United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 16-0583
Issued: April 19, 2017

Case Submitted on the Record

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

JURISDICTION
On February 8, 2016 appellant filed a timely appeal from a November 24, 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 had more than 10 percent permanent impairment of the
right upper extremity, for which he previously received a schedule award.
FACTUAL HISTORY
OWCP accepted that on or before April 3, 2012 appellant, then a 50-year-old mail
processing clerk, sustained an aggravation of a degenerative C5-6 disc, aggravation of C5-6

1

5 U.S.C. § 8101 et seq.

cervical radiculitis, C5-6 pseudarthrosis, brachial neuritis, and adhesive capsulitis of the right
shoulder due to repetitive lifting while handling mail.2
On June 4, 2012 Dr. E. William Kennen, Jr., an attending osteopathic physician Boardcertified in orthopedic surgery, diagnosed cervical degenerative disc disease with myelopathy.
Appellant performed modified duty and participated in physical therapy.
Dr. Charles A. Wetherington, an attending Board-certified neurosurgeon, held appellant
off work in November 2012. OWCP issued compensation for intermittent work absences.
Appellant underwent a series of epidural steroid injections in January and March 2013.3
Dr. Wetherington held appellant off work beginning July 26, 2013 and OWCP paid him
compensation for temporary total disability beginning July 27, 2013.
On September 6, 2013 Dr. Wetherington performed an anterior C5-6 discectomy and
fusion with decompression of the spinal cord and nerve roots, plate fixation, and bone allograft.4
OWCP authorized the procedure and paid wage-loss compensation through July 29, 2014, when
appellant returned to full-time modified duty.
On August 29, 2014 OWCP obtained a second opinion regarding appellant’s work
capacity from Dr. Robert Sciortino, a Board-certified orthopedic surgeon. Dr. Sciortino opined
that appellant could perform full-time restricted duty, with lifting limited to 10 pounds using the
right upper extremity. Dr. Wetherington limited appellant to lifting 15 pounds as of
September 5, 2014. Appellant underwent additional epidural steroid injections. He stopped
work on October 4, 2014 as the employing establishment did not have work available within his
restrictions. OWCP paid wage-loss compensation.
Dr. W. Chris Kostman, an attending Board-certified orthopedic surgeon, diagnosed right
shoulder adhesive capsulitis on January 1, 2015, consequential to the accepted cervical spine
conditions.5
Appellant returned to full-time limited duty on March 17, 2015.
Dr. Kostman performed closed manipulation of the right shoulder under general
anesthesia on March 30, 2015, authorized by OWCP. In a May 27, 2015 report, he opined that
appellant’s right shoulder had attained maximum medical improvement (MMI). Dr. Kostman
observed forward flexion at 175 degrees, abduction at 90 degrees, and external rotation at 60
degrees.
2

A May 17, 2012 magnetic resonance imaging (MRI) scan of the right shoulder showed acromioclavicular
arthropathy and anterior supraspinatus tendinopathy. A May 30, 2012 cervical MRI scan showed mild cervical
spondylosis most pronounced at C5-6. May 30, 2012 electromyography and nerve conduction velocity studies
showed right-sided C5-6 cervical radiculopathy.
3

A March 29, 2013 cervical MRI scan showed mild cervical spondylosis most pronounced at C5-6.

4

A June 10, 2014 cervical MRI showed postoperative changes at C5-6, and increased disc bulging at C6-7.

5

A January 16, 2015 MRI scan of the right shoulder demonstrated mild supraspinatus tendinopathy without a
rotator cuff tear.

2

On June 23, 2015 appellant filed a claim for a schedule award (Form CA-7). In a
June 29, 2015 letter, OWCP notified him of the additional evidence needed to establish his
schedule award claim, including a report from his attending physician supporting that he had
attained MMI, the diagnosis on which the permanent impairment is based, a detailed description
of the permanent impairment, and an impairment rating calculated according to the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(hereinafter, A.M.A., Guides).6 Appellant was afforded 30 days to submit such evidence. He did
not submit the evidence within the allotted time.
On September 24, 2015 OWCP obtained a second opinion from Dr. Richard T. Katz, a
Board-certified physiatrist. Dr. Katz reviewed the medical record and a statement of accepted
facts, and obtained a QuickDASH score of appellant of 61. On examination he observed
restricted cervical motion inconsistent with a one-level fusion, mild weakness in the right biceps,
mildly diminished reflexes, subjective numbness in all fingers of the right hand, and a positive
Phalen’s maneuver on the right indicative of carpal tunnel syndrome. Dr. Katz found the
following ranges of right shoulder motion after a warm-up: 120 degrees flexion; and 50 degrees
extension; 90 degrees internal rotation; 90 degrees external rotation; 120 degrees abduction; 50
degrees adduction. Appellant reported pain with range of motion (ROM) testing. Dr. Katz
opined using the ROM method that appellant had attained MMI regarding the cervical spine and
right shoulder. Referring to Table 15-34 of the A.M.A., Guides,7 he noted three percent
impairment for loss of flexion, and three percent impairment for loss of abduction. Dr. Katz
assessed a grade 1 modifier for restricted motion, and assessed a 10 percent increase for a grade
3 QuickDASH score. He added these elements to equal seven percent permanent impairment of
the right arm due to the accepted right shoulder conditions. Dr. Katz then referred to the
July/August 2009, The Guides Newsletter, finding a grade 1 modifier for findings on physical
examination due to mild weakness and reflex loss in the C5-6 nerve distribution with mild
sensory loss. He found 9 percent permanent impairment of the right upper extremity due to mild
motor deficit, resulting in 11 percent permanent impairment of the right upper extremity
attributable to the cervical spine.
On October 8, 2015 an OWCP medical adviser reviewed Dr. Katz’ impairment rating and
opined that he misapplied the A.M.A., Guides. He found the ROM measurements were invalid
as it was unclear whether Dr. Katz appropriately addressed loss of ROM. Therefore, the medical
adviser used the diagnosis-based impairment (DBI) rating method, assessing a grade 1
impairment for tendinitis, with a default of three percent. He found a grade modifier for
Functional History (GMFH) of 3, a Physical Examination (GMPE) of 1, and noted that there
were no appropriate studies on which to base a grade modifier for Clinical Studies (GMCS).
Applying the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), or
(3-1) + (1-1) the medical adviser found a net modifier of plus two, raising the default CDX from
three to five percent. He commented that the numbness appellant reported in all five fingers of
the right hand was nonanatomic and should not be included in the impairment rating. The
medical adviser explained that Dr. Katz should not have applied the QuickDASH score to both
the ratings for the right shoulder and cervical radiculopathy. He opined that there was no
6

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

7

Table 15-34, page 475 of the sixth edition of the A.M.A., Guides is titled “Shoulder Range of Motion.”

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applicable net modifier for appellant’s cervical radiculopathy, leaving the default value at four
percent, with an additional one percent impairment for residuals of C5 radiculopathy. The
medical adviser therefore found 5 percent permanent impairment of the right arm due to cervical
radiculopathy, combined with 5 percent permanent impairment due to adhesive capsulitis, for a
total of 10 percent permanent impairment of the right upper extremity.
By decision dated November 24, 2015, OWCP issued a schedule award for 10 percent
permanent impairment of the right arm with 5 percent due to cervical radiculopathy and 5
percent due to adhesive capsulitis. The award was based on an OWCP medical adviser’s review
of Dr. Katz’ findings. OWCP found that because the medical adviser observed that Dr. Katz
failed to properly assess loss of ROM, he properly used the DBI method.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.8 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.9 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.10
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).11 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.12
8

See 20 C.F.R. §§ 1.1-1.4.

9

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
10

5 U.S.C.

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

11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
12

Isidoro Rivera, 12 ECAB 348 (1961).

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ANALYSIS
The issue on appeal is whether OWCP properly determined that appellant had 10 percent
permanent impairment of the right upper extremity, for which he previously received a schedule
award. Dr. Katz, a second opinion physician and Board-certified physiatrist, opined that
according to the ROM rating method of the A.M.A., Guides, the accepted injuries caused 7
percent permanent impairment of the right arm due to limited motion, with an additional 11
percent impairment due to cervical radiculopathy pursuant to The Guides Newsletter. In
contrast, an OWCP medical adviser found that appellant had 10 percent permanent impairment
of the right arm, combining 5 percent impairment using the DBI rating method for the shoulder,
and 5 percent impairment of the right arm due to cervical radiculopathy. He excluded ROM as a
rating element. OWCP issued its November 24, 2015 schedule award for 10 percent permanent
impairment of the right upper extremity, relying on the medical adviser’s opinion.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.13
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.14 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.15
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the November 24, 2015
decision. Following OWCP’s development of a consistent method for calculating permanent
impairment for upper extremities to be applied uniformly, and such other development as may be
deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper
extremity schedule award.

13

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

14

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

15

Supra note 13.

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On appeal, appellant contends that OWCP should rely on Dr. Katz’ ROM measurements
as they were taken after the required warm up. As set forth above, the case is not in posture for a
decision and will be remanded for additional development.
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 24, 2015 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: April 19, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Metro, GA, Employer
__________________________________________

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

Docket No. 21-0571
Issued: November 10, 2021

Case Submitted on the Record

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

JURISDICTION
On March 1, 2021 appellant filed a timely appeal from a February 11, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from OWCP’s last merit decision, dated August 20, 2020, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 6, 2020 appellant, then a 46-year-old rural delivery specialist, filed an
occupational disease claim (Form CA-2) alleging that she developed carpal tunnel syndrome due
1

5 U.S.C. § 8101 et seq.

to factors of her federal employment which required lifting, twisting, bending, and grabbing items
with her hands. She stated that she first became aware that her condition was related to her federal
employment on April 1, 2020.
In a development letter dated June 29, 2020, OWCP informed appellant that additional
factual and medical evidence was necessary to establish her claim. It advised her of the type of
factual and medical evidence needed and provided a questionnaire for her completion. OWCP
afforded appellant 30 days to submit the necessary evidence.
In a letter received on July 14, 2020, appellant’s supervisor, C.F., attested to the fact that
appellant’s job required repetitive hand and wrist movements, including casing and gripping mail
for one to eight hours a day.
By decision dated August 20, 2020, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the events occurred as alleged. It also found
that appellant had not submitted medical evidence, which contained a medical diagnosis causally
related to the alleged events. It concluded, therefore, that the requirements had not been met to
establish fact of injury as defined by FECA.
On November 17, 2020 appellant request reconsideration and submitted additional medical
evidence.
In a medical report dated April 14, 2020, Dr. Stephanie Riemann, a Board-certified
neurologist, related that about two months prior appellant began noticing numbness and tingling
in her hands and sometimes a sharp pain that radiated up to her left elbow. She also noticed
numbness and tingling occurred when she sorted mail. Dr. Riemann related her impression that
appellant had bilateral cubital tunnel syndrome and that appellant had been scheduled for
electromyogram and nerve conduction velocity (EMG/NCV) testing.
In a report dated April 22, 2020, Dr. Riemann diagnosed carpal tunnel syndrome. A
diagnostic testing report from Dr. Riemann, also dated April 22, 2020, indicated that EMG/NCV
studies performed that day revealed bilateral carpal tunnel syndrome.
By decision dated February 11, 2021, OWCP summarily denied appellant’s request for
reconsideration.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 2
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
2

5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); see L.D., Docket No. 18-1468 (issued
February 11, 2019); W.C., 59 ECAB 372 (2008).

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a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.3
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 4 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 5 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 6
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
In her timely request for reconsideration, appellant submitted medical reports dated
April 14 and 22, 2020 from Dr. Riemann. In her reports, Dr. Riemann related that appellant
experienced numbness and tingling in her hands while she sorted mail and she diagnosed bilateral
carpal tunnel syndrome.
Section 8124(a) of FECA provides: OWCP shall determine and make a finding of fact and
make an award for or against payment of compensation. 7 Section 10.126 of Title 20 of the Code
of Federal Regulations provide: “The decision [of the Director of OWCP] shall contain findings
of fact and a statement of reasons.”8 Moreover, the Federal (FECA) Procedure Manual provides
that the claims examiner’s “evaluation of the evidence should be clear and detailed so that the
reader understands the reason for the disallowance of the benefit and the evidence necessary to
overcome the defect of the claim.”9

3

20 C.F.R. § 10.606(b)(3); see C.C., Docket No. 19-1622 (issued May 28, 2020); see also L.G., Docket No.
09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
4

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Chapter 2.1602.4b.
5

Id. at § 10.608(a); see also A.F., Docket No. 19-1832 (issued July 21, 2020); M.S., 59 ECAB 231 (2007).

6

Id. at § 10.608(b); J.B., Docket No. 20-0145 (issued September 8, 2020); Y.K., Docket No. 18-1167 (issued
April 2, 2020); E.R., Docket No. 09-1655 (issued March 18, 2010).
7

5 U.S.C. § 8124(a); see J.J., Docket No. 19-0448 (issued December 30, 2019); see Hubert Jones, Jr., 57 ECAB
467 (2006).
8

20 C.F.R. § 10.126.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5c(3) (February 2013).

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OWCP did not reference nor discuss any of the new medical reports submitted in support
of appellant’s timely November 17, 2020 reconsideration request.10 In its February 11, 2021
decision, it did not discharge its responsibility to set forth findings of fact and a clear statement of
reasons explaining the disposition so that appellant could understand the basis for the decision,
i.e., why the new medical evidence had not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim. 11
Accordingly, the Board will set aside the February 11, 2021 decision and remand the case for
OWCP to review the evidence submitted in support of appellant’s reconsideration request and
make findings of fact and provide reasons for its decision, pursuant to the standards set forth in
section 5 U.S.C. § 8124(a) and 20 C.F.R. § 10.126. After this and other such further development
as deemed necessary, it shall issue an appropriate decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 11, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: November 10, 2021
Washington, DC

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

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

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

10

The Board notes that OWCP referenced a letter from the appellant that is nonexistent in the record.

11

See J.M., Docket No. 18-0729 (issued October 17, 2019); J.J., Docket No. 11-1958 (issued June 27, 2012).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Tulsa, OK, Employer
__________________________________________

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

Docket No. 20-1528
Issued: March 23, 2022

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 August 20, 2020 appellant, through counsel, filed a timely appeal from a July 15, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
an injury in the performance of duty on March 10, 2017, as alleged.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as presented
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On March 10, 2017 appellant, then a 60-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that, at approximately 12:00 p.m. on that date, her
knees and wrists were scratched, bloodied and swollen when she tripped on uneven pavement
when she was walking to work while in the performance of duty. A coworker, S.G., provided a
statement on the Form CA-1 noting that while walking to work on March 10, 2017 she saw
appellant lying on the ground under the covered sidewalk on B side parking. Appellant informed
S.G. that she tripped on the sidewalk. On the reverse side of the claim form, the employing
establishment controverted the claim contending that appellant was not in the performance of duty
when she was injured, as the incident occurred before the start of her work shift, she was off
premises and was not engaging in official duties. It noted that her work schedule was 12:00 p.m.
to 8:30 p.m., Tuesday through Saturday. Appellant did not stop work.
In a March 20, 2017 development letter, OWCP advised appellant of the deficiencies of
her claim. It informed her of the type of factual and medical evidence needed to establish her
claim and provided her with a factual questionnaire for her completion. In a separate development
letter of even date, OWCP requested that the employing establishment provide information
regarding the location and time of appellant’s injury. It afforded both parties 30 days to submit
the requested information.4
OWCP received medical evidence, including treatment notes dated March 13, 2017 from
Dr. Homer Hardy, an osteopath, diagnosing contusions of both knees.
On March 23, 2017 the employing establishment controverted appellant’s claim, asserting
that appellant’s injury occurred at 11:56 a.m. on March 10, 2017, but that her work shift did not
3

Docket No. 18-0617 (issued February 13, 2019).

4
Appellant submitted numerous reports to the record dating from March 10, 2017. On April 7 and 25, and June 26,
2017 Dr. Robert Coye, a Board-certified internist, diagnosed right medial knee pain. On May 9 and 30, June 1 and 6,
and July 18, 2017 Dr. James D. Cash, a Board-certified orthopedic surgeon, diagnosed bilateral knee contusions. On
June 2, 2017 Dr. Kelly Lindauer, a Board-certified diagnostic radiologist, reviewed appellant’s magnetic resonance
imaging (MRI) scan and found tear of the medial meniscus, chondromalacia, and effusion. Dr. Thomas Kern, a Boardcertified internist, examined appellant on July 31, 2017 and diagnosed derangement of medial meniscus of both knees.
Dr. Seth Migdalski, a psychiatrist, examined appellant on October 30, 2017 for emotional conditions. Appellant also
submitted numerous reports from Timothy Marlow, Chad Perkins, Dianne Briscoe, and Eve Fitzpatrick, physician
assistants, as well as notes from Whitney Ellsworth, a physical therapist. See M.M., Docket No. 17-1641 (issued
February 15, 2018); K.J., Docket No. 16-1805 (issued February 23, 2018).

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begin until 12:00 p.m. It noted that she had not clocked in for duty and was not in any work
location when the injury occurred. The employing establishment reported that it did not own,
lease, or maintain the area where appellant’s injury occurred. It further noted that it did not direct
her to park her car in any of the various public parking lots that surrounded her duty station. J.M.,
an AirServ supervisor, witnessed appellant’s fall and described the location as occurring on the
sidewalk coming up from B side parking.
By decision dated April 25, 2017, OWCP denied appellant’s traumatic injury claim finding
that the evidence submitted was insufficient to establish that she was injured in the performance
of duty. It found that she was not reasonably fulfilling the duties of her employment or doing
something incidental thereto at the time of her injury, that she had not begun her tour of duty, and
was walking on a public sidewalk toward the employing establishment. OWCP noted that under
FECA, an employee who is injured off premises while commuting to work is not in the course of
employment.
On May 4, 2017 counsel requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
In an e-mail to counsel dated July 16, 2017, appellant reported that she fell on the sidewalk
between the employee parking lot and the employing establishment office. She noted that she paid
for parking with the Green Option Commuter Card (For Federal Government Transit Subsidy Use
Only). Appellant’s card allotted $240.00 and she paid parking costs of $135.00 every six months.
She indicated that she would fax counsel a copy of the employer-paid parking receipt from
July 14, 2017.
In a letter dated July 31, 2017, counsel indicated that he was providing OWCP with medical
records, physical therapy notes, and a “copy of the receipt and the subsidized public transportation
pass paid for by the employing agency.”
Appellant testified during an oral hearing on October 6, 2017 before an OWCP hearing
representative. She alleged that she was required to wear a uniform for her position, but that the
employing establishment regulated the activities she could perform in uniform. Appellant testified
that the employing establishment rented a portion of the airport parking lot for its employees and
assigned them a place to park. The employing establishment required employees to go straight
from the parking lot to the employing establishment without diversion. Appellant asserted that her
parking was fully paid for by the employing establishment, and that she had to park in an assigned
area otherwise her car would be booted. She noted that the employing establishment provided her
with a commuter payment card and a placard for her car. Appellant testified that there was only
one sidewalk from the parking lot to her duty station and that no other route was available. She
noted that the parking area in question was encircled by a six-foot fence and that she had a badge
for that parking area. Appellant again alleged that she could not enter the employing establishment
from another parking location. She noted that other airport employees parked in the fenced lot
including pilots and stewardesses. Counsel contended that it was not plausible that the employing
establishment was not in control of the area as they paid for parking and that there was only one
entrance that appellant could utilize to get to her duty station.

3

On December 5, 2017 the employing establishment terminated appellant’s employment. It
noted that her appointment was subject to completion of a two-year trial period. The termination
was noted to promote the efficiency of the service and was primarily based on her extensive use
of leave.
By decision dated December 18, 2017, OWCP’s hearing representative found that
appellant was injured on the sidewalk between the off-premises parking lot and the worksite. She
noted that there was no evidence that the employing establishment controlled or maintained the
area where the fall occurred. OWCP’s hearing representative determined that the facts did not
establish an exception to the premises rule and that appellant’s injury did not arise out of and in
the course of her federal employment.
Appellant, through counsel, appealed to the Board. In its February 13, 2019 decision, 5 the
Board set aside the December 18, 2017 decision and found that the case was not in posture for
decision as OWCP had not properly developed the factual evidence to establish whether the
secured parking facility and the covered sidewalk were in control of the employing establishment
such that appellant was on the premises when injured. The Board remanded the case for further
development and a de novo decision.
In an April 2, 2019 development letter, OWCP requested that the employing establishment
provide a diagram demonstrating the boundaries of its premises and the location of appellant’s
injury site in relation to those premises.
On April 16, 2019 the employing establishment submitted several photographs with
notations identifying parking lot B, the sidewalk maintained by the Tulsa Airport Authority,
identified as the general area where appellant fell, and the employees’ entrance.
In an April 24, 2019 e-mail, OWCP requested that the employing establishment respond to
the remainder of the questions posed by the Board. In response, the employing establishment
reported that appellant was not required to park in parking lot B. It further noted that there were
various locations where she could have chosen to park, as parking lot A and B were open to all
employees that worked at the airport and maintained by American Parking. The employing
establishment further noted that there was an additional American Parking lot, and a lot maintained
by Fine Parking. It reported that parking lot B was opened to all employees of the airport, not just
its employees; however, it was not open to the general traveling public. The employing
establishment noted that it provided a parking subsidy to appellant, not a specific parking space,
and that she could have chosen not to accept it. It reported that she was not assigned to parking
lot B, that it did not assign or provide parking, but that it provided an optional subsidy to help to
pay for parking. The employing establishment denied responsibility for monitoring or inspecting
the parking lots for security purposes and added that it did not pay a third party for those services.
It reported that the covered sidewalk where appellant fell was the normal route that she would have
traveled after parking in lot B.
By decision dated May 16, 2019, OWCP denied appellant’s traumatic injury claim finding
that her injury did not occur in the performance of duty as she was not on the employing
5

Supra note 2.

4

establishment premises at the time her injury occurred. On May 21, 2019 appellant, through
counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and
Review, which was held on August 27, 2019.
Appellant testified before an OWCP hearing representative and asserted that the general
public did not park in lot B. She further asserted that the general public did not use the sidewalk
where she fell, that it was the only way to get from parking lot B to the building, and that she paid
more to park in lot B as it was closer to her duty station than lot A. Appellant reported that there
was no mass public transit to the airport, only taxis or other automobile-based modes of transport.
By decision dated October 3, 2019, OWCP’s hearing representative vacated the May 16,
2019 decision. She remanded the case and directed OWCP to ascertain whether the employing
establishment was accessible to employees via public transportation and whether any employees,
in fact, traveled to work using public transportation.
On October 17, 2019 appellant provided a link to the Tulsa Transit System and noted that
it did not list the airport as a destination.
In a letter dated November 15, 2019, the employing establishment reported that the Tulsa
Transit System provided public transportation to and from the airport. It was located curbside
outside of baggage claim. The employing establishment noted that only one employee had utilized
this form of transportation. It also noted that taxi, other private vehicle transport, and airport
shuttle services were provided by the parking companies.
By decision dated December 31, 2019, OWCP denied appellant’s claim finding that she
was not injured in the performance of duty. On January 6, 2020 appellant, through counsel,
requested an oral hearing from a representative of OWCP’s Branch of Hearings and Review, which
was held on May 14, 2020.
Appellant testified before an OWCP hearing representative and asserted that at the time of
her injury on March 10, 2017 there was no public transportation available to the employing
establishment due to construction on the airport premises. Ap pellant alleged that she had no choice
but to park in a lot at the airport. She noted that Tulsa had instituted a new bus service in 2019,
the Aero bus. Appellant testified that she was not currently working due to her knee conditions
and had undergone surgery on one knee.
By decision dated July 15, 2020, OWCP’s hearing representative found that there were
public parking lots available to appellant, that she chose to park in lot B, even though it was more
expensive, and that the employing establishment did not contract for parking lot B, maintain it,
police it, or otherwise demonstrate any control over parking lot B or the walkway where appellant
fell. He noted that were other means of ingress to the work facility, particularly those routes from
lot A, such that the walkway were appellant fell was not the only access to work. OWCP’s hearing
representative found that appellant was not on the premises when her March 10, 2017 injury
occurred and was, therefore, not in the performance of duty.

5

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 6 that an injury was sustained in the performance of duty as alleged and
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury. 7 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease. 8
The phrase “sustained while in the performance of duty”9 Has been interpreted by the
Board to be the equivalent of the commonly found prerequisite in workers’ compensation law of
“arising out of and in the course of employment.”10 To arise in the course of employment,11 in
general, an injury must occur: (1) at a time when the employee may reasonably be said to be
engaged in the master’s business; (2) at a place where he or she may reasonably be expected to be
in connection with the employment; and (3) while he or she was reasonably fulfilling the duties of
her employment or engaged in doing something incidental thereto.12
It is well established as a general rule of workers’ compensation law that, as to employees
having fixed hours and places of work, injuries occurring on the premises of the employing
establishment, while the employees are going to or from work, before or after working hours or at
lunch time, are compensable13 but if the injury occurs off the premises, it is not compensable,
subject to certain exceptions. The Board has previously found that the term “premises” as it is
generally used in workers’ compensation law, is not synonymous with “property” because it does
not depend solely on ownership. The term “premises” may include all the property owned by the
employing establishment. In other instances, even if the employing establishment does not have

6

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); Kathryn Haggerty, 45 ECAB
383, 388 (1994); James E. Chadden, Sr., 40 ECAB 312 (1988).
8

See S.B., supra note 6; Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

9

5 U.S.C. § 8102(a); S.S., Docket No. 20-1349 (issued February 16, 2021); J.K., Docket No. 17-0756 (issued
July 11, 2018).
10

This construction makes the statute actively effective in those situations generally recognized as properly
within the scope of workers’ compensation law. J.K., id.; Bernard D. Blum, 1 ECAB 1 (1947).
11

See L.P., Docket No. 17-1031 (issued January 5, 2018).

12

T.F., Docket No. 08-1256 (issued November 12, 2008); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

13

L.P., supra note 11; Narbik A. Karamian, 40 ECAB 617, 618 (1989). The Board has also applied this general
rule of workers’ compensation law in circumstances where the employee was on an authorized break. See Eileen R.
Gibbons, 52 ECAB 209 (2001).

6

ownership and control of the place of injury, the place may nevertheless still be considered part of
the premises. 14
The Board has also held that the factors, which determine whether a parking area used by
employees may be considered part of the employing establishment’s premises include whether the
employing establishment contracted for the exclusive use by its employees of the parking area,
whether parking spaces in the area were assigned by the employing establishment to its employees,
whether the parking areas were checked to see that no authorized cars were parked in the area,
whether parking was provided without cost to the employees, whether the public wa s permitted to
use the area, and whether other parking was available to the employees. Mere use of a parking
facility alone is insufficient to bring the parking area within the premises of the employing
establishment. The premises doctrine is applied to those cases where it is affirmatively
demonstrated that the employing establishment owned, maintained, or controlled the parking
facility, used the facility with the owner’s special permission, or provided parking for its
employees. 15
As noted above, there are exceptions to the premises rule, and one is the proximity
exception, which allows constructive extension of the premises to those hazardous conditions,
which are proximate to the premises and may, therefore, be considered as hazards of the
employment.16 Underlying the proximity exception is the principle that course of employment
should extend to an injury that occurred at a point where the employee was within the range of
dangers associated with the employment. 17 The most common ground of extension is that the offpremises point at which the injury occurred lies on the only route, or at least on the normal route,
which employees must traverse to reach the premises, and that, therefore, the special hazards of
that route become the hazards of the employment. 18 This exception contains two components.
The first is the presence of a special hazard at the particular off-premises point. The second is the
close association of the access route with the premises, so far as going and coming are concerned.19

14

S.S., supra note 9; C.L., Docket No. 19-1985 (issued May 12, 2020); Wilmar Lewis Prescott, 22 ECAB 318,
321 (1971).
15

Federal (FECA) Procedure Manual, Part 2 - Claims, Performance of Duty, Chapter 2.804.(4)(f) (August 1992);
C.L., id.; R.K., Docket No. 18-1269 (issued February 15, 2019); Diane Bensmiller, 48 ECAB 675 (1997); Rosa M.
Thomas-Hunter, 2 ECAB 500 (1991); see also Edythe Erdman, 36 ECAB 597 (1985); Karen A. Patton, 33 ECAB
487 (1982); R.M., Docket No. 07-1066 (issued February 6, 2009).
16

D.K., Docket No. 11-1029 (issued February 1, 2012).

17

See J.K., supra note 9; Jimmie Brooks, 54 ECAB 248 (2002); Syed M. Jawaid, 49 ECAB 627 (1998).

18

Arthur & Lex Larson, The Law of Workers’ Compensation § 13.01(3). See also J.K, supra note 9; R.O., Docket
No. 08-2088 (issued May 18, 2009).
19

Id. at § 13.01(3)(b); L.P., supra note 11; Wilmar Lewis Prescott, supra note 14. Another exception to the rule is
the proximity rule, which the Board has defined by as where, under special circumstances, the industrial premises are
constructively extended to hazardous conditions, which are proximately located to the premises and may, therefore,
be considered as hazards of the employing establishment. The main consideration in applying the rule is whether the
conditions giving rise to the injury are causally connected to the employment. See William L. McKenney, 31 ECAB
861 (1980).

7

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty on March 10, 2017, as alleged.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s December 18, 2017 merit decision because
the Board considered that evidence in its February 13, 2019 decision. Findings made in prior
Board decisions are res judicata absent any further review by OWCP under section 8128 of
FECA.20
The Board has held that the premises of the employer are generally extended when an
employee must travel a public thoroughfare to traverse between two premises of the employer. 21
In order to determine whether the covered sidewalk between the employing establishment and
parking lot B, where appellant’s March 10, 2017 fall occurred, should be considered part of the
employing establishment’s premises, the Board must first consider the factors necessary to
determine whether parking lot B was under sufficient control of the employing establishment to
constitute its premises.22 As noted above, in determining whether a parking lot or garage should
be considered part of the employing establishment’s premises, the Board must consider such
factors as whether the employing establishment contracted for its exclusive use by its employees,
whether the employing establishment assigned parking spaces, whether the parking area was
checked to see that no unauthorized cars were parked in the parking area, whether the public was
permitted to use the parking area, whether parking was provided without cost to the employees,
and whether other parking was available to the employees. 23
The Board finds that appellant has not established that parking lot B, was exclusively or
principally used by employees of the employing establishment. Appellant and the employing
establishment have agreed that parking lot B was open to airport employees as well as those of the
employing establishment. The parties agree that the employing establishment did not assign the
space or the lot in which appellant parked. Both parties also agree that appellant could have parked
in lot A or B or in other public parking locations at the airport. Appellant chose to park in lot B as
it was closest to the employing establishment entrance and paid a premium above the parking
subsidy allotment provided to her to park in that lot.24 While she noted that parking lot B was the

20

See B.R., Docket No. 17-0294 (issued May 11, 2018); Clinton E. Anthony, Jr., 49 ECAB 476, 479 (1998); see
also 20 C.F.R. § 501.6(d).
21

R.B., Docket No. 11-1320 (issued September 5, 2012).

22

R.E., Docket No. 18-0515 (issued February 18, 2020).

23

C.L., supra note 14.

24

C.B., Docket No. 12-1849 (issued January 13, 2014).

8

nearest option for all employees, she has not provided any relevant evidence to establish that she
was required to park in that parking lot or assigned specific parking space. 25
As parking lot B was not a part of the employing establishment premises, and as app ellant
was not required to park there, the off-premises point at which the injury occurred, the covered
sidewalk, does not lie on the only route or on the normal route, which employees must traverse to
reach the premises, such that the special hazards of that route become the hazards of the
employment. 26 The record reveals that there were multiple places that appellant could park on the
airport premises and, therefore, multiple ways that she could have accessed her workplace. She
did not establish within the meaning of FECA, that there were hazardous conditions proximately
located to the premises, which would establish a constructive extension.27 Rather appellant’s act
of tripping on uneven pavement was a hazard common to all travelers on the sidewalk and was not
causally related to her employment. 28 Thus, her injury constitutes an ordinary nonemployment
hazard of the journey itself, shared by all travelers. 29
As the record fails to support the application of an exception to the off -premises rule, the
Board finds that appellant did not meet her burden of proof to establish that she sustained an injury
in the performance of duty on March 10, 2017.30
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty on March 10, 2017, as alleged.

25

J.B., Docket No. 17-0378 (issued December 22, 2017).

26

See F.S., Docket No. 09-1573(issued April 6, 2010) (finding that although the crosswalk where the claimant was
injured may have been the normal route to reach the employing establishment from the short-term lot, the claimant
was not required to park in the short-term lot and, by extension, was not required to use the crosswalk).
27

D.B., Docket No. 13-0510 (issued June 10, 2013).

28

F.S., supra note 26.

29

Id.

30

See Jon Louis Van Alstine, 56 ECAB 136 (2004). See also Linda S. Jackson, 49 ECAB 486 (1998).

9

ORDER
IT IS HEREBY ORDERED THAT the July 15, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
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

10


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

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

Docket No. 17-0919
Issued: June 28, 2017

Case Submitted on the Record

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

JURISDICTION
On March 20, 2017 appellant filed a timely appeal from a February 10, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish a right shoulder
condition causally related to factors of her federal employment.
FACTUAL HISTORY
On November 1, 2016 appellant, then a 32-year-old city letter carrier, filed an
occupational disease claim (Form CA-2) alleging severe pain in her right shoulder and right
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of OWCP’s February 10, 2017 decision, and on appeal, appellant
submitted new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time
it issued its final decision. Thus, the Board may not consider the new evidence. See 20 C.F.R. § 501.2(c)(1).

lower leg caused or aggravated by casing and carrying mail. She became aware of the condition
on December 9, 2013 and realized its relationship to her federal employment in January 2015.
Appellant stopped work on October 19, 2016. She indicated that she had previously filed a claim
under OWCP File No. xxxxxx755 regarding a December 9, 2013 work-related motor vehicle
accident. Appellant related that she stopped work following this accident and returned to work
with restrictions in July 2014. She claimed, however, that her right shoulder pain was still
present and it worsened as she continued to work casing and carrying mail.
By letter dated December 20, 2016, OWCP informed appellant of the deficiencies of her
claim and requested that she submit medical evidence and respond to its inquiries.3 It also
requested that the employing establishment submit treatment notes if appellant was treated at an
employing establishment medical facility.
In a December 29, 2016 letter, appellant noted that she filed the current claim because
she believed that her right shoulder condition had worsened due to her work duties, which
included casing mail six to eight and one-half hours a day. She related that she repetitively used
her arm while casing four to six routes a day within eight hours. Appellant maintained that she
cased about five feet of letters and five feet of flat mail on each route. In performance of these
duties, she reached out from her waist to above her head for about one and one-half to two and
one-half hours on each case. Appellant noted that she loaded mail into a postal vehicle and took
it out to carriers who delivered it. She performed the described activities eight and one-half
hours a day. Appellant claimed that her right shoulder started to pop more often and she
experienced more pain. She indicated that she was not engaged in any employment or business
outside of her postal employment and that she did not play any sport or have a hobby.
In reports dated January 17 and 26, 2017, Dr. Jimmy S. Padilla, an attending physiatrist,
noted an injury date of December 9, 2013 and appellant’s return to work in July 2014. He also
noted her social and medical history and provided examination findings. Dr. Padilla diagnosed
right bicipital tendinitis and right rotator cuff syndrome. He listed appellant’s restrictions and
placed her on modified activity at work and home from January 17 through February 9, 2017.
Dr. Padilla noted that according to OWCP appellant’s right shoulder claim appeared to be a new
claim that resulted from casing mail.
In a February 10, 2017 decision, OWCP denied appellant’s occupational disease claim. It
found that the medical evidence of record was insufficient to establish a right shoulder condition
causally related to the accepted employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the

3

In its December 20, 2016 development letter, OWCP noted that appellant’s traumatic injury claim under File
No. xxxxxx755 had been accepted for a right shoulder condition. File No. xxxxxx755 is not before the Board on the
present appeal.

2

employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable 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.6
ANALYSIS
OWCP accepted that appellant performed the work duties of a city letter carrier, which
involved, among other duties, casing and carrying mail. The Board finds, however, that the
medical evidence of record is insufficient to establish that she sustained a right shoulder
condition caused or aggravated by the accepted work factors.
The sole medical evidence consists of Dr. Padilla’s reports. In his reports, Dr. Padilla
found that appellant had right bicipital tendinitis and right rotator cuff syndrome. He noted an
injury date of December 9, 2013, the date of appellant’s previously accepted claim for a right
shoulder injury under File No. xxxxxx755. While Dr. Padilla indicated that according to OWCP
the present claim appeared to be a new claim for a right shoulder injury due to casing mail, he
did not specifically provide his own medical opinion as to whether the established employment
factors in this claim caused or aggravated appellant’s right shoulder conditions. The Board has
held that medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value.7 The Board finds that the evidence from Dr. Padilla is
insufficient to establish appellant’s claim.
Appellant’s belief that factors of employment caused or aggravated her condition is
insufficient, by itself, to establish causal relationship.8 The issue of causal relationship is a
medical one and must be resolved by probative medical opinion from a physician. The Board
finds that there is insufficient medical evidence of record to establish that appellant’s right
4

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id.

7

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
8

20 C.F.R. § 10.115(e); Phillip L. Barnes, 55 ECAB 426, 440 (2004).

3

shoulder condition was caused or aggravated by the accepted employment factors. Appellant,
therefore, did not meet her 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 has failed to meet her burden of proof to establish a right
shoulder condition causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the February 10, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 28, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Ontario, CA, Employer
__________________________________________

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

Docket No. 19-0032
Issued: June 10, 2021

Case Submitted on the Record

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

JURISDICTION
On October 4, 2018 appellant filed a timely appeal from an August 9, 2018 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 to
consider the merits of this case.
ISSUE
The issue is whether OWCP properly identified the date of maximum medical
improvement (MMI) for payment of appellant’s schedule award compensation.
FACTUAL HISTORY
On August 26, 2010 appellant, then a 36-year-old human resource specialist, filed a
traumatic injury claim (Form CA-1), alleging that she sustained several injuries as a result of an
1

5 U.S.C. § 8101 et seq.

August 24, 2010 slip and fall when on official travel while in the performance of duty. OWCP
accepted her claim for contusion of the left shoulder and upper arm, left shoulder strain, lumbar
strain, left wrist sprain, and sciatica. It subsequently expanded the acceptance of appellant’s claim
to include left adhesive capsulitis, left-side sciatica, sprain of the neck, and cervical spondylosis
without myelopathy.
A magnetic resonance imaging (MRI) scan of the left shoulder dated September 22, 2010
revealed mild tendinopathy with possible undersurface tear of the infraspinatus tendon and
supraspinatus tendon.
On August 31, 2011 Dr. Michael Sukay, a Board-certified orthopedist, performed a left
shoulder arthroscopy with Mumford procedure and diagnosed impingement syndrome of the
shoulder.
On August 1, 2012 appellant filed a claim for a schedule award (Form CA-7).
On August 13, 2012 OWCP referred appellant, along with a statement of accepted facts
(SOAF), to an OWCP district medical adviser (DMA) for an opinion on the permanent impairment
of appellant’s left upper extremity under the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),2 and the date of maximum
medical improvement (MMI). In an August 14, 2012 report, Dr. Ellen Pichey, a family medicine
specialist serving as the DMA, noted that she had reviewed the medical records provided by
OWCP. She provided an impairment rating pursuant to the A.M.A., Guides’ diagnosis-based
impairment (DBI) methodology, of 11 percent permanent impairment citing to Table 15-5 for a
diagnosis of distal clavicle resection.3
By decision dated September 25, 2012, OWCP granted appellant a schedule award for 11
percent impairment of the left upper extremity. The award ran for 34.32 weeks from June 7, 2012
to February 2, 2013.
In a January 12, 2016 report, Dr. Guirguis Hanna, Board-certified in occupational
medicine, provided a history of injury and physical examination findings. He diagnosed
impingement syndrome of the left shoulder, history of arthroscopic shoulder surgery of the left
shoulder on August 31, 2011 adhesive capsulitis of the left shoulder, left side sciatica, and lumbar
radiculopathy, caused or aggravated by appellant’s employment injury. Dr. Hanna used the sixth
edition of the A.M.A., Guides, to rate her bilateral shoulder impairment. He indicated that he rated
appellant’s impairment utilizing the DBI and range of motion (ROM) methodology. Dr. Hanna
noted that, while both methods were reviewed, she was rated using the ROM methodology because
it resulted in a higher rating. Using Table 15-34, page 475, Figures 15-35, page 477, and Table
15-36, page 477, he found left shoulder flexion of 50 degrees for nine percent impairment,
extension of 30 degrees for one percent impairment, abduction of 45 degrees for six percent
impairment, adduction of 20 degrees for one percent upper extremity impairment, external rotation
of zero degrees for two percent impairment, and internal rotation of 40 degrees for four percent
2

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

3

Id. at 403, Table 15-5.

2

upper extremity impairment. Dr. Hanna determined, after adding the impairment values, that
appellant had a total left upper extremity permanent impairment rating of 23 percent. He further
found that she reached MMI on June 6, 2012.
On March 18, 2016 appellant filed a claim for an additional schedule award (Form CA-7).
On April 11, 2016 OWCP referred appellant’s case to Dr. Michael M. Katz, a Boardcertified orthopedic surgeon serving as a DMA. It requested that he review the medical evidence
of record, including Dr. Hanna’s January 12, 2016 report, and provide an opinion regarding the
permanent impairment of her left upper extremity under the sixth edition of the A.M.A., Guides.
In an April 12, 2016 report, Dr. Katz, reviewed Dr. Hanna’s January 12, 2016 report and
determined that Dr. Hanna’s impairment evaluation could not be considered as probative for the
purpose of recommending a schedule award under FECA as it does not allow a schedule award for
the spine unless “it results in permanent impairment of the extremities, generally manifest as spinal
nerve impairment.” He further indicated that the record lacked sufficient detail to permit
assignment of an impairment rating.
OWCP subsequently referred appellant for a second opinion evaluation with Dr. Mark
Bernhard, an osteopath and Board-certified physiatrist, to provide an opinion on the permanent
impairment of her left upper extremity.
In a January 24, 2017 report, Dr. Bernhard reviewed the medical evidence and performed
a physical examination. He noted that the accepted conditions were contusion of the left shoulder
and upper arm, sprain of the left shoulder and upper arm, lumbar sprain, left wrist sprain, adhesive
capsulitis of the left should, cervical strain, sciatica, and cervical spondylosis without myelopathy.
Dr. Bernhard noted ROM for the left shoulder for flexion was 65 degrees, extension of 30 degrees,
abduction of 45 degrees, adduction of 40 degrees, external rotation of 50 degrees, and internal
rotation of 52 degrees. He rated appellant according to the most impairing condition, distal clavicle
requiring resection, acromioclavicular joint injury or disease with mild residual symptoms, and
status post distal clavicle resection. Using the A.M.A., Guides, DBI method for rating permanent
impairment of the upper extremity Dr. Bernhard determined that appellant fell into an impairment
class 1 default of C, 10 percent upper extremity impairment pursuant to Table 15-5, Shoulder
Regional Grid. Dr. Bernhard noted that his examination revealed permanent limitations in
reaching with the left shoulder, pain, lack of full ROM, stiffness, and complaints with activities of
daily living. Based on these findings he selected a grade modifier for functional history (GMFH)
of 2, for a moderate problem with pain symptoms with normal activity and occasional medications
to control symptoms. Dr. Bernhard indicated that he would not use the QuickDASH score of 89
since that would rate appellant as a very severe problem and would not accurately reflect the level
of functional impairment because she was able to work and perform activities of daily living. With
regard to physical examination he noted mild tenderness, symptoms with activities, and moderate
decrease ROM resulted in a grade modifier for physical examination (GMPE) of 2. Dr. Bernhard
indicated that since clinical studies were utilized originally in making the original diagnoses they
would not be applied as a modifier. He likewise noted that the QuickDASH score of 89 would not
accurately reflect the degree of functional limitations described by appellant. Using these
calculations the net adjustment formula resulted in a net adjustment of +2 which would move

3

appellant from a Grade C to Grade E or 12 percent left upper extremity permanent impairment as
a result of the left shoulder distal clavicle resection, left shoulder arthroscopy on August 31, 2011.
OWCP referred appellant’s case back to Dr. Katz, serving in his role as a DMA. It
requested that he review the medical evidence of record, including Dr. Bernhard’s January 24,
2017 report and provide an opinion regarding permanent impairment of appellant’s left upper
extremity under the sixth edition of the A.M.A., Guides.
In his March 6, 2017 report, Dr. Katz opined that Dr. Bernhard’s determination that
appellant had 12 percent permanent impairment of the left upper extremity was supported by the
records reviewed and was consistent with the methodology set forth by the A.M.A., Guides. He
found that the date of MMI was January 24, 2017, the date of Dr. Bernhard’s examination.
Dr. Katz concluded that the net additional award for the left upper extremity was one percent
impairment of the left upper extremity.
By decision dated April 3, 2017, OWCP granted appellant a schedule award for an
additional one percent impairment of the left upper extremity, for a total 12 percent permanent
impairment of the left upper extremity. It noted that she was previously paid a schedule award for
11 percent impairment of the left upper extremity by decision dated September 25, 2012. The date
of MMI was listed as January 24, 2017, and the period of the award ran for 3.12 weeks from
March 8 to 29, 2017.
On March 7, 2017 Dr. Hanna diagnosed sciatica left side, lumbar radiculopathy, and
adhesive capsulitis of the left shoulder and repeated his impairment rating as noted in his
January 12, 2016 report. He again opined that, based on the ROM method, which resulted in a
higher rating, appellant had a total left upper extremity permanent impairment rating of 23 percent.
Dr. Hanna found that she had reached MMI on June 6, 2012.
On April 4, 2017 Dr. Thomas Pham, Board-certified in occupational medicine, provided
an attending physician’s supplementary report requesting an ergonomic evaluation of appellant’s
workstation. He reviewed her history of injury and medical treatment, including arthroscopic
surgery on August 21, 2011.
Dr. Pham referenced Dr. Hanna’s January 12, 2016 and
March 7, 2017 reports.
On April 4, 2017 appellant filed a claim for a schedule award (Form CA-7) for her left
lower extremity.
OWCP referred appellant for a second opinion evaluation with Dr. Michael J. Einbund, a
Board-certified orthopedic surgeon, for an opinion on permanent impairment of her bilateral lower
extremities.
In a June 1, 2017 report, Dr. Einbund, reviewed the medical evidence of record and
performed a physical examination. He diagnosed cervical sprain, resolved, cervical spondylosis
without myelopathy, left shoulder capsulitis, status post left shoulder arthroscopy on August 31,
2011 lumbar sprain, resolved, and sciatica. Dr. Einbund noted that appellant continued to have
residuals of the injury as it related to her left shoulder and sciatica. On examination, the left
shoulder revealed a healed arthroscopic scar, abduction was 80 degrees, flexion was 90 degrees,
extension was 35 degrees, external rotation was 70 degrees, internal rotation was 45 degrees, and
4

adduction was 40 degrees. Dr. Einbund further noted left shoulder motor weakness of 4/5. He
found that, pursuant to The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using
the Sixth Edition (July/August 2009) (The Guides Newsletter), appellant had a one percent left
lower extremity permanent impairment.
OWCP again referred appellant’s case back to Dr. Katz, serving in his role as a DMA. It
requested that he review the medical evidence of record, including Dr. Einbund June 1, 2017 report
and provide an opinion regarding permanent impairment of her bilateral lower extremities under
the sixth edition of the A.M.A., Guides.
In a July 20, 2017 report, Dr. Katz noted that he concurred with Dr. Einbund’s
determination that appellant had one percent permanent impairment of the left lower extremity.
He found that she reached MMI on June 1, 2017, the date of Dr. Einbund’s examination.
By decision dated August 23, 2017, an OWCP hearing representative set aside the April 3,
2017 decision and remanded the case to reevaluate the extent of appellant’s permanent impairment
of her left upper extremity applying the tenets provided in FECA Bulletin No. 17-06. Pursuant to
the Bulletin, if the A.M.A., Guides allowed for both the ROM and DBI methodologies in
calculating permanent impairment of the upper extremity, the method that yielded the higher
impairment rating should be used.
On June 4, 2018 OWCP referred appellant’s case back to Dr. Katz, serving in his role as a
DMA, for a supplemental report. It specifically requested that he apply the tenets provided in
FECA Bulletin No. 17-06 in rendering an opinion regarding permanent impairment of her left
upper extremity.
In a June 5, 2018 report, Dr. Katz noted that he reviewed the SOAF and medical records
provided by OWCP, applying FECA Bulletin 17-06. He opined that Dr. Hanna’s recorded motion
of the left shoulder in his January 12, 2016 report did not meet the criteria for determination of
impairment on the basis of the ROM method because the report failed to document three
independent measurements of each arc with the greatest ROM use for the determination of
impairment. Dr. Katz further noted that the second opinion evaluation of Dr. Einbund dated
June 1, 2017 also failed to document three independent measurements of the shoulder motion arc,
which does not conform to the guidelines set forth in FECA Bulletin 17-06 for a ROM rating. He
opined that, based on the information provided in the records reviewed, a probative ROM rating
could not be calculated.
In a decision dated August 9, 2018, OWCP denied appellant’s claim for an additional
schedule award for the left upper extremity.
LEGAL PRECEDENT
Permanent impairment is to be rated according to the A.M.A., Guides, and only after the
status of MMI is determined. Before a schedule award can be awarded, it must be medically
determined that no further improvement can be anticipated and the impairment must reach a fixed

5

and permanent state, which is known as MMI.4 MMI means that the physical condition of the
injured member of the body has stabilized and will not improve further.5
Impairment should not be considered permanent until a reasonable time has passed for the
healing or recovery to occur. This will depend on the nature of underlying pathology, as the
optimal duration for recovery may vary considerably. The clinical findings must indicate that the
medical condition is static and well stabilized for the person to have reached MMI.6
The period covered by a schedule award commences on the date that the employee reaches
MMI from the residuals of the injury. The question of when MMI has been reached is a factual
one that depends upon the medical findings in the record. The determination of such date is to be
made in each case upon the basis of the medical evidence in that case.7 The date of MMI is usually
considered to be the date of the medical examination that determined the extent of the impairment.8
The Board has also noted a reluctance to find a date of MMI which is retroactive to the
award, as retroactive awards often result in payment of less compensation benefits. The Board,
therefore, requires persuasive proof of MMI if OWCP selects a retroactive date.9 The
determination of whether MMI has been reached is based on the probative medical evidence of
record and is usually considered to be the date of the evaluation by the attending physician, which
is accepted as definitive by OWCP.10
ANALYSIS
On appeal appellant does not contest the percentage of permanent impairment of her
schedule award. Rather, she contests the date the schedule award began. The Board will therefore
review whether OWCP properly identified the date of MMI.
The Board finds that OWCP properly identified the date of MMI.

4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3a(1) (January 2010); see
also C.R., Docket No. 17-1872 (issued March 8, 2018); P.L., Docket No. 13-1340 (issued October 28, 2013).
5

C.R., id.; Adela Hernandez-Piris, 35 ECAB 839 (1984).

6

A.M.A., Guides 24 (6th ed. 2009); see Orlando Vivens, 42 ECAB 303 (1991) (a schedule award is not payable
until MMI -- meaning that the physical condition of the injured member of the body has stabilized and will not improve
further -- has been reached); see R.I., Docket No. 09-1559 (issued August 23, 2010).
7
C.H., Docket No. 19-1639 (issued April 3, 2020); Peter C. Belkind, 56 ECAB 580 (2005); Marie J. Born, 27
ECAB 623 (1976).
8

Supra note 4 at Chapter 3.700.3 (January 2010).

9

C.H., supra note 7; C.W., Docket No. 13-1501 (issued November 15, 2013).

10

R.M., Docket No. 18-1313 (issued April 11, 2019); C.H., id.

6

As the Board noted, the date of MMI is usually considered to be the date of the medical
examination that determined the extent of the impairment.11 OWCP referred appellant for a second
opinion evaluation with Dr. Bernhard to determine her impairment using the sixth edition of the
A.M.A., Guides. Dr. Bernhard provided sufficient explanation regarding appellant’s physical
examination findings and diagnoses to allow OWCP’s DMA, Dr. Katz, to calculate that appellant
had an additional one percent permanent impairment of left upper extremity. Dr. Katz found that
appellant had reached MMI on January 24, 2017, the date of Dr. Bernhard’s examination.
MMI means that the physical condition of the injured member of the body has stabilized
and will not improve further. This date, which is determined through evaluation of the medical
evidence, is usually considered to be the date of the evaluation accepted as definitive by OWCP.12
January 24, 2017 was the date that Dr. Bernhard conducted a comprehensive evaluation of
appellant’s left upper extremity conditions.
For the above reasons, the Board finds that OWCP properly identified the date of MMI as
January 24, 2017. The Board will thus affirm OWCP’s August 9, 2018 decision.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.

11

Id.

12

C.R., supra note 4.

7

CONCLUSION
The Board finds that OWCP properly identified the date of MMI for payment of appellant’s
schedule award compensation.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated August 9, 2018 is affirmed.
Issued: June 10, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8