical psychologist, and a July 28, 2017 report
of Dr. Minora.
By decision dated August 11, 2017, OWCP’s hearing representative affirmed the
December 30, 2016 decision.
On October 26, 2017 appellant, through counsel, requested reconsideration of the
August 11, 2017 decision. In an accompanying brief, counsel summarized appellant’s claims
regarding the difficulties of carrying out his work duties and the claimed improper actions of
management.

7

In an August 29, 2017 statement, appellant questioned why J.B., a human resources
specialist, produced the July 13, 2016 letter responding to OWCP’s June 15, 2016 development
letter given that he had never met her and she had no direct knowledge of his work duties and
conditions. He also discussed a number of the documents he was submitting in conjunction with
his statement. These documents included leave and earnings statements and other documents,
which show that he worked approximately 115 hours of overtime between mid-June and lateJuly 2012 when he was on travel duty status in Virginia. In two January 21, 2015 e-mails,
appellant advised B.M. about issues with computers, including VSM production servers running
out of disc space, problems with production server load balancing, the disappearance of mainframe
profiles, and users losing connectively. In a March 24, 2015 e-mail, R.J. directed appellant and
another manager to have their key analysts and programmers take their laptops home in order to
address calls that might be made regarding a computer installation to be carried out over weekend.
In an undated statement received by OWCP on December 13, 2018, appellant argued that
the employing establishment did not adequately respond to OWCP’s directive in a June 15, 2016
development letter that a knowledgeable supervisor comment on his work duties and conditions in
the context of his claimed employment factors. He asserted that the July 13, 2016 letter produced
by J.B. did not answer all of the questions posed by OWCP.
By decision dated July 8, 2019, OWCP denied modification of the August 11, 2017
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA7 has the burden of proof to establish the
essential elements of his or her claim, including the fact that an injury was sustained while in the
performance of duty as alleged, and that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.8 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on a
traumatic injury or an occupational disease.9
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion

7

5 U.S.C. § 8101 et seq.

8

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

9

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).

8

evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition.10
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an illness
has some connection with the employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.11 On the other hand, the disability
is not covered where it results from such factors as an employee’s fear of a reduction in force or
his or her frustration from not being permitted to work in a particular environment or to hold a
particular position.12
A claimant has the burden of proof to establish by the weight of the reliable, probative, and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by employment factors.13 This burden includes the submission of a detailed
description of the employment factors or conditions which he or she believes caused or adversely
affected a condition for which compensation is claimed, and a rationalized medical opinion
relating the claimed condition to compensable employment factors.14
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship, and which working conditions are not deemed factors of employment and may
not be considered.15 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, it must base its decision on an analysis of the medical evidence.16

10

See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).
11

Lillian Cutler, 28 ECAB 125 (1976).

12

A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

13

B.S., Docket No. 19-0378 (issued July 10, 2019); Pamela R. Rice, 38 ECAB 838, 841 (1987).

14

P.B., Docket No. 17-1912 (issued December 28, 2018); Effie O. Morris, 44 ECAB 470, 473-74 (1993).

15

See O.G., Docket No. 18-0359 (issued August 7, 2019); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

16

Id.

9

ANALYSIS
The Board finds that appellant has established a compensable factor of employment with
regard to appellant’s allegations of overwork.
Appellant has alleged that he sustained an emotional condition as a result of a number of
employment incidents and work conditions. OWCP denied his emotional condition claim finding
that he had not established a compensable employment factor. The Board must, therefore, initially
review whether these alleged incidents are covered employment factors under the terms of
FECA.17
The Board finds that appellant has established that several aspects of his regular work
duties constitute overwork which the Board has found to be a compensable employment factor.18
The case record contains evidence, particularly the statements of appellant’s immediate supervisor,
B.M., which demonstrate that, since June 2014, he had, in B.M.’s own words, a “very challenging
set of duties,” which would “overload any supervisor to some degree.” It is further established
that, given appellant’s workload, a GS-13 project manager was hired in January 2016 to assist him
(i.e., approximately 19 months after appellant started his supervisory position). The Board further
finds that the case record contains evidence showing that a major reorganization of computer
functions occurred in 2013, which resulted in appellant having to deal with a deterioration in
communication among the four computer development branches of the workplace in his role as a
supervisor of one of the branches. In addition, the case record establishes that appellant had to
supervise approximately 20 employees, which was the largest number among the supervisors of
the four branches, and that, at times, he had to address such matters as problematic software
downloads, servers running out of disc space, computer traffic inappropriately being sent to one
server, computer profiles being deleted, and users losing connectivity. It is also established that
on July 22, 2015 appellant had 140 active incident tickets he had to address, whereas the managers
of the three other branches collectively had approximately 70. The case record also supports that
appellant worked approximately 115 hours of overtime between mid-June and late-July 2012 when
he was on travel duty status in Virginia. The Board thus finds that appellant has established a
compensable employment factor of overwork. On remand OWCP shall consider the medical
evidence with regard to whether appellant has established a diagnosed emotional condition
casually related to this accepted employment factor of overwork.
With regard to appellant’s additional allegations concerning administrative and personnel
matters, and harassment/discrimination, the Board finds that further development is required.
In a June 15, 2016 development letter, OWCP requested that the employing establishment
provide comments from a knowledgeable supervisor on the accuracy of all statements provided by
appellant relative to his emotional condition claim. It requested that the employing establishment
17

Y.W., Docket No. 19-1877 (issued April 30, 2020); Dennis J. Balogh, 52 ECAB 232 (2001).

18

The Board has held that overwork, when substantiated by sufficient factual information to corroborate an
employee’s account of events, may be a compensable factor of employment. L.S., Docket No. 18-1471 (issued
February 26, 2020); R.B., Docket No. 19-0343 (issued February 14, 2020).

10

indicate whether it concurred with appellant’s claims and, if there were points of disagreement, to
fully explain and provide appropriate supportive evidence. In response, the employing
establishment provided a July 13, 2016 letter from a human resources specialist for the employing
establishment, J.B. In addition to questions regarding whether J.B. would be considered a
knowledgeable person who could appropriately respond to OWCP’s development letter,19 it is
noted that J.B. did not adequately address appellant’s multiple claimed employment factors. There
is no indication that the employing establishment made an attempt to obtain a statement from
appellant’s immediate supervisor, B.M., or other knowledgeable management officials (such as
J.C. and C.J.) concerning appellant’s additional alleged employment factors of administrative and
personnel and harassment/discrimination.20
While the claimant has the burden of proof to establish entitlement to compensation, OWCP
shares responsibility in the development of the factual evidence, particularly when such evidence
is of the character normally obtained from the employing establishment or other government
source.21
For these reasons, the case shall be remanded to OWCP for further development of the factual
evidence. This development should include an attempt to obtain a statement from appellant’s
immediate supervisor, B.M., and any other knowledgeable parties whose input would be deemed
necessary to adequately consider each of appellant’s additional claimed employment factors. If
OWCP finds additional compensable employment factors in the course of its development of the
factual evidence, it shall similarly evaluate the medical evidence and make a determination regarding
whether appellant has established a diagnosed emotional condition casually related to the additional
accepted compensable employment factors. After this and other such further development as
deemed necessary, OWCP shall issue a de novo decision on this matter.
CONCLUSION
The Board finds that appellant has established a compensable factor of employment. The
case is therefore remanded for consideration of the medical evidence with regard to causal
relationship. The Board further finds that the case is not in posture for decision with regard to
appellant’s additional alleged employment factors.

19

Appellant has asserted that he has never met J.B. and that she had no direct knowledge of his work duties and
conditions.
20
It is noted that the above-referenced comments of B.M. were not solicited by the employing establishment as a
response to OWCP’s June 15, 2016 development letter. Rather, the comments were memorialized in a June 7, 2016
e-mail B.M. sent to J.C. and another manager, and a July 11, 2016 document in which an EEOC counselor detailed a
June 7, 2016 interview with B.M.
21
See M.H., Docket No. 19-0930 (issued June 17, 2020); L.L., Docket No. 12-194 (issued June 5, 2012); N.S., 59
ECAB 422 (2008).

11

ORDER
IT IS HEREBY ORDERED THAT the July 8, 2019 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: February 19, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
COATESVILLE VETERANS MEDICAL
CENTER, Coatesville, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-2135
Issued: July 27, 2010

Case Submitted on the Record

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

JURISDICTION
On August 20, 2009 appellant filed a timely appeal from a May 14, 2009 decision of the
Office of Workers’ Compensation Programs that affirmed a schedule award decision. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the schedule
award claim.
ISSUE
The issue is whether appellant has more than a five percent impairment of her left upper
extremity, for which she received a schedule award.
FACTUAL HISTORY
This case has previously been before the Board. In a June 20, 2008 decision, the Board
set aside the Office’s December 22, 2006 and June 19, 2007 schedule award decisions finding
five percent left arm impairment.1 The Board found that the evaluation of Dr. Richard I.
1

Docket No. 08-351 (issued June 20, 2008).

Zamarin, a Board-certified orthopedic surgeon, selected as the impartial medical examiner, was
not sufficient to resolve the conflict in medical opinion regarding the extent of impairment. The
case was remanded for the Office to obtain a supplemental report from Dr. Zamarin and
reviewed by an Office medical adviser. The facts of the previous Board decision are
incorporated by reference.
On remand the Office provided Dr. Zamarin with an updated statement of accepted facts
and requested that he provide a supplemental opinion and range of motion measurements of
appellant’s left hand. It requested that he further address the extent of permanent impairment
based on reexamination of appellant.
In a September 23, 2008 report, Dr. Zamarin noted the history of injury, appellant’s
treatment and reviewed his prior impairment rating. He noted that appellant had no treatment or
therapy since he saw her on December 12, 2006. Appellant’s only complaint was that her left
wrist occasionally ached when she lifted. She was able to do her normal activities without
restrictions. Dr. Zamarin noted that appellant’s left wrist bothered her if she worked for a long
time or the weather changed. Range of motion findings were provided for appellant’s fingers on
her left hand through use of a goniometer. Range of motion findings of the left wrist was also
provided. Grip strength was noted to be equal bilaterally. Dr. Zamarin opined that appellant had
five percent permanent impairment of the left arm under the American Medical Association,
Guides to the Evaluation of Permanent Impairment. For the third finger, he found appellant had
eight percent impairment under Figure 16-21, page 461, for 54 degrees flexion of the distal
interphalangeal (DIP) joint; a three percent impairment under page 463, Figure 16-23 for 94
degrees flexion of the proximal interphalangeal (PIP) joint; and an eight percent impairment
under Figure 16-25, page 464, for 78 degrees flexion at the metacarpophalangeal (MP or MCP)
joint. For the fourth finger, Dr. Zamarin found 15 percent impairment under Figure 16-21 for
DIP flexion for 40 degrees; 3 percent impairment under Figure 16-23 for 100 degrees PIP
flexion; and 6 percent impairment under Figure 16-25 for MP flexion to 80 degrees. Using the
Combined Values Chart on page 604, he found 18 percent impairment for the third finger and 22
percent impairment for the fourth finger of the DIP, PIP and MP flexion impairments. Under
Table 16-1, page 438, Dr. Zamarin converted the individual digit impairments to hand
impairments. He found the 18 percent third digit impairment converted to 4 percent hand
impairment and the 22 percent fourth finger impairment converted to 2 percent hand impairment.
Dr. Zamarin then added the hand impairment values to total six percent. Under Table 16-2, he
found the six percent hand impairment converted to five percent upper extremity impairment.
With regard to the wrist, Dr. Zamarin found under Figure 16-8, page 467 and Figure 16-31, page
469, range of motion of 80 degrees flexion, 60 degrees extension, 32 degrees of radial and ulnar
deviation, and 90 degrees of pronation and supination did not represent any impairment.
In an October 9, 2008 report, an Office medical adviser reviewed Dr. Zamarin’s report
and the medical record. He opined that appellant had five percent left arm impairment. The
medical adviser stated that, while he arrived at different digit impairments for the left third and
fourth fingers than Dr. Zamarin, the hand impairment calculations of four percent hand
impairment for the left third finger and two percent hand impairment for the left fourth finger
were the same as was the final calculated left hand impairment of six percent and left upper

2

extremity of five percent.2 He advised that, since the five percent left arm impairment was the
same impairment value as previously awarded, there was no evidence of greater impairment
By decision dated October 15, 2008, the Office denied appellant’s claim for an additional
schedule award.
On October 17, 2008 appellant’s counsel requested an oral hearing, which was held on
February 24, 2009. Counsel argued that Dr. Zamarin’s impairment rating was deficient as he did
not address whether appellant had impairment due to pain.
By decision dated May 14, 2009, an Office hearing representative affirmed the
October 15, 2008 decision. She found that Dr. Zamarin’s opinion constituted the weight of
medical evidence as to appellant’s left arm impairment.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. The Act, however, does not specify the manner in which the percentage of loss shall
be determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.5
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.6 When there exist opposing
medical reports of virtually equal weight and rationale and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.7

2

The medical adviser indicated that 100 degrees of flexion of the PIP joint for the left fourth finger did not yield
any impairment under Figure 16-23 at page 463 of the A.M.A., Guides.
3

5 U.S.C. §§ 8101-8193.

4

20 C.F.R. § 10.404.

5

Ronald R. Kraynak, 53 ECAB 130 (2001).

6

5 U.S.C. § 8123(a).

7

Rose V. Ford, 55 ECAB 449 (2006); Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB
1010 (1980).

3

ANALYSIS
Appellant received a schedule award for five percent left upper extremity impairment on
August 19, 2005. The Board remanded the case for supplemental opinion from Dr. Zamarin, the
impartial medical examiner, to address the measurements for range of motion of appellant’s left
hand and whether she had greater impairment.
On September 23, 2008 Dr. Zamarin reexamined appellant. He provided range of motion
findings of appellant’s fingers and wrist and found that she had five percent impairment of the
left arm. An Office medical adviser applied the A.M.A., Guides to Dr. Zamarin’s findings and,
while he arrived at different digit impairments for the left third and fourth fingers, agreed with
five percent impairment rating of the impartial medical specialist. The Board finds that a proper
application of the A.M.A., Guides to Dr. Zamarin’s clinical findings results in five percent
impairment to appellant’s left arm. For the left third finger, Dr. Zamarin found appellant had
eight percent impairment under Figure 16-21, page 461, for 54 degrees flexion of the DIP joint;
three percent impairment under page 463, Figure 16-23 for 94 degrees flexion of the PIP joint;
and eight percent impairment under Figure 16-25, page 464 for 78 degrees flexion at the MP or
MCP joint. For the left fourth finger, he found 15 percent impairment under Figure 16-21 for
DIP flexion for 40 degrees; 3 percent impairment under Figure 16-23 for 100 degrees PIP
flexion; and 6 percent impairment under Figure 16-25 for MP flexion to 80 degrees. The Board
notes that, while Dr. Zamarin otherwise provided appropriate impairment findings within the
corresponding impairment ranges provided in the figures cited in the A.M.A., Guides, he
inadvertently indicated that 100 degrees PIP flexion, of the left fourth finger, under Figure 16-23,
page 463 resulted in three percent impairment of the left fourth finger; however, this
measurement represents no impairment of flexion at the PIP joint. Thus, the combined digit
impairment for the left third finger equals 18 percent (8 DIP, 3 PIP, 8 MP) and for the left fourth
finger equals 20 percent (15 DIP, 0 PIP, 6 MP). Under Table 16-1, page 438 and Table 16-2,
page 439, 18 percent third finger impairment converts to 4 percent hand impairment which, in
term is a 4 percent upper extremity impairment. Under the same tables, 20 percent fourth finger
impairment converts to 4 percent hand impairment or 2 percent upper extremity impairment.
The four percent and two percent impairment when added total six percent impairment. Under
Table 16-2, page 439, a six percent hand impairment is five percent upper extremity
impairment.8 The Office medical adviser reviewed Dr. Zamarin’s findings and applied in the
A.M.A., Guides to rate the same impairment as found by Dr. Zamarin.
The Board finds that Dr. Zamarin’s opinion is sufficient to resolve the conflict in the
medical evidence. His report establishes that appellant has no more than five percent impairment
of the left arm. Appellant has not established greater impairment than previously awarded.
On appeal counsel contends that appellant is entitled to three percent impairment for pain
or, in the alternative, a new referee medical examination is needed. He argued that Dr. David
Weiss, appellant’s treating physician, addressed pain-related impairment, but Dr. Zamarin
provided no medical opinion on this matter. While Dr. Weiss did address pain, he was on one
8

Any error by Dr. Zamarin in applying the range of motion findings for flexion of the PIP joint of the left fourth
to the A.M.A., Guides is harmless since the final impairment percentage is unchanged.

4

side of the medical conflict which arose regarding the extent of permanent impairment of
appellant’s left upper extremity. As noted, the opinion of an impartial medical specialist is
entitled to special weight if sufficiently well rationalized and based upon a proper factual
background.9 In the December 12, 2006 report, Dr. Zamarin advised that there was no basis for
an additional impairment rating for pain. Following his examination of September 23, 2008, he
did not find that any impairment rating was warranted. Dr. Zamarin found that appellant’s
impairment was based on lost motion of the left third and fourth fingers. He found no other basis
on which to attribute any impairment under the A.M.A., Guides.
CONCLUSION
The Board finds that appellant has established no more than five percent left upper
extremity impairment, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the May 14, 2009 and October 15, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: July 27, 2010
Washington, DC

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

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

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

14

Rose V. Ford, supra note 7.

5