United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-0407
Issued: September 17, 2018

Case Submitted on the Record

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

JURISDICTION
On December 18, 2017 appellant, through counsel, filed a timely appeal from a
November 1, 2017 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 to consider 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 established that his July 31, 2009 loss of wage-earning
capacity (LWEC) determination should be modified.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as presented in the prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On May 10, 2001 appellant, then a 47-year-old welder, filed an occupational disease claim
(Form CA-2) alleging that he developed carpal tunnel syndrome as a result of his federal
employment duties. On August 27, 2001 OWCP accepted the claim for bilateral carpal tunnel
syndrome. By decision dated March 29, 2007, it expanded acceptance of the claim to also include
bilateral epicondylitis and right trigger finger.
The record indicates that appellant underwent right carpal tunnel release surgery on
December 28, 2001, left carpal tunnel release surgery on January 25, 2002, and left ulnar nerve
decompression surgery on June 5, 2003. He returned to a light-duty position following his
surgeries, but stopped work on September 23, 2003. On October 17, 2005 appellant returned to
work for four hours per day and then filed a traumatic injury claim (Form CA-1) for injuries
sustained on October 18, 2005 when he fell on stairs. OWCP accepted that claim for neck strain,
right shoulder cuff tear, and right shoulder adhesive capsulitis and assigned OWCP File
No. xxxxxx349. Appellant began receiving compensation for temporary total disability, which
OWCP based on four hours per day for the occupational disease claim and four hours per day for
the traumatic injury claim.
By decision dated July 31, 2009, OWCP reduced appellant’s compensation, finding that he
had the capacity to earn wages of $470.40 per week in the constructed position of motor vehicle
dispatcher.4
On February 17, 2012 appellant requested resumption of temporary total disability
compensation as his accepted conditions had allegedly worsened. By decision dated April 17,
2012, OWCP denied modification of the July 31, 2009 LWEC determination.
On April 19, 2012 appellant requested a hearing before an OWCP hearing representative.
By decision dated December 13, 2012, OWCP’s hearing representative affirmed the April 17,
2012 decision.
Appellant appealed to the Board. In a June 12, 2013 decision, the Board affirmed the
December 13, 2012 OWCP’s hearing representative’s decision. The Board found that appellant
3

Docket No. 15-1853 (issued January 19, 2016); Docket No, 13-0603 (issued June 12, 2013).

4
The job description indicated that the job involved compiling lists of vehicles, assigning vehicles, recording data,
maintaining records, and issuing equipment. The job was identified as sedentary, with occasional fingering and
handling and a 10-pound lifting requirement. On September 19, 2008 Dr. Michael McManus, an attending Boardcertified occupational medicine specialist, checked a box marked “yes” that he approved this occupation.

2

had not established a material worsening of his accepted conditions and noted that lymphedema
was not an accepted condition.5
On September 19, 2014 OWCP accepted the condition of lymphedema.
On June 15, 2015 appellant, through counsel, again requested modification of the July 31,
2009 LWEC determination. By decision dated July 23, 2015, OWCP denied modification of the
LWEC determination. Appellant appealed to the Board.
By decision dated January 19, 2016, the Board set aside the July 23, 2015 OWCP decision.6
The Board found that, after OWCP determined that lymphedema was employment related, it failed
to develop the medical evidence to determine whether modification of the LWEC determination
was warranted.
On April 8, 2016 OWCP referred appellant for a second opinion evaluation with
Dr. Eric M. Orenstein, a Board-certified orthopedic surgeon, for an opinion as to whether
appellant’s condition had materially worsened as a result of the accepted lymphedema condition.
In an April 20, 2016 report, Dr. McManus diagnosed bilateral carpal tunnel syndrome,
bilateral upper extremity lymphedema, status post right trigger thumb release, and status post
bilateral medial epicondylotomies and ulnar nerve compression for cubital tunnel release. He
wrote that appellant’s symptoms were unchanged and that appellant continued to complain of
recurrent forearm, wrist, and hand swelling, which was greater on the right than the left with any
repetitive or sustained upper extremity or hand use. Dr. McManus concluded that appellant’s
permanent work restrictions were unchanged.
In an April 28, 2016 report, Dr. Orenstein reviewed the statement of accepted facts (SOAF)
and detailed appellant’s medical history. Appellant’s physical examination revealed decreased
bilateral wrist and elbow range of motion, no thenar atrophy, negative bilateral wrist Tinel’s and
Phalen signs, and positive bilateral cubital Tinel’s sign. Based on physical examination findings,
Dr. Orenstein found objective evidence of bilateral carpal tunnel releases and cubital tunnel
release, but no objective evidence of bilateral upper extremity lymphedema. He opined that the
accepted lymphedema did not cause a material worsening of appellant’s condition. Next,
Dr. Orenstein indicated that appellant might benefit from an evaluation for possible Raynaud’s
disease based on bilateral upper extremity residual swelling, color, and temperature changes. He
further noted that any evaluation for Raynaud’s disease would be unrelated to appellant’s accepted
employment injuries. Dr. Orenstein reviewed the motor vehicle dispatcher job description and
concluded that it would not require appellant to perform repetitive upper extremity activities on a
regular basis. However, he noted that, if appellant were to develop any upper extremity symptoms
from writing, he recommended avoiding repetitive use of the hands and taking breaks every 30
minutes.
OWCP, in a May 11, 2016 decision, denied modification of its July 31, 2009 LWEC
determination. It found Dr. Orenstein’s opinion that appellant’s condition had not materially
5

Docket No. 13-0603 (issued June 12, 2013).

6

Docket No. 15-1853 (issued January 19, 2016).

3

worsened due to the accepted lymphedema condition and that appellant was capable of performing
the duties of the constructed position constituted the weight of the medical opinion evidence.
On June 28, 2016 appellant, through counsel, requested reconsideration. Counsel asserted
that OWCP did not select a second opinion physician in the appropriate specialty. He argued that
a vascular specialist should have been selected for the second opinion evaluation as an orthopedic
specialist was not appropriate to evaluate appellant’s condition.
In a July 14, 2016 report, Dr. McManus provided examination findings. He indicated that
appellant continued to have permanent work restrictions, which were unchanged.
By decision dated July 28, 2016, OWCP denied modification of the July 31, 2009 LWEC
determination. It rejected the argument that appellant should have been evaluated by a vascular
surgeon as Dr. McManus was not a vascular surgeon.
In a July 27, 2016 report, Dr. McManus reviewed Dr. Orenstein’s report and disagreed
with his findings. He observed that recent electrodiagnostic testing confirmed a worsening of
appellant’s right carpal tunnel syndrome. Dr. McManus disagreed with Dr. Orenstein’s opinion,
which attributed appellant’s bilateral upper extremity edema to Raynaud’s disease and opined that
appellant continued to suffer from traumatic lymphedema. Moreover, he reported that appellant
had been evaluated for rheumatic disease in the past, with negative test results. Dr. McManus also
opined that appellant’s condition was aggravated or worsened by any forceful or repetitive upper
extremity use. He explained that appellant could not frequently reach and opined that the job
duties of the constructed motor vehicle dispatcher exceeded his upper extremity work restrictions.
On April 10, 2017 OWCP received appellant’s request for reconsideration dated
April 6, 2017.
The record contains reports dated November 14, 2016 and March 13, 2017 by
Dr. McManus providing examination findings. In his March 13, 2017 report, Dr. McManus noted
that appellant was awaiting authorization of an ultrasound desiccation and injection for recurrent
right carpal tunnel syndrome. He indicated that appellant continued to have permanent work
restrictions, which were unchanged.
By decision dated November 1, 2017, OWCP denied appellant’s request for modification
of the July 31, 2009 LWEC determination.
LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.7 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.8
7

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

8

Id.

4

Section 8123(a) of FECA provides in pertinent part: “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.”9 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.10
ANALYSIS
The Board finds that this case is not in posture for decision due to an unresolved conflict
in the medical evidence between appellant’s treating physician, Dr. McManus, and the second
opinion physician, Dr. Orenstein.
The Board previously remanded this case, finding that once OWCP had determined that
lymphedema was employment related, it should have further developed the medical evidence to
determine if modification of the LWEC determination was warranted.
On April 20, 2016 Dr. McManus opined that appellant’s symptoms and work restrictions
remained unchanged.
On April 28, 2016 Dr. Orenstein, a second opinion Board-certified orthopedic surgeon,
reviewed the SOAF and medical evidence, provided examination findings, and concluded that
there was no objective of the accepted bilateral upper extremity lymphedema. He concluded that
there was no material worsening of appellant’s accepted conditions.
Dr. McManus reviewed Dr. Orenstein’s report and disagreed with his findings. He related
that appellant still had findings of traumatic lymphedema and observed that recent
electrodiagnostic testing confirmed a worsening of appellant’s right carpal tunnel syndrome. Thus,
Dr. McManus disagreed with Dr. Orenstein’s opinion, which attributed appellant’s bilateral upper
extremity edema to Raynaud’s disease. Moreover, he reported that appellant had been evaluated
for rheumatic disease in the past, with negative findings. Contrary to Dr. Orenstein’s opinion that
appellant should continue with the same work restrictions, Dr. McManus opined that appellant
could not frequently reach and opined that the job activities of the constructed motor vehicle
dispatcher exceeded his upper extremity work restrictions.
If there is disagreement between OWCP’s referral physician and appellant’s physician,
OWCP will appoint a third physician who shall make an examination.11 For a conflict to arise, the
opposing physicians’ viewpoints must be of virtually equal weight and rationale.12 The Board
finds that the medical opinions of Dr. McManus and Dr. Orenstein are of equal weight and are in

9

5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

10

Bryan O. Crane, 56 ECAB 713 (2005).

11

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

12

P.C., Docket No. 15-1013 (issued June 15, 2016); Darlene R. Kennedy, supra note 9.

5

conflict as to whether appellant’s accepted conditions have worsened such that appellant is unable
to perform the duties of the constructed position.
Because there remains an unresolved conflict in medical opinion, pursuant to 5 U.S.C.
§ 8123(a), the case will be remanded to OWCP for referral of appellant, together with the medical
record and an updated SOAF, to an appropriate Board-certified physician or specialist in the proper
field of medicine for an impartial medical examination as to whether appellant’s accepted
conditions have worsened such that he is unable to perform the duties of a motor vehicle
dispatcher. After such further development as OWCP deems necessary, it shall issue a de novo
decision.
CONCLUSION
The Board finds that this case is not in posture for decision due to an unresolved conflict
in the medical opinion evidence.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated November 1, 2017 is set aside and the case is remanded for further proceedings
consistent with the above opinion.
Issued: September 17, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., Appellant
and
U.S. POSTAL SERVICE, R.W. JENKINS
STATION, Tulsa, OK, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-304
Issued: May 7, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 7, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decisions dated December 12, 2006 and August 3, 2007, finding
that he did not sustain an injury on October 25, 2006 in the performance of duty. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction of the merits of this appeal.
ISSUE
The issue is whether appellant has established that he sustained an injury on October 25,
2006 in the performance of duty, as alleged.
FACTUAL HISTORY
On October 26, 2006 appellant, then a 54-year-old letter carrier, filed a traumatic injury
claim alleging that on October 25, 2006 he experienced pain in his left foot while walking up
steps to a house. He did not stop work.
Appellant submitted reports covering the period October 27 through November 1, 2006
from his physical therapists, regarding treatment of a lumbar strain and synovitis of the foot. In

reports dated October 26 and November 1, 2006, Bradley D. Helton, a physician’s assistant,
stated that appellant sustained a lumbar strain and synovitis of the foot that was caused or
aggravated by an employment activity.
By letter dated November 8, 2006, the Office advised appellant that the evidence
submitted was insufficient to establish his claim. It addressed the additional factual and medical
evidence he needed to submit.
In an October 26, 2006 report, Mr. Helton reiterated his prior diagnoses and restrictions.
He opined that the October 25, 2006 incident was more likely than not work related.
The November 15 and 29, 2006 medical reports of Dr. Harold L. Battenfield, an
orthopedic surgeon, stated that the date of appellant’s injury was October 25, 2006. He opined
that appellant sustained synovitis of the left foot. On November 29, 2006 Dr. Battenfield
released appellant from his care and stated that he could return to regular-duty work.
By decision dated December 12, 2006, the Office denied appellant’s claim on the
grounds that he did not establish that the claimed employment incident occurred at the time,
place and in the manner alleged.
On January 2, 2007 the Office received a December 6, 2006 letter in which appellant
further described the alleged October 25, 2006 injury. While on his route, he went up the steps
of a house to deliver mail and experienced very sharp pain at the bottom of his left foot.
Appellant noted that he had previously filed an assigned claim number 162112087, for synovitis
of the right foot.
An unsigned report dated October 26, 2006, indicated that on October 25, 2006 appellant
sustained a left foot injury while walking.
In a November 6, 2006 report, Mr. Helton reiterated his prior diagnosis of lumbar strain
and synovitis of the foot and appellant’s restrictions.
On December 28, 2006 appellant requested an oral hearing before an Office hearing
representative regarding the December 12, 2006 decision.
In reports dated March 30, 2007, Dr. Joseph A. Blough, a Board-certified family
practitioner, reviewed a history that on October 25, 2006 appellant was climbing up steps while
delivering mail when he immediately experienced pain in his lower back and left foot. He also
provided a history of appellant’s medical treatment and family, social and employment
background. On physical examination of the thoracic and lumbar spines, Dr. Blough reported
decreased range of motion and strength in all planes and trigger points that were palpable over
the bilateral paravertebral musculature. He noted a straight leg raising test on the left at
30 degrees with pain radiating into the bilateral hips and a negative straight leg raising test on the
right. Loss of sensation to monofilament testing was noted over the left anterior leg and left foot
when compared to the right. Weakness was demonstrated with bilateral hips with resisted
flexion. Weakness was demonstrated with resisted flexion and extension bilaterally with regard
to appellant’s hips. On examination of the right and left feet, Dr. Blough reported decreased
range of motion and strength in all planes. Tenderness to palpation was demonstrated over the
2

bilateral plantar aspects of the feet. Instability was demonstrated bilaterally with single limb
standing. Weakness was demonstrated against resisted flexion and extension of the bilateral
great toes. Loss of sensation to monofilament testing was noted. No swelling or ecchymosis
was demonstrated. Tenderness to palpation was demonstrated in the mid-foot and forefoot
bilaterally. Anterior drawer test was negative.
Dr. Blough diagnosed appellant with lumbar spine sprain/strain with trigger point
formation, lumbar radiculopathy, left plantar fasciitis and left foot synovitis. He opined that
appellant’s lumbar spine and left foot/ankle conditions were a result of the October 25, 2006
incident. Dr. Blough stated that appellant’s ongoing complaints of pain, weakness and instability
in the lumbar spine and left foot/ankle were supported by his clinical examination. He provided
a treatment plan and work restrictions.
By decision dated August 3, 2007, an Office hearing representative affirmed the
December 12, 2006 decision, as modified. He found the evidence of record sufficient to
establish that the alleged incident occurred at the time, place and in the manner alleged.
However, the medical evidence was insufficient to establish that appellant sustained a medical
condition causally related to the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 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 applicable time limitation; that an injury was sustained while in the performance of
duty as alleged; and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.2 These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
of an occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.4
In order to meet his burden of proof to establish the fact that he sustained an injury in the

1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 2.
4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

3

performance of duty, an employee must submit sufficient evidence to establish that he actually
experienced the employment injury or exposure at the time, place and in the manner alleged.5
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.6 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.7 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.8
ANALYSIS
The record supports that on October 25, 2006 appellant was walking up steps while
delivering mail on his route. With respect to whether he sustained an injury on October 25,
2006, the Board finds that the medical evidence is sufficient to require further development of
the claim.
Dr. Blough’s March 30, 2007 reports reviewed a history of the October 25, 2006
employment incident. He provided detailed findings on physical examination. Dr. Blough
diagnosed appellant with lumbar spine sprain/strain with trigger point formation, lumbar
radiculopathy, left plantar fasciitis and left foot synovitis. He opined that appellant’s lumbar
spine and left foot/ankle conditions were a result of the October 25, 2006 employment incident.
Dr. Blough explained that appellant’s ongoing complaints of pain, weakness and instability in
the lumbar spine and left foot/ankle were supported by his findings on clinical examination.
The Board finds that Dr. Blough’s reports are sufficient to require further development of
the claim. The medical reports reflect an accurate history of the accepted employment incident
and noted, with explanation, why appellant’s back and left foot conditions were caused by the
October 25, 2006 employment incident. While Dr. Blough’s reports are not fully rationalized to
discharge appellant’s burden of proof as they do not explain how his clinical findings establish a
causal relationship between his conditions and the accepted employment incident, they raise an
uncontroverted inference of causal relationship.9
On remand, the Office should prepare a statement of accepted facts and refer appellant,
along with his medical records, for a second opinion examination to obtain a rationalized opinion
as to whether the October 25, 2006 employment incident caused or aggravated his current back

5

Linda S. Jackson, 49 ECAB 486 (1998).

6

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
7

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

8

Charles E. Evans, 48 ECAB 692 (1997).

9

John J. Carlone, supra note 6.

4

and left foot conditions. Following such further development as deemed necessary, the Office
shall issue an appropriate final decision on this issue.
CONCLUSION
The Board finds that the case is not in posture for decision as to whether appellant
sustained an injury on October 25, 2006 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the August 3, 2007 and December 12, 2006
decisions of the Office of Workers’ Compensation Programs are set aside and the case is
remanded for further proceedings consistent with this decision.
Issued: May 7, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Elk Grove, CA, Employer
__________________________________________
Appearances:
Brian M. Voigt, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 20-1512
Issued: August 24, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On August 10, 2020 appellant, through counsel, filed a timely appeal from a March 26,
2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk
of the Appellate Boards docketed the appeal as No. 20-1512.2
On September 25, 2018 appellant, then a 48-year-old distribution clerk, filed a traumatic
injury claim (Form CA-1) alleging that on that date she injured her left foot when a heavy parcel
fell onto her foot while in the performance of duty. She stopped work that day.

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

The Board notes that, following the March 26, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

In an October 25, 2018 development letter, OWCP informed appellant that, when her claim
was first received, it appeared to be a minor injury that resulted in minimal or no lost time for work
and it had now reopened her claim for consideration of the merits. It advised her of the deficiencies
of her claim and requested additional medical evidence. OWCP afforded appellant 30 days to
respond.
Appellant submitted medical evidence in support of her claim.
By decision dated November 30, 2018, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish a valid medical diagnosis from a qualified
physician in connection with the accepted September 25, 2018 employment incident. It concluded,
therefore, that the requirements had not been met to establish an injury as defined by FECA.
Appellant subsequently submitted additional evidence, including October 25 and
December 3, 2018 status reports from Dr. Ronald. T. Whitmore, a family medicine specialist,
placing appellant on modified duty from October 25 to November 9, 2018 and releasing her to
full-duty work beginning December 3, 2018. OWCP also received a September 25, 2019 left foot
x-ray.
On November 12, 2019 appellant requested reconsideration via an appeal request form.
By letter dated December 12, 2019 OWCP confirmed that it had received appellant’s
request for reconsideration on November 12, 2019, but noted that the form was unsigned. OWCP
requested that appellant sign and return to the form. On December 31, 2019 OWCP received
appellant’s signed appeal request form.
By decision dated March 26, 2020, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
The Board has duly considered the matter and finds that appellant’s request for
reconsideration was timely filed. Section 10.607(a) of OWCP’s implementing regulations
provides that a request for reconsideration must be received by OWCP within one year of the date
of the decision for which review is sought.3 One year following OWCP’s November 30, 2018
merit decision was November 30, 2019. As that fell on a Saturday, appellant had until Monday,
December 2, 2019 to request reconsideration.4 Because OWCP initially received appellant’s
reconsideration request on November 12, 2019, the Board finds that it was timely filed.5 The clear
3
20 C.F.R. § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4(a) (February 2016).
4
When determining the one-year period for requesting reconsideration, the last day of the period should be included
unless it is a Saturday, Sunday, or a legal holiday. Federal (FECA) Procedure Manual, id.
5

See L.T., Docket No. 21-0322 (issued June 28, 2021); J.H., Docket No. 18-1367 (issued July 17, 2019); R.M.,
Docket No. 17-0473 (issued June 6, 2017); C.B., Docket No. 13-1732 (issued January 28, 2014). See also Steven E.
Pratt Docket No. 93-443 (issued February 2, 1994) (the Board found that appellant’s reconsideration request was later
perfected and therefore timely).

2

evidence of error standard utilized by OWCP in its March 26, 2020 decision is appropriate only
for untimely reconsideration requests.6 Therefore, the Board will set aside OWCP’s March 26,
2020 decision and remand the case for an appropriate decision applying the correct standard for
timely requests for reconsideration.
IT IS HEREBY ORDERED THAT the March 26, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: August 24, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6

See 20 C.F.R. § 10.607(b).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
HARTFORD PROCESSING & DISTRIBUTION
CENTER, Hartford, CT, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-1488
Issued: March 11, 2019

Case Submitted on the Record

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

JURISDICTION
On July 31, 2018 appellant, through counsel, filed a timely appeal from a May 30, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a right shoulder
condition causally related to the accepted June 30, 2017 employment incident.
FACTUAL HISTORY
On July 19, 2017 appellant, then a 49-year-old motor vehicle operator, filed a notice of
recurrence (Form CA-2a) under OWCP File No. xxxxxx717, alleging that on June 30, 2017 she
felt a sharp stabbing pain in her right shoulder as she was exiting her postal vehicle to load for a
second run.3 That same day she sought care in an emergency department. A report was completed
by Joan L. Rishel, a physician assistant, who noted a diagnosis of shoulder pain. Appellant stopped
work on July 8, 2017.
In June 7, 2017 reports, Dr. Daniel M. Veltri, a Board-certified orthopedic surgeon, noted
that appellant had an employment injury in July 2014 and diagnosed impingement syndrome and
acromioclavicular (AC) joint strain. He described physical examination findings and indicated
that, despite conservative measures, she had progressed to chronic impingement and AC joint
arthritis. Dr. Veltri recommended arthroscopic acromioplasty and distal clavicle resection.
In a form report dated July 5, 2017, Dr. Veltri noted appellant’s diagnoses and
recommended restricted duty with no overhead lifting and no repetitive use of the right arm, with
a weight restriction of 15 pounds. On August 3, 2017 he performed arthroscopic acromioplasty
and distal clavicle resection. In a follow-up treatment note dated August 4, 2017, Lance Morgan,
a physician assistant in Dr. Veltri’s office, indicated that it was too early to assess results of the
surgery.
By development letter dated September 18, 2017, OWCP informed appellant that, since
she was alleging an injury when she went to load her truck on June 30, 2017, it administratively
converted her recurrence claim to one for a new traumatic injury, assigned OWCP File No.
xxxxxx600. It informed her of the medical and factual evidence needed to support her traumatic
injury claim and requested that she provide a report from her physician which differentiated the
claimed injury from her preexisting shoulder injury, which was found to have resolved on
August 6, 2014.4 OWCP attached a questionnaire for appellant’s completion, which sought
clarification as to whether she was claiming a traumatic injury or an occupational disease. It
afforded her 30 days to submit the necessary evidence.
OWCP subsequently received a form report dated September 13, 2017, wherein Dr. Veltri
noted that appellant was status post surgery and was unable to work.

3
Under OWCP File No. xxxxxx717, OWCP accepted that on July 16, 2014 appellant sustained a right trapezius
strain and a right acromioclavicular joint sprain when she pulled on a truck door. OWCP File No. xxxxxx717 has
been administratively with the present claim, OWCP File No. xxxxxx600, with the latter serving as the master file.
4
The record includes a work status report in which Dr. Evangeline Specht, an internist, advised that appellant could
return to regular duty on August 6, 2014.

2

By decision dated October 19, 2017, OWCP accepted that the June 30, 2017 incident
occurred as alleged, but denied appellant’s traumatic injury claim, finding the medical evidence of
record was insufficient to establish that the diagnosed right shoulder conditions were causally
related to the accepted June 30, 2017 employment incident.
On an October 13, 2017 workers’ status form report, Dr. Veltri indicated that appellant
could work restricted duty beginning October 16, 2017 with no overhead lifting, no repetitive use
of the right arm, no truck driving, and a 15-pound weight restriction.
Appellant, through counsel, on October 25, 2017 requested a telephonic hearing before an
OWCP hearing representative.
In a duty status report (Form CA-17) dated February 14, 2018, Dr. Veltri noted a date of
injury of November 2, 2016 and that appellant described pain in the right shoulder. He provided
restrictions regarding appellant’s physical activity.
During the hearing, held on March 16, 2018, appellant testified that her job duties required
loading and unloading heavy pallets of mail, and that her right shoulder started hurting in 2014.
She also related that in November 2016 her entire shoulder popped but she continued working
until July 2017. Appellant indicated that she had returned to light-duty work.
In a March 30, 2018 report, Dr. Veltri noted that appellant’s original injury occurred in
July 2014 when she was lifting the back door of a truck and heard a pop in her right shoulder. He
indicated that she was seen by an occupational physician who diagnosed AC joint sprain and
trapezial strain caused by the lifting injury. Dr. Veltri reported that appellant did not seek
evaluation in his office until November 2016 when she indicated she had ongoing chronic right
shoulder pain following the July 2014 injury. He diagnosed delayed sequelae of AC sprain with
impingement and AC hypertrophy and arthritis from her acute AC joint sprain on July 14, 2014
which, he opined, was employment related. Dr. Veltri indicated that appellant’s right shoulder
condition had not improved with conservative treatment such that surgery was required. He
concluded that the onset of pain and its location were directly related to the original AC joint
sprain.
By decision dated May 30, 2018, an OWCP hearing representative affirmed the
October 19, 2017 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 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 FECA, that the claim was timely filed within the applicable time
limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that
any disability or specific condition for which compensation in claimed is causally related to the

5

Supra note 2.

3

employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
In order to determine whether an employee actually sustained an injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred. The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.7
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right shoulder
condition causally related to the accepted June 30, 2017 employment incident.
In support of her claim, appellant submitted a June 30, 2017 emergency department note,
signed by a physician assistant. She also submitted an August 4, 2017 report from physician
assistant Mr. Morgan. Certain healthcare providers, including physician assistants, are not
considered “physician[s]” as defined under FECA.9 Consequently, their medical findings and/or
opinions are insufficient to establish entitlement to FECA benefits.10 As such, these reports are of
no probative value.11
Appellant also submitted medical and form reports dated June 7, 2017 to March 30, 2018
from Dr. Veltri, her attending orthopedic surgeon. Dr. Veltri’s June 7, 2017 report predates the
claimed June 30, 2017 injury and therefore is irrelevant to this claim. In his March 30, 2018 report,
he related that he began treating appellant in November 2016 for ongoing chronic right shoulder
pain following a July 2014 employment injury and diagnosed delayed sequelae of the July 2014
AC sprain with impingement and AC hypertrophy and arthritis. Dr. Veltri opined that appellant’s
right shoulder condition had not improved with conservative treatment such that surgery was
6

D.J., Docket No. 18-0620 (issued October 10, 2018).

7

K.L., Docket No. 18-1029 (issued January 9, 2019).

8

See S.D., Docket No. 17-1266 (issued December 14, 2018).

9

5 U.S.C. 8101(2) (this subsection defines a physician as surgeons, podiatrist, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law);
20 C.F.R. § 10.5(f); see also K.P., Docket No. 18-1090 (issued December 6, 2018).
10

See H.B., Docket No. 16-1753 (issued March 14, 2018).

11

Id.

4

required. He concluded that the onset of pain and its location were directly related to the original
2014 AC joint sprain, he also mentioned an injury date of November 2, 2016. Dr. Veltri did not
mention a June 30, 2017 incident in any of his reports. As Dr. Veltri did not provide a medical
opinion that the accepted June 30, 2017 employment incident caused or aggravated appellant’s
right shoulder conditions, his reports are of no probative value regarding causal relationship.12
As the record lacks rationalized medical evidence establishing causal relationship between
the June 30, 2017 employment incident and appellant’s diagnosed right shoulder conditions, she
has not met her burden of proof.13
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right shoulder
condition causally related to the accepted June 30, 2017 employment incident.

12

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

13

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the May 30, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 11, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF THE NAVY, CAMP
LEJEUNE, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0176
Issued: July 21, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 3, 2016 appellant filed a timely appeal from July 12, August 9, and
October 13, 2016 merit decisions1 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 to consider the merits of the case.
ISSUES
The issue is whether appellant has met his burden of proof to establish disability for the
periods April 18 through 29, May 9 through June 17, and June 20 through August 12, 2016 due
to his accepted employment injuries.

1

The Board notes that appellant submitted additional evidence after OWCP rendered its October 13, 2016
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, the Board lacks jurisdiction to review this additional evidence on appeal. 20 C.F.R.
§ 501.2(c)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 18, 2013 appellant, then a 64-year-old boiler plant operator, filed a
traumatic injury claim (Form CA-1) alleging that he injured his left knee when he slipped on
snow and ice while reading gas meters on February 17, 2013 in the performance of duty. OWCP
accepted his claim for tear of the medial meniscus of the left knee on May 22, 2013. Appellant
underwent arthroscopic surgery on June 20, 2013 for tears of the medial and lateral menisci as
well as grade 3-4 medial femoral chondromalacia. He returned to light-duty work on
July 8, 2013. On August 26, 2013 OWCP accepted the additional condition of temporary
aggravation of osteoarthritis in the left knee; on August 11, 2014 OWCP accepted the additional
condition of sprain of the right hip and thigh, and a pulled hamstring; and on November 19, 2014
OWCP expanded the accepted condition to included complete right rotator cuff rupture.
Appellant underwent a right shoulder mini open arthroscopic repair of the right rotator
cuff on February 3, 2015 and repeat right shoulder arthroscopy on November 17, 2015. He
received intermitted wage-loss compensation and was most recently placed on the periodic rolls
on January 27, 2016.
Appellant returned to full-time light-work as a secretary on February 22, 2016. On
April 5, 2016 OWCP authorized compensation benefits for partial disability from February 22
through March 21, 2016. It requested additional evidence regarding 2.5 hours each on
February 29 and March 24, 2016. On April 25, 2016 OWCP authorized compensation benefits
for the additional periods.
In a note dated April 13, 2016, Dr. Raymond J. Bradley, a Board-certified orthopedic
surgeon, indicated that appellant should remain out of work. Appellant underwent a left upper
extremity magnetic resonance imaging (MRI) scan on April 21, 2016 which demonstrated
tenosynovitis of the extensor tendons and abductor pollicis longus.
On April 22, 2016 Dr. Bradley noted that appellant’s left upper extremity MRI scan
showed significant tenosynovitis. He opined that appellant could not work for eight weeks due
to this condition. Dr. Bradley also reported that appellant’s ongoing dysfunction of the right
shoulder would require further investigation.
In a separate note dated April 22, 2016, Dr. Bradley noted that appellant was struggling
with his right shoulder physical therapy and having pain and difficulty with right shoulder range
of motion. He also reported, “After [appellant’s] recent surgery, I examined his left wrist and he
clearly had an area of thrombophlebitis and vessel hardening over a discrete segment…. It was
exquisitely tender, but clearly resulting from left upper extremity venipuncture from his
[w]orkers’ [c]ompensation procedure.” Dr. Bradley noted the MRI scan findings of the left
upper extremity.
On April 29, 2016 appellant filed a Form CA-7 requesting compensation for leave
without pay from April 18 through 29, 2016. In a letter dated May 5, 2016, OWCP noted that he
stopped work on April 18, 2016 and had not returned. It reviewed Dr. Bradley’s notes dated
April 13 and 22, 2016 and requested additional evidence to establish disability for the period

2

claimed. OWCP noted that light-duty work was available for appellant and afforded him 30 days
to respond.3
On May 23, 2016 appellant filed claims for compensation from May 9 through 20,
May 23 through June 3, and June 6 through 17, 2016.
In a note dated May 20, 2016, Dr. Bradley informed OWCP that appellant required
additional right shoulder surgery for right shoulder superior capsular reconstruction. He opined
that appellant was unable to use his right upper extremity at work. On June 24, 2016 Dr. Bradley
indicated that appellant was totally disabled until after surgery. He also completed a narrative
report on that date and opined that appellant had a cuff deficit right shoulder and a nonrepairable
cuff tear. On physical examination Dr. Bradley found crepitus, tenderness, and laxity in the
biceps tendon of appellant’s right shoulder. He found that O’Brien’s test was positive, Hawkins’
test was positive, and that Neer’s test was positive. Dr. Bradley noted that appellant had
discomfort with any motion as he tried to actively elevate or abduct the right upper extremity and
abnormal range of motion. He reported that appellant’s tissue was so badly degraded and so
retracted that it would not be repairable. Dr. Bradley recommended a reverse shoulder
arthroplasty for appellant’s irreparable and painful rotator cuff tear. He also described and
discussed a superior capsular reconstruction of appellant’s right shoulder, which he preferred to
the reverse shoulder arthroplasty.
By decision dated July 12, 2016, OWCP denied appellant’s claim for disability
compensation for the period April 18 through 29, 2016. It found that Dr. Bradley’s April 13 and
22, 2016 notes were insufficient to establish his claim because there was no opinion on the
causal relationship between appellant’s claimed period of disability and his accepted
employment injuries.
Appellant filed a claim for compensation for the period June 20 through July 15, 2016 on
July 16, 2016. On August 1, 2016 he requested compensation for the period July 18
through 29, 2016. Appellant submitted a note dated March 18, 2016 from Sean Carroll, a
physician assistant.
By decision dated August 9, 2016, OWCP denied appellant’s claim for disability
compensation for the period May 9 through June 17, 2016. It found that he had not submitted
medical opinion evidence establishing why he was unable to perform his light-duty position of
secretary.
Appellant filed a claim for compensation on August 13, 2016 for the period August 1
through 12, 2016.
In a note dated August 8, 2016, Dr. Bradley reported appellant’s continued pain in the
right shoulder and that OWCP had approved additional surgery. On August 15, 2016 he
performed an authorized right shoulder arthroscopy with extensive intra-articular debridement,

3

OWCP continued to pay appellant wage-loss compensation for partial disability.

3

right shoulder superior capsular reconstruction with arthro-flex allograft and mini-open rotator
cuff repair.4
In a note dated August 22, 2016, Dr. Bradley reported that appellant underwent a right
shoulder rotator cuff massive reconstruction and a superior capsular reconstruction with
allograft. He indicated that appellant was totally disabled for two months and after that could
return to sedentary duties.
By the decision dated October 13, 2016, OWCP denied appellant’s claim for
compensation for wage loss for the period June 20 through August 12, 2016.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.5 The term
disability is defined as the incapacity because of an employment injury to earn the wages the
employee was receiving at the time of the injury, i.e., a physical impairment resulting in loss of
wage-earning capacity.6
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.7 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that he or she hurts too much to work, without objective findings of
disability being shown, the physician has not presented a medical opinion on the issue of
disability or a basis for payment of compensation.8 The Board will not require OWCP to pay
compensation for disability in the absence of any medical evidence directly addressing the
specific dates of disability for which compensation is claimed. To do so would essentially allow
employees to self-certify their disability and entitlement to compensation.9
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.10 Rationalized medical evidence is medical
4

OWCP began paying appellant wage-loss compensation for total disability beginning August 15, 2016. It
placed him on the periodic rolls for total disability beginning September 18, 2016.
5

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

6

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury, but no
loss of wage-earning capacity).
7

See Fereidoon Kharabi, 52 ECAB 291 (2001).

8

Id.

9

Id.

10

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

4

evidence which includes a physician’s detailed medical opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the claimant.11 Neither the fact that a disease
or condition manifests itself during a period of employment nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish disability for
the periods April 18 through 29, May 9 through June 17, and June 20 through August 12, 2016
due to his accepted employment injuries.
OWCP accepted appellant’s February 17, 2013 traumatic injury for the conditions of tear
of the medial meniscus of the left knee, temporary aggravation of osteoarthritis in the left knee,
as well as the consequential injuries of sprain of the hip and thigh, pulled right hamstring, and
complete rotator cuff rupture, on the right. Appellant underwent two left knee surgeries and
three right shoulder surgeries.
Appellant returned to full-time light-work as a secretary on February 22, 2016 following
his second right shoulder surgery. He stopped work on April 18, 2016. In support of his claim
for total disability beginning on April 18, 2016, appellant submitted a note dated April 13, 2016
from Dr. Bradley opining that he was totally disabled. This note did not provide an opinion on
the cause of his disability for work and is, therefore, insufficient to meet his burden of proof.
The Board has held that medical evidence which does not support causal relationship between
the accepted conditions and the disability claimed is of limited probative value.13
On April 22, 2016 Dr. Bradley noted that appellant had an area of thrombophlebitis and
vessel hardening clearly resulting from left upper extremity venipuncture from his authorized
surgery. He noted that the MRI scan findings of the left upper extremity and diagnosed left
upper extremity tenosynovitis. Dr. Bradley opined that appellant could not work for eight weeks
due to this condition. While this note supports appellant’s disability for work due to a left upper
extremity condition, Dr. Bradley did not explain how the diagnosed condition of left upper
extremity tenosynovitis was related to appellant’s accepted employment injuries. On
February 17, 2016 he had diagnosed left wrist thrombosis after a venipuncture, but indicated that
appellant could perform light-duty work. Without an opinion on the causal relationship between
appellant’s diagnosed condition of left upper tenosynovitis and his accepted employment injuries
or surgeries, these notes are not sufficient to establish that any disability resulting from his left
11

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

12

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

13

C.B., Docket No. 09-2027 (issued May 12, 2010); A.D., 58 ECAB 149 (2006).

5

upper extremity condition of tenosynovitis was due to his employment.14 Therefore,
Dr. Bradley’s April 22, 2016 notes are not sufficiently detailed and well rationalized to establish
a period of employment-related disability.
In a separate note dated April 22, 2016, Dr. Bradley noted that appellant was struggling
with his right shoulder physical therapy and having pain and difficulty with his right shoulder
range of motion. On May 20, 2016 he opined that appellant required additional right shoulder
surgery for right shoulder superior capsular reconstruction. Dr. Bradley determined that
appellant was unable to use his right upper extremity at work. On June 24, 2016 he indicated
that appellant was totally disabled until after surgery. On examination Dr. Bradley found
crepitus, tenderness, and laxity in the biceps tendon of appellant’s right shoulder with positive
tests for rotator cuff insufficiency and impingement. He supported appellant’s total disability for
work due to his accepted right shoulder conditions beginning on May 20, 2016 and again on
June 24, 2016. However, these opinions are insufficiently detailed and well-reasoned to
establish appellant’s claim for total disability. A mere conclusion without the necessary rationale
explaining why Dr. Bradley believed that appellant was unable to perform his light-duty job
requirements beginning on May 20, 2016 is insufficient to meet appellant’s burden of proof.15
He did not describe how appellant’s right shoulder condition changed on or after May 20, 2016.
Given these deficiencies, Dr. Bradley’s reports do not establish appellant’s total disability for
work.16
Appellant also submitted a note dated March 18, 2016 from Mr. Carroll, a physician
assistant. As this note was not signed by the physician it has no probative value in establishing
appellant’s claim.17 Healthcare providers such as nurses, acupuncturists, physicians assistants,
and physical therapists are not considered physicians under FECA and their reports and opinions
do not constitute competent medical evidence to establish a medical condition, disability or
causal relationship.18 Mr. Carroll’s note, therefore, cannot establish a claimed period of
disability.
The Board finds that there is no rationalized medical opinion evidence supporting
appellant’s total disability for work for the periods April 18 through 29, May 9 through June 17,
and June 20 through August 12, 2016 due to his accepted employment injuries and he, therefore,
has not met his burden of proof in this regard.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
14

Id.

15

Y.D., Docket No. 16-1896 (issued February 10, 2017).

16

D.R., Docket No. 16-0528 (issued August 24, 2016).

17

Merton J. Sills, 39 ECAB 572 (1988).

18

5 U.S.C. § 8101(2); see also G.G., 58 ECAB 389 (2007); Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J.
Williams, 40 ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983).

6

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish disability for
the periods April 18 through 29, May 9 through June 17, and June 20 through August 12, 2016
due to his accepted employment injuries.
ORDER
IT IS HEREBY ORDERED THAT October 13, August 9, and July 12, 2016 merit
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: July 21, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Des Moines, IA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1511
Issued: January 9, 2014

Case Submitted on the Record

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

JURISDICTION
On June 12, 2013 appellant filed a timely appeal from an April 9, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
back condition in the performance of duty causally related to factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the April 9, 2013 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On January 16, 2013 appellant, then a 49-year-old mailhandler, filed an occupational
disease claim (Form CA-2) alleging that he sustained a herniated disc in his lower back due to
factors of his federal employment, including use of a high-speed tray sorter. He stated that,
because of the gradual nature of the way the injury came on and even after resting on his days
off, the pain returned when he went back to work and worsened with each day until he went to
the emergency room.
On January 16, 2013 Dr. Kevin Pothoven, a Board-certified emergency medicine
physician, discharged appellant from the emergency room and indicated that he should be able to
return to work after released by his primary physician.
In a January 30, 2013 report, Dr. Timothy Noonan, a Board-certified family medicine
specialist and appellant’s attending physician, diagnosed sciatica and indicated that appellant had
pain when bending, twisting, sitting-up, lying down and a positive straight-leg raise test. He
released appellant to light-duty work with restrictions.
On February 5, 2013 the employing establishment offered and appellant accepted a
modified mailhandler position with restrictions on handling more than two pounds.
By letter dated February 15, 2013, OWCP requested additional factual and medical
information from appellant. It allotted him 30 days to submit additional evidence and respond to
its inquiries.
Subsequently, appellant submitted a position description and a February 23, 2013
narrative statement indicating that he had pain radiating out and around the left hip from the
lower back and had no other employment or volunteer activities nor service-related injuries as a
veteran.
In another January 16, 2013 emergency room report, Dr. Pothoven diagnosed left lumbar
spasm and indicated that appellant’s work required lifting and twisting.
On January 23, 2013 Dr. Noonan reiterated his diagnosis and indicated that appellant did
a lot of twisting, lifting and bending at work. He released appellant to resume normal activities
effective February 23, 2013.
By decision dated April 9, 2013, OWCP denied the claim on the basis that the medical
evidence failed to establish a causal relationship between the diagnosed conditions and the
implicated employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 FECA, that the claim was timely filed within the applicable time
3

5 U.S.C. §§ 8101-8193.

2

limitation period of FECA and that an injury4 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. The opinion of the physician must
be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.7
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that federal
employment factors caused or aggravated his back condition. While appellant submitted a
statement in which he identified the factors of employment that he believed caused the condition,
in order to establish a claim that he sustained an employment-related injury, he must also submit
rationalized medical evidence which explains how his medical conditions were caused or
aggravated by the implicated employment factors.8
In his reports, Dr. Pothoven diagnosed left lumbar spasm and indicated that appellant’s
work required lifting and twisting. Similarly, in his reports, Dr. Noonan diagnosed sciatica and
indicated that appellant did a lot of twisting, lifting and bending at work. He found that appellant
had pain when bending, twisting, sitting-up, lying down and a positive straight-leg raise test.
Drs. Pothoven and Noonan provided firm diagnoses and identified appellant’s work duties.
However, they failed to provide a rationalized opinion explaining how factors of appellant’s
federal employment, such as twisting, lifting and bending, caused or aggravated these back
conditions. Such generalized statements do not establish causal relationship as they merely
repeat appellant’s allegations and are unsupported by adequate medical rationale explaining how
4

OWCP regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
5

See O.W., Docket No. 09-2110 (issued April 22, 2010); Ellen L. Noble, 55 ECAB 530 (2004).

6

See D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005);
Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

See O.W., supra note 5.

8

See A.C., Docket No. 08-1453 (issued November 18, 2008); Donald W. Wenzel, 56 ECAB 390 (2005); Leslie C.
Moore, 52 ECAB 132 (2000).

3

his physical activity at work actually caused or aggravated the diagnosed conditions.9 Thus, the
Board finds that the reports from Drs. Pothoven and Noonan are insufficient to establish that
appellant sustained an employment-related injury.
As appellant has not submitted any rationalized medical evidence to support his
allegation that he sustained an injury causally related to the indicated employment factors, he
failed to meet his burden of proof to establish a claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a back condition in the performance of duty causally related to factors of his federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the April 9, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 9, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

See K.W., Docket No. 10-98 (issued September 10, 2010).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wood River, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-198
Issued: August 3, 2011

Case Submitted on the Record

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

JURISDICTION
On November 2, 2010 appellant timely appealed the October 20, 2010 merit decision of
the Office of Workers’ Compensation Programs (OWCP), which affirmed a schedule award.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has a ratable impairment of the right lower extremity and
greater than four percent impairment of the left lower extremity.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
Appellant, then a 53-year-old customer service supervisor, has an accepted claim for
lumbar sprain, which arose on or about January 20, 2009.2 He filed a claim for a schedule award
(Form CA-7) on May 22, 2009. In a report dated September 11, 2009, Dr. Randall J. Rogalsky,
a Board-certified orthopedic surgeon, found a whole person impairment of “approximately” 27
percent pursuant to the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (2001). The rating included 13 percent whole person
impairment based on a diagnosis-related estimate Lumbar Category III impairment.3
Dr. Rogalsky also rated appellant for loss of motion and spinal nerve root impairment L5-S1.4
On January 20, 2010 the district medical adviser (DMA) reviewed the record, including
Dr. Rogalsky’s report, and found four percent impairment of the left lower extremity and zero
impairment of the right lower extremity. He applied the sixth edition of the A.M.A., Guides
(2008), which OWCP adopted effective May 1, 2009. Citing Table 16-12, “Peripheral Nerve
Impairment-Lower Extremity Impairments,” A.M.A., Guides 534-36 (6th ed. 2008), the DMA
indicated that appellant had four percent impairment due to left lower extremity sciatic nerve
symptoms. He found no impairment of the right lower extremity because appellant’s symptoms
were reportedly due to an unrelated right knee medial meniscus tear.
By decision dated April 20, 2010, OWCP granted a schedule award for four percent
impairment of the left lower extremity. The award covered a period of 11.52 weeks from
September 11 to November 30, 2009. OWCP found zero impairment of the right lower
extremity.
Appellant requested an oral hearing, which was held on August 4, 2010. OWCP’s
hearing representative acknowledged that when he looked at the DMA’s report it was not clear
how the DMA came up with the four percent impairment rating for the left lower extremity. He
specifically stated that he did not think the DMA’s report was “well explained.” OWCP’s
hearing representative also suggested that further development was necessary because of the
noted deficiency in the DMA’s January 20, 2010 report.
In a decision dated October 20, 2010, OWCP’s hearing representative affirmed OWCP’s
April 20, 2010 decision. He found that, while the DMA’s January 20, 2010 report “[was] not
fully explained,” there was no medical evidence of record refuting the DMA’s four percent
impairment rating. Consequently, OWCP’s hearing representative determined that appellant had
not established that he had greater than four percent impairment of the left lower extremity.5
2

Appellant has a prior history of lumbar herniated disc and he had previously undergone a left L5-S1
microdiscectomy in February 2008.
3

See Table 15-3, A.M.A., Guides 384 (5th ed. 2001).

4

See Tables 15-8, 15-9 and 15-18, A.M.A., Guides 407, 409 and 424 (5th ed. 2001).

5

OWCP’s hearing representative also noted that appellant did not dispute the zero percent rating for the right
lower extremity. Additionally, he explained that Dr. Rogalsky’s 27 percent whole person impairment rating could
not be utilized because FECA did not permit schedule awards for either the spine or whole person impairment.

2

LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.6 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.7 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).8
No schedule award is payable for a member, function or organ of the body that is not
specified in FECA or in the implementing regulations.9 Neither FECA nor the regulations
provide for the payment of a schedule award for the permanent loss of use of the back or the
body as a whole.10
ANALYSIS
The Board finds that the question of appellant’s entitlement to a schedule award is not in
posture for decision. The sixth edition of the A.M.A., Guides (2008) provides a specific
methodology for rating spinal nerve extremity impairment.11 It was designed for situations
where a particular jurisdiction mandated ratings for extremities and precluded ratings for the
spine.12 The DMA based a four percent left leg rating on Table 16-12, “Peripheral Nerve
Impairment-Lower Extremity Impairments,” A.M.A., Guides 534-36 (6th ed. 2008), which is not
the preferred method adopted by OWCP. Furthermore, he failed to explain how he arrived at his
particular impairment rating under the A.M.A., Guides. The DMA merely noted that appellant’s
left lower extremity sciatic nerve symptoms warranted a four percent rating. OWCP’s hearing
representative acknowledged this deficiency, but nonetheless affirmed OWCP’s decision.
Once OWCP undertakes development of the record it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.13 The Board finds
that the DMA’s report is not well reasoned and he did not apply the appropriate methodology for
6

For a total loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C. § 8107(c)(2).

7

20 C.F.R. § 10.404 (2010).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
9

W.C., 59 ECAB 372, 374-75 (2008); Anna V. Burke, 57 ECAB 521, 523-24 (2006).

10

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
12

Id.

13

Richard F. Williams, 55 ECAB 343, 346 (2004).

3

rating appellant’s lower extremity impairment due to the accepted lumbar condition. The
medical evidence developed by OWCP does not adequately address the extent of any lower
extremity impairment or maximum medical impairment the case will be remanded for further
development. After OWCP has developed the case record to the extent it deems necessary, a de
novo decision shall be issued regarding entitlement to a schedule award.
CONCLUSION
The Board finds that the case is not in posture for decision as the extent of permanent
impairment to appellant’s lower extremities.
ORDER
IT IS HEREBY ORDERED THAT the October 20, 2010 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
consistent with this decision.
Issued: August 3, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.M., Appellant
and
DEPARTMENT OF HOUSING & URBAN
DEVELOPMENT, Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Richard S. O’Connor, Esq., for the appellant
No appearance, for the Director

Docket No. 06-632
Issued: May 3, 2007

Oral Argument March 22, 2007

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

JURISDICTION
On January 23, 2006 appellant, through her attorney, filed a timely appeal from a
November 22, 2005 merit decision of a hearing representative of the Office of Workers’
Compensation Programs affirming a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the schedule award decision.
ISSUE
The issue is whether appellant has more than a 20 percent bilateral lung impairment for
which she received a schedule award.
FACTUAL HISTORY
On June 27, 1988 appellant, then a 47-year-old secretary, filed a traumatic injury claim
alleging that she sustained laryngitis due to inhaling an irritant on June 13, 1988 in the
performance of duty. The Office accepted the claim for acute laryngitis, neurotic depression,

extrinsic asthma, chronic obstructive asthma, unspecified substance and an unspecified disorder
of the nervous system. Appellant received compensation for total disability beginning
January 1989.
Appellant filed a claim for a schedule award. On February 6, 2004 the Office requested
that she submit a medical report from her attending physician addressing the extent of any
permanent impairment in accordance with the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001). On February 13, 2004 the
Office referred appellant to Dr. Jeff B. Hales, a Board-certified internist, for a second opinion
evaluation.
In a report dated February 26, 2004, Dr. Grace Ziem, appellant’s attending physician who
specializes in occupational medicine, related that she had not achieved maximum medical
improvement. She opined that appellant had a 50 percent impairment due to the results of a
November 7, 2003 pulmonary function test, a 25 percent impairment due to asthma, a 15 to
20 percent impairment due to laryngitis and a 35 percent impairment due to a disorder of the
nervous system.
In a report dated March 22, 2004, Dr. Hales diagnosed interstitial lung disease,
scleroderma and CREST syndrome.1 Pulmonary function studies performed on that date for
Dr. Hales measured appellant’s forced vital capacity (FVC) as 2.22 liters or 72 percent of normal
before bronchodilator and 2.14 liters or 70 percent of normal after bronchodilator. Her forced
expiratory volume in the first second (FEV1) was 2.00 liters, or 81 percent of normal before
bronchodilator and 1.93 liters, or 78 percent of normal after bronchodilator. The ratio of FVC to
FEV1 was 90 liters. Appellant’s diffusing capacity for carbon monoxide (DCO) measured
12.7 liters or 53 percent of normal, before bronchodilator. Dr. Hales found that appellant
provided good effort on the pulmonary function study. He interpreted the results as showing a
“[m]ild to moderate restrictive defect with a moderate decrease in gas exchange.” He noted that
the DCO diffusing capacity was “normal when corrected for volume” and that she had no
“significant improvement after bronchodilators.” In his narrative report, Dr. Hales stated:
“Pulmonary function tests demonstrate no significant obstruction with mild
improvement to bronchodilators. She does have mild to moderate restriction as
well as significantly diminished gas transfer at 53 percent predicted.
“Chest x-ray reveals an enlarged cardiac shadow with prominent right atrium and
right ventricle in addition to subtle interstitial lung markings bilaterally.
“[Appellant] is a 63-year-old female who has underlying interstitial lung disease
as well as scleroderma and CREST syndrome. She also has episodic reactivity to
her lung disease and has been exposed to inhalational irritants and chemicals
during work back in 1988. [She] is possibly developing pulmonary hypertension

1

CREST syndrome is an acronym for Calcinosis, Raynaud’s phenomenon, Esophageal dysfunction,
Sclerodactyly and Telangiectasia.

2

as well related to her underlying connective tissue disease and interstitial lung
disease given findings on physical exam[ination] today, i.e., prominent S2 and
peripheral edema….”
Dr. Hales indicated that appellant’s inhalation exposure could “trigger laryngitis and
interstitial lung disease” and possibly scleroderma, all of which had “insidiously progressive
underlying lung disease.” He found that she may be at maximum medical improvement but
noted that she should be evaluated for pulmonary hypertension. Dr. Hales stated: “I believe that
[appellant] does have permanent impairment of lung function given the findings of crackles on
physical exam[ination] and x-ray findings of interstitial change as well as diminished gas
transfer. The current indices are 53 percent. She is also subjectively very dyspneic and unable
to perform significant activity.” Dr. Hales concluded that based on the pulmonary function
studies appellant had a “Class III impairment based on a DCO of 53 percent.”
An Office medical adviser reviewed Dr. Hales’ report on May 29, 2004. He found that
appellant had a Class II impairment based an FVC of 72 percent of normal and an FEV1 of 81
percent of normal. The Office medical adviser determined that this constituted a 20 percent
whole person impairment according to Table 5-12 on pages 107 of the A.M.A., Guides. He
converted the 20 percent whole person impairment to a 10 percent impairment of each lung. The
Office medical adviser opined that appellant reached maximum medical improvement on
March 22, 2004. He further noted that her scleroderma was not related to any impairment in
lung function.
By decision dated November 1, 2004, the Office granted appellant a schedule award for a
20 percent bilateral lung impairment. The period of the award ran for 31.20 weeks from
March 22 to October 26, 2004.
Appellant, through her attorney, requested an oral hearing. At the hearing, held on
September 22, 2005, counsel argued that the opinion of Dr. Hales, a pulmonologoist, outweighed
the findings of the Office medical adviser, an orthopedist.
By decision dated November 22, 2005, the Office hearing representative affirmed the
November 1, 2004 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing federal regulation,3 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

3

claimants, the Office has adopted the A.M.A., (5th ed. 2001) as the uniform standard applicable
to all claimants.4
Chapter 5 of the fifth edition of the A.M.A., Guides provides that permanent impairment
of the lungs is determined on the basis of pulmonary function tests, i.e., the FVC and the one
second FEV1, the ratio between FEV1 and FVC and DCO. The values for predicted and observed
normal values for FEV1, FVC and DCO are found in Tables 5-2a through 5-7b.5 The A.M.A.,
Guides provides a table consisting of four classes of respiratory impairment based on a
comparison of observed values for certain ventilatory function measures and their respective
predicted values.6 For Classes 2 through 4, the appropriate class of impairment is determined by
whether the observed values fall alternatively within identified standards for FVC, FEV1, DCO or
maximum oxygen consumption (VO2Max). For each of the FVC, FEV1 and DCO results, an
observed result will be placed within Class 2, 3 or 4 if it falls within a specified percentage of the
predicted value for the observed person.7 For example, a person is within a Class 2 impairment,
equaling 10 to 25 percent impairment of the whole person, if the FVC, FEV1 or DCO is above
60 percent of the predicted value and less than the lower limit of normal.8 Section 5.10 of the
A.M.A., Guides advises that at least one of the criteria must be fulfilled to provide an individual
with an impairment rating.9
As explained in the Office’s procedure manual, all claims involving impairment of the
lungs will be evaluated by first establishing the class of respiratory impairment, following the
A.M.A., Guides as far as possible. Awards are based on the loss of use of both lungs and the
percentage for the applicable class of whole person respiratory impairment will be multiplied by
312 weeks (twice the award for loss of function of one lung) to obtain the number of weeks
payable in the schedule award.10
ANALYSIS
The Office accepted that appellant sustained acute laryngitis, neurotic depression,
extrinsic asthma, chronic obstructive asthma and an unspecified disorder of the nervous system
due to a June 13, 1988 employment injury. Appellant filed a claim for a schedule award. In a
report dated February 26, 2004, Dr. Ziem opined that she had a 50 percent impairment due to the
results of a November 7, 2003 pulmonary function studies, a 25 percent impairment due to
asthma, a 15 to 20 percent impairment due to laryngitis and a 35 percent impairment due to an
4

Id. at § 10.404(a).

5

A.M.A., Guides at 95-100. The pulmonary function tables are based on gender, age and height.

6

Id. at 107, Table 5-12.

7

The predicted normal values and the predicted lower limits of normal values for the FVC, FEV1 and DCO tests
are delineated in Tables 5-2a through 5-7b.
8

A.M.A., Guides 107, Table 5-12.

9

Id. at 107.

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(c)(1) (March 2005).

4

unspecified disorder of the nervous system. She did not explain how she calculated appellant’s
impairment due to asthma and laryngitis under the A.M.A., Guides. Additionally, disorders of
the nervous system are not covered members for purposes of a schedule award under the Act.11
Consequently, Dr. Ziem’s opinion is insufficient to establish the extent of appellant’s permanent
impairment.
The Office referred appellant to Dr. Hales for a second opinion evaluation. In a report
dated March 22, 2004, Dr. Hales diagnosed interstitial lung disease, scleroderma and CREST
syndrome. He found that appellant had a permanent impairment in her lung function given the
physical examination findings of crackles, x-ray findings of interstitial disease and decreased gas
transfer. Dr. Hales interpreted a March 22, 2004 pulmonary function study as showing
“significantly diminished gas transfer at 53 percent predicted.” He concluded that appellant had
a Class III impairment due to DCO values of 53 percent.
On May 29, 2004 an Office medical adviser reviewed Dr. Hales’ March 22, 2004 report.
He opined that appellant had a Class II impairment as the pulmonary function test showed a FVC
of 72 percent of normal and an FEV1 of 81 percent of normal. The Office medical adviser found
that this constituted a Class II impairment according to Table 5-12 on pages 107 of the A.M.A.,
Guides.12 Table 5-12 provides a range from a 10 to 25 percent whole person impairment for
individuals with a Class II respiratory disorder. The Office medical adviser determined that
appellant had a 20 percent whole person impairment. The Board notes, however, that the
A.M.A., Guides states that “[a]t least one of the listed criteria [in Table 5-12] must be fulfilled to
place an individual in any class with an impairment rating.”13 The criteria for a Class III
impairment under Table 5-12 is a FVC of between 51 to 59 percent of predicted or an FEV1 of
41 to 59 percent of predicted or DCO values of less than 59 percent of predicted.14 Appellant’s
DCO is 53 percent of predicted normal, which satisfies one of the listed criteria for a Class III
impairment.15 The Office medical adviser provided no explanation for his finding that appellant
had a Class II impairment given that her DCO value of 53 percent indicated that she had a
Class III impairment.16

11

See 5 U.S.C. § 8107; 20 C.F.R. § 10.404.

12

The Board notes that the Office medical adviser utilized the FVC and FEV1 results before bronchodilator
without providing any explanation. The A.M.A., Guides on page 93 provides that the spirogram which indicates the
best effort should be used. In this case, the post bronchodilator values for FVC and FEV1 also constitute a Class II
impairment according to Table 5-12 on page 107.
13

A.M.A., Guides at 107.

14

Id.

15

See supra note 6.

16

It is unclear whether either Dr. Hales or the Office medical adviser adjusted the spirometric values based on
appellant’s race. The A.M.A., Guides notes that the spirometric values for North American whites are greater than
for North American blacks and recommends multiplying predicted normal values for FVC, FEV1 and DCO values by
0.88, 0.88 and 0.93, respectively. Id. at 94.

5

Accordingly, the case will be remanded for the Office to obtain clarification from the
Office medical adviser regarding the extent of appellant’s pulmonary impairment. After such
further development as deemed necessary, the Office 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 decision of the Office of Workers’
Compensation Programs’ hearing representative dated November 22, 2005 is set aside and the
case is remanded for further proceedings consistent with this opinion of the Board.
Issued: May 3, 2007
Washington, DC

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

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

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

6