United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Overland Park, KS, Employer
__________________________________________

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

Docket No. 09-1997
Issued: July 13, 2010

Case Submitted on the Record

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

JURISDICTION
On August 3, 2009 appellant filed a timely appeal from a July 1, 2009 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. § 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant satisfied her burden of proof to establish that she sustained
an injury in the performance of duty causally related to her employment.
FACTUAL HISTORY
On September 25, 2008 appellant, a 47-year-old sales, services and distribution clerk,
filed an occupational disease claim (Form CA-2) alleging that performing her postal duties

caused upper back and neck pain.1 She alleges that the modified position the employing
establishment offered her exceeded her medical restrictions. Appellant first became aware of her
condition and that it was caused by her employment on August 14, 2008.
On May 15 and 29 and July 9, 2008 the employing establishment offered appellant a
modified position as a sales, services and distribution clerk at its Blue Valley facility. The
position provided several restrictions, which, in pertinent part, restricted lifting activities using
appellant’s left arm to no more than 20 pounds and lifting activities using her right arm were
restricted to no more than 10 pounds. These modified positions did not include a driving
restriction. On May 29, 2008 appellant refused this position, asserting that it exceeded her
medical restrictions because the Blue Valley facility was an hour and 20 minute drive from her
home. Although appellant accepted the position on July 9, 2008, she continued to assert that the
drive-time exceeded her work restrictions.
Appellant submitted an August 11, 2008 note in which Dr. Nick Navato, an orthopedist,
diagnosed chronic musculoskeletal lower back pain, lumbar spine degenerative disc disease,
lumbosacral spinal stenosis with radiculopathy. Dr. Navato opined that appellant could work
four to five days per week, six to eight hours per day with restrictions. He restricted lifting
activities to no more than 10 pounds for appellant’s right arm and no more than 20 pounds for
appellant’s left arm. Dr. Navato advised appellant to avoid repetitive tasks requiring use of her
right arm. He opined that appellant could drive to work, but restricted her to no more than one
hour of driving, provided she took a break midway, in both directions, and that her job site could
be no more than 50 miles from her home.
In September 11 and November 4, 2008 notes, appellant alleges the modified-duty sales,
service and distribution clerk employment duties caused new back and neck injuries. She asserts
that her current employment position exceeds the driving restriction recommended by her
physician. Appellant relates that she configured her workstation at her prior duty assignment
such that she was able to perform her duties without aggravating her medical conditions. Before
she began working at the Blue Valley facility she spoke with a district manager and told him that
she could not perform her duties unless she was provided a similarly configured workstation.
When appellant began working at the Blue Valley facility, however, her workstation was not
configured as she requested. Because she was unsuccessful in her attempt to reposition the
equipment in her workstation, she alleges she performed reaching, bending and repetitive
employment activities that produced neck and back injuries.

1

Appellant has other workers’ compensation claims. Under claim number xxxxxx782, the Office accepted that
appellant sustained a right rotator cuff strain and rotator cuff tear in the performance of duty as of
December 15, 2003. By decision dated November 28, 2005, appellant was awarded an 11 percent impairment rating
for the right shoulder condition. Under claim number xxxxxx195, the Office accepted that appellant sustained a
lumbosacral strain and developed psychogenic pain as a result of performing her March 30, 2004 duties. It accepted
that appellant sustained a recurrence of disability as of October 4, 2005. Appellant is receiving partial wage-loss
benefits under the 2004 injury claim in accordance with a November 8, 2006 loss of wage-earning capacity (LWEC)
determination. The cases were combined in 2004, and the xxxxxx782 injury claim is considered the master file.
Under the 2003 master claim, the Office, by decision dated January 8, 2009, denied modification of the 2006 LWEC
determination and denied compensation entitlement from April to August 2008 and ongoing compensation
beginning September 2008.

2

Appellant submitted reports dated September 18 and November 3, 2008, signed by
Dr. Navato. In his history, Dr. Navato notes that appellant reported that since July 29, 2008 her
employment duties exceeded her work restrictions. He relates that appellant’s supervisor
advised her that she needed to perform her assigned duties or she would face disciplinary action.
Dr. Navato diagnosed chronic musculoskeletal lower back pain, lumbar degenerative disc
disease, “possible piriformis syndrome,” “possible right shoulder bursitis” and lumbrosacral
spinal stenosis with radiculopathy. He opined that appellant could work 4 days per week, 6
hours per day, with 50-minute work hours, allowing appellant to rest and change positions or
stretch. Dr. Navato reiterated the lifting restrictions outlined in his previous note and opined that
appellant should not work more than 50 miles from home. He restricted her driving to no more
than a total of one hour per day. Dr. Navato also opines that appellant is unable to perform the
offered sales, service and distribution clerk position at the Blue Valley facility because working
the window requires excessive twisting, bending, repetitive motions with her right arm and
reaching over the counter.
In a September 24, 2008 note, the employing establishment relates that appellant was
given a rehabilitation position which she worked for 60 days, at which point the Office issued a
loss of wage-earning capacity (LWEC) determination. Due to operational changes, the
employing establishment had to change appellant’s work location and therefore offered her
another rehabilitation position, which appellant accepted, though she argued that the new
position was further away from her home and therefore exceeded her driving restrictions.
Employees from this new duty location drove from appellant’s home to the Blue Valley facility
and reported that Blue Valley is actually closer to her residence than her prior duty assignment.
The employing establishment reports that appellant’s employment duties at the Blue Valley
facility are no different than those at her previous duty station. At the Blue Valley location,
appellant is still working the window selling postal products and sorting mail. The employing
establishment opines that appellant is merely unhappy with her duty station’s location.
In a November 17, 2008 statement, the employing establishment relates that appellant’s
transfer to the Blue Valley facility was due to the needs of the agency. The employing
establishment asserts that appellant’s complaint that her assigned duties exceeded her work
restrictions is false as the position at the Blue Valley facility requires less work than she
performed at her prior duty location. While the position at the Blue Valley facility included
working the window, sorting mail and other office duties, appellant was not assigned to sort
mail. Using MapQuest, an internet-based service, the employing establishment determined that
the Blue Valley facility is 45.23 miles from appellant’s home whereas her prior duty location
was 46.20 miles from her home.
Further, the employing establishment noted that the activities associated with working the
window are not “repetitive” because there are a variety of different tasks that the employee must
perform, depending on the needs of the customer, and an employee has the option of performing
these tasks with their right or left hand, arm or shoulder. Finally, the employing establishment
reports that the window stations at Blue Valley are configured in a manner more suitable to
appellant’s condition. They note that the equipment at each station is on a more even and level
surface than at her prior duty station. The monitor can be relocated to minimize reaching and the
window counters are of a shorter height, further reducing any reaching activities

3

On November 21, 2008 Dr. John F. Eurich, a Board-certified diagnostic radiologist,
reported findings following x-rays of appellant’s cervical and thoracic spine. He diagnosed
moderate degenerative changes at the C4-7 level and mild degenerative changes in appellant’s
thoracic spine.
In a November 24, 2008 report, Dr. Kenneth W. Peterson, an orthopedist, reviewed
appellant’s history of injury, reported findings on examination and diagnosed right shoulder pain.
On November 26, 2008 Dr. Michael B. Robertson, a Board-certified diagnostic
radiologist, reported findings following a magnetic resonance imaging (MRI) scan of appellant’s
shoulder. He diagnosed medial subluxation of the medial long head bicep tendon, mild joint
arthropathy, degenerative arthrosis of the glenohumeral joint and “probable slap tear at the
posterior superior labrum.”
Finding the evidence of record did not establish the identified employment factors caused
the alleged medical condition, by decision dated December 24, 2008, the Office denied the
claim.
On January 5, 2009 appellant, through her attorney, requested an oral hearing.
Appellant submitted a January 16, 2009 note in which Dr. Gregory P. Lynch, a Boardcertified orthopedic surgeon, opined that appellant could return to light-duty work and restricted
her to left hand employment tasks.
Following a hearing, conducted on April 16, 2009, by decision dated July 1, 2009, the
Office affirmed its December 28, 2008 decision, finding that the evidence of record did not
establish that the identified employment factors caused a medically-diagnosed condition or
aggravation of a preexisting condition.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,3
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.4 As part of his burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.5 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,

2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
5

G.T., supra note 4; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

4

the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.6
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (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.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. 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.8
ANALYSIS
Appellant identified bending, twisting, reaching, repetitive and driving work activities
associated with her duty assignment at the Blue Valley facility as employment factors she
considers responsible for her condition. Her burden is to demonstrate the identified employment
factors caused a medically-diagnosed condition.9 Causal relationship is a medical issue that can
only be proven through production of probative, rationalized medical opinion evidence.
Appellant has not submitted sufficient medical opinion evidence and, consequently, the Board
finds she has not satisfied her burden of proof.10
Dr. Navato’s reports are not based on a thorough and accurate history and therefore are of
little probative value.11 He opines that appellant is unable to perform the offered sales, service
and distribution clerk position at the Blue Valley facility because working the window requires
6

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

7

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

8

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
9

Appellant submitted reports pertaining to treatment and examination in 2006, 2007 and early 2008. As these
reports predate the date of her claim, they have no probative evidentiary value and do not satisfy her burden of
proof.
10

Appellant submitted a note bearing an illegible signature. Because the author of this note cannot be identified
as a physician, it is of diminished probative value. See R.M., 59 ECAB ___ (Docket No. 08-734, issued
September 5, 2008); Merton J. Sills, 39 ECAB 572 (1988).
11

Douglas M. McQuaid, 52 ECAB 382 (2001).

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excessive twisting, bending, repetitive motions with her right arm and reaching over the counter.
However, based on the evidence of record, Dr. Navato’s opinion is based on inaccurate
information. The employing establishment relates that appellant was originally provided a
rehabilitation position which she worked for 60 days at the prior duty location. Due to
operational changes, the employing establishment had to change appellant’s work location and
thus offered her another rehabilitation position at the Blue Valley facility. According to the
employing establishment, appellant’s duties at the Blue Valley facility were not only the same as
those required of her at her prior duty station but, at the Blue Valley facility, apparently they
actually require less work. The employing establishment reports that the duties of her position
permit her to substitute other office-work tasks throughout the day. While the position at the
Blue Valley facility included working the window, sorting mail and other office duties, appellant
was not assigned to sorting mail at the Blue Valley facility.
Further, the employing establishment noted that appellant’s employment duties are not
“repetitive,” rather there are a variety of different tasks that the employee must perform,
depending on the needs of the customer, which an employee has the option of performing using
their right or left hand, arm or shoulder.
Additionally, the employing establishment reports that Blue Valley’s window station
configurations are more suitable to appellant’s condition. It notes that the equipment at each
station at the Blue Valley facility is on a more even and level surface than at her prior duty
position. The monitor can be relocated to minimize reaching and the window counters are of a
shorter height, further reducing any reaching activities. Dr. Navato’s reports make no mention of
any of the afore-mentioned information and therefore are based on an inaccurate history.
Moreover, although Dr. Navato also opines that the Blue Valley position is not suitable
because the daily commute exceeded appellant’s driving work restriction, this too is based on
inaccurate information. The employing establishment noted that, according to MapQuest, the
Blue Valley facility is 45.23 miles from appellant’s home whereas her prior duty location was
46.20 miles from her home and, thus, driving to the Blue Valley facility does not exceed the
driving limitation. Consequently, without an accurate history, Dr. Navato’s reports are not
sufficient to meet appellant’s burden of proof in establishing her claim for an occupational
disease.
Finally, Dr. Navato’s opinion also lacks adequate rationale. He diagnosed, among other
conditions, chronic musculoskeletal lower back pain, lumbar spine degenerative disc disease,
lumbrosacral spinal stenosis with radiculopathy. Dr. Navato did not, however, explain the causal
relationship between the work restrictions he prescribed and the identified employment factors,
nor did he explain, with adequate rationale, how the identified employment factors caused a new
medically-diagnosed condition or aggravated a preexisting condition. These deficiencies reduce
the probative value of Dr. Navato’s notes such that they do not satisfy appellant’s burden of
proof.
The reports from Drs. Eurich, Peterson and Robertson have little probative value on
causal relationship. They did not describe appellant’s employment duties or provide a
rationalized medical opinion explaining how the identified employment factors caused the
conditions they diagnosed. As noted above, rationalized medical opinion evidence is medical

6

evidence which includes a physician’s rationalized opinion on whether there is a causal
relationship between the employee’s diagnosed condition and the compensable employment
factors.12 Medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.13
Consequently, these physicians’ reports are also substantively deficient such that they lack
probative value on causal relationship and do not satisfy appellant’s burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation.14
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.15
Appellant has not submitted sufficient medical opinion evidence supporting her claim
and, accordingly, the Board finds she has not satisfied her burden of proof to establish she
sustained an injury in the performance of duty causally related to her employment.
CONCLUSION
The Board finds appellant has not satisfied her burden of proof to establish that she
sustained an injury in the performance of duty causally related to her employment.

12

Supra note 8.

13

Michael E. Smith, 50 ECAB 313 (1999).

14

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving declarations
do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).
15

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

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ORDER
IT IS HEREBY ORDERED THAT the July 1, 2009 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 13, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


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

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Appearances:
Ernest J. Wright, Esq., for the appellant
Office of the Solicitor, for the Director

Docket No. 06-1757
Issued: February 28, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 27, 2006 appellant filed a timely appeal from a May 3, 2006 Office of Workers’
Compensation Programs’ termination decision. Under 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof in terminating appellant’s
compensation.
FACTUAL HISTORY
This is the second appeal before the Board. Appellant, a 56-year-old mail carrier,
sustained an injury to her lower back while in the performance of duty on August 1 2003. The
Office accepted the claim for lumbosacral sprain/strain and lumbosacral radiculitis and
commenced payment for temporary total disability compensation. By decision dated August 23,
2004, the Office terminated appellant’s compensation benefits.

In a May 2, 2005 decision, the Board reversed the August 23, 2004 decision. The Board
found that the Office failed to meet its burden of proof in terminating appellant’s benefits. The
complete facts of this case are set forth in the Board’s May 2, 2005 decision and are herein
incorporated by reference.1 Appellant’s entitlement to disability compensation was restored.
Appellant submitted an October 13, 2005 report dictated by a physician’s assistant and
signed by her treating physician, Dr. David A. Esposito, a Board-certified orthopedic surgeon,
who related appellant’s complaints of persistent, constant pain in her low back. The pain was
located in the midline lumbar spine, occasionally extending into the bilateral buttocks and her
thighs. Dr. Esposito indicated that appellant remained totally disabled from her previous job as a
rural mail carrier, with restrictions of no lifting greater than 10 pounds; no more than 30 minutes
of sitting, standing or walking consecutively; no sitting more than 2 hours per day, no standing or
walking more than 1 hour per day; bending, twisting, squatting, kneeling, crawling or climbing
not exceeding ½ hour per day; and no overhead activity exceeding more than ½ hour per day.
In order to determine whether appellant had any residuals from her work-related
concussion condition, the Office referred appellant, together with a statement of accepted facts
and the case record, to Dr. Noel Rogers, a Board-certified neurological surgery, for a second
opinion examination. In a report dated October 31, 2005, Dr. Rogers stated that appellant’s
August 1, 2003 lumbosacral strain had resolved. He opined that appellant had little in the way of
objective findings, with little or no spasm, normal x-rays and isolated inability to forward flex;
appellant’s subjective complaints were way out of proportion to the objective findings.
Dr. Rogers advised that appellant should be able to perform her date-of-injury job unless it
required lifting exceeding 30 pounds. He noted that appellant still had chronic back pain, but
advised that this pain did not stem from the work-related injury.
The Office found that there was a conflict in the medical evidence between appellant’s
treating physician, Dr. Esposito, who opined that appellant remained totally disabled from her
previous job as a rural mail carrier, and Dr. Rogers, the second opinion physician, who opined
that appellant’s accepted lumbosacral strain had resolved and that appellant was able to perform
her date-of-injury job unless it required lifting exceeding 30 pounds. The Office referred the
case to a referee medical specialist, Dr. Robert M. Moore, a Board-certified orthopedic surgeon.
In a report dated December 28, 2005, he stated:
“In my opinion, the lumbosacral strain of August 1, 2003 has resolved. There are
no current objective findings, either on physical examination or imaging studies,
to support any continuing residuals of that injury. Furthermore, comparison by
the radiologist of lumbar magnetic resonance imaging [MRI] scans of
November 5, 2003 (postinjury) and May 10, 1996 (preinjury) demonstrate no
interval changes. There is also no objective evidence of lumbar radiculitis at this
time, nor have any of the lumbar MRI scans shown any evidence of nerve root
impingement.
“It is in my opinion medically probable that the lumbosacral strain has resolved.
However, the patient does not currently have any symptoms currently that are
1

Docket No. 05-442 (issued May 2, 2005).

2

related to her cervical stenosis and spondylosis. I am unable to identify any
organic cause for her ongoing complaints of lower back and lower extremity pain.
Depression, symptom magnification, secondary gain and self-limiting behavior
may be contributing factors. As noted above, there is also evidence that
[appellant] had some previous history of low back symptoms prior to the injury of
August 1, 2003.”
In a notice of proposed termination dated March 22, 2006, the Office, based on
Dr. Moore’s opinion, found that the weight of the medical evidence demonstrated that appellant
was no longer disabled due to her August 1, 2003 employment injury. The Office found that
Dr. Moore’s opinion was that of an impartial medical examiner sufficient to resolve the conflict
in the medical evidence and constituted the weight of the medical evidence. The Office allowed
appellant 30 days to submit additional evidence or legal argument in opposition to the proposed
termination.
By letter dated April 21, 2006, appellant’s attorney stated his opposition to the proposed
termination. He related that appellant believed Dr. Moore was biased against her, which cast
doubt upon Dr. Moore’s status as an impartial medical examiner. Appellant’s attorney stated
that he was submitting a report from Dr. Brian R. Webster, Board-certified in internal medicine,
which indicated that appellant currently experienced chronic pain related to her accepted 2003
employment injury. In addition, appellant’s attorney stated that he was also submitting a report
from Dr. M. Russell Thomas, Ph.d in psychology, who believed that there was a psychological
component to appellant’s work-related low back condition.2 Counsel requested that the decision
to terminate appellant’s entitlement to compensation and medical benefits be held in abeyance
until a determination of her psychological condition could be further evaluated.
In a report dated April 17, 2006, Dr. Webster stated:
“I am currently treating [appellant] for chronic back pain from degenerative disc
disease. She has had chronic pain which I have been treating with medications.
[Appellant] has been referred to multiple specialists. She has been in such
discomfort at times that I have been unable to do a thorough physical
exam[ination] with her. I will continue to treat this chronic pain. I feel that she
remains disabled, due to the same mechanical processes in the spine that have
been present since the initial injury.”
By decision dated May 3, 2006, the Office terminated appellant’s compensation benefits.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.3
After it has determined that an employee has disability causally related to his or her federal
2

The record does not contain a report from Dr. Thomas.

3

Mohamed Yunis, 42 ECAB 325, 334 (1991).

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employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment.4 The Office’s burden of proof
includes the necessity of furnishing rationalized medical opinion evidence based on a proper
factual and medical background.5
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.6
ANALYSIS
In order to resolve the conflict in the medical evidence between appellant’s treating
physician, Dr. Esposito, and Dr. Rogers, the second opinion physician, the Office referred the
case to a referee medical specialist, Dr. Moore, who stated in his December 28, 2005 report that
there were no objective findings indicating that appellant had any continuing residuals stemming
from her August 1, 2003 lumbosacral strain injury. He noted that comparisons of appellant’s
pre- and postinjury MRI scans showed no changes, no objective evidence of lumbar radiculitis
and no evidence of nerve root impingement. Dr. Moore was unable to identify any organic cause
for her ongoing complaints of lower back and lower extremity pain. He felt that depression,
symptom magnification, secondary gain and self-limiting behavior might be contributing factors
to her complaints. Dr. Moore therefore opined that it was medically probable that the accepted
lumbosacral strain had resolved. The Office relied on Dr. Moore’s opinion in its May 3, 2006
decision, finding that appellant had no residuals or continuing disability stemming from her
August 2003 work injury and was therefore not entitled to compensation or medical benefits.
The Board finds that Dr. Moore’s referee opinion negated a causal relationship between
appellant’s condition and disability and constituted medical evidence sufficient to establish that
appellant no longer had any residuals from her accepted August 2003 lumbosacral strain injury.7
His opinion is sufficiently probative, rationalized and based upon a proper factual background.
Therefore, the Office properly accorded Dr. Moore’s opinion the special weight of an impartial
medical examiner.8 Although appellant submitted the April 17, 2006 report from Dr. Webster,
this report does not outweigh Dr. Moore’s opinion nor negate the Office’s finding that
Dr. Moore’s report represented the weight of the medical evidence. Dr. Webster’s report merely
restates one side of the conflict which was resolved by Dr. Moore’s referee medical opinion.
Accordingly, the Board finds that Dr. Moore’s opinion constituted the weight of medical opinion
and supports the Office’s May 3, 2006 decision to terminate appellant’s compensation and deny
any entitlement to continuing disability based on the August 1, 2003 work injury.
4

Id.

5

See Mary Lou Barragy, 46 ECAB 781 (1995); see also Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6

Regina T. Pellecchia, 53 ECAB 155 (2001).

7

The Board notes that appellant did not file a claim based on a psychological component to her August 1, 2003
lumbosacral strain injury; nor did the Office ever accept a claim for a psychological injury. In addition, appellant
did not submit any evidence in support of such a claim.
8

Gary R. Seiber, 46 ECAB 215 (1994).

4

CONCLUSION
The Board finds that the Office met its burden to terminate appellant’s compensation
benefits.
ORDER
IT IS HEREBY ORDERED THAT the May 3, 2006 decision of the Office of Workers’
Compensation Programs be affirmed.
Issued: February 28, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
)
Los Angeles, CA, Employer
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___________________________________________ )
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L.B., Appellant

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

Docket No. 07-778
Issued: October 5, 2007

Case Submitted on the Record

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

JURISDICTION
On January 29, 2007 appellant filed a timely appeal from a November 1, 2006 decision of
the Office of Workers’ Compensation Programs denying authorization for the purchase of a zero
gravity chair.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
these issues.
ISSUE
The issue on appeal is whether the Office properly denied authorization for the purchase
of a chair.
FACTUAL HISTORY
On September 7, 2000 appellant then a 53-year-old clerk, filed an occupational disease
claim alleging that her hands, wrists, arms and shoulders were hurting while working. She
1

The record also contains a November 15, 2006 schedule award decision; however, appellant has not appealed
from this decision.

alleged that on April 22, 2000 she realized that her condition was caused or aggravated by her
employment. Appellant stopped work on August 12, 2000.2 The Office accepted her claim for
bilateral carpal tunnel syndrome, bilateral upper extremity overuse syndrome and cervical
herniated nucleus pulposus C6-7. It also authorized bilateral shoulder arthroscopies and a
bilateral carpal tunnel release.3 Appellant received appropriate compensation benefits.
On June 16, 2004 Dr. Elliot Gross, a Board-certified neurologist and treating physician,
advised that appellant needed an orthopedic recliner chair as it was the only way she could sleep.
By letter dated October 6, 2004, the Office advised appellant that additional information
was needed to determine whether the zero gravity chair that she requested was medically
necessary. It advised her that she needed to provide a statement from her physician which
addressed the basic equipment she would need and the medical reasons for recommending the
equipment; the specific goals of or benefits expected from this equipment and a description of
how often she would be using the equipment; and the expected duration of its use; and a
description of alternative treatment that might provide the same results.
In an October 17, 2004 report, Dr. Gross advised the Office that he was recommending a
zero gravity chair because it would allow appellant to sit in a semi-recumbent position and she
would be able to do some desk-type work with the appropriate support for her neck. He
indicated that appellant would be more functional with this type of equipment and could use it on
a daily basis throughout the day. Dr. Gross opined that appellant would need the equipment on a
permanent basis. He indicated that he was not aware of any alternative type of treatment. By
letter dated November 8, 2004, appellant indicated that she was enclosing two quotes for the
chair prescribed by Dr. Elliot.
In a January 3, 2005 report, Dr. Gross repeated the request for a recliner chair and
advised that appellant needed it to sleep. By letter dated January 11, 2005, appellant stated that
she was trying to obtain authorization for a recliner chair which was recommended by her
physician, but had not received a response. She informed the Office that she retired in
October 2004. Appellant requested approval for the recliner chair, as she could not sleep without
it because of the pain in her shoulders. She also enclosed a copy of an April 15, 2004
prescription from Dr. Gross prescribing a recliner chair.
On January 20, 2005 the Office informed appellant that no decision had been made on
her request for an anti-gravity chair as there was a discrepancy in her physician’s
recommendations. The Office noted that appellant’s physician indicated that the chair was
needed for appellant to work comfortably while she alleged that she needed it to sleep.
Appellant was advised that her claim was referred to the Office medical adviser for an opinion
regarding the appropriateness of using the chair to sleep in.
2

This case was previously on appeal before the Board. In a decision dated September 30, 2003, the Board found
that the Office properly determined that appellant was not entitled to augmented compensation based on claiming
her minor grandson as a dependent. Docket No. 03-1820 (issued September 30, 2003).
3

The record reflects that appellant also has an accepted claim for a right shoulder sprain under File
No. 131215592.

2

By letter dated January 25, 2005, appellant advised the Office that she also had left and
right rotator cuff surgery and a left carpal tunnel release. She also indicated that her physician
prescribed the chair for sleeping. Appellant further noted that she had retired as of October 1,
2004 and was no longer on the rolls.
On June 22, 2005 the Office granted appellant a schedule award for 14 percent
impairment of the right upper extremity and 14 percent impairment of the left upper extremity.
On July 11, 2005 the Office received a copy of Dr. Gross’s January 3, 2005 report which
stated that the recliner chair was needed for appellant to sleep. It also received his March 7 and
June 6, 2005 follow-up reports.
By decision dated October 20, 2005, the Office denied authorization for the purchase of a
zero gravity chair. The Office found that the chair was recommended for the cure and or relief
of appellant’s nonindustrial cervical condition, not her hands and shoulders.
The Office received periodic reports from Dr. Gross regarding appellant’s condition
which he advised was permanent and stationary.
After appellant requested a hearing, a hearing representative, in a February 22, 2006
decision, determined that the case was not in posture for decision regarding the authorization of
zero gravity chair and of appellant’s claim for a cervical condition. The Office hearing
representative noted that a second opinion was needed to determine whether appellant’s cervical
condition arose as a result of her accepted condition or injury. The Office hearing representative
set aside and remanded the October 20, 2005 decision.
On September 6, 2006 the Office expanded appellant’s claim to include a cervical
condition, a herniated nucleus pulposus at C6-7.
By letter dated September 9, 2006, appellant’s representative requested clarification from
the Office regarding appellant’s accepted conditions and repeated the request for a zero gravity
chair.
On September 26, 2006 the Office referred appellant for a second opinion, together with
a statement of accepted facts, a set of questions and the medical record, to Dr. Bunsri T. Sophon,
an orthopedic surgeon. In a report dated October 13, 2006, Dr. Sophon, described appellant’s
history of injury and treatment. He indicated that he “was not familiar with and [had] no
information regarding the zero gravity chair for [appellant’s] use for sleeping.” Dr. Sophon
noted that the record contained a prescription from Dr. Gross, in which he prescribed a recliner
chair.4 He advised the Office that, instead of a recliner, appellant could use alternative methods
such as a pillow to support and position her body in a reclining position which was what she has
been doing since 2002, when “she last used the worn out recliner.”

4

While Dr. Sophon noted that it was dated April 15, 2004, it appears that he was referencing the June 16, 2004
prescription.

3

By decision dated November 1, 2006, the Office found that the medical evidence was
insufficient to support appellant’s request for a zero gravity recliner.
LEGAL PRECEDENT
Section 8103(a) of the Federal Employees’ Compensation Act provides for furnishing an
injured employee the services, appliances and supplies prescribed or recommended by a
qualified physician, which the Office, under authority delegated by the Secretary of Labor,
considers likely to cure, give relief, reduce the degree or the period of disability or aid in
lessening the amount of the monthly compensation. The Office has great discretion in
determining whether a particular type of treatment is likely to cure or give relief.5
ANALYSIS
Appellant contended that the purchase of a zero gravity chair or recliner was necessary as
she could not sleep because of the pain in her shoulders. Nonmedical equipment may be
authorized if recommended by a claimant’s treating physician and if the Office finds that such an
item is likely to cure, give relief and reduce the degree or the period of disability or aid in
lessening the amount of monthly compensation.6
The Office’s procedure manual addresses requests for equipment not commonly
obtainable from medical supply sources or prescribed for treatment, such as waterbeds, weightlifting sets, saunas, tape decks, vibrating chairs and exercise bicycles.7 It must evaluate the
pertinent information received from appellant and her physician and determine whether the
equipment is necessary to treat the effects of the work-related injury and that its use will be
consistent with the claimant’s restrictions and safety.8
On June 16, 2004 Dr. Gross, a Board-certified neurologist and treating physician, advised
that appellant needed an orthopedic recliner chair as it was the only way she could sleep. On
October 17, 2004 Dr. Gross indicated that a zero gravity chair would allow appellant to sit in a
semi-recumbent position and she would be able to do some desk-type work with the appropriate
support for her neck and that she would be more functional with this type of equipment and
could use it on a daily basis throughout the day. He also indicated that he was not aware of any
alternative type of treatment. Dr. Gross repeated the request on January 3, 2005 and advised that
appellant needed it to sleep. In his September 25, 2006 report, he noted that he had previously
recommended the use of a zero gravity chair which would allow appellant to sit in a semirecumbent position and give her appropriate support for her neck condition which she would
need on a permanent basis. While Dr. Gross noted that it would allow her to sit in a semi5

Thomas Lee Cox, 54 ECAB 509 (2003); Stella M. Bohlig, 53 ECAB 341 (2002).

6

See U.S.C. § 8103(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.15.b. (July 2000).
8

Id.

4

recumbent position, he did not explain how this would cure, give relief or reduce the degree of
period of disability. He did not explain why appellant’s employment-related accepted conditions
required medical treatment which could only be accommodated by purchase of a zero gravity
chair or recliner. The Board has held that an opinion without supporting rationale is of
diminished probative value.9
In a report dated October 13, 2006, Dr. Sophon, the second opinion physician, indicated
that he was not familiar with the zero gravity chair in relation to being used for sleeping. He
indicated that, instead of a recliner, appellant could use alternative methods such as a pillow to
support and position her body in a reclining position and that she had been doing so since 2002.
Dr. Sophon found no basis on which he could recommend the purchase of such a chair and he
supported his opinion with rationale that the zero gravity chair or recliner was not needed as
relief could be provided by other less expensive means, such as a pillow. The Board finds that
the Office did not abuse its discretion in denying medical benefits for the zero gravity chair or
recliner.
An abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
deductions from established facts.10 The Office has broad discretion pursuant to section 8103 of
the Act to determine whether purchase of a zero gravity chair/recliner is likely to cure or give
relief for the accepted employment-related injury. The evidence does not establish that the
Office abused its discretion in this case.11
CONCLUSION
The Board finds that the Office properly denied authorization for the purchase of a zero
gravity chair or recliner.

9

Willa M. Frazier, 55 ECAB 379 (2004).

10

Gerald A. Carr, 55 ECAB 225 (2004).

11

See supra note 5.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 1, 2006 is affirmed.
Issued: October 5, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.Q., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
El Paso, TX, Employer
__________________________________________

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

Docket No. 10-2085
Issued: July 25, 2011

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 August 11, 2010 appellant filed a timely appeal from the July 19, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation effective July 31,
2010 based on her capacity to earn wages in the constructed position of elementary school
teacher.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 30, 2006 appellant, then a 28-year-old border patrol agent, sustained injury
in a vehicular accident at work. OWCP accepted that she sustained contusions of her face
(except the eyes), scalp, neck, hip and shoulder region; contusions of multiple sites, not
elsewhere classified; closed fracture of multiple cervical vertebrae without spinal cord injury;
multiple, closed pelvic fractures with disruption of pelvic floor; lung contusion without open
wound into thorax; closed skull fracture with laceration; disorder of bursae and tendons in
shoulder region, unspecified; sprains of her shoulder, upper arm and rotator cuff; and posttraumatic stress disorder due to her work injuries. She stopped work and received OWCP
compensation for periods of disability.
In a November 13, 2008 report, Dr. Jaime Arbona, a Board-certified psychiatrist serving
as OWCP’s referral physician, determined that appellant could work for the employing
establishment in a job that did not require continuous driving in the field, attending emergency
calls or engaging in extraneous exercise. Appellant’s attending psychiatrist had determined that
she was totally disabled from a psychiatric standpoint.
In several reports and work restriction forms from 2008 and 2009, Dr. Helson PachecoSerrant, an attending Board-certified neurosurgeon, indicated that appellant was totally disabled.
During this period, Dr. Carlos Viesca, an attending Board-certified pain management physician,
stated that he agreed with Dr. Pacheco-Serrant’s assessment that appellant was totally disabled.
In mid 2008, Dr. Pawankumar Jain, a Board-certified neurologist serving as OWCP’s referral
physician, indicated that appellant could perform limited duty for eight hours per day with
restrictions.
In a July 22, 2009 report, Dr. Grant McKeever, a Board-certified orthopedic surgeon
serving as an impartial medical specialist regarding appellant’s physical condition, found that she
could return to work for eight hours per day with restrictions including lifting, pushing or pulling
up to 30 pounds for up to three hours per day for each activity. Appellant could perform light to
medium work per the Department of Labor’s definition, but could not reach above her shoulders
or engage in such actions as bending and stooping. In a November 12, 2009 report, Dr. Andrew
Brylowski, a Board-certified psychiatrist serving as an impartial medical specialist regarding
appellant’s psychiatric condition, determined that she could return to work for eight hours per
day in a job with light physical labor duties that did not involve potential physical altercation,
carrying a weapon or engaging in exquisite physical/mental dexterity and fitness.
The employing establishment could not accommodate appellant’s work restrictions and
therefore she was referred to OWCP’s vocational rehabilitation program on December 28, 2009.
Appellant completed the rehabilitation program and advised her rehabilitation counselor, Kathy
Mundy, that she was pursuing her Masters Degree in an attempt to get a teaching position.
Ms. Mundy worked with appellant to secure employment as an elementary school
teacher, case worker or teacher’s aide. Appellant was not successful in her job search and
OWCP’s rehabilitation specialist conducted a labor market survey which showed that the
elementary school teacher position was reasonably available in her commuting area at an average
salary of $917.88 per week. The elementary school teacher position involved such duties as

2

preparing course objectives and outlines for course of study, teaching and grading coursework
and counseling students when necessary. It required occasionally lifting up to 20 pounds and
frequently lifting up to 10 pounds.
In a June 10, 2010 letter, OWCP advised appellant that it proposed to reduce her
compensation based on its determination that she had the capacity to earn wages in the
constructed position of elementary school teacher. It provided her 30 days to submit evidence
and argument contesting the proposed action.
Appellant objected to the proposed reduction of her compensation arguing that she was
not physically or emotionally capable of working as an elementary school teacher. She asserted
that the fact that she was unsuccessful in her job search showed that she could not work as an
elementary school teacher. Appellant submitted additional reports of attending physicians,
including Dr. Viesca, asserting that they showed she could not physically work as an elementary
school teacher.
In a July 19, 2010 decision, OWCP reduced appellant’s compensation effective July 31,
2010 based on her capacity to earn wages in the constructed position of elementary school
teacher. It indicated that the evidence and argument she submitted, including the opinion of
Dr. Viesca, did not show that she was unable to work as an elementary school teacher.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.2 Its burden of
proof includes the necessity of furnishing rationalized medical opinion evidence based on a
proper factual and medical background.3
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent her wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity or
if the employee has no actual earnings, her wage-earning capacity is determined with due regard
to the nature of her injury, her degree of physical impairment, her usual employment, her age,
her qualifications for other employment, the availability of suitable employment and other
factors and circumstances which may affect her wage-earning capacity in her disabled
condition.4 Wage-earning capacity is a measure of the employee’s ability to earn wages in the
open labor market under normal employment conditions.5 The job selected for determining
wage-earning capacity must be a job reasonably available in the general labor market in the
commuting area in which the employee lives.6 The fact that an employee has been unsuccessful
2

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

3

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

4

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

5

Albert L. Poe, 37 ECAB 684, 690 (1986), David Smith, 34 ECAB 409, 411 (1982).

6

Id.

3

in obtaining work in the selected position does not establish that the work is not reasonably
available in her commuting area.7
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.”8 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.9 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.10
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP or to an OWCP wage-earning capacity specialist for selection of a position, listed in
the Department of Labor’s Dictionary of Occupational Titles or otherwise available in the open
labor market, that fits that employee’s capabilities with regard to his physical limitations,
education, age and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service. Finally, application of the principles set forth in
the Shadrick decision will result in the percentage of the employee’s loss of wage-earning
capacity.11
ANALYSIS
In the present case, OWCP accepted multiple physical conditions and the psychiatric
condition of post-traumatic stress disorder. It properly determined that there were conflicts in
the medical opinions regarding both the effect of appellant’s physical condition on her ability to
work and the effect of her psychiatric condition on her ability to work. OWCP properly referred
appellant to Dr. McKeever, a Board-certified orthopedic surgeon serving as an impartial medical
specialist regarding her physical condition, and to Dr. Andrew Brylowski, a Board-certified
psychiatrist serving as an impartial medical specialist regarding her psychiatric condition.12

7

See Leo A. Chartier, 32 ECAB 652, 657 (1981).

8

5 U.S.C. § 8123(a).

9

William C. Bush, 40 ECAB 1064, 1975 (1989).

10

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

11

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Wilson L. Clow, Jr., 44 ECAB 157, 171-75 (1992);
Albert C. Shadrick, 5 ECAB 376 (1953).
12

See supra notes 8 and 9.

4

In a July 22, 2009 report, Dr. McKeever found that appellant could return to work for
eight hours a day with restrictions including lifting, pushing or pulling up to 30 pounds for up to
three hours a day for each activity. Appellant could perform light to medium work per the
Department of Labor’s definition but could not reach above her shoulder or engage in such
actions as bending and stooping. In a November 12, 2009 report, Dr. Brylowski determined that
she could return to work for eight hours a day in a job with light physical labor duties that did not
involve potential physical altercation, carrying a weapon or engaging in exquisite
physical/mental dexterity and fitness.
Appellant’s vocational rehabilitation counselor determined that appellant was able to
perform the position of elementary school teacher and state employment services showed the
position was available in sufficient numbers so as to make it reasonably available within her
commuting area. OWCP properly relied on the opinion of the rehabilitation counselor that
appellant was vocationally capable of performing the elementary school teacher position. The
duties of the elementary school teacher position are in the light work category and they are well
within the work restrictions recommended by Dr. McKeever and Dr. Brylowski. Appellant did
not submit any evidence or argument showing that she could not vocationally, physically or
psychologically perform the elementary school teacher position.13 On appeal, she alleged that
the fact she did not find employment in connection with her participation in vocational
rehabilitation showed that she could not work as an elementary school teacher.14 However, the
Board has held that the fact that an employee has been unsuccessful in obtaining work in the
selected position does not establish that the work is not reasonably available in her commuting
area.15
OWCP considered the proper factors, such as availability of suitable employment and
appellant’s physical limitations, usual employment, age and employment qualifications, in
determining that the position of elementary school teacher represented appellant’s wage-earning
capacity.16 The weight of the evidence of record establishes that appellant had the requisite
physical ability, skill and experience to perform the position of elementary school teacher and
that such a position was reasonably available within the general labor market of her commuting
area. The report from Dr. Viesca did not negate her ability to do the light-duty job. Therefore,
OWCP properly reduced appellant’s compensation effective July 31, 2010 based on her capacity
to earn wages as an elementary school teacher.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.

13

The medical reports submitted by appellant, including reports of Dr. Viesca, an attending Board-certified pain
management physician, did not outweigh the opinions of the impartial medical specialists.
14

Appellant also asserted that the job market was particularly difficult in El Paso.

15

See supra note 7.

16

See Clayton Varner, 37 ECAB 248, 256 (1985).

5

CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation effective
July 31, 2010 based on her capacity to earn wages in the constructed position of elementary
school teacher.
ORDER
IT IS HEREBY ORDERED THAT the July 19, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 25, 2011
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Kansas City, MO,
Employer
__________________________________________

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

Docket No. 11-387
Issued: September 29, 2011

Case Submitted on the Record

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

JURISDICTION
On December 7, 2010 appellant filed a timely appeal from the August 19, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied modification
of her 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. The Board
also has jurisdiction to review OWCP’s October 25, 2010 nonmerit decision denying
reconsideration.
ISSUES
The issues are: (1) whether appellant has more than five percent impairment of her right
upper extremity; and (2) whether OWCP properly denied her September 20, 2010 request for
reconsideration.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 28, 2008 appellant, a 59-year-old flat sorter clerk, filed a claim for workers’
compensation benefits alleging that she developed carpal tunnel syndrome as a result of the
physical demands of her duties.
On August 18, 2008 appellant saw her family physician, Dr. William Soper. She
complained of right hand pain and stated that her fingers had been going numb for the past five
months. The history of appellant’s present illness was one of persistent numbness and tingling in
the thumb, index and long fingers of her right hand. On physical examination, she showed full
range of motion, no weakness and no demonstrable sensory deficit. Dr. Soper ordered clinical
studies.
On August 25, 2008 nerve conduction studies of the right median nerve revealed marked
prolongation of the distal motor latency and an unrecorded sensory response. Needle
examination of the right upper extremity revealed decreased recruitment in the abductor pollicis
brevis. The impression was severe right median neuropathy with compression at the wrist,
consistent with carpal tunnel syndrome.
OWCP accepted appellant’s claim for right carpal tunnel syndrome.
On October 27, 2008 appellant advised Dr. Soper that she was reluctant to have surgery.
She was on vacation and her hand and wrist felt fine. An examination showed a moderately
positive Tinel’s sign. On November 17, 2008 this sign was markedly positive.
Dr. Paul F. Nassab, an orthopedic surgeon, examined appellant on February 16, 2009. He
noted that she had pain in her hands and numbness in her index and middle finger for years.
Appellant stated that a change in equipment at work had lessened her symptoms. She no longer
woke up with numbness or tingling. Dr. Nassab found no significant atrophy of the thenar
eminence or hypothenar eminence. Appellant could abduct and adduct all of her digits. She
could oppose her thumb to her small finger. Appellant had no carpal tunnel compression but a
slight Tinel’s sign at her wrist. She had two-point discrimination of seven to eight millimeters in
all digits, radial and ulnar side, that were innervated by the median nerve. The ulnar two digits
had two-point discrimination in the four-to-five-millimeter range. Dr. Nassab diagnosed severe
carpal tunnel syndrome, by electromyogram and less so by symptoms.
Appellant underwent a surgical release on May 18, 2009. On July 1, 2009 Dr. Nassab
found that she was actually doing very well but showed no significant improvement in her
numbness and tingling. He stated: “I think it is going to get better regularly. I am going to
release her to full duties and we will see her back on [an as needed] basis. [Appellant] is put at
her [maximum medical improvement].”
Appellant filed a claim for a schedule award. On November 17, 2009 Dr. Nassab rated
her impairment: “The permanent partial disability of the patient listed above is 20 percent of the
right wrist based on the [sixth] [e]dition of the A[merican] M[edical] A[ssociation,] Guides [to
the Evaluation of Permanent Impairment].”

2

An OWCP medical adviser noted that appellant had no clinical testing following her
operation, so her impairment could not be rated under Table 15-23, page 449 of the A.M.A.,
Guides (6th ed. 2009). So he turned to Table 15-21, page 438, to rate peripheral nerve
impairment of the median nerve “below the midforearm -- entire nerve.” As Dr. Nassab had
reported no motor deficit but only mild sensory deficit, the medical adviser considered the
default impairment value of five percent of the right upper extremity applying a reasonable
exercise of medical judgment.
On February 19, 2010 OWCP issued a schedule award for five percent impairment of
appellant’s right upper extremity.
Appellant requested reconsideration, asking why there was such a discrepancy between
her surgeon’s rating of 20 percent and OWCP’s medical adviser’s rating of 5 percent.
In a decision dated August 19, 2010, OWCP reviewed the merits of appellant’s case and
denied modification of her schedule award. It found that evidence submitted after the
February 19, 2010 schedule award offered no basis for modification.
On September 20, 2010 appellant again requested reconsideration. She stated that there
was still a discrepancy in her case. Both doctors used the sixth edition of the A.M.A., Guides,
but one found 20 percent impairment, the other found 5 percent impairment. Appellant added
that she still had numbness in her right thumb, index and middle fingers and once in a while
there was tingling in her right hand.
On October 25, 2010 OWCP denied appellant’s request for reconsideration. It found that
her latest request for reconsideration did not meet one of the standards for reopening her case for
a merit review of the most recent OWCP decision.
On appeal, appellant argues that Dr. Nassab performed her surgery, while OWCP
medical adviser, who never saw her, simply looked in a book. She noted that there was quite a
discrepancy in their ratings.
LEGAL PRECEDENT -- ISSUE 1
FECA authorizes the payment of schedule awards for the loss or loss of use of specified
members, organs or functions of the body.2 Such loss or loss of use is known as permanent
impairment. OWCP evaluates the degree of permanent impairment according to the standards
set forth in the specified edition of the A.M.A., Guides.3 As of May 1, 2009, any decision
regarding a schedule award must be based on the sixth edition of the A.M.A., Guides.4

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.6.a (January 2010).

3

ANALYSIS -- ISSUE 1
FECA authorizes the payment of schedule awards for the loss or permanent impairment
of specified members, functions or organs of the body, but neither FECA nor its regulations
specify how the percentage of impairment shall be determined. For consistent results and to
ensure equal justice for all claimants, OWCP has adopted the A.M.A., Guides as the standard for
determining the percentage of impairment, and the Board has concurred in such adoption.5
The use of this book is necessary to treat all claimants fairly. Dr. Nassab, the orthopedic
surgeon, stated that appellant had 20 percent impairment based on the sixth edition of the
A.M.A., Guides. A physician is required to explain how he reaches a rating. Dr. Nassab’s single
declaratory sentence that appellant’s impairment was 20 percent falls far short of the information
needed to demonstrate how he determined his rating under the A.M.A., Guides.
Entrapment or compression neuropathies such as carpal tunnel syndrome are rated under
section 15.4f of the A.M.A., Guides, specifically, using Table 15-23 and the rating process
described on page 448.6 It is important to note that the highest impairment rating a claimant may
receive for carpal tunnel syndrome is nine percent, a rating reserved for axon loss on
electrodiagnostic studies, a history of constant significant symptoms, atrophy or weakness on
physical examination, and a subjective assessment of the severest functional symptoms.
Dr. Nassab’s rating of 20 percent is simply not possible under the A.M.A., Guides.
OWCP’s medical adviser did not rely on Table 15-23 because there were no
postoperative electrodiagnostic studies, but postoperative studies are not required to rate
impairment for focal nerve compromise syndromes. The A.M.A., Guides explains that the most
recent preoperative electrodiagnostic test should be used in the impairment rating.7 The medical
adviser relied on Table 15-21, but the A.M.A., Guides prohibits rating nerve entrapments under
that section.8
Appellant’s preoperation studies are not, however, sufficient to establish more than a
Grade 1 or mild impairment under Table 15-23. As the record does not support constant or
significant intermittent symptoms (her hand and wrist felt fine while on vacation, she no longer
woke up with numbness and tingling, she still had numbness and once in while had tingling), her
history appears to fall in the Grade 1 or mild category. Physical findings did not establish
atrophy or weakness but did show decreased sensation, indicating a Grade 2 or moderate
5

E.g., J.B., Docket No. 09-2191 (issued May 14, 2010).

6

If no preoperative nerve conduction testing has been performed, or it does not meet the diagnostic criteria for
carpal tunnel syndrome, there is no ratable impairment under section 15.4f. Such cases, however, may still be rated
under section 15.2, Diagnosis-Based Impairment, and with the appropriate regional grid, using the diagnosis of
nonspecific hand, wrist or elbow pain, depending on the affected region. A.M.A., Guides 433, 445.
7

Id. at 448 (unless postoperative studies were done for a clinical indication of failure to improve with surgery and
the postoperative study is clearly worse than the preoperative, in which rare instance the postoperative study is
used).
8

Section 15.4e, including Table 15-21, is not used for nerve entrapments since nerve entrapments are not isolated
traumatic events. Id. at 429.

4

impairment. The average of these three grades (1, 1, 2), rounded to the nearest integer, is a
Grade 1 or mild impairment. The default value for such an impairment is two percent.9 This is
the best estimate of appellant’s impairment from the information available in her record.
If preoperative studies did establish a motor conduction block (Grade 2) or axon loss
(Grade 3), appellant’s impairment would rise to the moderate level with a default value of 5
percent, which is what the medical adviser recommended (by other means) and what appellant
ultimately received. This may be a little more than the record strictly allows; nonetheless, it can
be stated that, having received a schedule award for a five percent impairment, she is entitled to
nothing more.
Accordingly, the Board finds that the evidence fails to establish more than a five percent
impairment of appellant’s right upper extremity. The Board will affirm OWCP’s August 19,
2010 decision denying modification of her schedule award.
Appellant may request an increased schedule award based on evidence of a new exposure
or medical evidence showing progression of an employment-related condition resulting in
permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
OWCP may review an award for or against payment of compensation at any time on its
own motion or upon application.10 An employee (or representative) seeking reconsideration
should send the request for reconsideration to the address as instructed by OWCP in the final
decision. The request for reconsideration, including all supporting documents, must be in
writing and must set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.11
A request for reconsideration must be sent within one year of the date of OWCP’s
decision for which review is sought.12 A timely request for reconsideration may be granted if
OWCP determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, OWCP
will deny the request for reconsideration without reopening the case for a review on the merits.13

9

As Dr. Nassab did not administer a QuickDASH questionnaire to obtain a functional scale score, default
impairment values are not adjusted.
10

5 U.S.C. § 8128(a).

11

20 C.F.R. § 10.606.

12

Id. at § 10.607(a).

13

Id. at § 10.608.

5

ANALYSIS -- ISSUE 2
Appellant made her request for reconsideration within one year of OWCP’s August 19,
2010 schedule award, so the request is timely. The question is whether this request met at least
one of the standards for obtaining a merit review of her case.
In her September 20, 2010 request for reconsideration, appellant did not show that
OWCP erroneously applied or interpreted a specific point of law. She did not identify a specific
point of law or show that OWCP erroneously applied or interpreted it. Appellant did not
advance a new and relevant legal argument. She argued that there was still a discrepancy in her
case, that one of the doctors was wrong, that she was not a statistic, and that she still had
numbness and sometimes tingling, but she did not present OWCP with a new and relevant legal
argument. Appellant did not submit relevant and pertinent new evidence not previously
considered by OWCP. The issue in her case was the extent of her impairment under the sixth
edition of the A.M.A., Guides, and she submitted no further medical evaluation of that
impairment.
Accordingly, the Board finds that appellant’s September 20, 2010 request for
reconsideration met none of the standards for obtaining a merit review of her case. As OWCP
properly denied her request, the Board will affirm OWCP’s October 25, 2010 decision.
CONCLUSION
The Board finds that the evidence fails to support more than a five percent impairment of
appellant’s right upper extremity. The Board also finds that OWCP properly denied appellant’s
September 20, 2010 request for reconsideration.

6

ORDER
IT IS HEREBY ORDERED THAT the October 25 and August 19, 2010 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: September 29, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Elizabethtown, KY, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket Nos. 17-1586 &
17-1648
Issued: February 7, 2019

Case Submitted on the Record

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

On July 14, 2017 appellant, through counsel, filed a timely appeal from a June 14, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx598.2 On July 25, 2017 appellant, through counsel, filed a timely appeal from a July 5,
2017 merit decision of OWCP under OWCP File No. xxxxxx362.3 The Board finds that these
cases are not in posture for decision.

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 Clerk of the Appellate Boards assigned the July 14, 2017 appeal Docket No. 17-1586.

3

The Clerk of the Appellate Boards assigned the July 25, 2017 appeal Docket No. 17-1648.

On October 2, 2015 appellant, then a 50-year-old rural mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 1, 2015 she injured her right shoulder and forearm in
the performance of duty.4 OWCP assigned that claim File No. xxxxxx598.
By decision dated November 12, 2015, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the October 1, 2015 employment incident
occurred, as alleged. Appellant subsequently requested reconsideration, but by decisions dated
June 29 and November 23, 2016 and June 14, 2017, OWCP denied modification of its prior
decision.
On November 10, 2015 appellant filed an occupational disease claim (Form CA-2) alleging
that she sustained osteoarthritis, bursitis, and tendinosis of the right shoulder in the performance
of her duties. OWCP assigned that claim File No. xxxxxx362. Appellant indicated that she first
became aware of her claimed condition and realized its relation to her federal employment on or
about October 28, 2015.5 On the reverse side of the claim form, appellant’s supervisor noted that
appellant stopped work on October 2, 2015 and had not returned, and the medical evidence
submitted by her in support of her claim discussed an October 1, 2015 fall at work which caused
injury to her arm and shoulder. By decision dated January 20, 2016, OWCP denied appellant’s
claim, finding that the evidence of record was insufficient to establish that the claimed work
event(s) occurred as described. It noted that it was unclear as to when she claimed factors of
employment contributed to her injury. Appellant subsequently requested reconsideration. By
decision dated June 21, 2016, OWCP modified the January 20, 2016 decision to find that it had
accepted that appellant’s work included casing mail and flats, pulling on 700 mailboxes daily, and
carrying parcels weighing up to 70 pounds. However, the claim remained denied as the evidence
of record was insufficient to establish causal relationship between those accepted work factors and
appellant’s diagnosed medical conditions. Appellant again requested reconsideration, but in its
July 5, 2017 decision, OWCP denied modification.
The record in OWCP File No. xxxxxx362 does not contain any development of appellant’s
claim in OWCP File No. xxxxxx598. Likewise, the record in OWCP File No. xxxxxx598 does
not contain any development of appellant’s claim in OWCP File No. xxxxxx362. In light of the
fact that appellant had identified the same claimed pain and shoulder trauma in both OWCP File
Nos. xxxxxx598 and xxxxxx362, it is essential for OWCP to consolidate the claim files and
determine whether they are duplicate claims. This will allow OWCP to consider all relevant claim
files in developing appellant’s claims. Moreover, to consider appellant’s appeals at this stage
would involve a piecemeal adjudication of the issues in appellant’s claims and raise the possibility

4

On December 17, 2015 OWCP received in File No. xxxxxx598 an undated handwritten statement from appellant.
Appellant explained that, when she walked through the door after parking her employing establishment vehicle to
reload, her foot got caught on a tray of mail. She threw her right arm out to catch a step, but missed, and her right arm
took the brunt of the fall, causing injury to her right arm and shoulder.
5

On December 17, 2015 OWCP received in File No. xxxxxx362, the same undated narrative statement that was
received in File No. xxxxxx598, wherein appellant explained that, when she walked through the door after parking
her employing establishment vehicle to reload, her foot got caught on a tray of mail. Appellant threw her right arm
out to catch a step, but missed, and her right arm took the brunt of the fall, causing injury to her right arm and shoulder.

2

of inconsistent results. It is the Board’s policy to avoid such an outcome.6 Because it is essential
for the Board to review the medical evidence contained in both case files in order to render a full
and fair adjudication of the present appeals, this case will be set aside and remanded to OWCP to
consolidate OWCP File No. xxxxxx362 with OWCP File No. xxxxxx598. Reconstruction of the
record will be followed by any necessary further development and a de novo decision on the merits
of the claims, in order to protect appellant’s appeal rights.7
IT IS HEREBY ORDERED THAT the July 5 and June 14, 2017 decisions of the Office
of Workers’ Compensation Programs are set aside and the case is remanded for further proceedings
consistent with this order.
Issued: February 7, 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

See William T. McCracken, 33 ECAB 1197 (1982).

7

On remand, OWCP should review the evidence in both case files to determine whether appellant’s claim in File
No. xxxxxx362 constitutes a claim for a new injury or is a duplicate of the claim adjudicated under File No.
xxxxxx598.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.Y., Appellant
and
DEPARTMENT OF THE NAVY, JOINT
REGION MARIANAS, Yigo, Guam, Employer
__________________________________________

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

Docket No. 17-0045
Issued: April 7, 2017

Case Submitted on the Record

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

JURISDICTION
On October 14, 2016 appellant filed a timely appeal from a September 22, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish more than six
percent permanent impairment of his left ring finger, for which he previously received a schedule
award.
FACTUAL HISTORY
On February 22, 2015 appellant, then a 56-year-old operations and maintenance supervisor,
filed a traumatic injury claim (Form CA-1) alleging that he sustained a left ring finger injury in the
performance of duty on August 25, 2014. He indicated that he had been working on the Air Force
1

5 U.S.C. § 8101 et seq.

base’s golf course in a drainage ditch trying to clear a grate when he slipped and caught his left
ring finger in the drainage grate.
On June 17, 2015 OWCP accepted acquired trigger finger of the left 4th digit (ring finger).
On July 28, 2015 appellant underwent OWCP-approved surgery on his left ring finger, a
tenovaginotomy procedure to ameliorate the condition of recurrent, severe Al pulley stenosing
tenosynovitis. The procedure was performed by Dr. Jerone T. Landstrom, Board-certified in hand
surgery and general surgery.
On August 24, 2015 appellant filed a claim for a schedule award (Form CA-7).
In a September 18, 2015 report, Dr. Landstrom found that appellant’s left ring finger
tenosynovitis had resolved and that he had attained maximum medical improvement (MMI).
On March 4, 2016 appellant underwent a functional capacity evaluation (FCE), which
included, among other things, range of motion (ROM) measurements for the various finger and
thumb joints on both hands.
In an April 18, 2016 report, Dr. Landstrom found 10 percent permanent impairment of
the left ring finger digit using the ROM method of impairment rating under the “most recent
edition” of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).2
On June 19, 2016 OWCP’s district medical adviser (DMA), Dr. Morley Slutsky, Boardcertified in occupational medicine, reviewed the claim, and found that appellant had six percent
permanent impairment of the left ring finger using the diagnosis-based impairment (DBI) method
under Table 15-2, Digit Regional Grid, A.M.A., Guides 392 (6th ed. 2008). The DMA based his
impairment rating on a diagnosis of “finger sprain.” He took issue with Dr. Landstrom’s left ring
finger rating using the ROM method, and relied on the “preferred” DBI methodology.
By decision dated September 22, 2016, OWCP granted appellant a schedule award for six
percent permanent impairment for the left ring finger. The award covered a period of 1.5 weeks,
from September 18 through 28, 2015. OWCP based the award on the DMA’s June 19, 2016
impairment rating.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.3 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of

2

Although Dr. Landstrom mentioned that he relied on the “most recent edition” of the A.M.A., Guides, the
included upper extremity evaluation record referenced Table(s) and/or Figure(s) from a prior edition of the A.M.A.,
Guides.
3

See 20 C.F.R. §§ 1.1-1.4.

2

use of specified members, functions, and organs of the body.4 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. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.5
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).6 The Board has approved OWCP’s use of the A.M.A., Guides for
the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.7
ANALYSIS
The issue on appeal is whether appellant met his burden of proof to establish that he has
greater than six percent impairment of the left ring finger. The Board finds that this case is not in
posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.8
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.9 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
4

For a complete loss of use of the ring finger (3rd finger), an employee shall receive 25 weeks’ compensation.
5 U.S.C. § 8107(c)(10).
5

20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001).

6

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
7

Isidoro Rivera, 12 ECAB 348 (1961).

8

T.H., Docket No. 14-0943 (issued November 25, 2016).

9

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

3

either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.10
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the September 22, 2016
decision. Following OWCP’s development of a consistent method for calculating permanent
impairment for upper extremities to be applied uniformly, and such other development as may be
deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper
extremity schedule award.
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 22, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: April 7, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

Supra note 8.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.V., widow of R.V., Appellant
and
DEPARTMENT OF THE INTERIOR, FISH &
WILDLIFE SERVICE, Albuquerque, NM,
Employer
__________________________________________

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

Docket No. 15-0717
Issued: July 8, 2015

Case Submitted on the Record

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

JURISDICTION
On February 2, 2015 appellant filed a timely appeal of a December 24, 2014 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
these issues.
ISSUE
The issue is whether appellant’s husband’s death on July 25, 2012 was causally related to
his federal employment.
FACTUAL HISTORY
On March 1, 1993 the employee, then a 55-year-old carpenter, was injured when
scaffolding tipped and he fell to a concrete floor. OWCP accepted the claim, developed in file
1

5 U.S.C. § 8101 et seq.

number xxxxxx438, for right eye conjunctivitis and ruptured right biceps tendon. Thereafter, he
received medical and wage-loss compensation.
The employee died on July 25, 2012. On September 19, 2012 appellant, the employee’s
widow, filed a claim for compensation by widow. The physician’s portion of the form, dated
September 3, 2013, was completed by Dr. Ravi Bhasker, a Board-certified family practitioner.
He noted that the deceased fell from a ladder and sustained an injury to the right shoulder to
include right shoulder strain and rotator cuff tear. It was noted that the deceased had
“long[-]standing renal failure.” The cause of death was listed as sepsis and pneumonia.
Contributory causes were listed as diabetes and renal failure. In response to whether the death of
the employee was due to the injury, Dr. Bhasker checked a box “no.” This was developed in file
number xxxxxx157. Both claims were combined by OWCP. In an August 7, 2012 death
certificate, the certifying medical examiner, Dr. Syed Yusoof, a Board-certified internist, listed
the cause of the July 25, 2012 death, as diabetes, chronic renal failure, and hypertension.
In a letter dated January 28, 2014, OWCP advised appellant that survivor benefits may be
payable to eligible dependents if the death resulted from a job-related injury. It advised appellant
of the type of medical evidence needed to establish that the job-related injury caused or
contributed to the employee’s death. OWCP allowed appellant 30 days to submit the requested
information.
By decision dated March 4, 2014, OWCP denied appellant’s claim for survivor benefits
because the weight of the medical evidence did not support that the employee’s death was
causally related to his employment.
Appellant subsequently submitted a June 26, 2012 report from Dr. Farooque Ahmed, a
Board-certified internist, who indicated that the employee had been hospitalized for septic shock
and respiratory failure. Dr. Ahmed advised that the employee has recently acquired ventilator
associated pneumonia and also had advanced renal disease. Other diagnoses included bilateral
lower extremity deep vein thrombosis (DVT), upper extremity and internal jugular venous DVT,
severe peripheral vascular disease, and chronic venous stasis. The employee had history
significant for advanced diabetes mellitus, end-stage renal disease, nonhealing foot ulcers,
postbilateral transmetatarsal amputations, and status post automatic implantable cardioverter
defibrillator placement.
Dr. Ahmed noted examination findings and his treatment
recommendations. Appellant also resubmitted copies of her claim form and the employee’s
death certificate.2
On November 29, 2014 appellant requested reconsideration.
By decision dated December 24, 2014, OWCP denied modification of the prior decision.

2

The record also contains medical records of the employee prior to his death noting treatment for his shoulder
condition as well as other conditions not related to his employment injury.

2

LEGAL PRECEDENT
The United States shall pay compensation for the disability or death of an employee
resulting from personal injury sustained while in the performance of his or her duty.3
Appellant has the burden of proving by the weight of the reliable, probative, and
substantial evidence that the employee’s death was causally related to his employment. This
burden includes the necessity of furnishing rationalized medical opinion evidence of a cause and
effect relationship, based on a complete factual and medical background, showing causal
relationship. The opinion of the physician must be one of reasonable medical certainty and must
be supported by medical rationale.4
ANALYSIS
The Board finds that appellant has not established that the employee’s accepted right
shoulder condition or right eye conjunctivitis contributed to his July 25, 2012 death. Both the
death certificate, signed by Dr. Yusoof, and the September 3, 2013 form report from Dr. Bhasker
indicated that the employee died from nonwork-related medical conditions. The death certificate
by Dr. Yusoof attributed the death to diabetes, chronic renal failure, and hypertension while
Dr. Bhasker opined in his report that the death was due to sepsis and pneumonia with diabetes
and renal failure being contributory causes. Dr. Bhasker specifically indicated that the
employee’s death was not due to his work injury.
There is no other medical evidence which explains how the employee’s accepted
conditions contributed to his death. Dr. Ahmed’s June 26, 2012 report predates the employee’s
death. While it indicates that the employee had been hospitalized for septic shock and
respiratory failure and suffered from a number of other conditions, Dr. Ahmed offered no
opinion that the employee’s accepted conditions contributed to his hospitalization or to his death.
Other medical evidence of record also predates the employee’s death. The Board finds that
appellant failed to establish that the accepted work conditions were a contributing cause of the
employee’s death.5
On appeal appellant argued that the employee sustained pain and suffering as a result of
his shoulder injury. She indicated that she believed that all of the pain medication he took over
the years to ease his excruciating shoulder pain was a direct cause of his kidney failure and led to
his premature death. The Board can find no medical evidence which attributes the accepted right
shoulder condition to his death.
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.
3

5 U.S.C. § 8102(a); see 5 U.S.C. § 8133 (compensation in case of death).

4

Lois E. Culver, 53 ECAB 412 (2002).

5

See D.L. (R.L.), Docket No. 11-1993 (issued July 13, 2012); Roger W. Griffith, 51 ECAB 491 (2000); Glenn C.
Chasteen, 42 ECAB 493 (1991); Arnold Gustafson, 41 ECAB 131 (1989); Beth P. Chaput, 37 ECAB 158 (1985).

3

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that the
employee’s death was causally related to his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the December 24, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 8, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4