United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bend, OR, Employer
__________________________________________

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

Docket No. 19-1284
Issued: January 14, 2020

Case Submitted on the Record

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

JURISDICTION
On May 21, 2019 appellant, through counsel, filed a timely appeal from a March 22, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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.

3
The Board notes that following the March 22, 2019 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 evidence for
the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish greater than two
percent permanent impairment of her right upper extremity, for which she previously received a
schedule award.
FACTUAL HISTORY
On March 1, 2013 appellant, then a 47-year-old distribution clerk, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral wrist tendinitis as a result of
factors of her federal employment including pulling and loading mail on machines. She first
became aware of her condition and of its relationship to factors of her federal employment on
December 17, 2012. By decision dated April 1, 2013, OWCP accepted the claim for bilateral
de Quervain’s tenosynovitis. On May 30, 2013 appellant underwent OWCP-approved right wrist
release of the first dorsal compartment surgery. She stopped work intermittently and OWCP paid
her wage-loss compensation on the supplemental rolls. Appellant was released to full-duty work
on September 24, 2014.
On March 30, 2015 appellant filed a claim for a schedule award (Form CA-7).
Following initial development and denial of the schedule award claim4 on November 11,
2016 OWCP referred appellant to Dr. Thomas L. Gritzka, a Board-certified orthopedic surgeon,
for a second opinion evaluation regarding permanent impairment in accordance with the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).5
In his November 11, 2016 report, Dr. Gritzka utilized the range of motion (ROM)
methodology to calculate eight percent permanent impairment of the right upper extremity due to
residuals of appellant’s de Quervain’s disease and surgery.
On February 11, 2017 Dr. Herbert White, Board-certified in occupational medicine serving
as an OWCP district medical adviser (DMA), reviewed the medical evidence of record and
determined that maximum medical improvement (MMI) was reached on November 11, 2016, the
date of Dr. Gritzka’s examination. He reported that under the diagnosis-based impairment (DBI)
method for de Quervain’s sprain/strain, appellant sustained two percent permanent impairment of
the right upper extremity.6 Dr. White further reported that due to inconsistencies between
Dr. Gritzka’s examination findings and prior physical examination findings, the ROM
methodology was excluded and impairment was rated only using the DBI method.
By decisions dated May 23, 2017, OWCP vacated the December 27, 2016 decision and
accepted appellant’s claim for a schedule award. It granted two percent permanent impairment of

4
By decisions dated February 16 and December 27, 2016, OWCP denied appellant’s schedule award claim. On
January 27, 2017 appellant, through counsel, requested reconsideration.
5

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

6

Id. at 395, Table 15-3.

2

the right upper extremity. The date of MMI was noted as November 11, 2016 and the period of
award ran for 6.24 weeks from November 11 to December 24, 2016.
On June 7, 2017 appellant, through counsel, requested review of the written record before
an OWCP hearing representative.
By decision dated October 6, 2017, OWCP’s hearing representative set aside the May 23,
2017 decision and remanded the claim for further medical development and application of FECA
Bulletin No. 17-06.7 The hearing representative instructed OWCP to refer appellant for a second
opinion examination and to instruct the specialist to provide an assessment of permanent
impairment using both the DBI and ROM rating methods in accordance with FECA Bulletin
No. 17-06.
Upon return of the case record, OWCP referred appellant to Dr. James Schwartz, a Boardcertified orthopedic surgeon, for a second opinion evaluation and opinion regarding permanent
impairment in accordance with FECA Bulletin No. 17-06 and the sixth edition of the A.M.A,
Guides.
In his February 3, 2018 report, Dr. Schwartz provided his ROM findings pertaining to
appellant’s right wrist, reporting the average amounts based on “two to three tries” each. He
calculated three percent permanent impairment utilizing the ROM methodology, but noted that he
believed this impairment should be less than three percent per his evaluation and per appropriate
rounding. Utilizing the DBI methodology for de Quervain’s wrist sprain, Dr. Schwartz opined
that appellant sustained two percent permanent impairment of the right upper extremity. He opined
that the DBI methodology should be used.8 Dr. Schwartz noted that, if appellant’s ROM findings
were rounded appropriately, she would have zero percent permanent impairment. He concluded
that appellant sustained two percent permanent impairment of the right upper extremity and that
she reached MMI on February 3, 2018.
By decision dated February 15, 2018, OWCP denied appellant’s claim for an increased
schedule award.
On February 23, 2018 appellant, through counsel, requested review of the written record
before an OWCP hearing representative.
By decision dated June 5, 2018, OWCP’s hearing representative set aside the February 15,
2018 decision and remanded the case for further development. She found that Dr. Schwartz’s
opinion was not well rationalized and could not carry the weight of the medical evidence. The
hearing representative noted that the A.M.A., Guides indicate that three independent ROM
measurements should be documented, whereas Dr. Schwartz reported the average of two to three
tries each. She further reported that there was no indication that the second opinion report had
been reviewed by a DMA to determine whether the schedule award was correctly calculated. The
hearing representative remanded the case for clarification from Dr. Schwartz and further review
by a DMA.

7

FECA Bulletin No. 17-06 (May 8, 2017).

8

Supra note 5.

3

On remand OWCP requested Dr. Schwartz provide clarification concerning whether three
independent ROM measurements were completed as required by the A.M.A., Guides. It further
requested he provide a well-rationalized explanation as to whether the claimant had a right upper
extremity permanent impairment greater than the two percent previously awarded.
In a July 16, 2018 addendum report, Dr. Schwartz reported that during the physical
examination, several tries, “essentially greater than three range of motion measurements,” were
done for each wrist. He reported that the noted examination findings were the “averages of these
measurements.” Dr. Schwartz indicated that, according to the A.M.A., Guides, wrist extension of
55 degrees should be rounded and he would round this upwards to 60 degrees. He reported that
ROM was an appropriate alternative impairment rating. Dr. Schwartz determined that pursuant to
Table 15-32, appellant’s findings fell into the range between grade modiﬁer 0 and 1, and rounding
upwards resulted in a zero percent impairment rating of the right upper extremity.9 Thus, he found
that the DBI method provided the higher impairment rating at two percent permanent impairment
and should be used as the method of evaluation.
On July 29, 2018 Dr. White, serving as a DMA, reviewed the medical evidence of record
including the reports from Dr. Schwartz. He agreed with Dr. Schwartz’s impairment rating and
utilized the DBI methodology to calculate two percent permanent impairment of the right upper
extremity. With regard to the ROM methodology, the DMA reported that he was “unable to rate
the impairment with the information provided.” He explained that in Dr. Schwartz’s report, the
three motions were averaged when the greatest of the three motions should have been used. The
DMA explained that the A.M.A., Guides provide that, “The maximum observed measurement is
used to determine the range of motion impairment.”10 He went on to calculate impairment utilizing
the ROM averages which amounted to zero percent permanent impairment of the right upper
extremity. The DMA concluded that appellant was not entitled to a schedule award for more than
the two percent permanent impairment previously awarded.
By decision dated August 3, 2018, OWCP denied appellant’s request for an additional
schedule award finding that the requirements had not been met to establish a permanent
impairment greater than the two percent previously awarded.
Appellant, through counsel, requested a telephonic hearing before an OWCP hearing
representative on August 8, 2018. The hearing was held on January 8, 2019.
By decision dated March 22, 2019, OWCP’s hearing representative affirmed the August 3,
2018 decision.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations 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.11 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
9

Id. at 473.

10

Id. at 464.

11

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

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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.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.12 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).13
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment class of diagnosis (CDX) condition, which is then adjusted by grade modifiers based
on functional history (GMFH), physical examination (GMPE), and clinical studies (GMCS).14 The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).15
The A.M.A., Guides also provide that ROM impairment methodology is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
DBI sections are applicable.16 If ROM is used as a stand-alone approach, the total of motion
impairment for all units of function must be calculated. All values for the joint are measured and
added.17 Adjustments for functional history may be made if the evaluator determines that the
resulting impairment does not adequately reflect functional loss and functional reports are
determined to be reliable.18
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments.19 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
12

20 C.F.R. § 10.404; L.T., Docket No. 18-1031 (issued March 5, 2019); see also Ronald R. Kraynak, 53 ECAB
130 (2001).
13

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5 (March 2017).
14

A.M.A., Guides 383-492.

15

Id. at 411.

16

Id. at 461.

17

Id. at 473.

18

Id. at 474.

19

FECA Bulletin No. 17-06 (May 8, 2017).

5

Guides identify a diagnosis that can alternatively be rated by ROM. If the A.M.A.,
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)20
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”21
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified.22
ANALYSIS
The Board finds that the case is not in posture for decision.
Upon development of the claim, OWCP referred appellant to Dr. Schwartz for a second
opinion examination and opinion regarding permanent impairment of appellant’s right wrist. In
his February 3, 2018 report, Dr. Schwartz utilized the DBI method and calculated two percent
permanent impairment of the right upper extremity.23 Regarding the ROM methodology, he
provided averages based on two to three tries. Dr. Schwartz calculated three percent permanent
impairment based on the ROM methodology, but also opined that, if appellant’s range of motion
was rounded appropriately, she would have zero percent permanent impairment of the right wrist.
Following receipt of the report, OWCP requested Dr. Schwartz provide clarification
concerning whether three independent ROM measurements were completed as required by the
A.M.A., Guides. Rather than providing three independent ROM measurements as required by the
A.M.A., Guides, Dr. Schwartz only noted the averages of these measurements which he
improperly used when determining that appellant had zero percent permanent impairment under
the ROM methodology.24
Consistent with its procedures,25 OWCP referred the matter to a DMA for an opinion
regarding appellant’s permanent impairment in accordance with the A.M.A., Guides. Dr. White,
20

A.M.A., Guides 477.

21

Supra note 18; V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., Docket No. 18-0329 (issued
July 26, 2018).
22

See Federal (FECA) Procedure Manual, supra note 13 at Chapter 2.808.6(f) (March 2017).

23

Supra note 5.

24

A.M.A., Guides 464.

25

Id.

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serving as the DMA, reviewed the reports of Dr. Schwartz and also determined that appellant
sustained two percent permanent impairment based on the DBI methodology. With regard to the
ROM methodology, the DMA reported that he was unable to rate the impairment with the
information provided. The DMA correctly explained that in Dr. Schwartz’s report, the three
motions were averaged when the greatest of the three motions should have been used.26
The Board finds that as Dr. Schwartz failed to render a proper examination and impairment
evaluation as requested, his report, as well as that of the DMA, is insufficient to resolve the issue
in this claim.
On remand OWCP should send appellant to a new second opinion physician and further
develop the claim to obtain three independent ROM measurements as required under FECA
Bulletin No. 17-06.27 After it obtains the evidence necessary to complete the rating as described
above, the case should be referred to a DMA to independently calculate impairment to the right
upper extremity using both ROM and DBI methods and identify the higher rating.28 Following
this and such further development as deemed necessary, OWCP shall issue a de novo decision.29
CONCLUSION
The Board finds that the case is not in posture for decision.

26

Id.

27

J.S., Docket No. 19-0483 (issued October 10, 2019).

28

See J.V., Docket No. 18-1052 (issued November 8, 2018); M.C., Docket No. 18-0526 (issued
September 11, 2018).
29

J.F., Docket No. 17-1726 (issued March 12, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the March 22, 2019 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: January 14, 2020
Washington, DC

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

Janice B. Askin, 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
__________________________________________
H.M., Appellant
and
TENNESSEE VALLEY AUTHORITY, ALLEN
FOSSIL PLANT, Memphis, TN, Employer
__________________________________________

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

Docket No. 19-0188
Issued: April 26, 2019

Case Submitted on the Record

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

JURISDICTION
On November 5, 2018 appellant filed a timely appeal from an October 12, 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 review the merits of this case.
ISSUE
The issue is whether appellant has established that his binaural hearing loss is causally
related to the accepted factors of his federal employment.
FACTUAL HISTORY
On March 6, 2018 appellant, then a 56-year-old steamfitter, filed an occupational disease
claim (Form CA-2) alleging employment-related hearing loss. He indicated that he first became
aware of his condition on October 20, 2017 and realized its relationship to his federal employment
1

5 U.S.C. § 8101 et seq.

on February 15, 2018. Appellant explained that during an annual physical an employing
establishment nurse informed him that the results of his hearing test showed a loss of hearing.
In a separate undated statement, appellant noted that he had been a steamfitter with the
employing establishment since June 18, 2011. He indicated that he worked around boilers, feed
pumps, motors, turbines, moving belts and rollers, impact drills, welding machines, and air
compressors, and that he worked in forced draft fan rooms, which required double hearing
protection. Appellant’s current steamfitter duties also included the tasks of grinding, hammering,
gouging, and welding. He also indicated that he had worked in the private sector as a welder from
1980 to 1994 and September 1997 to October 2011. Appellant described essentially the same type
of exposure in the private sector, and noted that he was exposed to noise six to eight hours on a
daily basis. He also reported that he used hearing protection around noise.
By development letter dated March 20, 2018, OWCP informed appellant that the evidence
of record was insufficient to establish his claim. It advised him of the type of factual and medical
evidence needed and provided a questionnaire for his completion. By separate letter of even date,
OWCP requested that the employing establishment submit evidence in its possession relative to
appellant’s alleged noise exposure. It afforded both parties 30 days to submit the necessary
evidence.
In a March 28, 2018 statement, appellant reiterated the information contained in his earlier
statement and information included in his Form CA-2. He also indicated that he was still exposed
to hazardous noise at work and that he occasionally hunts and fishes.
OWCP received employing establishment noise exposure reports and audiograms dated
July 25, 2011 to April 27, 2018. Appellant’s March 15, 2018 responses to a questionnaire
indicated that he attended loud concerts, rode motorcycles, used power tools, operated his own
watercraft, hunted using firearms, and that his past jobs involved noise exposure.
An audiologist, Dr. Whitney R. Mauldin, submitted a report dated April 30, 2018 at the
request of the employing establishment. She indicated that appellant’s baseline examination of
July 25, 2011 should be used for all comparisons, and noted that the baseline examination showed
significant preexisting hearing loss in both ears, right worse than left. Dr. Mauldin’s review of the
plant records revealed “NO work-related incident resulting in acoustical trauma that would have
affected his hearing anytime during his federal employment.” She noted that use of the mandatory
earplugs would have reduced even the highest level of noise exposure in the employing
establishment’s reports to a “non-injurious range.” Dr. Mauldin cited research from the American
College of Occupational & Environmental Medicine which stated that hearing loss due to
occupational noise is “symmetrical, bilateral, does not produce a hearing loss greater than 75
[decibels] in the high frequencies, the rate of hearing loss due to chronic noise exposure is greatest
during the first 10 [to] 15 years of exposure and decreases as the hearing threshold increases.” She
noted the research also states that hearing loss from occupational noise exposure occurs at the time
of exposure, without a delayed effect or latency period. On this basis, Dr. Mauldin concluded that
appellant’s hearing thresholds during his federal employment had not exceeded that which would
be expected for his age. Based on the foregoing, she concluded, “[i]t is more than likely that
[appellant’s] exposure to nonoccupational noises such as guns and watercraft are the contributing
factors to his hearing loss … any hearing loss he is currently experiencing is not work related[.]”

2

OWCP referred appellant, a statement of accepted facts (SOAF), and an otologic
evaluation questionnaire for a second opinion evaluation with Dr. Melanie H. Smith, a Boardcertified otolaryngologist, on September 6, 2018. The SOAF indicated that during appellant’s
federal employment from July 15, 2011 to April 30, 2018, appellant was exposed to noise
emanating from boilers, feed pumps, motors, turbines, moving belts and rollers, grinders, impact
drills, hammers, welding machines, air compressors, and FD Fan Rooms (for which double
protection was required) for approximately six to eight hours per day. It further noted that
appellant wore earplugs during this period. Objective sounds measurements indicated possible
noise levels at 31.3 – 87.6 SE65 for 2012-13. The SOAF related that appellant had been exposed
to similar noise for which appellant wore earplugs in his prefederal employment positions, and
that appellant’s extra-employment activities included hunting, fishing, loud concerts,
motorcycling, boating, and use of power tools and firearms.
In a report dated September 28, 2018, Dr. Smith reviewed the SOAF and completed the
questionnaire. Her report included an audiogram taken the same day, in which it noted
measurements at the frequencies of 500, 1,000, 2,000, and 3,000 Hertz (Hz). The right ear losses
were recorded as 35, 25, 50, and 75 decibels (dBs); the left ear losses were recorded as 45, 25, 30,
and 75 dBs. Dr. Smith calculated the monaural impairment in appellant’s right and left ears to be
32 percent and 29 percent, respectively, and when adding 3 percent impairment for tinnitus, she
found the binaural hearing impairment to be 33 percent. She found that appellant had reached his
maximum improvement date, and recommended hearing aids. In response to the evaluation
questionnaire, Dr. Smith explained that the audiogram of July 25, 2011 showed noise-induced
hearing loss, right worse than left. In response to the question of whether appellant showed a
sensorineural loss in excess of what would be normally predicated on the basis of age, Dr. Smith
wrote “no.” She also responded “no” to the question of whether the federal workplace exposure
was of sufficient intensity and duration to have caused the hearing loss, writing “[appellant] had
significant noise exposure and hearing loss prior to starting his [federal] employment.” Dr. Smith
further noted that appellant’s hobbies also include some noise exposure. In response to the
question of whether she believed the sensorineural hearing loss to be due in part or in whole to
appellant’s federal employment, she checked the box indicating she did not. Dr. Smith marked
the same box indicating her opinion that appellant’s tinnitus was not due to his federal
employment.
By decision dated October 12, 2018, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that his hearing loss was causally related to the
accepted factors of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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 timely filed within the applicable

2

Id.

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time limitation of FECA,3 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (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 diagnosed condition is causally
related to the identified employment factors.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish hearing loss due
to accepted factors of his federal employment.
In order to determine the causal relationship, if any, between appellant’s claimed hearing
loss and the accepted factors of his federal employment, OWCP referred appellant, the case record,
SOAF, and questions to Dr. Smith for a second opinion examination. Dr. Smith opined that
appellant’s hearing loss was not due in any part of appellant’s federal employment. Based on
earlier audiograms, she noted that appellant “had significant noise exposure and hearing loss prior
to starting his [federal] employment.” When his July 25, 2011 audiogram was compared to the
audiogram administered on the date of her examination, September 28, 2018, Dr. Smith found that
appellant’s current hearing loss was not in excess of what would normally be expected as a result
3
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

8

M.V., Docket No. 18-0884 (issued December 28, 2018).

9

Id.

4

of the aging process, or presbycusis. Hence, he concluded that appellant’s hearing loss since the
start of his federal employment was not attributable to his employment exposure to noise, but due
to presbycusis.10 Dr. Smith’s opinion -- the only opinion on causal relationship in the record
offered by a qualified physician -- was that appellant’s hearing loss was not whatsoever attributable
to his federal employment.11
Though audiologist Dr. Mauldin, at the request of the employing establishment, offered an
opinion on causal relationship, her opinion is of no probative value because audiologists are not
considered to be qualified physicians within the meaning provided by FECA.12 As the record in
the instant case is devoid of any rationalized medical opinion evidence attributing appellant’s
hearing loss to his accepted employment exposure, appellant has failed to establish that his claimed
binaural hearing loss is causally related to the accepted factors of his federal employment.13
Accordingly, appellant has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that his binaural hearing loss was
causally related to the accepted factors of his federal employment.

10

Kenneth W. Cossey, Docket No. 04-0976 (issued July 27, 2004).

11

Id.

12

See Thomas Lee Cox, 54 ECAB 509 (2003) (an audiologist is not defined as a physician under 5 U.S.C. § 8101(2)
and an opinion of an audiologist cannot be considered a medical opinion by a qualified physician).
13

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the October 12, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 26, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

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

Docket No. 13-1364
Issued: May 13, 2014

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 May 20, 2013 appellant filed a timely appeal from the April 26, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a recurrence of
disability on or after March 8, 2006 due to his accepted work injuries.
FACTUAL HISTORY
OWCP accepted that on February 12, 1985 appellant, then a 21-year-old letter carrier,
sustained a left ankle sprain, permanent aggravation of left posterior talocalcaneal bar and left
subluxation of talonavicular joint. His claim was later expanded to include the consequential
1

5 U.S.C. §§ 8101-8193.

injuries of aggravation of major depression (single episode, moderate) and aggravation of
generalized anxiety disorder. On March 9, 2006 appellant resigned from the employing
establishment citing personal medical reasons.
On March 28, 2011 appellant filed a claim alleging a recurrence of disability on March 8,
2006 due to his accepted work injuries. He stated that he still had left foot and ankle pain which
affected his emotional condition and prevented him from working. Appellant noted that he
suffered a vehicular accident in December 1986 which caused him to go into a coma, but he
asserted that he recovered from the accident and returned to work. He periodically worked for
private employers over the years but was now unable to work.
Appellant submitted medical evidence in support of his recurrence of disability claim. In
reports dated between October 2008 and mid-2011, Dr. Walter Afield, an attending Boardcertified psychiatrist, discussed appellant’s physical and mental condition and prescribed
periodic foot massages. He stated that work factors had exacerbated appellant’s mental health,
noting that he had difficulty in dealing with the pain from his 1985 work injuries. Dr. Afield
stated in an October 23, 2008 report that appellant had “never been the same” since his 1985
work injuries; but did not describe appellant’s condition in significant detail.
In a brief April 7, 2011 note, Dr. Michel Gimeno, an attending Board-certified
psychiatrist, stated that appellant “suffers from a bipolar affective disorder, anxiety and
depression all of which are significantly exacerbated by his chronic left ankle pain. As a
consequence [appellant] is permanently disabled from working.” Appellant also submitted
reports from attending physicians who treated his physical conditions, but the reports did not
provide a rationalized medical opinion relating his claimed March 8, 2006 recurrence of
disability to any work-related cause.
In a July 18, 2011 decision, OWCP denied appellant’s claim for a March 8, 2006
recurrence of disability. It found that he had not submitted sufficient medical evidence to
establish causal relation.
In a July 13, 2011 progress report, Dr. Afield stated that he had received some medical
records to determine future treatment but was waiting for additional materials. On August 3,
2011 he noted that appellant had a “chronic pain problem” and discussed treatment by
Dr. Gimeno. In an August 17, 2011 note, Dr. Afield stated that he had a variety of records dating
back to appellant’s 1986 vehicular accident. He reviewed records from St. Joseph’s and Tampa
General Hospital but considered the accident to be a “nonissue” because appellant recovered and
did not suffer lasting results. Dr. Afield stated that appellant’s emotional condition had declined
in the last two years.
In a November 29, 2011 decision, OWCP affirmed the July 18, 2011 decision denying
appellant’s recurrence of disability claim.
Appellant resubmitted the April 7, 2011 note from Dr. Gimeno and submitted progress
notes of Dr. Afield dated September 2011 to July 25, 2012. The newly submitted notes of
Dr. Afield were similar to his previous notes of record. Dr. Afield indicated that appellant still

2

experienced pain from his 1985 work injuries which affected his emotional condition; however,
Dr. Afield did not provide any additional explanation for his stated conclusion.
In an August 15, 2012 decision, OWCP denied medication of its July 18, 2011 decision.
Appellant submitted additional reports from Dr. Afield and Dr. Samy Bishai, an attending
Board-certified orthopedic surgeon. The reports of Dr. Afield suggested that appellant was
disabled for work-related reasons, but did not specify those reasons. The reports of Dr. Bishai,
dated August 2012 to March 2013, did not implicate the February 12, 1985 work injury or any
other work-related cause for appellant’s present condition.
In an April 26, 2013 decision, OWCP affirmed its August 15, 2012 decision.
LEGAL PRECEDENT
An individual who claims a recurrence of disability due to an accepted employment-related
injury has the burden of establishing by the weight of the substantial, reliable and probative
evidence that the disability for which compensation is claimed is causally related to the accepted
injury.2 This burden includes the necessity of furnishing medical evidence from a physician who,
on the basis of a complete and accurate factual and medical history, concludes that the disabling
condition is causally related to the employment injury and supports that conclusion with sound
medical rationale.3 Where no such rationale is present, medical evidence is of diminished
probative value.4
ANALYSIS
OWCP accepted that on February 12, 1985 appellant sustained a left ankle sprain,
permanent aggravation of left posterior talocalcaneal bar and left subluxation of talonavicular
joint. His claim also accepted for consequential injuries of aggravation of major depression
(single episode, moderate) and aggravation of generalized anxiety disorder. Appellant retired
from the employing establishment on March 9, 2006 and periodically worked for private
employers. On March 28, 2011 he filed a claim alleging a recurrence of total disability on
March 8, 2006 due to his accepted work injuries. Appellant noted that he still had left foot and
ankle pain which affected his emotional condition and prevented him from working.
The Board finds that appellant did not submit sufficient medical evidence to establish that
a recurrence of disability on or after March 8, 2006 was due to his accepted work injuries.

2

Charles H. Tomaszewski, 39 ECAB 461, 467 (1988); Dominic M. DeScala, 37 ECAB 369, 372 (1986). Under 20
C.F.R. § 10.5(x), a recurrence of disability is defined, in part, as “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.”
3

Mary S. Brock, 40 ECAB 461, 471-72 (1989); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

4

Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

3

Appellant submitted numerous medical reports of Dr. Afield, an attending Board-certified
psychiatrist, dated after his claimed recurrence of disability on March 8, 2006. Some of the
reports of Dr. Afield, dated beginning in October 2008, suggest that appellant was disabled for
work-related reasons, but the reports were vague in identifying those reasons. In the reports,
Dr. Afield indicated that appellant continued to have pain from the 1985 work injuries which
affected his emotional condition, but Dr. Afield did not describe appellant’s physical condition in
any great detail. His opinions on causal relationship lack sufficient detail and medical rationale
to establish appellant’s claim for recurrence of disability.
In a brief April 7, 2011 note, Dr. Gimeno, an attending Board-certified psychiatrist,
indicated that appellant’s bipolar, anxiety and depression conditions were all exacerbated by his
left ankle pain and stated that, as a consequence, he was permanently disabled from working. On
appeal, appellant alleged that OWCP did not adequately consider this note, but OWCP did in fact
consider it and properly determined that it was of limited probative value on the relevant issue of
this case due to its lack of detail and medical rationale.
Appellant also submitted reports from physicians who assessed his physical condition,
including Dr. Bishai, an attending Board-certified orthopedic surgeon. The reports of Dr. Bishai
and other physicians did not clearly implicate the 1985 work injuries or otherwise contain a
rationalized medical opinion relating appellant’s claimed March 8, 2006 recurrence of disability
to any work-related cause.
For these reasons, appellant did not show that he sustained a recurrence of disability on or
after March 9, 2006 due to his accepted work injuries. He 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 meet his burden of proof to establish that he
sustained a recurrence of disability on or after March 8, 2006 due to his accepted work injuries.

4

ORDER
IT IS HEREBY ORDERED THAT the April 26, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 13, 2014
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

5


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

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

Docket No. 10-87
Issued: September 22, 2010

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 October 13, 2009 appellant filed a timely appeal from the August 31, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for an oral
hearing and the July 13, 2009 merit decision that denied her claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of appellant’s case.
ISSUES
The issues are: (1) whether appellant established she sustained an injury in the
performance of duty causally related to her employment; and (2) whether the Office properly
denied her request for an oral hearing as untimely pursuant to 5 U.S.C. § 8124.
FACTUAL HISTORY
On May 8, 2009 appellant, a 43-year-old clerk, filed an occupational disease claim (Form
CA-2) for bilateral wrist, elbow and neck pain. She first became aware of her condition on
April 10, 2006 and that her condition was caused by her employment on January 8, 2007. On
May 30, 2009 she related that her condition resulted from performing repetitive finger motions,

lifting and pulling containers of mail and pulling automated postal center (APC) machines.
Appellant noted that in 2002 an APC machine had fallen on her hand at work and had broken it,
which then caused carpel tunnel syndrome of the left hand. She underwent a carpal tunnel
release in 2003.
On April 16, 2006 Dr. R. Frank Morrison, a Board-certified physiatrist, reported findings
on examination and diagnosed resolution of her left-sided carpal tunnel syndrome, with current
left-sided cubital tunnel syndrome and cervical radiculopathy at the C7 level, on the left side. In
his history, Dr. Morrison related appellant’s condition to a December 18, 2002 crush injury she
sustained while performing her employment duties.
In an unsigned January 8, 2007 note, Dr. Ronnie D. Shade, a Board-certified orthopedic
surgeon, diagnosed left wrist carpal and cubital tunnel syndrome, cervical radiculopathy at the
C7 level, and a nondisplaced fracture of the distal phalanx of her left middle finger. On May 27,
2009 he reviewed appellant’s history of injury and diagnosed cervical strain with left upper
extremity radiculopathy. On June 1, 2009 Dr. Shade diagnosed cervical strain with left upper
extremity radiculopathy. In subsequent notes, he reiterated the diagnoses.
On June 7, 2009 Dr. David Leifer, a Board-certified diagnostic radiologist, reported that a
magnetic resonance imaging (MRI) scan of appellant’s cervical spine revealed mild multilevel
disc bulges.
By decision dated July 13, 2009, the Office denied the claim finding the evidence of
record did not establish the claimed employment factors caused a medically-diagnosed condition.
On August 7, 2009 Dr. Stephen Becker, a Board-certified physiatrist, diagnosed cervical
radiculopathy at the C6-7 level. On August 17, 2009 Dr. Shade related that appellant “has not
been treated for cervical disc in the past.”
On August 19, 2009 appellant requested an oral hearing. She submitted a description of
her symptoms and history of injury. Appellant explained that her current claim was not for the
same injury she sustained in 2002 but that her current claim arose from recently diagnosed
cervical conditions.
By decision dated August 31, 2009, the Office denied a hearing finding that appellant’s
hearing was untimely filed.1

1

Appellant submitted additional evidence on appeal. The Board may not consider evidence for the first time on
appeal which was not before the Office at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c). See
J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008) (holding the Board’s jurisdiction is limited to
reviewing the evidence that was before the Office at the time of its final decision).

2

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of her claim by the weight of the evidence,3
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.4 As part of her burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.5 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.6
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.8
ANALYSIS -- ISSUE 1
Appellant identified employment tasks such as repetitive finger motions, lifting and
pulling containers of mail and pulling APC machines as employment factors she deemed
2

5 U.S.C. §§ 8101-8193.

3

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

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

Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

6

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

7

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

8

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

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responsible for her condition. The Board finds that the record supports that she performed such
duties in her federal employment. Appellant’s burden is to establish that her work caused her
claimed bilateral wrist condition. This is a medical issue that can only be proven by probative
medical opinion evidence. The medical evidence of record lacks sufficient opinion addressing
the causal relationship between appellant’s condition and the identified employment factors.
Accordingly, the Board finds appellant has not established she sustained an injury in the
performance of duty.
The reports of Drs. Becker, Leifer, Morrison and Shade are of diminished probative value
on the issue of causal relationship because they did not provide any opinion explaining how the
identified employment factors caused the diagnosed conditions.9 The weight of a medical
opinion is determined by the opportunity for and thoroughness of examination, the accuracy and
completeness of the physician’s knowledge of the facts of the case, the medical history provided,
the care of analysis manifested and the medical rationale expressed in support of the stated
conclusions.10 While each physician provided a diagnosis of appellant’s conditions, they offered
no opinion explaining how her diagnosed cervical or upper extremity conditions were caused or
aggravated by the factors of employment appellant alleged.
Dr. Morrison attributed appellant’s condition to a December 18, 2002 “crush injury” she
sustained while performing her employment duties; however, this was not a factor of
employment cited by appellant in the current claim.11 Furthermore, Dr. Morrison did not
describe the crush injury, or explain how this incident produced appellant’s current conditions.
Thus, this evidence does not establish a causal relationship between the accepted employment
factors and appellant’s claimed condition.
An award of compensation may not be based on surmise, conjecture or speculation.12
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.13 The fact that a condition manifests itself or worsens during a
period of employment14 or that work activities produce symptoms revelatory of an underlying
condition15 does not raise an inference of causal relationship between a claimed condition and
employment factors.
9

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal relationship
have little probative value).
10

See Anna C. Leanza, 48 ECAB 115 (1996).

11

To the extent appellant attributes her condition in 2009 to the prior 2002 injury, this decision does not preclude
her from presenting evidence to the Office under the 2002 claim number.
12

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving declarations
do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).
13

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

14

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).

15

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155,157 (1960).

4

The medical record contains no reasoned discussion of causal relationships, one that
soundly explains how the accepted work duties caused or aggravated a diagnosed medical
condition. The Board finds appellant did not meet her burden of proof.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act,16 concerning a claimant’s entitlement to a hearing before
an Office hearing representative, states: Before review under section 8128(a) of this title, a
claimant for compensation not satisfied with a decision of the Secretary under subsection(a) of
this section 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.
Section 8124(b)(1) is unequivocal in setting forth the time limitation for requesting
hearings. A claimant is entitled to a hearing as a matter of right only if the request is filed within
the requisite 30 days.17 When the Office revised its regulations effective January 4, 1999, the
new regulations provided that a hearing was a review of an adverse decision by a hearing
representative and that a claimant could choose between two formats: an oral hearing or a
review of the written record.18 These regulations also provide that the request for either type of
hearing 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.19
The Board has held that the Office, in its broad discretionary authority in the
administration of the Act, has the power to hold hearings in certain circumstances where no legal
provision was made for such hearings, including when the request is made after the 30-day
period for requesting a hearing and that the Office must exercise this discretionary authority in
deciding whether to grant a hearing.20 In these instances, the Office will determine whether a
discretionary hearing should be granted or, if not, will so advise the claimant with reasons.21
ANALYSIS -- ISSUE 2
On July 13, 2009 the Office denied appellant’s claim. Appellant’s hearing request was
post-marked August 19, 2009, more than 30-days after the Office issued its decision. Therefore,
the Office properly found that appellant was not entitled to a hearing as a matter of right.
The Office properly exercised its discretion and determined that appellant’s request for an
oral hearing could be equally well addressed by requesting reconsideration and submitting
additional evidence. The Board has held that the only limitation on the Office’s discretionary
16

5 U.S.C. § 8124(b)(1).

17

Tammy J. Kenow, 44 ECAB 619 (1993); Ella M. Garner, 36 ECAB 238 (1984).

18

20 C.F.R. § 10.615.

19

Id. at § 10.616. See Leona B. Jacobs, 55 ECAB 753 (2004).

20

Samuel R. Johnson, 51 ECAB 612 (2000); Eileen A. Nelson, 46 ECAB 377 (1994).

21

Claudio Vasquez, 52 ECAB 496 (2001); Johnny S. Henderson, 34 ECAB 216 (1982).

5

authority is reasonableness. An abuse of discretion is generally shown through proof of manifest
error, a clearly unreasonable exercise of judgment or actions taken which are contrary to logic
and probable deduction from established facts.22 There is no evidence of record to establish that
the Office abused its discretion in denying appellant’s request. The Board finds that the Office’s
denial of her request for an oral hearing was proper under the law and the facts of this case.
CONCLUSION
The Board finds appellant has not established that she sustained an occupational
condition in the performance of duty. The Board also finds that the Office properly denied her
request for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the August 31 and July 13, 2009 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: September 22, 2010
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

22

See André Thyratron, 54 ECAB 257 (2002).

6


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

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

Docket No. 14-1446
Issued: October 29, 2014

Case Submitted on the Record

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

JURISDICTION
On June 9, 2014 appellant filed a timely appeal from the May 8, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP), which awarded schedule
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant has more than a 12 percent impairment of her left upper
extremity, for which she received a schedule award.
FACTUAL HISTORY
On September 17, 2009 appellant, a 39-year-old letter carrier, sustained a traumatic
injury in the performance of duty when she released the hand brake on her mail truck. She
underwent left shoulder arthroscopy with decompression and debridement of the scapularis
1

5 U.S.C. § 8101 et seq.

tendon. Appellant underwent a second left shoulder arthroscopy with distal clavicle excision,
subacromial decompression and rotator cuff debridement. OWCP accepted her claim for left
biceps strain, left labral tear, left shoulder strain, left rotator cuff tear, left shoulder impingement,
and aggravation of left shoulder acromioclavicular arthritis.
Appellant filed a schedule award claim. As her physician did not perform impairment
ratings under the American Medical Association’s Guides to the Evaluation of Permanent
Impairment (6th ed. 2009), OWCP referred her to Dr. Aubrey A. Swartz, a Board-certified
orthopedic surgeon.
Dr. Swartz examined appellant on March 21, 2014. He offered a diagnosis-based
impairment rating based on impingement syndrome. Referring to Table 15-5, page 402 of the
Guides, he noted a default impairment rating of three percent. Dr. Swartz adjusted this slightly
higher to five percent based on moderate functional history and severe physical examination
findings (loss of motion). He concluded that appellant had a five percent impairment of her left
upper extremity due to impingement syndrome.
On April 21, 2014 Dr. Arthur S. Harris, an OWCP medical adviser, reviewed Dr. Swartz’
evaluation. He noted that appellant had undergone an arthroscopic distal clavicle excision or
resection. Referring to Table 15-5, page 403 of the A.M.A., Guides, he found that appellant had
a 12 percent impairment of the left upper extremity due to a distal clavicle resection diagnosisbased rating.
In a decision dated May 8, 2014, OWCP issued a schedule award for a 12 percent
impairment of appellant’s left upper extremity.
LEGAL PRECEDENT
The schedule award provision of FECA2 and the 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. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.4
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. OWCP has adopted the A.M.A., Guides as the appropriate

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

2

standard for evaluating schedule losses.5 As of May 1, 2009, the sixth edition of the A.M.A.,
Guides is used to calculate schedule awards.6
ANALYSIS
Diagnosis-based impairment is the primary method of evaluation for the upper
extremities. The first step is to choose the diagnosis that is most applicable for the region being
assessed. If more than one diagnosis can be used, the highest causally-related impairment rating
should be used. This will generally be the more specific diagnosis. Typically, one diagnosis will
adequately characterize the impairment and its impact on activities of daily living.7
Dr. Swartz, the orthopedic surgeon and referral physician, evaluated appellant’s
impairment based on her diagnosis of impingement syndrome. He determined that she had a five
percent impairment of her left upper extremity, which is the highest rating allowed for that
diagnosis. Dr. Harris, OWCP’s medical adviser observed, however, that appellant was also
status post distal clavicle resection. Using the diagnosis of acromioclavicular joint injury or
disease he found that she had a 12 percent impairment of her left upper extremity.
The Board notes that, if more than one diagnosis can be used, the highest causally-related
impairment rating should be used. Upper extremity impairments for shoulder pain and
strain/sprain are just one or two percent. Impairment for impingement syndrome, partial
thickness rotator cuff tears and labral lesions can be as much as five percent. Impairment for
acromioclavicular injury or disease can be as high as 12 percent if the patient is status post distal
clavicle resection.8 As this is the highest impairment rating allowed under the A.M.A., Guides,
the Board finds that OWCP properly followed the recommendation of its medical adviser and
issued a schedule award for a 12 percent impairment of her left upper extremity. Accordingly,
the Board will affirm OWCP’s May 8, 2014 decision.
The Board notes that section 8107(c)(1) of FECA provides 312 weeks of compensation
for the total loss of an arm.9 Section 8107(c)(19) provides that compensation for partial losses is
proportionate.10 Therefore, 12 percent of 312 weeks of compensation is 37.44 weeks of
compensation, which is what OWCP awarded.

5

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

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010).
7

A.M.A., Guides 387, 389 (6th ed. 2009).

8

There is no indication appellant suffers from at least a Type IV acromioclavicular separation, characterized by a
complete disruption of the acromioclavicular joint and coracoclavicular ligaments and avulsion or detachment of the
coracoclavicular ligament from the clavicle.
9

5 U.S.C. § 8107(c)(1).

10

Id. at § 81017(c)(19).

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Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than a 12 percent impairment of her left upper
extremity, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the May 8, 2014 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 29, 2014
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.G., Appellant
and
U.S. POSTAL SERVICE, ALICE POST
OFFICE, Alice, TX, Employer
__________________________________________

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

Docket No. 21-0471
Issued: August 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 February 5, 2021 appellant filed a timely appeal from a November 16, 2020 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 has met his burden of proof to establish a diagnosed medical
condition causally related to the accepted September 17, 2019 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the November 16, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
This case has been previously before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On September 17, 2019 appellant, then a 28-year-old sales and services distribution
associate, filed a traumatic injury claim (Form CA-1) alleging that on that date he suffered a leftsided lower back strain when pulling on a postal container while in the performance of duty. On
the reverse side of the claim form the employing establishment acknowledged that appellant was
injured in the performance of duty, but noted that he had a preexisting back injury from his
previous employment. Appellant stopped work on September 18, 2019 and returned on
September 26, 2019.
X-rays of appellant’s lumbar spine, dated September 18, 2019, revealed no evidence of
spondylolysis, spondylolisthesis, bone destruction, or fracture.
In a development letter dated October 2, 2019, OWCP informed appellant that the evidence
of record was insufficient to establish his claim. It advised him of the type of factual and medical
evidence needed and provided a questionnaire for his completion. OWCP afforded appellant 30
days to submit the necessary evidence.
In a September 18, 2019 report, Dr. Roberto Diaz, a Board-certified internist, noted that
appellant felt a pop in his lower back when he applied extra force to close a container at work. He
indicated that appellant’s lower back pain radiated down his thigh, leg, and knee. Dr. Diaz
provided physical examination findings and diagnosed low back pain and left-sided sciatica. In
an accompanying work status report, he listed appellant’s work restrictions and indicated that he
could return to work with restrictions on September 25, 2019.
Dr. Diaz noted in a September 25, 2019 report that appellant was experiencing continued
back pain. He reviewed x-rays of appellant’s lumbar spine and again diagnosed low back pain and
left-sided sciatica. In an accompanying work status report, Dr. Diaz diagnosed lower back strain.
He listed appellant’s work restrictions and advised that they were expected to last through
October 2, 2019.
In an October 2, 2019 report, Dr. Diaz noted that appellant had continued lower back pain
radiating to the bilateral lower legs with sporadic numbness and tingling. He provided physical
examination findings and diagnosed low back pain and left-sided sciatica. In an accompanying
work status report, Dr. Diaz diagnosed lower back strain. He listed appellant’s work restrictions
and advised that they were expected to last through October 16, 2019.
Dr. Diaz noted in an October 16, 2019 report that appellant was experiencing ongoing,
intermittent back pain. He provided physical examination findings and diagnosed low back pain
and left-sided sciatica. Dr. Diaz referred appellant for a maximum medical improvement (MMI)
evaluation. In an accompanying work status report, he again diagnosed lower back strain.
3

Docket No. 20-0399 (issued July 20, 2020).

2

Dr. Diaz listed appellant’s work restrictions and advised that they were expected to last through
October 30, 2019.
By decision dated November 8, 2019, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish that the incident occurred as
alleged. It found that appellant had not responded to its October 2, 2019 development letter
requesting specific factual information as to whether he had any similar symptoms or disability
prior to the employment incident after the employing establishment alleged that he had a previous
back injury from prior employment. OWCP concluded, therefore, that the requirements had not
been met to establish an injury as defined by FECA.
OWCP subsequently received an October 29, 2019 report from Dr. Diaz who noted that
appellant experienced intermittent, moderate lower back pain. Dr. Diaz provided physical
examination findings and diagnosed low back pain and left-sided sciatica. In an accompanying
work status report, he diagnosed lower back strain and listed appellant’s work restrictions.
On December 10, 2019 appellant appealed to the Board. By decision dated July 20, 2020,4
the Board set aside OWCP’s November 8, 2019 decision and remanded the case for consideration
of the medical evidence of record, finding that the evidence of record established the occurrence
of the September 17, 2019 incident in the performance of duty, as alleged.
Upon return of the case record, by decision dated November 16, 2020, OWCP denied
appellant’s claim, finding that he had not submitted medical evidence containing a medical
diagnosis in connection with the accepted September 17, 2019 employment incident.
Consequently, it concluded that he had not met the requirements to establish an injury as defined
by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,6 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the

4

Id.

5

Supra note 1.

6
S.O., Docket No. 21-0002 (issued April 29, 2021); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

3

employment injury.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing 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. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.9
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.10 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 specific employment factors
identified by the employee.11
ANALYSIS
The Board finds that this case is not in posture for decision.
Dr. Diaz, in reports dated September 18 through October 29, 2019, described the accepted
employment incident, discussed appellant’s history of low back pain, and provided physical
examination findings. In work status reports, dated September 25 through October 29, 2019, he
listed appellant’s work restrictions and diagnosed lower back strain. The Board, therefore, finds
that the diagnosis of lower back strain constitutes a diagnosed medical condition.12
OWCP has not reviewed the medical evidence of record. As the medical evidence of record
establishes a diagnosed medical condition, the case must be remanded for consideration of the

7

R.J., Docket No. 20-1630 (issued April 27, 2021); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
8
J.C., Docket No. 20-1584 (issued April 23, 2021); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

K.M., Docket No. 21-0016 (issued April 21, 2021); Elaine Pendleton, 40 ECAB 1143 (1989); John J. Carlone,
41 ECAB 354 (1989).
10

J.B., Docket No. 21-0011 (issued April 20, 2021); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
11

P.C., Docket No. 20-0855 (issued November 23, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
12
See S.A., Docket No. 20-1498 (issued March 11, 2021); A.H., Docket No. 20-0730 (issued October 27, 2020);
B.C., Docket No. 20-0079 (issued October 16, 2020).

4

medical evidence with regard to the issue of causal relationship. Following this and other such
further development as deemed necessary, OWCP shall issue a de novo decision.13
CONCLUSION
The Board finds that appellant has met his burden of proof to establish a diagnosed medical
condition. The Board further finds, however, that the case is not in posture for decision as to
whether his diagnosed condition is causally related to the accepted September 17, 2019
employment incident.
ORDER
IT IS HEREBY ORDERED THAT the November 16, 2020 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: August 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

13

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.O., Appellant
and
U.S. POSTAL SERVICE, MILLARD STATION,
Omaha, NE, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0609
Issued: June 24, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 11, 2016 appellant filed a timely appeal from a November 2, 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 has more than six percent permanent impairment of the
left leg.
FACTUAL HISTORY
On October 24, 2011 appellant, then a 27-year-old transitional employee carrier, filed a
traumatic injury claim (Form CA-1) alleging that on that date she injured her ankle in the
performance of duty. OWCP accepted the claim for a left ankle tibiofibular ligament strain and
anterior tear, a left ankle calcaneofibular tear, a left ankle talus fracture, and osteochondritis
1

5 U.S.C. § 8101 et seq.

dissecans lesion, ankyloses of the left ankle, and a left intrasheath subluxation of the peroneal
tendon.
On July 25, 2012 Dr. David J. Inda, a Board-certified orthopedic surgeon, performed a
debridement of the osteochondritis dissecans lesion with microfracture, a ligament reconstruction
of the left ankle, and an exploration of the peroneal tendons with tenosynovectomy. On
March 20, 2013 he performed a repair of the superior peroneal retinaculum of the left ankle, a
fibular groove deepening procedure, and tenolysis of the peroneal tendons.
In a report dated January 14, 2014, Dr. Inda related that appellant underwent “repeated
procedures for peroneal tendon pathology and injury.” Referencing Table 16-2 of the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides),2 he found that appellant had six percent impairment of the lower
extremity or nine percent impairment of the foot and ankle.
Appellant, on June 23, 2015, filed a claim for a schedule award (Form CA-7).3 OWCP
advised her by letter dated July 7, 2015 that she should submit an impairment evaluation from
her physician addressing the extent of any permanent impairment in accordance with the
A.M.A., Guides.
In an impairment evaluation dated July 17, 2015, Dr. Inda advised that appellant reached
maximum medical improvement on July 8, 2014. Appellant underwent surgery for a torn
peroneal tendon but continued to experience pain and reduced motion. Dr. Inda referenced his
prior report of January 2014. He opined that appellant had six percent impairment of the lower
extremity using Table 16-2 on page 501 of the A.M.A., Guides “for injury involving the peroneal
tendon with moderate motion deficits and based on her examination.” Dr. Inda noted that six
percent left lower extremity impairment yielded nine percent impairment of the foot and ankle.
An OWCP medical adviser reviewed Dr. Inda’s finding on August 6, 2015 and
determined that it was insufficient to support a left lower extremity impairment rating as he did
not apply grade modifiers or provide findings on examination. He recommended referral of
appellant for a second opinion examination.
On August 19, 2015 OWCP referred appellant to Dr. Adam T. Kafka, a Board-certified
physiatrist, for a second opinion examination.
In an impairment evaluation dated September 9, 2015, Dr. Kafka reviewed appellant’s
history of injury and surgeries. He discussed her current complaints of pain and tightness with
prolonged walking. On examination Dr. Kafka found no edema, loss of sensation, or muscle
atrophy of the leg or foot. He found “mild tenderness just proximal to the lateral malleolus,”
some loss of dorsiflexion and eversion, and pain with passive inversion. Dr. Kafka diagnosed a
left ankle sprain with peroneal tendon dysfunction as a result of her October 24, 2011 work
2

A.M.A., Guides (6th ed.) Table 16-2.

3

In a decision dated January 8, 2014, OWCP denied appellant’s request to expand her claim to include a back
condition due to or as a consequence of her October 24, 2011 work injury. By decision dated March 24, 2015, it
reduced her compensation to zero based on its finding that her actual earnings as an address management systems
technician effective October 27, 2014, fairly and reasonably represented her wage-earning capacity.

2

injury.
He opined that appellant reached maximum medical improvement on
November 26, 2013. Citing the A.M.A., Guides, Dr. Kafka identified the most significant
diagnosis as a class 1 peroneal strain with mild loss of motion using Table 16-2 on page 501,
which yielded a default value of five percent. He applied a grade modifier of one for functional
history for a mild deficit, a grade modifier of two for physical examination based on moderate
findings, and no grade modifier for clinical studies as its use was not “confirmatory.” Utilizing
the net adjustment formula, Dr. Kafka adjusted the default value over one place to find six
percent permanent impairment of the left lower extremity.
An OWCP medical adviser reviewed Dr. Kafka’s report on September 23, 2014 and
concurred with his impairment rating. He determined, however, that the date of maximum
medical improvement was the date of Dr. Kafka’s examination.
By decision dated November 2, 2015, OWCP granted appellant six percent impairment of
the left leg. The period of the award ran for 17.28 weeks from September 10, 2015 to
January 8, 2016.4
On appeal appellant argues that Dr. Kafka opined that she did not have muscle atrophy
without measuring her lower extremity. She notes that Dr. Inda found that she had calf atrophy
and that the atrophy was documented in physical therapy notes.
LEGAL PRECEDENT
The schedule award provision of FECA,5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
The sixth edition requires identifying the impairment for the Class of Diagnosis (CDX)
condition, which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE), and Clinical Studies (GMCS).9 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
4

OWCP moved the date of maximum medical improvement on September 10, 2015 because appellant received
wage-loss compensation on September 9, 2015.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
9

A.M.A., Guides 494-531.

3

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.10
ANALYSIS
OWCP accepted the claim for a left ankle tibiofibular ligament strain and anterior tear, a
left ankle calcaneofibular tear, a left ankle talus fracture and osteochondritis dissecans lesion,
ankyloses of the left ankle, and a left intrasheath subluxation of the peroneal tendon. Appellant
underwent two ankle surgeries on July 25, 2012 and March 20, 2013.
Appellant filed a claim for a schedule award on June 23, 2015. In an impairment
evaluation dated July 17, 2015, Dr. Inda advised that appellant reached maximum medical
improvement on July 8, 2014. He discussed her history of a peroneal tendon tear treated with
surgery. Dr. Inda referenced his January 2014 report finding that appellant had six percent
impairment of the lower extremity under Table 16-2 of the A.M.A., Guides for a peroneal tendon
injury with moderate loss of motion. He indicated that the six percent lower extremity
impairment equaled a nine percent impairment of the foot.
An OWCP medical adviser reviewed Dr. Inda’s report and noted that he did not include
examination findings or apply grade modifiers to his impairment rating. He made no specific
reference to, or finding of, lower extremity atrophy in his impairment rating report. Dr. Inda
recommended a second opinion examination.
Dr. Kafka, an OWCP referral physician, provided a September 9, 2015 impairment
evaluation. On examination he found no swelling, muscle atrophy, or reduced sensation but mild
tenderness near the lateral malleolus, some loss of motion in dorsiflexion and eversion, and pain
with passive inversion. Dr. Kafka identified the diagnosis as a class 1 peroneal strain with mild
motion loss according to Table 16-2 of the A.M.A., Guides, which yielded a default impairment
value of five percent. He applied grade modifiers of two for physical examination based on
moderate findings and one for functional history for a mild deficit. Dr. Kafka used the net
adjustment formula and moved the default value over one place to find six percent left lower
extremity permanent impairment.11 He opined that appellant reached maximum medical
improvement on November 26, 2013.
An OWCP medical adviser reviewed and agreed with Dr. Kafka’s September 9, 2015
impairment rating. He found, however, that the date of maximum medical improvement should
be the date of the impairment evaluation upon which OWCP based appellant’s schedule award.12
10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
11

Utilizing the net adjustment formula discussed above, (GMFH-CDX) + (GMPE-CDX) or (1-1) + (2-1) = 1,
yielded an adjustment of one. Dr. Kafka found clinical studies not useful.
12

The determination of whether maximum medical improvement 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. See Mark A. Holloway, 55 ECAB 321 (2004).

4

On appeal appellant contends that Dr. Kafka failed to obtain measurements to determine
whether or not she had muscle atrophy. She alleges that Dr. Inga found muscle atrophy.
Regardless, Dr. Inga also found that appellant had six percent left lower extremity impairment,
which he converted to nine percent permanent impairment of the foot. Table 16-10 on page 530
of the A.M.A., Guides provides that six percent lower extremity impairment equals nine percent
impairment of the foot and ankle. The record therefore is found not to contain any impairment
opinion which supports any greater impairment than the six percent previously awarded.
Appellant is not entitled to receive two awards for injury to the same body part. The
Board has held that, when impairment residuals of an injury to a member of the body specified in
the schedule extend into an adjoining area of a member also enumerated in the schedule, such as
an injury of a finger into the hand, or a hand into the arm, or of a foot into the leg, the schedule
award should be made on the basis of the percentage loss of use of the larger member, not both
members.13 However, where impairment of the foot would yield more compensation than the
impairment to the larger member, the leg, appellant should be given the benefit of the more
favorable allowance.14
Section 8107(a) of FECA provides 288 weeks of compensation for total loss of a leg and
205 weeks of compensation for total loss of a foot.15 For the leg, 288 times six percent equals
17.28 weeks of compensation. For the foot, 205 weeks times nine percent equals 18.45 weeks of
compensation. The award to the foot is more favorable and thus the Board will modify OWCP’s
schedule award decision to find that appellant is entitled to 18.45 weeks of compensation for
nine percent impairment of the left foot.16
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has nine percent permanent impairment of the left foot,
entitling her to a total of 18.45 weeks of compensation.

13

See L.M., Docket No. 09-0690 (issued December 29, 2009); Sam Jones, 25 ECAB 163 (1974).

14

See L.M., id.

15

5 U.S.C. § 8107(a).

16

See R.D., Docket No. 07-0868 (issued July 25, 2007); Sharon L. Orcutt, Docket No. 04-0424 (issued
July 26, 2004). OWCP’s procedures provide that if the loss of two or more digits exceeds the loss for the hand or
foot, the award should be the most favorable to the claimant. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.7(a)(2) (February 2013).

5

ORDER
IT IS HEREBY ORDERED THAT the November 2, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: June 24, 2016
Washington, DC

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

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

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

6