United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Laguna Niguel, CA, Employer
__________________________________________

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Appearances:
Tim Egbuchunam, for the appellant
Office of Solicitor, for the Director

Docket No. 10-1155
Issued: March 8, 2011

Case Submitted on the Record

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

JURISDICTION
On March 24, 2010 appellant, through his representative, filed a timely appeal of the
February 1, 2010 merit decision of the Office of Workers’ Compensation Programs denying his
recurrence of disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of total disability commencing
June 30, 2008 causally related to his accepted employment injuries.
On appeal, appellant’s representative contends that the Office’s denial of appellant’s
recurrence of disability claim is moot as it failed to make a suitable determination regarding his
modified-duty mission support specialist position. He contends that appellant was not qualified
to perform the duties of the modified position due to his physical restrictions. Further, it was a
makeshift position and could not be used by the Office to make a loss of wage-earning capacity

determination. Appellant contended that he was not provided an opportunity by the employing
establishment to formally accept or reject an offer of suitable work.
FACTUAL HISTORY
On February 15, 2005 appellant, then a 43-year-old safety manager, filed an occupational
disease claim assigned File No. xxxxxx420 alleging that his right foot plantar fasciitis and left
foot bone spurs were caused by prolonged standing and walking in his new work assignment.1
On March 7, 2005 the Office accepted his claim for bilateral plantar fasciitis. It paid wage-loss
compensation from February 16 through August 17, 2005.
On April 18, 2005 appellant returned to full-time modified work based on the restrictions
set forth by Dr. Sylvia A. Gisi, an attending family practitioner.2
In a November 1, 2005 decision, the Office accepted that appellant sustained a recurrence
of disability from August 22, 2005 through March 2, 2008 as the employer withdrew his
modified-duty position and reassigned him to a safety and occupational manager position in San
Pedro, California which exceeded his two-hour driving restriction.
By letter dated October 25, 2007, the employing establishment requested that the Office
review a description of a modified mission support specialist position and determine whether it
was suitable for appellant.3 On March 3, 2008 appellant returned to work in this modified
position as a result of a February 14, 2008 MSPB settlement agreement with the employing
establishment and a February 19, 2008 work release from Dr. Gisi.
A notification of personnel action (Form SF-50) dated July 7, 2008 from the employing
establishment indicated that, effective June 30, 2008, appellant resigned due to extreme duress.
He alleged management’s actions included being required to work beyond his physical
restrictions.
On January 28, 2009 the Office advised appellant that, since he had returned to work for
90 days, he had to submit evidence establishing that he sustained a recurrence of disability.
Appellant responded that he was not qualified to perform the duties of a mission support
specialist. He stated that his work duties continuously changed and were not within his physical
restrictions. Appellant contended that the employing establishment’s Form SF-50 acknowledged
that he was not qualified for the position.

1

On February 15, 2005 appellant filed a claim under File No. xxxxxx418 which was accepted by the Office for
lumbar strain. The Office combined both files into a master claim assigned File No. xxxxxx420.
2

In an April 13, 2005 work capacity evaluation, Dr. Gisi advised that appellant could return to modified-duty
work on April 18, 2005 with restrictions which included walking and standing with 20-minute breaks and no driving
more than 2 hours continuously, pushing, pulling and lifting more than 20 pounds 6 hours a day and climbing 4
hours a day.
3

The mission support specialist position was primarily sedentary in nature and typically performed in an adequate
lighted, well-ventilated and climate-controlled office.

2

By letter dated February 11, 2009, the Office advised appellant that at the time he
received a wage-loss compensation payment for the period December 28, 2007 through
January 17, 2009 and was placed on the automatic payroll effective January 18, 2009,4 it did not
know that he had returned to work as a mission support specialist on March 3, 2008 and stopped
work on June 30, 2008. It addressed the factual and medical evidence he needed to establish that
he sustained a recurrence of disability as of June 30, 2008, including a rationalized medical
report from an attending physician which described a history of medical examinations, treatment
and the alleged recurrence of disability, medical findings, a firm diagnosis, periods of total and
partial disability with restrictions and an opinion with medical reasons on what duties and/or
physical requirements of the job he was unable to perform. Appellant was allowed 30 days to
submit the requested evidence.
In a February 16, 2009 letter, appellant contended that in February 2008 he advised the
Office about his return to work in the modified mission support specialist position. He did not
wish to file a recurrence of disability claim. Appellant contended that the Office did not make a
suitable determination regarding his modified position following his June 2008 resignation.
In a June 12, 2009 decision, the Office found that appellant did not sustain a recurrence
of disability commencing June 30, 2008 causally related to his accepted employment-related
injuries. The evidence failed to establish that his light-duty job requirements had changed and
contributed to his claimed recurrence of disability. The medical evidence did not establish that
appellant was totally disabled due to a change in the nature or extent of his accepted employment
injuries. Citing Board precedent, the Office found that it was not required to make a suitable
determination on the modified mission support specialist position. As appellant had accepted the
modified position and worked in it for nearly four months, his actual earnings represented his
wage-earning capacity.
On June 18, 2009 appellant requested an oral hearing before an Office hearing
representative.5
In a February 1, 2010 decision, an Office hearing representative affirmed the June 12,
2009 decision. The evidence was insufficient to establish that appellant sustained a recurrence of
disability at the time of his resignation on June 30, 2008 causally related to his employmentrelated injuries.
4

Appellant received the stated compensation based on an Office hearing representative’s November 17, 2008
decision which reversed the Office’s December 28, 2007 termination of his compensation on the grounds that he
refused an offer of suitable work as a manager and program analyst.
5

On August 11, 2009 appellant requested that the Office issue subpoenas to witnesses and for the production of
records, correspondence and other documents regarding his contention that Office employees acted with malice
intending to commit an unlawful act or cause harm without legal justification or excuse in handling his claim. In a
September 17, 2009 decision, an Office hearing representative denied his request for the issuance of subpoenas on
the grounds that he did not have jurisdiction over the alleged matter. The Office’s September 17, 2009 decision is
not within the Board’s jurisdiction. For final adverse Office decisions issued prior to November 19, 2008, a
claimant had up to one year to appeal to the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse Office decisions
issued on and after November 19, 2008, a claimant has 180 days to file an appeal with the Board. See 20 C.F.R.
§ 501.3(e).

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LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.6 This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn (except when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force), or when the
physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.7
When an employee who is disabled from the job he held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence of record
establishes that he can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that he cannot perform such limited-duty work. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the limited-duty job requirements.8
To show a change in the degree of the work-related injury or condition, the claimant must
submit rationalized medical evidence documenting such change and explaining how and why the
accepted injury or condition disabled the claimant for work on and after the date of the alleged
recurrence of disability.9
ANALYSIS
The Office accepted that appellant sustained a lumbar strain and bilateral plantar fasciitis
while in the performance of duty. Following these injuries, appellant returned to limited lightduty work. He claimed that he sustained a recurrence of disability commencing June 30, 2008,
the date he resigned from the employing establishment. Appellant must demonstrate either that
his condition has changed such that he could not perform the activities required by his modified
job or that the requirements of the limited light-duty job changed.
Appellant claimed that he sustained a recurrence of disability on June 30, 2008 because
he was not qualified to perform the duties of a modified mission support specialist and his work
duties changed which required him to work outside his physical restrictions. He did not submit
any evidence to establish that there was a change in his work assignments or that the limited-duty

6

20 C.F.R. § 10.5(x).

7

Id.

8

Albert C. Brown, 52 ECAB 152, 154-55 (2000); Barry C. Petterson, 52 ECAB 120 (2000); Terry R. Hedman,
38 ECAB 222, 227 (1986).
9

James H. Botts, 50 ECAB 265 (1999).

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position involved duties in excess of his physical restrictions.10 The Board finds that the
modified position of mission support specialist was within appellant’s work restrictions. The
evidence of record shows that when he stopped work on June 30, 2008 he had limited-duty work
within his work restrictions available to him. Therefore, appellant did not show that he sustained
a recurrence of total disability commencing June 30, 2008 due to a change in the nature and
extent of his limited-duty requirements.
Appellant did not submit any medical evidence to establish that he sustained a recurrence
of total disability commencing June 30, 2008 due to his accepted employment injuries. The
Office’s February 11, 2009 developmental letter specifically requested that he submit a
rationalized medical opinion from an attending physician as to whether he was either partially or
totally disabled from performing his assigned work duties. Appellant did not submit any medical
evidence in response to the Office’s request. The Board finds that he failed to show that he
sustained a recurrence of total disability due to a change in the nature and extent of his accepted
conditions.
On appeal, appellant’s representative primarily contended that the Office’s denial of
appellant’s recurrence of total disability claim is moot because the Office failed to first make a
suitable determination regarding his modified mission support specialist position. He argued that
the position was not suitable because it exceeded appellant’s physical restrictions and was a
makeshift position and the employer did not give him an opportunity to formally accept or reject
the position. After his injury, appellant returned to light-duty work March 3 through
June 30, 2008. He accepted the position without contending that the light-duty requirements
were outside his work restrictions and worked for nearly four months before stopping. Appellant
did not present any evidence that the light-duty position was not suitable or outside his work
restrictions. He had the burden of proof to establish that he was totally disabled from working in
his light-duty position after June 30, 2008.11 The Board finds that appellant’s argument on
appeal is inapplicable to the instant issue.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a recurrence of total disability commencing June 30, 2008 due to his accepted
employment injuries.

10

See Kim Kilts, 51 ECAB 349 (2000) (finding that only changes that cause the light-duty assignment to exceed
the employee’s work tolerance limitation result in a compensable recurrence of disability).
11

Albert C. Brown, supra note 8.

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ORDER
IT IS HEREBY ORDERED THAT the February 1, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 8, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Edison, NJ, Employer
__________________________________________

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

Docket No. 15-1585
Issued: January 7, 2016

Case Submitted on the Record

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

JURISDICTION
On July 16, 2015 appellant, through counsel, filed a timely appeal from a March 11, 2015
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish more than 50 percent
permanent impairment of his right lower extremity, for which he received a schedule award.
FACTUAL HISTORY
OWCP accepted that on August 29, 1987 appellant, then a 35-year-old mail handler,
sustained aggravation of a preexisting right knee sprain when he slammed on the brakes of his

1

5 U.S.C. § 8101 et seq.

forklift to avoid hitting another forklift. It later accepted a consequential left knee sprain.
Appellant received disability compensation on the daily rolls beginning February 14, 1998.
By decision dated August 20, 2002, OWCP granted appellant a schedule award for 50
percent permanent impairment of his right lower extremity. The award was based on the
standards of the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2000).
Appellant requested an increased schedule award. On September 28, 2009 Dr. David
Weiss, an attending osteopath, determined that appellant had 63 percent permanent impairment
of his right lower extremity under the standards of the sixth edition of the A.M.A., Guides
(6th ed. 2009).
In a November 19, 2009 report, Dr. Andrew M. Hutter, a Board-certified orthopedic
surgeon and OWCP referral physician, determined that appellant had 21 percent permanent
impairment of his right leg under the standards of the sixth edition of the A.M.A., Guides.
OWCP determined that there was a conflict in the medical opinion evidence regarding
the extent of permanent impairment of appellant’s right lower extremity between Dr. Hutter and
Dr. Weiss and therefore referred appellant and the case record to Dr. Andrew Carollo, a Boardcertified orthopedic surgeon, for an impartial medical examination and opinion on the matter.
In a February 7, 2011 report, Dr. Carollo provided a discussion of appellant’s factual and
medical history and reported the findings of his examination on that date. He recorded some
limitation on range of right knee motion and indicated that appellant had 4/5 strength in his right
quadriceps. Dr. Carollo noted, “With regard to the question of whether or not maximum medical
improvement has been achieved, it is my opinion that it has not been achieved on either the right
or the left knee.” He provided a description of the calculation through which he concluded that
appellant had 40 percent permanent impairment of his right lower extremity under the sixth
edition of the A.M.A., Guides. Dr. Carollo indicated:
“Right knee using Table 16.3, a determination for [Class of Diagnosis (CDX)]
was made. Class III classification was given for CDX indicating a fair result of
his total knee arthroplasty with motion deficit which is determined to be
moderate.
“With regard to the [grade modifier for Functional History (GMFH)], using Table
16.6, he was given a grade modifier of 3 indicative of the presence of a limp as
well as an ongoing pain with regard to the right knee.
“With regard to [grade modifier for Physical Examination (GMPE)], he was given
a grade modifier of 3 due to the presence of moderate palpatory findings both
medially, laterally, and anterior about the knee in association with the presence of
crepitus.
“With regard to [grade modifier for Clinical Studies (GMCS)], he was given a
modifier of 4 using Table 16.8. This patient’s studies demonstrated severe

2

degenerative and traumatic arthritis of his right knee with no interval space left of
cartilage.
“Using the net adjustment formula … the patient findings are that of a class III
with a net adjustment value of +1. This, therefore, makes this grade D with 40
percent lower extremity impairment.”
In October 21, 2011, September 24, 2013, and July 25, 2014 decisions, OWCP
determined that appellant did not meet his burden of proof to establish that he has more than 50
percent permanent impairment of his right lower extremity, for which he received a schedule
award. It indicated that the opinion of Dr. Carollo established no more than 50 percent
permanent impairment of his right lower extremity. It was noted that the fact that Dr. Carollo
found that appellant had not reached maximum medical improvement with respect to his right
knee meant that his right knee condition had not reached a fixed and permanent state, a
requirement for payment of a schedule award.
Appellant requested a video hearing with an OWCP hearing representative. During the
hearing held on December 22, 2014, appellant’s counsel at the time argued that the February 7,
2011 report of Dr. Carollo required additional clarification regarding the matter of maximum
medical improvement.
By decision dated March 11, 2015, OWCP’s hearing representative affirmed OWCP’s
July 25, 2014 decision finding that appellant had not shown that he has more than 50 percent
permanent impairment of his right lower extremity.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.4
In determining impairment for the lower extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the lower
extremity to be rated. With respect to the knee, the relevant portion of the leg for the present case,
reference is made to Table 16-3 (Knee Regional Grid) beginning on page 509.5 After the CDX is
2

Supra note 1.

3

20 C.F.R. § 10.404 (1999).

4

W.B., Docket No. 14-1982 (issued August 26, 2015). For OWCP decisions issued after May 1, 2009, the sixth
edition of the A.M.A., Guides is used. B.M., Docket No. 09-2231 (issued May 14, 2010).
5

See A.M.A., Guides (6th ed. 2009) 509-11.

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determined from the Knee Regional Grid (including identification of a default grade value), the
net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).6
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.”7 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.8 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.9
ANALYSIS
OWCP accepted that on August 29, 1987 appellant, then a 35-year-old mail handler,
sustained aggravation of a preexisting right knee sprain when he slammed on the brakes of his
forklift to avoid hitting another forklift. It later accepted that appellant sustained a consequential
left knee sprain. By decision dated August 20, 2002, OWCP granted appellant a schedule award
for 50 percent permanent impairment of his right lower extremity.
OWCP had determined that there was a conflict in the medical opinion between
Dr. Weiss, appellant’s attending osteopath, and the government physician, Dr. Hutter, a Boardcertified orthopedic surgeon acting as an OWCP referral physician, regarding the extent of the
permanent impairment of appellant’s right leg.10 In order to resolve the conflict, OWCP properly
referred appellant, pursuant to section 8123(a) of FECA, to Dr. Carollo, a Board-certified
orthopedic surgeon, for an impartial medical examination and an opinion on the matter.
In a report dated February 7, 2011, Dr. Carollo determined that appellant had 40 percent
permanent impairment of his right leg under the standards of the sixth edition of the A.M.A.,
Guides. The Board finds that Dr. Carollo’s opinion is based on a complete and accurate factual
and medical history and contains medical rationale in support of its conclusions. Therefore, it

6

Id. at 515-22.

7

5 U.S.C. § 8123(a).

8

William C. Bush, 40 ECAB 1064, 1075 (1989).

9

R.S., Docket No. 08-1158 (issued January 29, 2009).

10

In a September 28, 2009 report, Dr. Weiss, an attending osteopath, determined that appellant had 63 permanent
impairment of his right lower extremity under the standards of the sixth edition of the A.M.A., Guides. In contrast,
Dr. Hutter, a Board-certified orthopedic surgeon and OWCP referral physician, determined on November 19, 2009
that appellant had 21 permanent impairment of his right lower extremity under the standards of the sixth edition of
the A.M.A., Guides.

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constitutes the weight of the medical evidence with respect to appellant’s right lower extremity
impairment.11
On appeal, counsel argues that the fact that Dr. Carollo found that appellant had not
reached maximum medical improvement with respect to his right knee meant that the case
should be remanded for Dr. Carollo to provide a clarifying opinion. However, the Board finds
that such a remand is not necessary because Dr. Carollo’s opinion in this regard shows that
appellant’s right knee condition had not reached a fixed and permanent state, a requirement for
payment of a schedule award. The period covered by a schedule award commences on the date
that the employee reaches maximum medical improvement from the residuals of the employment
injury. Maximum medical improvement means that the physical condition of the injured
member of the body has stabilized and will not improve further.12 The determination of the date
of maximum medical improvement is factual in nature and depends primarily on the medical
evidence.13
Although Dr. Carollo provided a rationalized calculation of the permanent impairment of
appellant’s right lower extremity, the fact that he found that appellant’s right knee had not
reached maximum medical improvement (and that he only provided 40 percent impairment
rating) means that his opinion cannot show that appellant has more than 50 percent permanent
impairment of his right leg. Appellant did not submit any probative medical evidence showing
that he has more than 50 percent permanent impairment of his right lower extremity.
Appellant did not meet his burden of proof to establish that he has more than 50 percent
permanent impairment of his right lower extremity. He may request a schedule award or
increased schedule award based on evidence of a new exposure or medical evidence showing
progression of an employment-related condition resulting in permanent impairment or increased
impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than 50 percent permanent impairment of his right lower extremity, for which he received a
schedule award.

11

See supra note 9.

12

Adela Hernandez-Piris, 35 ECAB 839 (1984).

13

J.B., Docket No. 11-1469 (issued February 14, 2012); Franklin L. Armfield, 28 ECAB 445 (1977).

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ORDER
IT IS HEREBY ORDERED THAT the March 11, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 7, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Raleigh, NC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-1933
Issued: March 19, 2021

Case Submitted on the Record

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

On September 18, 2019 appellant filed a timely appeal from a March 29, 2019 decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 19-1933.
On November 13, 2011 appellant, then a 41-year-old transportation security officer, filed
an occupational disease claim (Form CA-2) alleging that he sustained injuries to his right wrist,
arm, and shoulder and left wrist and arm due to factors of his federal employment, including the
repetitive use of his hands. By decision dated January 3, 2012, OWCP accepted the claim for
bilateral carpal tunnel syndrome (CTS).
On April 23, 2012 appellant underwent authorized right carpal tunnel release surgery.
In an evaluation for permanent impairment rating dated November 28, 2012,
Dr. Harrison G. Tuttle, a Board-certified orthopedic hand surgeon and appellant’s treating
physician, indicated that she had reached maximum medical improvement (MMI) and opined that
she had six percent permanent impairment of her right hand and eight percent permanent

impairment of her left hand, using the sixth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides)1.
On December 21, 2012 appellant filed a claim for a schedule award (Form CA-7).
On February 5, 2013 OWCP’s district medical adviser (DMA) indicated that appellant had
reached MMI on November 28, 2012, the date of Dr. Tuttle’s impairment rating. The DMA
opined that appellant had two percent permanent impairment of her right upper extremity and zero
percent permanent impairment of the left upper extremity.
By decision dated March 15, 2013, OWCP granted appellant a schedule award for two
percent permanent impairment of the right upper extremity and zero percent permanent
impairment of the left upper extremity.
Appellant subsequently underwent authorized left carpal tunnel release surgery on
March 26, 2015.
On July 7, 2017 Dr. Tuttle provided an additional evaluation for permanent impairment
where he found that appellant had reached MMI and opined that she had a permanent impairment
rating of 10 percent in each upper extremity.
On January 11, 2018 appellant filed a Form CA-7 for an increased schedule award.
In a February 10, 2018 report, Dr. David J. Slutsky, a Board-certified orthopedic hand
surgeon serving as an OWCP district medical adviser (DMA), found that appellant had reached
MMI on July 7, 2017, the date of Dr. Tuttle’s impairment rating. He disagreed with Dr. Tuttle’s
rating noting that Dr. Tuttle did not provide an explanation or calculations to support his findings.
Dr. Slutsky opined that appellant had two percent permanent impairment of the right upper
extremity and zero percent permanent impairment of the left upper extremity.
OWCP subsequently referred appellant to Dr. Chason S. Hayes, a Board-certified
orthopedic surgeon, for a second opinion examination. In his January 4, 2019 report, Dr. Hayes
diagnosed status-post bilateral carpal tunnel release and indicated that his impairment rating was
calculated by using the compression neuropathy impairment for CTS on Table 15-23, page 449,
of the A.M.A., Guides. He concluded that appellant had two percent permanent impairment of the
right upper extremity and two percent permanent impairment of the left upper extremity.
On February 26, 2019 Dr. Slutsky reviewed Dr. Hayes’ January 4, 2019 report and found
that he had assigned a grade modifier for functional history (GMFH) of 3 apparently based on
constant symptoms, but noted that there was no documentation of paresthesias or numbness
involving the fingers and if appellant had constant symptoms there should have been physical
findings of thenar atrophy and EMG evidence of axon loss, which was not present. He, however,
concurred with Dr. Hayes’ overall impairment rating of two percent for the right upper extremity.
With regard to appellant’s left CTS, Dr. Slutsky found that Dr. Hayes had assigned a grade
modifier for clinical studies (GMCS) of 1 but the electrodiagnostic studies that had been performed
1

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

2

on December 5, 2011 were incomplete, with no distal median motor latencies documented. He
indicated that the distal median sensory latencies were considered to be within the nonratable
range. Dr. Slutsky further indicated that according to page 445 of the A.M.A., Guides, the
diagnosis of a focal neuropathy syndrome must be documented by sensory and motor nerve
conduction studies and/or needle EMG as stated in appendix 15-B in order to be ratable as
impairment. If a nerve conduction velocity test was not performed or did not meet this section’s
diagnostic criteria, there was no permanent impairment from the section. Dr. Slutsky concluded,
therefore, that appellant had no permanent impairment of the left upper extremity.
By decision dated March 29, 2019, OWCP denied appellant’s claim for an increased
schedule award, finding that the medical evidence of record did not demonstrate additional
permanent impairment of the right upper extremity and no measurable impairment of the left upper
extremity.
The Board having duly considered the matter, finds that this case is not in posture for
decision.
The Board has previously found that OWCP had 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 had been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.2
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.3 In T.H., the Board concluded that OWCP physicians were
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and DMAs use both DBI and ROM methodologies interchangeably without any
consistent basis. Furthermore, the Board observed that physicians interchangeably cited to
language in the first printing or the second printing when justifying use of either ROM or DBI
methodology. Because OWCP’s own physicians were inconsistent in the application of the
A.M.A., Guides, the Board found that OWCP could no longer ensure consistent results and equal
justice under the law for all claimants.4
This case will therefore be remanded for application of OWCP’s procedures found in
FECA Bulletin No. 17-06. After such further development of the evidence as necessary, OWCP
shall issue a de novo decision on appellant’s claim for an upper extremity schedule award.5
Accordingly,

2

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

3

A.B., Docket No. 16-0706 (issued February 15, 2018); Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

4

Id.

5
See FECA Bulletin No. 17-06 (issued May 8, 2017). See also P.T. Docket No. 18-0968 (issued October 23, 2018),
D.S., Docket No. 19-0025 (issued September 3, 2019); D.D., Docket No. 16-0558 (issued August 5, 2016).

3

IT IS HEREBY ORDERED THAT the March 29, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 19, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.A., Appellant
and
U.S. POSTAL SERVICE, CHICAGO CESAR
CHAVEZ STATION, Chicago, IL, Employer
__________________________________________

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

Docket No. 21-0542
Issued: November 8, 2021

Case Submitted on the Record

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

JURISDICTION
On February 10, 2021 appellant filed a timely appeal from a January 20, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 20, 2021 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective January 20, 2021, as she no longer had disability or
residuals causally related to her accepted June 11, 2019 employment injury.
FACTUAL HISTORY
On June 11, 2019 appellant, then a 48-year-old city carrier assistant, filed a traumatic injury
claim (Form CA-1) alleging that on that date, while unloading parcels from the rear of her postal
vehicle, a customer backed into her vehicle, causing it to strike both of her knees while in the
performance of duty. She stopped work on June 11, 2019. On July 26, 2019 OWCP accepted the
claim for bilateral knee contusions and bilateral hip strains. It paid appellant wage-loss
compensation on the supplemental rolls as of July 26, 2019 and on the periodic rolls as of
January 4, 2020.
In a development letter dated April 2, 2020, OWCP requested additional information from
appellant’s attending physician, Dr. Neeraj Jain, Board-certified in pain medicine, including an
updated, signed medical report addressing the employment-related conditions claimed and
providing medical reasoning for the opinions offered. It afforded 30 days for a response.
On June 4, 2020 Dr. Jain completed a form report, indicating that appellant could return to
limited-duty work on June 16, 2020 with restrictions of lifting and carrying no more than 15 to 20
pounds and no bending. Appellant returned to four hours per day of light-duty work on
June 27, 2020.
On October 13, 2020 appellant filed a claim for compensation (Form CA-7) requesting
compensation for total disability beginning September 26, 2020.
In an October 20, 2020 development letter, OWCP informed appellant that her June 11,
2019 employment injuries included bilateral knee contusions and bilateral hip strains. It requested
additional factual and medical evidence in support of her claimed recurrence of disability and
provided her with a questionnaire for completion. OWCP afforded 30 days for a response.
On November 4, 2020 appellant completed the questionnaire and asserted that her current
conditions and disability were related to her accepted June 11, 2019 employment injury as her pain
had never stopped. She denied any additional injuries.
On October 23, 2020 OWCP referred appellant, a statement of accepted (SOAF), and a
series of questions to Dr. Allan M. Brecher, a Board-certified orthopedic surgeon, for a second
opinion evaluation.
On October 22, 2020 Dr. Jain completed a form report diagnosing work-related lumbar
facet syndrome. He noted that appellant could return to light-duty work four hours a day on
October 24, 2020. Dr. Jain provided restrictions of no lifting or carrying more than 15 to 20
pounds and a four-hour workday three times a week.

2

In an undated report, Dr. Jain noted appellant’s history of injury on June 11, 2019 and her
assertion that she experienced a jerking motion of her back and neck when the vehicle struck her
knees. He found that she continued to experience low back pain aggravated by standing, sitting,
and bending. Dr. Jain reviewed appellant’s cervical magnetic resonance imaging (MRI) scan and
found disc protrusions at C5-6 and C6-7. He also reviewed a lumbar MRI scan and found disc
bulges from L3 through S1 with superimposed spondylolisthesis. Dr. Jain diagnosed lumbar facet
syndrome and cervical facet syndrome. He provided work restrictions and opined that appellant’s
low back condition was a result of the original injury.
In a November 19, 2020 report, Dr. Brecher reviewed the SOAF, the medical records and
described appellant’s history of injury on June 11, 2019. On physical examination he found that
she had some right groin pain, but painless full range of motion of the hips, knees, and cervical
spine. Dr. Brecher opined that appellant had sprains and contusions to her hips and knees, and
was currently neurologically intact, but reporting subjective complaints. He found that she had no
residuals of the accepted employment injuries and did not require further treatment. Dr. Brecher
found that appellant could return to work with no restrictions.
On December 16, 2020 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits based on Dr. Brecher’s opinion that the June 11, 2019 accepted conditions
had ceased without residuals or disability. It afforded her 30 days to submit additional evidence
or argument challenging the proposed termination.
On November 19, 2020 Dr. Jain opined that appellant could return to light-duty work on
November 21, 2020 with no lifting or carrying more than 15 to 20 pounds. He further limited her
to two hours of standing and walking and two hours of sitting, three times a week. In notes dated
December 14 and 17, 2020, Dr. Jain advised that appellant could only perform light duty with
restrictions of two hours standing and walking and two hours sitting working three times a week.
He further opined that she was totally disabled intermittently from December 5 through 14, 2020.
Appellant also submitted a January 7, 2021 form report from Mohommed Meman, a
physician assistant.
By decision dated January 20, 2021, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that date based on Dr. Brecher’s opinion.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.3 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to

3

See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

3

the employment. 4 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.6 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employ ment-related condition which
require further medical treatment. 7
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. 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
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective January 20, 2021.
Appellant’s attending physician, Dr. Jain, opined that appellant was disabled from work
and had ongoing residuals due to her accepted June 11, 2019 employment injuries. OWCP referred
her for a second opinion evaluation with Dr. Brecher, who opined that she had no residuals of her
June 11, 2019 employment injuries and could return to work without restrictions.
Dr. Jain noted appellant’s history of injury on June 11, 2019 and her assertion that she
experienced a jerking motion of her back and neck when the vehicle struck her knees. He found
that she continued to experience low back pain aggravated by standing, sitting, and bending.
Dr. Jain reviewed diagnostic studies diagnosed lumbar facet syndrome , and cervical facet
syndrome. He provided work restrictions and opined that appellant’s low back condition was a
result of the original injury.

4

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

See R.P., id. ; Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6

See R.P., id.; T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822
(issued August 5, 2009). Furman G. Peake, 41 ECAB 361, 364 (1990).
7

See R.P., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); Furman G.
Peake, id.
8
5 U.S.C. § 8123(a); G.F., 20-0497 (issued May 20, 2021); B.S., Docket No. 19-0711 (issued October 17, 2019);
L.T., Docket No. 18-0797 (issued March 14, 2019); Shirley L. Steib, 46 ECAB 309, 317 (1994); see also G.B., Docket
No. 16-0996 (issued September 14, 2016) (where the Board held that OWCP improperly terminated the claimant’s
wage-loss compensation and medical benefits as there was an unresolved conflict of medical opin ion between her
treating physician and a second opinion specialist).
9

S.S., Docket No. 19-1658 (issued November 12, 2020); C.W., Docket No. 18-1536 (issued June 24, 2019).

4

In a November 19, 2020 report, Dr. Brecher noted that appellant was currently
neurologically intact, but reporting subjective complaints. He opined that she had no residuals of
the accepted employment injuries of bilateral knee contusions and bilateral hip strains and did not
require further treatment. Dr. Brecher advised that appellant could return to work with no
restrictions.
The Board finds that there is an unresolved conflict of medical evidence between the
opinions of Drs. Jain and Brecher as to whether appellant continues to experience disability and
medical residuals as a result of her June 11, 2019 employment injuries. Therefore, OWCP has not
met its burden of proof to terminate her wage-loss compensation and medical benefits as it should
have referred her for an impartial medical evaluation, pursuant to 5 U.S.C. § 8123(a), to resolve
the conflict prior to a termination of wage-loss compensation and medical benefits.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective January 20, 2021.
ORDER
IT IS HEREBY ORDERED THAT the January 20, 2021 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 8, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
San Diego, CA, Employer
__________________________________________

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

Docket No. 10-1210
Issued: February 3, 2011

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 March 23, 2010 appellant filed a timely appeal from an October 9, 2009 merit
decision of the Office of Workers’ Compensation Programs and a March 1, 2010 nonmerit
decision which denied his request for a review of the written record. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established that he sustained a left hand contusion
causally related to his August 25, 2009 employment incident; and (2) whether the Office
properly denied appellant’s January 10, 2010 request for review of the written record as
untimely.
FACTUAL HISTORY
On August 26, 2009 appellant, then a 37-year-old customs and border protection officer,
filed a claim for traumatic injury alleging that on August 25, 2009 he sustained an injury to his
left hand. He stated that the trunk of a car landed on his left hand as he was inspecting the

undercarriage of the vehicle, resulting in an injury to his left hand. Appellant stopped work on
August 25, 2009.
Appellant submitted an August 25, 2009 work status report. Dr. Robert J. Eggold,
Board-certified in emergency medicine, noted the date of injury as August 25, 2009 and provided
a diagnosis of a contusion. He further noted that appellant be placed off work from August 25
to 27, 2009. In a second work status report, dated August 26, 2009, Dr. Lydia M. Grypma, a
Board-certified internist, noted appellant’s date of injury as August 25, 2009 and advised that
appellant be discharged and returned to full unrestrictive work.
On September 9, 2009 the Office advised appellant that the medical evidence submitted
was insufficient to support his claim because he did not provide a physician’s opinion regarding
how his injury resulted in his diagnosed condition. It requested that appellant submit a detailed,
narrative medical report from his physician which includes a history of injury, a firm diagnosis
of any condition resulting from that injury, test results and findings and an explanation of why he
believes the diagnosed condition was caused or aggravated by the claimed injury.
On September 11, 2009 the Office received a return to work worksheet completed by
Barry L. Markman, a registered nurse, who stated that appellant could return to full-duty work on
August 27, 2009. The Office also noted the August 25, 2009 employment incident and
appellant’s contusion injury.
On October 9, 2009 the Office issued a decision denying appellant’s claim for traumatic
injury of his left hand on the grounds of insufficient medical evidence establishing that he
sustained an injury from the accepted work-related event.
On January 29, 2010 the Branch of Hearings and Review received appellant’s request for
review of the record.
On March 1, 2010 the Office issued a decision denying appellant’s request for a review
of the written record on the grounds that appellant’s request was not made within 30 days of the
issuance of a final decision by the Office. It issued its decision on October 9, 2009 but
appellant’s request for a review of the written record was postmarked January 10, 2010. The
Office determined that appellant was not entitled to a review of the written record as his request
was untimely. The Branch of Hearings and Review, in exercising its discretion, also decided not
to grant appellant’s request since his case could be equally addressed by requesting
reconsideration from the Office and submitting evidence not previously considered to establish
that his medical condition was causally related to the August 25, 2009 employment incident.
LEGAL PRECEDENT -- ISSUE 1
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.1 Second, the employee must submit
1

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

2

evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.2
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.3 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
specified employment factors or incident.4 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.5
ANALYSIS -- ISSUE 1
The Office accepted that the alleged incident occurred on August 25, 2009 as alleged:
that is that the trunk of a car landed on appellant’s left hand while he was inspecting a vehicle.
Therefore, the issue is whether appellant established that his alleged left hand contusion resulted
from the August 25, 2009 employment incident.
Appellant was seen by Dr. Eggold in an emergency room on August 25, 2009. In his
work status report dated August 25, 2009, Dr. Eggold simply diagnosed “contusion. He did not
record any history of injury or any findings on examination. Dr. Eggold’s report is of limited
probative value in establishing appellant’s claim because lacking a history of injury and lacking
physical examination findings, his opinion is not based upon a complete and factual background
and is not sufficient to establish that appellant’s hand contusion was caused by the work
incident.6 Similarly, Dr. Grypma in her work status report dated August 26, 2009 noted
appellant’s date of injury as August 26, 2009, but did not provide any examination findings,
history of injury or even diagnosis. As such, her report is also of limited probative value in
establishing that appellant sustained a hand contusion as a result of the accepted incident.
Appellant also submitted the September 11, 2009 worksheet completed by Mr. Markman,
a registered nurse, wherein he diagnosed appellant with a left hand contusion. The Board notes,
however, that 5 U.S.C. § 8101(2) of the Act provides that the term “physician” includes
surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law. As a nurse is not a
2

T.H., 59 ECAB 388 (2008); John J. Carlone, 41 ECAB 354, 356-57 (1989).

3

I.R., 61 ECAB __ (Docket No. 09-1229, issued February 24, 2010); W.D., 61 ECAB __ (Docket No. 09-658,
issued October 22, 2009); D.I., 59 ECAB 158 (2007).
4

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

5

D.S., 61 ECAB __ (Docket No. 09-860, issued November 2, 2009); B.B., 59 ECAB 234 (2007); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
6

Compare A.S., 59 ECAB 246 (2007).

3

“physician” as defined by the Act, Mr. Markman’s opinion regarding diagnosis and causal
relationship is of no probative medical value.7
The Board thus finds that appellant did not meet his burden of proof to establish that he
sustained a left hand contusion causally related to the accepted employment incident.8
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Federal Employees’ Compensation Act provides that “a
claimant for compensation not satisfied with a decision of the Secretary … is entitled, on request
made within 30 days after the date of the issuance of the decision, to a hearing on his claim
before a representative of the Secretary.”9 Section 10.615 of the federal regulations
implementing this section of the Act provides that a claimant shall be afforded a choice of an
oral hearing or a review of the written record.10 The request “must be sent within 30 days (as
determined by postmark or other carrier’s date marking) of the date of the decision for which a
hearing is sought.”11 A claimant is entitled to a hearing or review of the written record as a
matter of right if the request is filed within 30 days.12
While a claimant may not be entitled to a hearing or review of the written record as a
matter of right if the request is untimely, the Office has the discretionary authority to grant the
request and must exercise such discretion.13
ANALYSIS -- ISSUE 2
The Office denied appellant’s traumatic injury claim in an October 9, 2009 decision.
Appellant requested review of the written record by letter dated January 10, 2010 but received by
the Office on January 29, 2010. As his request was not made within 30 days of the October 9,
2009 decision denying his claim, he was not entitled to a review of the record as a matter of
right.
The Office exercised its discretionary authority with regard to appellant’s request. It
notified him that the issue in his claim could be equally well addressed by requesting
reconsideration and submitting evidence not previously considered. There is no evidence that

7

See Roy L. Humphrey, 57 ECAB 238 (2005).

8

The Board notes that the Office received medical evidence following the October 9, 2009 decision denying his
claim. As this evidence was not reviewed by the Office, the Board lacks jurisdiction to review this evidence on
appeal.8
9

5 U.S.C. § 8124(b)(1).

10

20 C.F.R. § 10.615.

11

Id. at § 10.6.6 (a).

12

Leona B. Jacobs, 55 ECAB 753 (2004).

13

Id.

4

the Office abused its discretion by denying appellant’s request for review of the written record
under these circumstances.14
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury on August 25, 2009 casually related to the accepted employment incident.
The Board also finds that the Office did not abuse its discretion in denying appellant’s untimely
request for review of the written record.
ORDER
IT IS HEREBY ORDERED THAT the March 1, 2010 and October 9, 2009 decisions
of the Office of Workers’ Compensation Programs be affirmed.
Issued: February 3, 2011
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

14

See G.W., 61 ECAB ___ (Docket No. 10-782, issued April 23, 2010).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Port Reading, NJ, Employer
__________________________________________
Appearances:
Robert D. Campbell, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 12-136
Issued: June 12, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On October 19, 2011 appellant, through his attorney, filed an application for review of a
May 24, 2011 decision of the Office of Workers’ Compensation Programs (OWCP), claim
number xxxxxx595, which denied modification of a June 22, 2010 decision denying his claim for
a traumatic injury filed on December 2, 2009.1 The appeal was docketed as number 12-136.
In the May 24, 2011 decision, OWCP noted reviewing the other claim files and medical
evidence, specifically stating “a review of your prior claims noted that you had a claim for injury
to your right knee on May 9, 1989 that was accepted for a right knee sprain under claim number
xxxxxx493.” In the June 22, 2010 decision, the hearing representative also noted a review of
appellant’s prior claims stating “Review of the claimant’s prior claims indicates that he has
accepted claims for both the right and left knee. The left knee claim remains open for medical
care. The claimant received a third-party settlement under the right knee claim, xxxxxx493.”2
The hearing representative further noted that “the claimant received treatment specific to the
1

On December 2, 2009 appellant alleged that on December 1, 2009 he was walking his mail route and his right
knee gave out on him. He asserted that he sustained an aggravation of his prior right knee injury in claim number
xxxxxx493.
2

The complete medical records and factual information pertaining to these claims are not in the record before the
Board.

preexisting condition and similar to treatment he had received in the past for that condition. The
medical reports dated prior to the claimed injury event describe similar symptoms and treatment
with regard to the preexisting right knee condition.”
The Board has duly considered the matter and notes that the case is not in posture for a
decision. The claim before the Board, number xxxxxx595, involves appellant’s claim for an
traumatic injury involving his right knee, specifically that he sustained an aggravation of his
preexisting right knee condition accepted in claim number xxxxxx493. In the June 22, 2010 and
May 24, 2011 decisions, OWCP noted reviewing evidence and findings made in claim number
xxxxx493 in reaching its decision. The evidence also indicates that claim number xxxxxx493
may have evidence germane to claim number xxxxxx595.
Pursuant to its procedures, OWCP has determined that cases should be combined where
correct adjudication depends on cross-referencing between files. In the instant appeal, it appears
that, for a full and fair adjudication, OWCP claims pertaining to appellant’s knee conditions
should be combined pursuant to OWCP procedures.3 This will allow OWCP to consider all
relevant claim files in developing appellant’s claim. Moreover, to consider appellant’s appeal at
this stage would involve a piecemeal adjudication of the issues in this case and raise the
possibility of inconsistent results. It is the Board’s policy to avoid such an outcome.4
The case will be remanded to OWCP to combine claim numbers xxxxxx595 and
xxxxxx493. Following this and such other development as deemed necessary, OWCP shall issue
an appropriate merit decision on appellant’s claim.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
4

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

2

IT IS HEREBY ORDERED THAT the May 24, 2011 decision be set aside and the
matter remanded to OWCP for further proceedings consistent with this order of the Board.
Issued: June 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF THE ARMY, PUBLIC
WORKS DEPARTMENT, NAVAL AIR
STATION, Marietta, GA, Employer
__________________________________________

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

Docket No. 10-2093
Issued: June 9, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 13, 2010 appellant filed a timely appeal of a July 13, 2010 Office of Workers’
Compensation Programs’ merit decision denying an additional schedule award. Pursuant to the
Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than nine percent permanent impairment of his
right upper extremity and four percent impairment of his left upper extremity for which he has
received a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board on appeal.2 On September 20, 2000
appellant, then a 45-year-old maintenance mechanic, sustained a deep cut to his right forearm
when a piece of plate glass broke and fell on his arm. The Office accepted his claim for
laceration of the right forearm on February 9, 2001. Dr. James C. McIntosh, Jr., a Boardcertified orthopedic surgeon, performed a repair of laceration to the brachioradialis tendon in the
right forearm. He noted that appellant had a transverse laceration which went through the
musculotendinous junction of his brachioradialis. Dr. McIntosh stated that he intended to bring
the brachioradialis into an elongated position, but was unable to do so due to fibrosis proximally
and tendon adherence distally.
Appellant filed an occupational disease claim on February 4, 2002 alleging that he
developed carpal tunnel syndrome due to his employment duties. On September 5, 2001 he
under went nerve conduction velocity (NCV) studies which were consistent with mild-tomoderate left carpal tunnel syndrome and mild right carpal tunnel syndrome. The Office
accepted carpal tunnel syndrome under a separate claim and aggravation of carpal tunnel
syndrome on April 5, 2002.3 Appellant filed a second claim for carpal tunnel syndrome on
December 24, 2003.
By decision dated November 15, 2007, the Office granted appellant a schedule award for
nine percent impairment of the right upper extremity and four percent impairment of the left
upper extremity. Appellant appealed this decision to the Board and on November 4, 2008,4 the
Board found that there was an unresolved conflict of medical opinion evidence between
appellant’s attending physician, Dr. Scott Gillogly, a Board-certified orthopedic surgeon, and the
Office medical adviser regarding the nature and extent of appellant’s permanent impairment.
Dr. Gillogly completed reports on February 7, 2005, August 4 and 9, 2006 and opined that
appellant had 19 percent impairment of his right upper extremity due to sensory impairments of
the median nerve impacting his thumb, middle and ring finger as well as motor deficits of the
brachioradialis tendon resulting in a loss of grip strength. The district medical adviser reviewed
Dr. Gillogly’s reports on behalf of the Office and opined that appellant was not entitled to an
impairment rating due to motor impairment of his brachioradialis. He disagreed with both the
use of grip strength to determine a motor impairment and with Dr. Gillogly’s finding that
appellant had continuing symptoms in his brachioradialis following the surgical repair. The
Board remanded the case for the Office to refer appellant to an impartial medical examiner and
properly determine his permanent impairment for schedule award purposes. The facts and
circumstances of the case as set forth in the Board’s prior decision are adopted herein by
reference.

2

In an order remanding case dated March 10, 2006, the Board found that the Office’s decisions regarding
appellant’s wage-earning capacity and overpayment were not sufficiently detailed and remanded for appropriate
decisions. Docket No. 05-1391 (issued March 10, 2006).
3

The Office doubled appellant’s claims File No. xxxxxx264 and File No. xxxxxx454.

4

Docket No. 08-658 (issued November 4, 2008).

2

In a letter dated December 16, 2008, the Office referred appellant for evaluation by
Dr. Todd Zeigler, a Board-certified orthopedic surgeon, acting as the impartial medical
examiner. In his February 11, 2009 report, Dr. Zeigler reviewed appellant’s history of injury and
the statement of accepted facts. He found that gross strength testing did not reveal a marked lack
of strength in the hand, but that appellant had some subjective decreased sensation in the
fingertips. Dr. Zeigler stated that appellant’s brachioradialis was palpable and “does fire with
attempts at elbow flexion … and neutral pronation and supination.” He stated that appellant had
atrophy, but no gross difference in flexion strength between the right and left arms. Dr. Zeigler
diagnosed bilateral carpal tunnel syndrome with resulting impairment and surgical repair of the
brachioradialis tendon with no objective evidence of residual significant problems with the
tendon or the superficial radial nerve. He stated, “I do not see objective evidence of justification
for a rating related to the brachioradialis tendon or any superficial radial nerve issues [of] wrist
strength issues. I would recommend the [four percent] impairment for the left upper extremity
and the [nine percent] impairment of the right upper extremity.”
By decision dated March 5, 2009, the Office denied appellant’s claim for an additional
schedule award finding that Dr. Zeigler’s report established that appellant did not have additional
impairment due to his brachioradialis injury. Appellant requested an oral hearing on
March 27, 2009. The Branch of Hearings and Review found on June 11, 2009 that the case was
not in posture for a hearing and remanded for the Office to secure a supplemental report from
Dr. Zeigler describing how he reached the impairment ratings given.
On July 14, 2009 the Office requested a supplemental report from Dr. Zeigler applying
the standards of the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment, to his findings and providing a complete impairment rating.
Dr. Zeigler did not respond. In a letter dated April 22, 2010, the Office referred appellant for an
additional impartial medical examination with Dr. Matthew Jaffee, a Board-certified orthopedic
surgeon, who completed a report on June 18, 2010 listing appellant’s history of injury and
medical treatment. Dr. Zeigler noted that appellant had not had carpal tunnel release surgery and
that he experienced numbness over the dorsum of the right hand as well as grip weakness and
loss of extension strength in the right hand. He found mild muscle atrophy on the right and mildto-moderate weakness of the finger and thumb extension, wrist extension and mild grip strength
weakness. Dr. Zeigler diagnosed carpal tunnel syndrome. He diagnosed mild-to-moderate
bilateral carpal tunnel syndrome and a complex laceration of the right forearm including soft
tissue, tendon and superficial nerve. Dr. Zeigler found that appellant retained residual deficits of
his forearm including palpable scar tissue, a defect in muscle, muscle atrophy, decreased sensory
perception over superficial radial aspect of the hand and weakness to finger and wrist extension.
He then calculated appellant’s impairment stating:
“According to AMA guidelines …, using diagnosis based impairment grids, …
demonstrates a wrist laceration or ruptured muscle tendon with residual loss of
function and normal motion to represent a class I injury.5 Within specific grade
of the injury, with class [A] being mild and class E being severe, I find this patient
to be a class C…. [T]his correlates to a [five percent] permanent partial disability
5

A.M.A., Guides 395, Table 15-3.

3

of the upper extremity with respect to his laceration. This number must [be]
added to his permanent partial disability for bilateral carpal tunnel syndrome,
treated nonsurgically…. [P]atient has findings of decreased sensation which puts
him into a modifier 2 category.6 Symptoms within this category are mild giving
him an impairment rating of [four percent] of the upper extremity for carpal
tunnel syndrome on each side. This gives a final permanent partial disability of
[nine percent] of the right upper extremity secondary to his laceration and carpal
tunnel syndrome using diagnosis based impairment.”
The Office referred this report to the district medical adviser on June 29, 2010. In a
report dated July 8, 2010, the district medical adviser found that in accordance with the sixth
edition of the A.M.A., Guides and Dr. Jaffee’s report appellant had nine percent impairment of
the right upper extremity based on a class C or five percent laceration of the brachioradialis
tendon7 and four percent impairment of the upper extremities bilaterally due to residual sensory
loss from carpal tunnel syndrome grade 2A.8
By decision dated July 13, 2010, the Office denied appellant’s claim for an additional
schedule award finding that the weight of the medical opinion evidence rested with the reports of
Dr. Jaffee and the district medical adviser which concluded that appellant had no more than nine
percent impairment of his right upper extremity and four percent impairment of his left upper
extremity for which he had received schedule awards.
LEGAL PRECEDENT
The schedule award provision of the Act9 and its implementing regulations10 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss or loss of use, of scheduled members or functions of the body. The Act, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of the Office. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The Office evaluates
the degree of permanent impairment according to the standards set forth in the specified edition
of the A.M.A., Guides.11

6

Id. at 449, Table 15-23.

7

Id. at 395, Table 15-3.

8

Supra note 6.

9

5 U.S.C. §§ 8101-8193, 8107.

10

20 C.F.R. § 10.404.

11

For new decisions issued after May 1, 2009 the Office began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides (6th ed. 2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Part 3 -- Medical, Schedule Awards, Chapter 3.700,
Exhibit 1 (January 2010).

4

In addressing upper extremity impairments, the sixth edition of the A.M.A., Guides
requires identification of the impairment class for the Diagnosed Condition (CDX), which is then
adjusted by grade modifiers based on Functional History (GMFH), Physical Examination
(GMPE) and Clinical Studies (GMCS). The net adjustment formula is GMFH - CDX + GMPE CDX + GMCS - CDX.12
ANALYSIS
In the prior decision, the Board found that there was a conflict of medical evidence which
required referral of appellant to an impartial medical examiner to determine the extent of his
permanent impairment. The Office referred appellant to Dr. Zeigler to resolve the conflict.
Dr. Zeigler agreed with the impairment rating provided by the previous Office medical adviser,
but did not provide a detailed impairment rating. The Branch of Hearings and Review found that
this report was not sufficient and requested that the Office obtain a supplemental report from
Dr. Zeigler, who did not respond to the Office’s request. The Office’s procedure manual
provides that if the selected impartial medical examiner failed to provide an adequate clear
response after a specific request for clarification, the Office may then seek a second impartial
medical examiners opinion.13
The Office referred appellant to Dr. Jaffee to determine the extent of his permanent
impairment for schedule award purposes. Dr. Jaffee based his report on a proper factual
background and provided physical findings in support of his determination that appellant had
nine percent impairment of the right upper extremity and four percent impairment of the left. In
situations were there are 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 on a proper factual
background, must be given special weight.14 The Board finds that Dr. Jaffee’s report was
sufficiently detailed and well reasoned to resolve the conflict of medical opinion evidence and
establish appellant’s permanent impairment for schedule award purposes.
Both Dr. Jaffee and the district medical adviser found that appellant had a wrist laceration
with residual loss. The default grade for this condition is C with five percent impairment.
Dr. Jaffee found that appellant had a grade 2 modifier for functional history based findings of
decreased sensory perception.15 He indicated that appellant had a grade modifier 1 for muscle
atrophy16 and no grade modifier for clinical studies. When the above formula is applied
appellant has a net adjustment of 0 and a grade C or five percent impairment of his upper
extremity. This impairment rating correlates with the A.M.A., Guides and was confirmed by the
district medical adviser.
12

A.M.A., Guides 411.

13

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.6.b (May 2003).

14

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

15

A.M.A., Guides 406, Table 15-7.

16

Id. at 408, Table 15-8.

5

In regards to appellant’s diagnosed condition of carpal tunnel syndrome, Dr. Jaffee found
that appellant had decreased sensation due to this condition a grade modifier 2 in physical
findings under the A.M.A., Guides.17 Appellant had documentation of a neuropathy syndrome,
the September 5, 2001 NCV studies which demonstrated conduction delay or grade modifier 1.
Dr. Jaffee concluded that appellant’s symptoms were mild on the functional scale, a grade
modifier 1 and that therefore appellant had four percent impairment of each upper extremity due
to his accepted condition of carpal tunnel syndrome. The district medical adviser agreed with
these findings and conclusions and the Board finds that this impairment rating comports with the
A.M.A., Guides.
As Dr. Jaffee, the impartial medical examiner, properly applied the A.M.A., Guides to
appellant’s findings on physical examination and electrodiagnostic testing, the Board finds that
his report is entitled to the weight of the medical evidence and establishes appellant’s permanent
impairment for schedule award purposes.
CONCLUSION
The Board finds that appellant has no more than nine percent impairment of his right
upper extremity and four percent impairment of his left upper extremity for which he has
received schedule awards.

17

Supra note 6.

6

ORDER
IT IS HEREBY ORDERED THAT the July 13, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 9, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.T., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Little Rock, AR,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-278
Issued: October 6, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 16, 2010 appellant filed a timely appeal from a June 18, 2010 decision of
the Office of Workers’ Compensation Programs (OWCP) concerning the denial of his claim for
wage-loss compensation. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a recurrence of disability for the period
March 19 through October 27, 2007 causally related to his accepted April 5, 2004 employment
injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 5, 2004 appellant, then a 38-year-old building equipment mechanic, filed a
traumatic injury claim alleging that on that date he sustained injuries in the performance of duty.
OWCP accepted the claim for neck sprain, lumbar sprain and rib sprain, which was expanded to
include a consequential injury of anxiety disorder with mixed anxiety and depressed mood.2 It
subsequently again expanded the acceptance to include unspecified anxiety state and major
depression with recurrent episode, severe with mention of psychotic behavior. Appellant
returned to a light-duty job on April 12, 2004 due to restrictions from his physician.
On June 5, 2007 appellant filed an occupational disease claim alleging that on April 20,
2006 he first realized that his stress and anxiety were due to conflicts with his supervisor over
work restrictions.3 OWCP accepted his claim for adjustment disorder with mixed anxiety and
depressed mood which was subsequently upgraded to unspecified anxiety state and major
depression with recurrent episode, severe with mention of psychotic behavior.
On February 13, 2007 the employing establishment issued a proposed notice of removal
based on a charge of misconduct. The termination of appellant’s employment was the result of
findings from an investigation by postal inspectors into prohibited and illegal activities and
misuse of an employing establishment computer by appellant. The notice relates that the
investigation began on October 20, 2006 as the result of an incident on October 19, 2006.
In a May 15, 2007 report, Dr. Phillip A. Tracy, a treating Board-certified family
practitioner, related appellant had “ongoing disability secondary to mental status change as it
relates to his neck and lower back.”
In a May 22, 2007 attending physician’s report (Form CA-20), Dr. James M. Sims, a
treating psychiatrist, diagnosed adjustment disorder with mixed emotional features due to his
employment. He indicated that appellant was totally disabled beginning December 7, 2006.
In an August 29, 2007 report, Dr. Tracy noted that appellant sustained an injury to his
back, neck and ribs about two years ago and that in June 2006 he was seen by Dr. Sims for
psychiatric treatment. He diagnosed cervical spine radicular pain, left leg radicular pain and
right lumbar disc pain with L5 anterolisthesis, which he attributed to his April 5, 2004
employment injury. Dr. Tracy stated that appellant’s period of disability was from December 7,
2006 to the present and that it was undetermined as to when he could return to work.
The record contains an August 16, 2007 duty status report (Form CA-17) indicating that
appellant was not able to resume work.
Appellant subsequently submitted a June 6, 2007 CA-20 form from Dr. Tracy in which
he indicated that appellant was totally disabled for the period December 7, 2006 through the
2

OWCP assigned file number xxxxxx098.

3

Id. at file number xxxxxx005. By letter dated April 24, 2008, OWCP informed that claim numbers xxxxxx005
and xxxxxx098 were doubled, with the latter number designated the master file number.

2

present. Diagnoses due to the April 5, 2004 employment injury included moderate degenerative
disc disease at C3-4, moderate degenerative disc disease, moderate degree of arthritis and lumbar
anterolisthesis.
On July 22, 2008 appellant filed a claim for wage-loss compensation (Form CA-7) for the
period March 19 to October 22, 2007.
In a letter dated July 28, 2008, OWCP informed appellant that the evidence of record was
insufficient to establish that his disability for the period March 19 to October 22, 2007 was due
to his accepted April 5, 2004 employment injury. Appellant was advised to submit evidence
supporting his claim for total disability for the period in question.
In July 28, 2008, the employing establishment informed OWCP that appellant was
suspended without pay for the period March 19 to October 22, 2007 as a result of a disciplinary
action. It claimed that he was not totally disabled during this period and that, if not for the
suspension, he would have been able to work. An October 3, 2007 settlement agreement was
attached to show that no back pay was awarded. The settlement agreement stated that appellant
would report to work for his first regularly scheduled day following October 20, 2007.
In an August 1, 2008 statement, appellant confirmed that he was suspended from the
employing establishment beginning December 6, 2006 and that his suspension without pay
began on March 17, 2007. During his period of suspension he related that he received social
security disability benefits due to his being totally disabled for work. Appellant noted that his
physician released him to work which he returned on October 22, 2007.
By decision dated September 8, 2008, OWCP denied appellant’s claim for wage-loss
compensation for the period March 19 through October 22, 2007. It found that the record
contained no medical evidence supporting his claim that he was totally disabled during the
claimed time frame.
On September 30, 2008 appellant requested an oral hearing before an OWCP hearing
representative, which was changed to a review of the written record as he did not appear for the
oral hearing. In support of his request, appellant submitted medical evidence including a July 6,
2007 CA-20 form report and a September 24, 2008 report from James R. Moneypenny, Ph.D., a
clinical psychologist, who diagnosed anxiety disorder and depression due to harassment by
appellant’s supervisor. Dr. Moneypenny indicated that appellant was totally disabled for the
period December 7, 2006 to the present. In a September 24, 2008 report, he related providing
psychotherapy for appellant during the period March 19 to October 22, 2007.
On October 9, 2008 Dr. Sims indicated that appellant was medically unable to work for
the period March 19 to October 22, 2007. He attributed appellant’s disability to his psychiatric
conditions of depression, chronic anxiety, being psychotic and having paranoid delusions.
On March 9, 2009 appellant submitted medical evidence including a June 4, 2007 report
from Janice E. Dean, Ph.D, a clinical psychologist, who indicated that he was seen on May 9,
2007 for a psychiatric assessment. Dr. Dean noted that appellant fell off a ladder in April 2004
at work and that his problems became more severe in October 2006. She diagnosed anxiety

3

disorder and opined that his ability to work would be difficult as a result of “his difficulty
sustaining focus and poor resiliency to stress.”
In a March 9, 2009 report, Dr Moneypenny stated that appellant was totally disabled from
working for the period March 19 to October 22, 2007. He stated that during this period appellant
was suffering from a psychosis which “entirely precluded his capacity to adapt and adjust to the
demands of any work setting.”
On March 16, 2009 OWCP received a March 9, 2008 report from Dr. Sims stating that
appellant was totally disabled from work for the period December 7, 2006 through
October 22, 2007. Dr. Sims related that appellant received social security which considered him
totally disabled for the period March 19 to October 22, 2009 as it found he was entitled to
disability payments from it.
By decision dated May 8, 2009, an OWCP hearing representative affirmed the
September 8, 2008 decision denying appellant’s claim for wage-loss compensation. He found
the medical evidence of record insufficient to establish that appellant sustained a recurrence of
disability due to his accepted employment injuries for the period in question.
On April 7, 2010 appellant’s representative requested reconsideration. He contended the
medical evidence from Drs. Moneypenny, Sims and Tracy all support that appellant’s disability
for March 19 to October 22, 2007 was directly due to his accepted employment injuries.
On April 19, 2010 OWCP received a November 3, 2009 report from Dr. Moneypenny
regarding appellant’s disability for the period December 7, 2006 through October 22, 2007.
Dr. Moneypenny related seeing appellant for complaints of harassment by his supervisor.
Diagnoses included adjustment disorder with mixed emotional features, major depression with
later diagnoses of depression, delusional disorder and anxiety disorder. He attributed appellant’s
psychiatric symptoms and emotional stress to the conflict and stress with appellant’s supervisors.
In concluding, Dr. Moneypenny opined that as a result of appellant’s cognitive confusion and
emotional distress that he was precluded “from functioning in an adaptive or effective manner in
his work setting.”
By decision dated June 18, 2010, OWCP denied modification.
LEGAL PRECEDENT
Where an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.4
4

A.M., Docket No. 09-1895 (issued April 23, 2010); Richard A. Neidert, 57 ECAB 474 (2006); Cecelia M.
Corley, 56 ECAB 662 (2005); Terry R. Hedman, 38 ECAB 222 (1986).

4

OWCP’s implementing regulations define a recurrence of disability as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.5 This term also means an
inability to work that takes place when a light-duty assignment made specifically to
accommodate an employee’s physical limitations due to his or her work-related injury or illness
is withdrawn, (except when such withdrawal occurs for reasons of misconduct, nonperformance
of job duties or a reduction-in-force) or when the physical requirements of such an assignment
are altered so that they exceed his or her established physical limitations.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 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.8 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.9
ANALYSIS
OWCP accepted that appellant sustained neck sprain, lumbar sprain and rib sprain, which
was expanded to include a consequential injury of anxiety disorder with mixed anxiety and
depressed mood, anxiety state and major depression with recurrent episode, severe with mention
of psychotic behavior. Appellant claimed compensation for total disability from March 19 to
October 22, 2007. On July 28, 2008 OWCP advised him of the evidence needed to establish his
claim. Appellant, however, did not submit any reasoned medical evidence to establish that his
total disability from March 19 to October 22, 2007 was causally related to his accepted injuries.
For example, he did not submit a medical report in which his treating physician explained why
he was totally disabled during the claimed period as a result of his work injuries. The Board also
notes that there is no evidence showing a change in the nature and extent of the light-duty job
requirements or that, appropriate light duty was not available during the claimed period. While

5

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Phillip L. Barnes, 55 ECAB 426 (2004).
6

Id. at § 10.5(x). See A.M., Docket No. 09-1895 (issued April 23, 2010); K.S., Docket No. 08-2105 (issued
February 11, 2009); Hubert Jones, Jr., 57 ECAB 467 (2006).
7

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
8

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

5

there is evidence that the employing establishment suspended appellant for the claimed period,
there is no evidence that the suspension was due to his work injuries.10
In support of his claim appellant submitted reports from his physicians, Drs. Sims and
Tracy and treating clinical psychologists, Drs. Dean and Moneypenny. In his various reports,
Dr. Sims attributed appellant disability for the period March 19 to October 22, 2007 to
appellant’s depression, chronic anxiety, paranoid delusions and being psychotic. Similarly,
Dr. Tracy opined that appellant was disabled for this period due to a change in his mental
condition as a result of his neck and lower back conditions as well as his accepted lumbar and
cervical conditions. Dr. Moneypenny concluded that appellant was totally disabled for the
period in question due to his anxiety disorder and depression. He also noted that he provided
psychotherapy treatment for appellant during the period March 19 to October 22, 2007.
Dr. Dean reported seeing appellant on May 9, 2007 for a psychiatric assessment and concluded
that he was unable to work due to his poor stress resiliency and difficulty focusing.
The Board notes that these reports do not contain any explanation regarding appellant’s
inability to work his light-duty position for the period March 19 to October 22, 2007. To
establish a change in the nature and extent of the injury-related condition, there must be
probative medical evidence of record. The evidence must include a medical opinion, based on a
complete and accurate factual and medical history and supported by sound medical reasoning,
that the disabling condition is causally related to employment factors.11 While OWCP
subsequently accepted a consequential emotional condition, none of the physicians or
psychologists explained the reasons why there was a spontaneous change in appellant’s accepted
medical conditions such that it caused him to be unable to perform his light-duty job during the
period at issue. Furthermore, none of the physicians or psychologist mentioned in their reports
appellant had been suspended without pay for cause during the period March 19 to
October 22, 2007. The Board has held that medical opinions based on an incomplete history are
of diminished probative value.12
Dr. Moneypenny used the fact that appellant had been found to be disabled by the Social
Security Administration to support his contention that appellant was entitled to FECA benefits.
The Board notes that decisions by other agencies regarding disability are not binding on OWCP.
The standards for establishing work-related disability under FECA, which governs OWCP and
the Board, are not the same as the standards set for disability retirement or social security
benefits.13

10

See Terry R. Hedman, supra note 4; see also 20 C.F.R. § 10.5(x) (a recurrence is not established where the
withdrawal of light duty occurs for reasons of misconduct, nonperformance of the job duties or a reduction-inforce).
11

K.C., Docket No. 08-2222 (issued July 23, 2009); Sandra D. Pruitt, 57 ECAB 126 (2005).

12

Cecelia M. Corley, 56 ECAB 662 (2005).

13

P.H., Docket No. 10-981 (issued December 9, 2010); Andrew Fullman, 57 ECAB 574 (2006); Raj B.
Thackurdeen, 54 ECAB 396 (2003).

6

The reports submitted by Drs. Dean, Moneypenny Sims and Tracy are insufficient to
establish appellant’s claim because they did not provide a rationalized medical opinion
explaining how his accepted cervical, lumbar and emotional conditions prevented him from
working light duty.14 The Board notes that such medical reasoning is important as there were
other factors that contributed to his inability to work, specifically his suspension without pay for
cause during the period March 19 to October 22, 2007. There is no evidence that there was a
change in the nature and extent of his light-duty job requirements.
As noted above, none of the medical reports submitted by appellant contained a
rationalized opinion to explain why he could no longer perform the duties of his light-duty
position and why any such disability or continuing condition for the period March 19 to
October 22, 2007 would be due to the accepted conditions. The Board finds that he has failed to
submit rationalized medical evidence establishing that his disability from March 19 to
October 22, 2007 was causally related to his accepted employment injuries and thus, he has not
met his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained a recurrence of
disability for the period March 19 to October 22, 2007 causally related to his accepted April 5,
2004 employment injury.

14

See S.F., 59 ECAB 525 (2008); Richard A. Neidert, 57 ECAB 474 (2006).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 18, 2010 is affirmed.
Issued: October 6, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

8