United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD,
Portsmouth, NH, Employer
__________________________________________

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

Docket No. 14-0199
Issued: September 16, 2015

Case Submitted on the Record

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

JURISDICTION
On November 4, 2013 appellant, through counsel, filed a timely appeal from a
September 24, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).

1

Alan J. Shapiro, Esq., filed the instant appeal on appellant’s behalf on November 4, 2013. The application for
review form (AB-1) contains appellant’s signature designating him as the authorized representative. On
November 18, 2013 he submitted a 22-page brief in support of the appeal. The Board notes that appellant
subsequently submitted a letter to the Clerk of the Appellate Boards dated December 3, 2014, stating in part that
“Attorney Tinkle still the attorney in this matter.” On April 20, 2015 the Clerk of the Appellate Boards received
from Marshall J. Tinkle, Esq. a 22-page brief dated November 27, 2013, which was nearly identical to the one
previously submitted by Mr. Shapiro. Pursuant to the Board’s Rules of Procedure, appellant can only have one duly
authorized representative before the Board. Such representative will continue to be recognized unless the
representative withdraws or abandons such capacity, or appellant directs otherwise. (See 20 C.F.R. § 501.9). As the
instant appeal was filed by Mr. Shapiro, with appellant’s signature designating him as the authorized representative,
and appellant has not provided written direction removing Mr. Shapiro as his authorized representative, the Board
will acknowledge him as appellant’s representative in this appeal.

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.
ISSUE
The issue is whether appellant has sustained any permanent impairment causally related
to his accepted lumbar and thoracic conditions.
FACTUAL HISTORY
This case has been before the Board on prior appeal. The history of the case as set forth
in the prior decision is incorporated herein by reference. The facts pertinent to this appeal will
be summarized herein.
Appellant, a 46-year-old pipefitter helper, injured his back on January 21, 2004. He filed
a claim for benefits on January 26, 2004, which OWCP accepted for lumbar and thoracic strain.
In a February 5, 2008 report, appellant’s treating physician, Dr. Frank A. Graf, Boardcertified in orthopedic surgery, reviewed the history of injury and noted that appellant had
experienced mid-lower back pain which affected his performance at work. He stated that
appellant had undergone a magnetic resonance imaging (MRI) scan of the thoracolumbar spine
which documented a lumbar disc herniation at L4-5. Dr. Graf reported that, due to these
conditions, he had assigned appellant to light duty. He stated that appellant had a lumbosacral
spine rating of class 2 based on a disc herniation, single level, without surgery.
Dr. Graf determined that under Table 17-4 of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (sixth edition) (A.M.A., Guides), appellant had a
default value of 12 percent, whole person permanency, with a functional history adjustment
grade modifier of 1; a physical examination grade modifier of 1; and a clinical studies grade
modifier of 2. Dr. Graf assigned a 10 percent whole person permanent impairment or a 24
percent lower extremity impairment rating.
In a Form CA-7 dated June 25, 2008, appellant requested a schedule award.
In a July 30, 2008 report, Dr. David I. Krohn, a Board-certified internist and OWCP
medical adviser, disagreed with Dr. Graf’s interpretation of the May 5, 2004 MRI scan. He
asserted that Dr. Graf had incorrectly interpreted the MRI scan to show a disc herniation, while
the radiologist’s report did not mention a herniated disc. Dr. Krohn found no documentation in
the medical record or in Dr. Graf’s examination to support that appellant had work-related
impairment of either lower extremity. In the absence of medical evidence, there was no basis to
grant a schedule award.
OWCP found a conflict in medical evidence between the opinions of Dr. Graf,
appellant’s treating physician, and Dr. Krohn, as to whether appellant had any permanent
impairment. It referred appellant to Dr. Jonathan W. Sobel, a specialist in general surgery, for an
2

5 U.S.C. § 8101 et seq.

2

impartial medical examination to resolve the conflict. In a November 20, 2008 report, Dr. Sobel
found that appellant had no ratable impairment of the lower extremities under either the fifth or
sixth edition of the A.M.A., Guides. He noted that appellant’s May 7, 2004 MRI scan showed
mild degenerative disc disease in the lower lumbar spine and some minor disc bulging with
narrowing at L4-5. Dr. Sobel ascribed this condition to age-appropriate degenerative disc
disease with minor disc bulges and no evidence of disc herniation. He concluded that appellant
had sustained an overuse sprain/strain of the lumbosacral spine on January 28, 2004. Dr. Sobel
found no evidence in the medical record showing that appellant had sustained a herniated disc at
any level in the lumbar spine causally related to his January 2004 work injury.
Based upon the report of Dr. Sobel, OWCP found in a January 2, 2009 decision that
appellant had no ratable impairment from an accepted condition and denied appellant’s request
for a schedule award.
Appellant requested reconsideration and submitted additional medical evidence. In
reports dated March 4 and April 8, 2010, Dr. Andrew Forrest, a physiatrist, found a 25 percent
whole person impairment of appellant’s left lower extremity using both the fifth and later the
sixth edition of the A.M.A., Guides.
In a June 15, 2010 report, Dr. George L. Cohen, a Board-certified internist and OWCP
medical adviser, reviewed Dr. Forrest’s March 4 and April 8, 2010 reports. Using the same
information, the medical adviser found a nine percent impairment of the left lower extremity due
to lumbar radiculopathy. He explained that the accepted back condition affected an extremity
and caused impairment of that extremity. The medical adviser explained that Dr. Forrest
improperly rates the lumbar spine and/or whole person impairment which is not allowed under
FECA.
OWCP granted appellant a schedule award on June 24, 2010 for nine percent permanent
impairment of the left lower extremity.
Appellant requested reconsideration of the schedule award on August 30, 2010 and
submitted a June 28, 2010 report from Dr. Forrest, who reiterated his disagreement with the
earlier findings. Dr. Forrest reiterated that appellant had a 25 percent left leg impairment under
the sixth edition of the A.M.A., Guides.
In a September 13, 2010 report, Dr. Craig Uejo, Board-certified in occupational
medicine, and serving as an OWCP medical adviser, reviewed Dr. Forrest’s April 8, 2010 report.
He thoroughly explained the impact of the July/August 2009 edition of The Guides Newsletter
and found that appellant had no ratable impairment of the left leg under the sixth edition of the
A.M.A., Guides. Dr. Uejo explained that Dr. Forrest’s impairment rating did not follow the
A.M.A., Guides.
Based on Dr. Uejo’s report, by decision dated September 20, 2010, OWCP modified the
June 24, 2010 schedule award decision finding that there had been no impairment of the left
lower extremity under the sixth edition of the A.M.A., Guides as there were no notable findings
of sensory or motor loss in the lower extremity. A December 10, 2010 request for
reconsideration was filed and a November 24, 2010 report of Dr. Forrest was submitted in
3

support. Dr. Forrest disagreed that there were no findings of sensory or motor loss and identified
a hyporeflexic internal hamstring tendon jerk that demonstrated “in an indirect sense” motor
and/or sensory weakness. Dr. Uejo, as OWCP medical adviser, disputed this argument finding
that the reflex abnormalities were not ratable factors under the sixth edition. OWCP denied
appellant’s request for reconsideration by decision dated April 22, 2011. It further noted that the
earlier modification of the schedule award was incorrect; OWCP was rescinding the schedule
award and establishing an overpayment based on the payment for the original schedule award. A
May 30, 2011 request for reconsideration was filed but by decision dated July 28, 2011 OWCP
denied the request without reviewing the merits of the case.
In a decision dated August 21, 2012, the Board affirmed OWCP’s April 22, 2011 decision
rescission of the schedule award.3 The Board found that OWCP had not accepted a herniated
disc as a result of the January 2004 employment injury. While the impairment ratings were
premised on an October 14, 2009 MRI scan which identified a herniated disc and provided a
medical cause for a diagnosis of radiculopathy, the medical record did not support that this
condition was causally related to appellant’s 2004 injury. The facts presented in the Board’s
August 21, 2012 decision are hereby incorporated by reference.
On August 25, 2012 appellant again requested a schedule award.
Dr. Graf, in his capacity as appellant’s treating physician, provided an October 2, 2012
report which repeated his earlier diagnosis of a herniated disc at L4-5. He found on examination
that appellant had a slow and hesitant gait with no motor deficits; he showed pain reaction on
manipulative, palpation spring tests at thoracic levels T7-8 in a prone position and at lumbar
levels L3-4, L4-5 and L5-S1, with tenderness to palpation in both sciatic notches. Dr. Graf
stated that appellant’s symptoms correlated with objective findings from MRI scan results. He
advised that these findings supported the existence of a herniated L4-5 level disc and with
intermittent inflammation of the L5 spinal nerve roots. Dr. Graf asserted that these physical
findings also correlated with a secondary diagnosis of thoracic level intervertebral disc and facet
joint with myofascial trigger points to the right of the midline at thoracic levels.
Dr. Graf found that appellant had a class 1 impairment and a seven percent lower
extremity impairment under Table 17-4, Lumbar Spine Regional Grid, Lower Extremity
Impairments, at page 570 of the A.M.A., Guides.4 Using the Adjustment Grid, functional
history, at Table 17-6, section 17.3a, at page 575 of the A.M.A., Guides,5 he found that appellant
had a grade modifier of 2 for functional history based on his score of 40 for the daily activities
lower extremities questionnaire, a moderate problem; with regard to physical examination, he
assigned a grade modifier of 1, for a mild problem, pursuant to Table 17-7, section 17.3b, at page
576 of the A.M.A., Guides;6 and a grade modifier of 1 for clinical studies, a mild problem
3

Docket No. 11-1915 (issued August 21, 2012).

4

A.M.A., Guides 570.

5

Id. at 575.

6

Id. at 576.

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pursuant to Table 17-8, section 17.3c at page 578 of the A.M.A., Guides7 based on clinical
studies.
Based on the above findings, Dr. Graf applied the net adjustments from functional
history, physical examination and clinical studies to reach a net, adjusted grade modifier of plus
one, at the net adjustment formula at page 582 of the A.M.A., Guides.8 He stated:
“An eight percent impairment of the thoracolumbar spine is present. This
impairment of the thoracolumbar spine directly affects lower extremity functions.
An 8 percent thoracolumbar impairment affecting lower extremity functions
including capacity to maintain strength and function and including intermittent L5
lower extremity radiculopathy, the 8 percent impairment is converted to a 19
percent lower extremity permanent impairment, reference Table 16-10.”
In a December 6, 2012 report, Dr. Morley Slutsky, Board-certified in occupational
medicine and an OWCP medical adviser, determined that Dr. Graf’s report was unclear as to
whether the 19 percent lower extremity impairment rating represented a total for both lower
extremities or 19 percent for each lower extremity. He also indicated that Dr. Graf’s rating
lacked validity because he also had relied on Chapter 17, the spinal chapter in the A.M.A.,
Guides; he asserted that this chapter is not used by OWCP and is not considered in the final
rating calculations. Finally, the medical adviser explained that because Dr. Graf had not
diagnosed objective sensory or motor deficits in appellant’s lower extremities, there was no basis
for an impairment rating in either lower extremity using the July/August 2009 edition of The
Guides Newsletter or the A.M.A., Guides.
By decision dated April 2, 2013, OWCP denied appellant’s schedule award claim. It
found that Dr. Graf’s October 2, 2012 report was not sufficient to alter its previous finding of no
permanent impairment in the lower extremities under the A.M.A., Guides.
On April 13, 2013 appellant requested an oral hearing and submitted a March 27, 2013,
report of Dr. Graf. Dr. Graf stated that on examination appellant had a diminished sensibility to
touch with brush in the lateral thigh, lateral leg below the knee on the left and diminished
vibration sense in the same areas. Appellant’s symptoms followed an L5 spinal nerve root
pattern of the left lower extremity compared with the right lower extremity. Dr. Graf diagnosed
a left-sided disc herniation at the L4-5 level with mild impingement on the exiting nerve root.
He also diagnosed a thoracic disc bulge, and degenerative endplate changes at T4-5, as noted by
MRI scan. Dr. Graf reported that, although appellant had normal electromyogram (EMG) and
nerve conduction velocity (NCV) studies, he opined that negative studies do not rule out
radiculopathy. He asserted that given the consistency and findings over time and the functional
impairments involved that he believed appellant had objective sensory deficits in a
predominantly L5 peripheral spinal nerve root pattern. Dr. Graf determined that additional
changes at thoracic levels did not appear to cause radiculopathy but contributed to his functional
7

Id. at 578.

8

Id. at 582.

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impairments. He related that other physicians had found diminished light touch and pinprick
sensation in the same pattern he described above.
Dr. Graf found that appellant had a class 2 impairment, a moderate problem, which
yielded a 24 percent left lower extremity impairment under Table 16-12, Peripheral Nerve
Impairment Grid, Lower Extremity Impairments, at page 534 of the A.M.A., Guides.9 Using the
Adjustment Grid, functional history, at Table 16-6, section 16.3a, at page 516 of the A.M.A.,
Guides,10 Dr. Graf found that appellant had a grade modifier of 2 for functional history based on
his score of 36 for the daily activities lower extremities questionnaire, a moderate problem; with
regard to physical examination, he assigned a grade modifier of 2, for a moderate problem,
pursuant to Table 16-7, section 16.3b, at page 517 of the A.M.A., Guides;11 and a grade modifier
of 2 for clinical studies, a moderate problem based on MRI scan results showing far lateral L4-5
foraminal disc herniation pursuant to Table 16-8, section 17.3c at page 519 of the A.M.A.,
Guides.12
Based on the above findings, Dr. Graf applied the net adjustments from functional
history, physical examination and clinical studies, with grade modifiers to reach a net, adjusted
grade modifier of zero, at the net adjustment formula at page 521 of the A.M.A., Guides.13 He
stated that under Table 16-11 at page 533 of the A.M.A., Guides14 appellant had sensory
abnormalities in the L5 spinal nerve root, with objective evidence of lower extremity motor loss
with absent reflex activity.
By decision dated September 24, 2013, an OWCP hearing representative affirmed the
April 2, 2013 decision. She found that Dr. Graf’s updated impairment rating lacked probative
value, due to the inconsistent findings in appellant’s examinations, and that it was essentially
duplicative of his prior reports which had served to create the original conflict of opinion.
Therefore, OWCP’s hearing representative determined that the weight of medical opinion
continued to rest with Dr. Sobel, the impartial medical examiner, who found no permanent
impairment in the lower extremities.
LEGAL PRECEDENT
The schedule award provision of FECA15 and its implementing regulations16 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
9

Id. at 534.

10

Id. at 516.

11

Id. at 517.

12

Id. at 519.

13

Id. at 582.

14

Id. at 533.

15

5 U.S.C. § 8107.

16

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

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loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.17 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.18
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as impairments of the extremities. Recognizing that FECA allows ratings
for extremities and precludes ratings for the spine, The Guides Newsletter offers an approach to
rating spinal nerve impairments consistent with sixth edition methodology.19 OWCP has
adopted this approach for rating impairment to the upper or lower extremities caused by a spinal
injury.20
ANALYSIS
On appeal, appellant’s counsel challenges OWCP’s reliance on the July/August 2009
edition of The Guides Newsletter in rating nerve root impairments, which, he asserts, lacks any
scientific basis or probative value. He contends that appellant was entitled to a schedule award
for a 24 percent left lower extremity impairment because Dr. Graf based his rating on the
appropriate tables and protocols of the sixth edition of the A.M.A., Guides.
Counsel asserts that previous medical reports had verified findings of radiculopathy and
that Dr. Graf made findings of sensory nerve impairment which were a sufficient basis to render
an impairment rating for sensory impairment of the spine. He argues that OWCP wrongfully
relied on a normal EMG study. Counsel contends that an EMG study is not helpful with
diagnosing impairments at the nerve root level.
The Board does not accept the contentions raised by appellant’s attorney on appeal.
OWCP has implemented guidelines that impairment to the upper or lower extremities caused by
a spinal injury should be evaluated in accordance with the article “Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition” in the July/August 2009 edition of The Guides
Newsletter published by the A.M.A., Guides.21 OWCP has adopted The Guides Newsletter to
rate spinal nerve impairments consistent with sixth edition methodology. Appellant has not
17

Id.

18

Veronica Williams, 56 ECAB 367, 370 (2005).

19

L.J., Docket No. 10-1263 (issued March 3, 2011).

20

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(3) (January 2010). As noted above this newsletter has been reproduced with the permission of the
American Medical Association as Exhibit 4 in Chapter 3.700.

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submitted medical evidence to establish that he is entitled to a schedule award pursuant to these
guidelines, which have been adopted under both OWCP and Board case law.22
OWCP accepted the conditions of lumbar and thoracic sprain. A schedule award is not
payable for injury to the spine.23 However, a claimant may be entitled to a schedule award for
permanent impairment to an extremity even though a spinal condition caused the impairment.24
Appellant must first establish impairment to a scheduled member caused by the accepted
condition before an impairment from an unrelated, preexisting condition becomes relevant,
causally related, and can be assessed.25
In its August 21, 2012 decision, the Board found that the weight of the medical evidence
prior to appellant’s October 14, 2009 MRI scan established that he did not suffer a herniated disc
as a result of his 2004 employment injury. Appellant has provided no medical opinion evidence
to refute this Board finding. Subsequent to the Board’s decision, appellant submitted Dr. Graf’s
October 2, 2012 and March 27, 2013 reports. These reports do not establish that appellant had a
permanent impairment caused by his accepted lumbar and thoracic strains following the
protocols of The Guides Newsletter. In his October 2, 2012 report, Dr. Graf reiterated his
diagnosis of a herniated disc at L4-5 and stated findings of pain and tenderness on examination at
T7-8 and L3-4, L4-5 and L5-S1. He asserted that appellant’s symptoms correlated with
objective findings from MRI scan results. Dr. Graf determined that there was a secondary
diagnosis involving thoracic level disc and facet joint symptoms. He rated a 19 percent lower
extremity impairment based on these findings. The medical adviser correctly determined that
Dr. Graf’s impairment rating lacked validity because he continued to rely on Chapter 17 of the
A.M.A., Guides, rather than the July/August 2009 edition of The Guides Newsletter.
Dr. Graf alternatively found in his March 27, 2013 report that appellant had a 24 percent
left lower extremity impairment under Table 16-12 at page 534 of the A.M.A., Guides. He
stated that on examination appellant had a diminished sensibility to touch with brush in the
lateral thigh, lateral leg below the knee on the left and diminished vibration sense in the same
distribution, i.e., an L5 spinal nerve root pattern of the left lower extremity as compared with the
right lower extremity. Dr. Graf further noted that appellant experienced pain at L4-5 and T9-10.
He reiterated his diagnosis of herniation at the L4-5 level as indicated by MRI scan. Dr. Graf
stated that under Table 16-11 at page 533 appellant had sensory abnormalities in the L5 spinal
nerve root, with objective evidence of lower extremity motor loss with absent reflex activity.
Dr. Graf’s March 27, 2013 report is not sufficient. While he noted that appellant had
sensory abnormalities in the L5 spinal nerve root distribution, he did not provide sufficient
objective findings to meet the standards for rating a lower extremity impairment caused by
appellant’s accepted lumbar and thoracic conditions set forth in the sixth edition of the A.M.A.,
Guides and the July/August 2009 edition of The Guides Newsletter. Dr. Graf’s impairment
22

See, e.g., N.E., Docket No. 13-187 (issued April 19, 2013).

23

Pamela J. Darling, 49 ECAB 286, n.7 (1998).

24

Thomas J. Engelhart, 50 ECAB 319, n.8 (1999).

25

See generally Thomas P. Lavin, 57 ECAB 353 (2006).

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evaluation is still premised upon his diagnoses of herniated thoracic and lumbar discs, which are
not accepted as causally related to the employment injury. OWCP properly determined that
Dr. Graf’s reports did not provide a basis for a schedule award under FECA based on his
accepted conditions.
The Board will affirm the September 24, 2013 OWCP decision.
CONCLUSION
The Board finds that appellant has not sustained any permanent impairment causally
related to his accepted lumbar and thoracic conditions.
ORDER
IT IS HEREBY ORDERED THAT the September 24, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.26
Issued: September 16, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

26

Richard J. Daschbach, Chief Judge, participated in the preparation of the decision but was longer a member of
the Board after May 16, 2014.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF SAFETY & ENVIRONMENTAL
ENFORCEMENT, Washington, DC, Employer
__________________________________________

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Appearances:
Andrew Douglas, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1285
Issued: March 4, 2022

Case Submitted on the Record

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

JURISDICTION
On August 25, 2021 appellant, through counsel, filed a timely appeal from an August 13,
2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant

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

Counsel did not appeal from July 2 and 16, 2021 OWCP merit decisions. He identified only the August 13, 2021
nonmerit decision on the application for review (Form AB-1). As such, the July 2 and 16, 2021 merit decisions are
not properly before the Board on the current appeal. See 20 C.F.R. § 501.3; see also M.M., Docket No. 20-0523
(issued August 25, 2020).

to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case. 4
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 January 25, 2017 appellant, then a 63-year-old administrative specialist, filed a
traumatic injury claim (Form CA-1) alleging that on that date she injured her left foot when a
19-pound box fell on her foot while in the performance of duty. She stopped work on the date of
injury. OWCP accepted appellant’s claim for left ankle and foot arthropathies and left foot
fracture. It paid wage-loss compensation on the supplemental rolls beginning March 20, 2017 and
placed her on the periodic rolls, effective February 4, 2018.
On March 1, 2018 OWCP referred appellant, along with a statement of accepted facts
(SOAF), a copy of the case record, and a series of questions, to Dr. Robert Smith, a Board-certified
orthopedic surgeon, for second opinion evaluation regarding the status of her accepted January 25,
2017 employment injury. In a March 15, 2018 report, Dr. Smith reviewed her history, including
the SOAF, and conducted a physical examination. In response to OWCP’s questions, he indicated
that appellant’s accepted left foot fracture and left foot and ankle arthropathies had resolved and
that the only remaining medical condition of concern was Complex Regional Pain Syndrome
(CPRS)/Reflex Sympathetic Dystrophy (RSD). Dr. Smith recommended a bone scan for the left
lower extremity.
On March 14, 2018 OWCP also referred appellant to Dr. Ira Kornbluth, a Board-certified
pain management and physical medicine and rehabilitation physician, for a second -opinion
examination. In an April 6, 2018 progress note, Dr. Kornbluth indicated that he had reviewed the
SOAF, and provided examination findings. In response to OWCP’s questions, he reported that
appellant had residuals of her left foot arthropathy condition. Dr. Kornbluth opined that she was
capable of working in “a light physical capacity level.” He completed a work capacity evaluation
form (Form OWCP-5c) which indicated that appellant could work full time with restrictions of
sitting up to 4 hours, walking, standing, bending/stooping, and operating a motor vehicle up to 1
hour, pushing, pulling, and lifting up to 10 pounds, and no squatting, kneeling, or climbing.
In a June 15, 2018 report, Dr. Lee Ann Rhodes, a Board-certified anesthesiologist and pain
medicine physician, recounted appellant’s complaints of left lower extremity pain since a
January 2017 work-related injury. She noted physical examination findings of slightly reduced
3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the August 13, 2021 decision, appellant submitted additional evidence to
OWCP. 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

2

range of motion and strength on the left lower extremity. Dr. Rhodes assessed RSD and opined
that appellant’s left foot RSD/CPRS was a direct result of her work injury. She also reported that
there were no tests to confirm this diagnosis and that bone density tests were not diagnostic.
On August 31, 2018 the employing establishment offered appellant a full-time, modifiedduty position as an administrative specialist based on Dr. Kornbluth’s work restrictions. The
physical requirements of the position included sitting up to 4 hours, walking, standing, operating
a motorized scooter, twisting, bending, and stooping up to 1 hour, and pushing, pulling, and lifting
up to 10 pounds less than 1 hour.
In an October 18, 2018 supplemental report, Dr. Kornbluth noted appellant’s accepted left
foot arthropathy and left foot fracture conditions. He indicated that she was not disabled from
work and could work at the sedentary physical capacity level.
In a November 30, 2018 letter, Dr. Smith opined that appellant did not have RSD in her
left lower extremity causally related to the accepted January 25, 2017 employment incident. He
explained that physical examination on March 15, 2018 did not show dystrophic signs of any kind
in her left lower extremity.
In a February 1, 2019 addendum note, Dr. Rhodes provided examination findings and
assessed CRPS of the left lower extremity. She reported that appellant met the criteria on skin
color changes, sensory changes in the area of pain, and edema. Dr. Rhodes indicated that
appellant’s pain prohibited appellant from working until August 2019.
In a February 5, 2019 letter, a human resources specialist for the employing establishment,
advised that the August 31, 2018 job offer remained available. He also noted that appellant did
not respond to the August 31, 2018 job offer.
By notice dated February 12, 2019, OWCP advised appellant that it determined that she
refused or failed to report to the offered position as a modified administrative specialist. It
informed her that it had reviewed the offered position and found that it was suitable in accordance
with the medical limitations provided by Dr. Kornbluth in his October 18, 2018 report. Pursuant
to 5 U.S.C. § 8106(c)(2), OWCP afforded appellant 30 days to either accept the position or to
provide adequate reasons for refusal. It informed her that, if she failed to report to work or failed
to demonstrate that the failure was justified, her right to compensation for wage loss or a schedule
award would be terminated.
By notice dated March 19, 2019, OWCP notified appellant that her reasons for refusing the
August 31, 2018 job offer were not valid. It provided her 15 days to accept the position or have
her entitlement to wage-loss compensation benefits terminated. OWCP advised appellant that the
offered position remained available.

3

On April 3, 2019 appellant returned to work, but stopped working after a few hours.5
By decision dated April 10, 2019, OWCP terminated appellant’s wage-loss compensation
and entitlement to a schedule award, effective April 10, 2019.
On April 9, 2020 appellant, through then-counsel, requested reconsideration. She asserted
that new medical documentation from appellant’s treating physician demonstrated that appellant
was justified in rejecting the August 31, 2018 job offer due to work restrictions resulting from the
January 25, 2017 employment injury.
Appellant submitted an April 24, 2019 functional capacity evaluation summary report,
which indicated that she was capable of working full-time modified light-duty work. OWCP also
received additional treatment notes, laboratory test result reports, and physical therapy notes dated
April 24 through November 4, 2019.
By decision dated July 6, 2020, OWCP denied modification of the April 10, 2019 decision.
On April 6, 2021 appellant, through counsel, requested reconsideration. Counsel argued
that OWCP failed to meet its burden of proof to terminate appellant’s wage-loss compensation
because a conflict in medical evidence existed between Dr. Smith, OWCP’s second opinion
examiner, and Dr. Rhodes, appellant’s treating physician, regarding whether appellant had CPRS
of the left lower extremity as a result of the January 25, 2017 employment incident and the need
for further medical treatment. Counsel asserted that this issue should have been resolved before
OWCP terminated appellant’s wage-loss compensation and entitlement to schedule award benefits
based on her refusal of suitable work.
In a June 14, 2019 report, Dr. Rhodes reviewed appellant’s history and recounted
appellant’s complaints of low back pain radiating into the left buttock, thigh, and calf. She
provided examination findings and diagnosed CRPS of the left lower extremity. Dr. Rhodes
reported that appellant was 100 percent disabled and could not return to work in any capacity.
By decision dated July 2, 2021, OWCP denied modification of the July 6, 2020 decision.
On July 23, 2021 appellant, through counsel, requested reconsideration. Counsel argued
that OWCP erroneously interpreted the law regarding a conflict in the medical evidence
requirement for a referee medical examination. He contended that a conflict in the medical opinion
evidence existed between Dr. Smith and Dr. Rhodes regarding whether appellant had CPRS
causally related to the accepted January 25, 2017 employment incident and whether appellant
required further medical treatment in order to return to work. Counsel asserted that OWCP erred
in terminating appellant’s wage-loss compensation benefits before a referee medical examiner
could resolve the conflict in medical evidence.

5

Appellant subsequently filed a notice of recurrence of disability (Form CA-2a) claim alleging that on April 3,
2019 she sustained a recurrence of the accepted January 25, 2017 employment injury. In a May 12, 2020 decision,
OWCP denied the recurrence claim. The recurrence issue is currently not before the Board.

4

By decision dated August 13, 2021, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
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. 6
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
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.7
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 8 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 9 If the request is timely but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsidera tion without
reopening the case for review on the merits. 10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
With appellant’s July 23, 2021 request for reconsideration, counsel submitted a statement
alleging that OWCP erroneously interpreted the law regarding a conflict in the medical evidence.
He argued that OWCP erred in terminating appellant’s wage-loss compensation benefits before an
impartial medical examiner could resolve the conflict in medical evidence between Dr. Smith and
Dr. Rhodes regarding whether appellant had CPRS causally related to the accepted January 25,
2017 employment incident and whether appellant required further medical treatment in order to
6

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
7

20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); J.W., Docket No. 19-1795
(issued March 13, 2010); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
8

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 (September 2020). 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). Id. at Chapter 2.1602.4b.
9

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

10

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

5

return to work. Appellant’s reconsideration request does not advance a new legal argument not
previously considered nor show that OWCP erroneously applied or interpreted a specific point of
law. Her argument was substantially similar to that which was previously considered and
discussed in OWCP’s July 2, 2021 decision.11 Consequently, appellant is not entitled to further
review of the merits of her claim based on either the first or second above-noted requirements
under 20 C.F.R. § 10.606(b)(3). 12
Furthermore, the Board finds that appellant has not provided any relevant and pertinent
new evidence not previously considered. 13 Thus, appellant is also not entitled to a review of the
merits of her claim based on the third above-noted requirement under section 10.606(b)(3).14
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 15
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

11

See T.S., Docket No. 20-0968 (issued August 17, 2021); see also J.V., Docket No. 19-1554 (issued
October 9, 2020).
20 C.F.R. § 10.606(b)(3)(i) – (ii); P.M., Docket No. 20-0780 (issued November 24, 2020); G.Q., Docket No. 181697 (issued March 21, 2019); Alan G. Williams, 52 ECAB 180 (2000).
12

13

T.H., Docket No. 20-1598 (issued June 2, 2021); F.D., Docket No. 19-0890 (issued November 8, 2019).

14

20 C.F.R. § 10.606(b)(3)(iii); J.V., Docket No. 19-1554 (issued October 9, 2020); T.M., Docket No. 19-0535
(issued July 25, 2019).
15

S.M., Docket No. 21-0392 (issued August 12, 2021); D.G., Docket No. 19-1348 (issued December 2, 2019); A.R.,
Docket No. 16-1416 (issued April 10, 2017); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006)
(when a request for reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b), OWCP will deny the request for reconsideration without reopening the case for a review on the merits).

6

ORDER
IT IS HEREBY ORDERED THAT the August 13, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 4, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Anthony, TX, Employer
__________________________________________

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

Docket No. 16-0582
Issued: July 20, 2016

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 February 8, 2016 appellant filed a timely appeal from a January 15, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant had no more than 12
percent permanent impairment of the right upper extremity and 4 percent permanent impairment
of the left upper extremity, for which he received schedule awards.
FACTUAL HISTORY
OWCP accepted that on or before February 26, 2013 appellant, then a 49-year-old drug
treatment specialist, sustained bilateral carpal tunnel syndrome and bilateral tenosynovitis of the
1

5 U.S.C. § 8101 et seq.

hand and wrist due to repetitive keyboarding and clerical tasks. It had accepted right elbow and
forearm sprain under a prior claim (File No. xxxxxx776) on August 2, 2006.
By decision dated September 29, 2010 under File No. xxxxxx776, OWCP granted
appellant a schedule award for six percent impairment of the right upper extremity.
On July 18, 2013 appellant underwent surgery to remove a spur and sutures from the
right triceps tendon at the elbow. He returned to restricted duty on September 1, 2013 and to full
duty on December 4, 2013.
Dr. Robert R. Bell, an attending Board-certified orthopedic surgeon, performed a right
carpal tunnel release on March 3, 2014, authorized by OWCP. He received compensation for
work absences.
By decision dated April 2, 2014 under File No. xxxxxx776, OWCP issued a schedule
award for an additional two percent impairment of the right upper extremity.
Dr. Bell performed a left carpal tunnel release on August 4, 2014 authorized by OWCP.
He received wage-loss compensation from August 4 to September 14, 2014.
On September 15, 2014 appellant filed a claimed for a schedule award (Form CA-7). In
an October 15, 2014 letter, OWCP advised him to submit a report from his attending physician
establishing that the accepted bilateral carpal tunnel syndrome and tenosynovitis had reached
maximum medical improvement. The physician was also to provide an impairment rating
according to the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (hereinafter, the A.M.A., Guides) and to establish that the accepted
conditions had reached maximum medical improvement. Appellant was afforded 30 days to
submit such evidence.
In response, appellant submitted a January 19, 2015 report from Dr. Andrew Palafox, an
attending Board-certified orthopedic surgeon. Dr. Palafox reviewed the history of injury
and treatment, and opined that appellant had reached maximum medical improvement as of
January 19, 2015. Appellant completed a QuickDASH questionnaire with a score of 40.
Dr. Palafox related appellant’s complaints of intermittent numbness and tingling in both hands.
Appellant stated that he did not experience difficulties with activities of daily living. On
examination, Dr. Palafox noted slightly reduced normal two-point discrimination in both hands.
Referring to Table 15-23 of the A.M.A., Guides,2 he noted a class 1 diagnosis-based impairment
(DBI) Class of Diagnosis (CDX) of bilateral carpal tunnel syndrome, with a default grade 5. For
the right hand, Dr. Palafox found a grade 1 modifier for Clinical Studies (GMCS) for a
conduction delay on electromyography studies. He also found a grade 2 modifier for Functional
History (GMFH) for significant intermittent paresthesias and a grade 2 modifier for findings on
Physical Examination (GMPE) for slightly diminished two-point discrimination. Dr. Palafox
calculated that according to the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX), or “1+2+2,” appellant had an average modifier of 2.25, rounded downward to
2

Table 15-23, page 449 of the sixth edition of the A.M.A., Guides is entitled “Entrapment/Compression
Neuropathy Impairment.”

2

2, which left the default CDX of 5 unchanged. He opined that the QuickDASH score of 40
raised the default five percent to six percent on the right. Dr. Palafox used the same method to
calculate five percent impairment of the left hand, as the QuickDASH score was not included for
the second extremity, so as not to use the grade modifier twice. Using the Combined Values
Chart, 6 percent for the right combined with 5 percent for the left provided a total upper
extremity impairment of 11 percent.
In a March 30, 2015 report, an OWCP medical adviser reviewed Dr. Palafox’s report and
concurred with his assessment of five percent impairment of the left upper extremity. He agreed
with Dr. Palafox that the grade modifiers established five percent impairment of the right upper
extremity, but differed in concluding that the QuickDASH score would not raise the total
impairment to six percent. The medical adviser noted that the QuickDASH of 40 resulted in a
modifier of 1 and that Dr. Palafox apparently misread Table 15-23. Therefore, appellant had five
percent impairment of the right arm. As to the left, the medical adviser found a default value of
five percent and noted that Dr. Palafox did not use the functional modifier, but as this is not the
same extremity he could have.
On June 1, 2015 the medical adviser provided an updated report noting errors in his prior
report and inclusion of the schedule awards under File No. xxxxxx776. He opined that appellant
had four percent impairment of each upper extremity, as the QuickDASH score of 40 reduced the
default five percent CDX to four percent. No rationale was provided for using the modifier of
the QuickDASH to reduce the right upper extremity rating. The medical adviser did note that it
was his opinion that it is permissible to use the functional modifier more than one in determining
impairment based on entrapment neuropathy. He noted that appellant had received a schedule
award for eight percent impairment of the right arm under File No. xxxxxx776. Combining the
prior 8 percent with the current 4 percent for carpal tunnel syndrome under the present claim
resulted in 12 percent impairment of the right upper extremity. Subtracting the eight percent
previously awarded resulted in an additional four percent right arm impairment due to accepted
carpal syndrome and tendinitis.
By decision dated July 24, 2015, OWCP awarded appellant four percent permanent
impairment of the left upper extremity and an additional four percent permanent impairment of
the right upper extremity. It noted that he had previously been granted a schedule award for an 8
percent permanent impairment of the right upper extremity due to a bicep tendon tear and
olecranon bursitis under File No. xxxxxx776, which corresponds to a total right upper extremity
of 12 percent.
Appellant disagreed and in an August 6, 2015 letter requested a review of the written
record. He contended that he had not received prior schedule awards for his right upper
extremity. Appellant submitted November 17 and 25, 2015 reports from Dr. Bell, an attending
Board-certified orthopedic surgeon, who diagnosed bilateral carpal tunnel syndrome and
prescribed compression gloves. Dr. Bell did not address the issue of permanent impairment.
By decision dated January 15, 2016, an OWCP hearing representative affirmed OWCP’s
July 24, 2015 decision, finding that properly applied the appropriate portions of the A.M.A.,
Guides to Dr. Palafox’s clinical findings.

3

LEGAL PRECEDENT
The schedule award provisions of FECA3 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. It, however, does
not specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a mater which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides has
been adopted by OWCP as a standard for evaluation of schedule losses and the Board has
concurred in such adoption.4 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides, published in 2008.5
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).6 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition, which is then adjusted by grade modifiers based on GMFH, GMPE, and
GMCS.7 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
In addressing upper extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition, which is then adjusted by grade modifiers based
on GMFH, GMPE, and GMCS.8 The net adjustment formula is (GMFH - CDX) + (GMPE CDX) + (GMCS - CDX).9
The adjustment grid for functional history notes that this grade modifier should be applied
only to the single, highest DBI. Specific jurisdictions may modify the process such that functional
history adjustment is considered for each DBI or not considered at all as a modifier.10 The
evaluating physician may use the QuickDASH functional assessment outcome questionnaire as
part of the process of evaluating functional symptoms…. The inventory is used only to assist the

3

5 U.S.C. § 8107.

4

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700.2 and Exhibit 1 (January 2010).
6

A.M.A., Guides, at 3, section 1.3, “The International Classification of Functioning, Disability and Health (ICF):
A Contemporary Model of Disablement” (6th ed. 2009).
7

Id. at 494-531 (6th ed. 2008).

8

Id. at 385-419, see M.P., Docket No. 13-2087 (issued April 8, 2014).

9

Id. at 411.

10

Supra note 2, section 15.3a Adjustment Grid: Functional History, at 406.

4

examiner in defining the grade modifier for functional history and does not serve as a basis for
defining further impairment, nor does the score reflect an impairment percentage.11
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome and bilateral
tenosynovitis of the hand and wrist. Appellant underwent right carpal tunnel release on March 3,
2014 and left carpal tunnel release on August 4, 2014, authorized by OWCP. He claimed a
schedule award on September 15, 2014. In support of his claim, appellant submitted a
January 19, 2015 report from Dr. Palafox, an attending Board-certified orthopedic surgeon.
Dr. Palafox opined that appellant had five percent impairment of the left upper extremity
and six percent impairment of the left upper extremity due to carpal tunnel syndrome. Referring
to Table 15-23 of the A.M.A., Guides, he found a class 1 DBI of bilateral carpal tunnel
syndrome, with a default grade 5. For each hand, Dr. Palafox found a grade 1 modifier for
GMCS due to a conduction delay on electrodiagnostic studies, a grade 2 modifier for GMFH for
paresthesias, and a grade 2 modifier for findings on GMPE for slightly diminished two-point
discrimination. As the modifiers did not result in a net adjustment, Dr. Palafox found five
percent impairment of each arm, increased to six percent on the right due to the QuickDASH
score.
In March 30 and June 1, 2015 reports, an OWCP medical adviser explained that
Dr. Palafox misunderstood the interrelationship of Table 15-23 and the QuickDASH score. He
opined that based on Dr. Palafox’s clinical findings, appellant had four percent impairment of
each arm due to carpal tunnel syndrome and tenosynovitis. OWCP then issued the July 24, 2015
schedule award for four percent impairment of the right arm and four percent impairment of the
left arm. It noted that this was in addition to the eight percent impairment for the right arm
previously awarded under File No. xxxxxx776.
The Board finds that this case is not in posture for a decision. Once OWCP undertakes
development of the record, it must do a complete job in procuring medical evidence that will
resolve the relevant issues in the case.12 The Board finds that neither the January 19, 2015 report
of Dr. Palafox nor the March 30 and June 1, 2015 reports of the OWCP medical adviser provide
sufficient medical rationale as to the extent of appellant’s permanent impairment of his bilateral
upper extremities. Neither physician provided an explanation as to the proper use of the
QuickDASH score in the calculation of permanent impairment. There is np explanation as to
why the QuickDASH was used by Dr. Palafox only on the right upper extremity and not on the
left. There is also no explanation from the medical adviser to explain why the QuickDASH score
should be used to reduce the extent of impairment from the default value of five percent to four
percent for both upper extremities. Accordingly, the case will be remanded to OWCP for further
development of the medical evidence as to the extent of bilateral upper extremity impairment.
On remand, OWCP should further develop the medical evidence by preparing a statement of
accepted facts and referring appellant for a second opinion examination in accordance with its
11

Id.

12

See B.C., Docket No. 15-1853 (issued January 2016).

5

procedures.13 After such further development, as it deems necessary, it should issue a de novo
decision.
On appeal, appellant contends that the medical adviser improperly reduced his
impairment rating to four percent of each upper extremity because he mistakenly believed that
appellant received prior schedule awards for an eight percent right upper extremity impairment
under File No. xxxxxx776. He also contends that he did not receive prior schedule awards for
right upper extremity impairment. The Board notes, however, that this case is not currently in
posture for decision.
CONCLUSION
The Board finds that this matter is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the January 15, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.
Issued: July 20, 2016
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

13

OWCP’s procedures provide that, if a medical adviser provides an opinion which is not strong enough to
constitute a conflict with the opinion of the treating physician, but is of sufficient value to warrant additional action,
OWCP may refer the claim for a second opinion examination. See Federal (FECA) Procedure Manual, Part 2 -Claims, Developing and Evaluation Medical Evidence, Chapter 2.810.8(h) (September 2010).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.S., Appellant
and
DEPARTMENT OF STATE, PEACE CORPS,
Washington DC, Employer
__________________________________________
Appearances:
James C. Tucker, Esq., for the appellant
No appearance, for the Director

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Docket No. 08-1797
Issued: December 23, 2008

Oral Argument November 19, 2008

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

JURISDICTION
On June 16, 2008 appellant, through his attorney, filed a timely appeal of the Office of
Workers’ Compensation Programs’ merit decision dated May 13, 2008 reducing his
compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof to modify appellant’s October 9,
1975 wage-earning capacity determination and reduce his compensation benefits to zero on the
grounds that he has been vocationally rehabilitated.
FACTUAL HISTORY
This claim has previously been before the Board. On June 6, 1973 appellant, then a 26year-old peace corps volunteer, filed a claim alleging that on April 4, 1973 he developed
gastroenteritis due to his work exposures. The Office accepted his claim for gastroenteritis,
Addison’s disease and chronic unrelenting hepatitis. By decision dated October 9, 1975, it

reduced appellant’s compensation benefits to reflect his ability to earn wages in the constructed
position as a bank manager trainee. By decision dated August 24, 1995, the Office modified this
decision by reducing his compensation benefits to zero effective August 24, 1995 on the grounds
that he had rehabilitated himself and was currently earning in excess of the pay rate for his dateof-injury job. By decision dated September 30, 1996, the Branch of Hearings and Review
affirmed this decision. In a decision dated October 26, 1999,1 the Board reversed the Office’s
decisions on the grounds that it failed to follow its procedures in modifying the original loss of
wage-earning capacity determination. The facts and the circumstances of the Board’s prior
decision are adopted herein by reference.
On September 14, 2006 the Office requested that appellant provide information regarding
his current earnings. Appellant responded on September 21, 2006 and reported his current
earnings of $55,700.00 per year as an Executive Director at First Chance Center. In a
memorandum dated March 9, 2007, the Office noted that a management trainee had weekly
wages of $467.10. This position required the performance of assigned duties under the direction
of more experienced personnel in departments such as credit, customer relations and sales to
become familiar with company policies and practices.
In a letter dated March 29, 2007, the Office informed appellant that it proposed to reduce
his compensation benefits to zero as he had “demonstrated self-rehabilitation in his current
position of executive director.” It noted that he began working at First Chance Center in 1983
and had been promoted from a Rehabilitative Specialist to the position of Executive Director in
January 1986. As the Executive Director, appellant was responsible for the implementation and
coordination of all programs and services, development of organizational policies, supervisor of
personnel and preparation of the annual budget. His current position involved more
responsibilities than that of a management trainee. The Office found that, although appellant had
not undergone any specific training courses, he had gained knowledge throughout his
employment with First Chance Center which allowed the expansion of his capabilities and was
self-rehabilitated. It determined that he had no loss of wage-earning capacity based on the
current earnings of a volunteer at the employing establishment of $610.30 per week. The Office
determined that appellant’s current wage-earning capacity was 173 percent. It allowed him 30
days for a response. On April 17, 2007 appellant, through his attorney, disagreed with the
proposed reduction.
By decision dated July 9, 2007, the Office modified the October 9, 1975 wage-earning
capacity determination to reflect a zero percent loss of wage-earning capacity.
Appellant, through his attorney, requested an oral hearing. He testified on February 25,
2008 regarding his ongoing medical conditions and his lack of vocational rehabilitation since his
promotion to Executive Director in 1986. By decision dated May 13, 2008, the hearing
representative affirmed the Office’s July 9, 2007 decision comparing appellant’s current earnings
as an Executive Director with those of a person currently working in his date-of-injury position
at the employing establishment.

1

Docket No. 97-030 (issued October 26, 1999).

2

LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.2 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.3
An increase in pay, by itself, is not sufficient evidence that there has been a change in an
employee’s capacity to earn wages.4 Without a showing of additional qualifications obtained by
appellant, it is improper to make a new loss of wage-earning capacity determination based on
increased earnings.
With respect to modification of wage-earning capacity, the Office procedure manual
provides:
“c. Increased Earnings. It may be appropriate to modify the [wage-earning
capacity] rating on the grounds that the claimant has been vocationally
rehabilitated if one of the following two circumstances applies:
(1) The claimant is earning substantially more in the job for which he or
she was rated. This situation may occur where a claimant has returned to
part-time duty with the employing agency and was rated on that basis, but
later increased his or her hours to full-time work.
(2) The claimant is employed in a new job (i.e., a job different from the job
for which he or she was rated) which pays at least 25 percent more than
the current pay of the job for which the claimant was rated.
“d. CE [claims examiner] Actions. If these earnings have continued for at least 60
days, the CE should:
(1) Determine the duration, exact pay, duties and responsibilities of the
current job.
(2) Determine whether the claimant underwent training or vocational
preparation to earn the current salary.

2

W.G., 58 ECAB ___ (Docket No. 06-367, issued December 27, 2006).

3

Id.

4

Marie A. Gonzales, 55 ECAB 395, 399 (2004).

3

(3) Assess whether the actual job differs significantly in duties, responsibilities, or
technical expertise from the job at which the claimant was rated.”5
ANALYSIS
The Board finds that the evidence establishes that appellant has been vocationally
rehabilitated. He is employed in a new job, Executive Director, rather than the constructed
position of management trainee which the Office initially used to determine his wage-earning
capacity. The Office properly determined the duties, pay and responsibility of the position of
Executive Director and noted that appellant had not undergone any formal training or vocational
preparation for this position. However, it properly found that the position of Executive Director
differed significantly in duties and responsibility from the management trainee position. Due to
the increased responsibilities in the position of Executive Director including managerial duties of
budgeting, hiring, supervision and direct access to the Board of Directors which were not
included in the position of management trainee, the Board finds that the Office properly
determined that appellant was vocationally rehabilitated.
As the Office correctly determined that appellant had been vocationally rehabilitated due
to the increased duties and responsibilities of the new position, it must then determine whether
the new job of Executive Director pays at least 25 percent more than the current pay of the job
for which appellant was rated, management trainee. In the May 13, 2008 decision, it improperly
compared appellant’s earnings as an Executive Director with those of his date-of-injury position
as an employing establishment volunteer rather than with his earnings in the rated position of
management trainee.6 The Office’s procedures specifically require that the Office compare the
earnings in the new job with “the current pay of the job for which the claimant was rated.” For
this reason, the Board finds that the Office failed to meet its burden of proof to modify the
October 9, 1975 wage-earning capacity determination. The May 13, 2008 decision is reversed.
CONCLUSION
The Board finds that the Office did not follow its procedures in modifying appellant’s
October 9, 1975 wage-earning capacity determination. It failed to meet its burden of proof to
reduce appellant’s compensation benefits to zero.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.11(c)(d) (July 1997).
6

M.O., Docket No. 07-267 (issued July 3, 2007).

4

ORDER
IT IS HEREBY ORDERED THAT the May 13, 2008 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 23, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 20-0174
Issued: July 1, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 29, 2019 appellant filed a timely appeal from an August 26, 2019 merit
decision and an October 10, 2019 nonmerit 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.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a diagnosed
medical condition causally related to the accepted employment factors; and (2) whether OWCP
properly denied appellant’s request for a review of the written record as untimely filed pursuant to
5 U.S.C. § 8124.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 21, 2019 appellant, then a 58-year-old human resources clerk, filed an
occupational disease claim (Form CA-2) alleging that she developed a back condition due to
factors of her federal employment including repetitious reaching, twisting, bending, kneeling, and
going up and down a ladder. She indicated that she first became aware of her condition on
February 1, 2019 and realized that it was related to factors of her federal employment on
March 18, 2019. Appellant did not stop work.
In a July 1, 2019 development letter, OWCP informed appellant of the deficiencies in her
claim. It advised her of the type of factual and medical evidence needed to establish her claim and
provided a factual questionnaire for completion. OWCP afforded appellant 30 days to submit the
necessary evidence.
In a March 14, 2019 report, Dr. Sumant Patel, Board-certified in diagnostic radiology,
provided diagnostic findings from an x-ray of the sacroiliac joints. He indicated that appellant had
sacroiliac (SI) joint pain for the prior three weeks and diagnosed a sacroiliac ligament sprain.
Appellant noted in a June 18, 2019 statement that her job required her to file medical
records in multiple areas in a very tight space, constantly reaching, bending, twisting, kneeling,
pushing and pulling, and going up and down a ladder. She asserted that she never had a back
problem until she started working as a file clerk. Appellant indicated that on that day she was
pulling a file out of a tight area when she experienced a sharp pain across her lower back, and she
could hardly get up and walk. She indicated that her doctor diagnosed a back sprain and
recommended over-the-counter medication, but they did little to ease the pain. Appellant asserted
that the daily activities of filing and bending down to locate and retrieve files had taken a toll on
her back.
In a June 19, 2019 medical report, Lan Nguyen, a certified physician assistant, examined
appellant for a complaint of back pain. She diagnosed low back pain and a lower back muscle
strain. In a work status report of even date, Ms. Nguyen noted that appellant could return to work
without restrictions on June 21, 2019.
In a July 15, 2019 statement, appellant noted that on March 14, 2019, her primary care
physician ordered an x-ray because of her complaints of back pain. She indicated that on June 18,
2019 her acting manager suggested that her pain seemed to have resulted from an occupational,
not traumatic, injury.
In a July 23, 2019 letter, the employing establishment controverted appellant’s claim
indicating that she had not identified an accident that caused her pain and that she had not missed
work.
By decision dated August 26, 2019, OWCP accepted that the employment factors occurred,
as alleged, but denied the claim, finding that no medical evidence had been submitted to establish
a medical diagnosis in connection with the accepted employment factors. Thus, it concluded that
the requirements had not been met to establish an injury as defined by FECA.

2

OWCP continued to receive evidence. In an August 2, 2019 report of hazard and unsafe
condition, an employing establishment human resources specialist noted that appellant’s injury
exposed a potential safety hazard at the employing establishment. She indicated that the files were
tightly stacked with little to no room for additional files. The human resources specialist asserted
that this safety hazard created the potential for possible strains/sprains to hand, wrist, arm/elbow,
shoulder, neck, and back and proposed a mitigating solution.
In an August 30, 2019 report, Dr. Marcos Masson, a Board-certified orthopedic surgeon,
noted that appellant twisted her back while picking up a file in the lower shelf, causing sudden
sharp pain. He indicated that she was administered an injection at an emergency room and was
still working full time. Dr. Masson further noted that appellant had no previous extremity
problems, but currently had moderate pain in her lower back when she performed certain motions
or activities. His physical examination, revealed normal results aside from left lumbosacral (LS)
paraspinal tenderness, and diagnosed bilateral sprain of joints and ligament of unspecified parts of
neck. Dr. Masson recommended formal physical therapy and light-duty work restrictions. In an
activity restriction note of even date, he provided work restrictions and diagnosed lumbosacral
(LS) sprain. In a physical therapy prescription of even date, Dr. Masson prescribed physical
therapy for appellant’s sprain.
On September 26, 2019 appellant requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review.
By decision dated October 10, 2019, the hearing representative denied appellant’s request
for a review of the written record as untimely filed, finding that her request was not made within
30 days of the August 26, 2019 OWCP decision as it was received unsigned and undated on
September 26, 2019. The hearing representative further indicated that it exercised its discretion,
but determined that the issue in this case could equally well be addressed by a request for
reconsideration before OWCP along with the submission of new evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 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,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

2

Id.

3
J.W., Docket No. 18-0678 (issued March 3, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

3

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) 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 claimant.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 The opinion of the physician must be based on a complete and
accurate factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.8
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents, is sufficient to establish causal relationship.9
ANALYSIS -- ISSUE 1
The Board finds that appellant has met her 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 her diagnosed condition is causally related to the accepted factors of her employment.
Dr. Patel, in his March 14, 2019 x-ray report, diagnosed a sacroiliac ligament sprain.
Additionally, Dr. Masson, in his reports dated August 30, 2019, diagnosed bilateral sprain of joints
and ligament of unspecified parts of the neck and lumbosacral sprain, noting that on physical
examination, appellant presented with left lumbosacral paraspinal tenderness. Therefore, the
Board finds that the evidence of record establishes diagnosed medical conditions.
OWCP has not reviewed the medical evidence of record regarding the issue of whether the
established diagnoses are causally related to the accepted employment factors. Therefore, the case
will be remanded to OWCP for consideration of the medical evidence on the issue of causal

4

J.S., Docket No.18-0657 (issued February 26, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

L.J., Docket No. 19-1343 (issued February 26, 2020); R.R., Docket No.18-0914 (issued February 24, 2020);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

7

J.F., Docket No. 18-0492 (issued January 16, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8

A.M., Docket No. 18-0562 (issued January 23, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

9

E.W., Docket No. 19-1393 (issued January 29, 2020); Gary L. Fowler, 45 ECAB 365 (1994).

4

relationship. Following such further development as deemed necessary, OWCP shall issue a
de novo decision.10
CONCLUSION
The Board finds that appellant has met her burden of proof to establish a diagnosed medical
condition. The Board also finds, however, that the case is not in posture for a decision as to
whether her diagnosed medical condition is causally related to the accepted factors of her federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the October 10 and August 26, 2019 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this decision of the Board.
Issued: July 1, 2020
Washington, DC

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

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

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

10

In light of the Board’s disposition as to Issue 1, Issue 2 is rendered moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
DEPARTMENT OF STATE, AMERICAN
EMBASSY, Prague, Czech Republic, Employer
__________________________________________

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Appearances:
Mirko J. Dolak, for the appellant
Office of Solicitor, for the Director

Docket No. 07-1641
Issued: December 7, 2007

Case Submitted on the Record

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

JURISDICTION
On June 4, 2007 appellant filed a timely appeal from the May 10, 2007 merit decision of
the Office of Workers’ Compensation Programs, which paid benefits under Czech labor law.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
the Office’s decision.
ISSUE
The issue is whether appellant is entitled to additional compensation based on exchange
rates, inflation or interest.
FACTUAL HISTORY
On the prior appeal,1 the Board noted that appellant was a Czech guard who sustained a
knee injury in the performance of duty in November 2004. At the beginning of his night shift, he
slipped on stairs in the residential garden of the American Ambassador and fell on his right knee.
1

Docket No. 06-1503 (issued January 25, 2007).

The Office accepted his claim for medial meniscus tear of the right knee and right knee bursitis.
The Office paid compensation under Czech law for wage loss and for pain and aggravation.
Appellant argued that the Office should have also paid compensation for the 700 points his
physician assigned for “permanent effects after injury to the soft knee.” The Board found that
the case was not in posture for decision on whether appellant was entitled to such compensation,
as the record did not sufficiently set out the benefit features of the local workers’ compensation
law. The Board remanded the case for further development.2
The Office requested the pertinent local law and made it a part of the record. In a
decision dated May 10, 2007, the Office found that appellant was entitled to compensation for
the 70 points his physician assigned for pain, for the 700 points his physician assigned for
permanent effects and for the difference between his average earnings before the damage caused
by a work-related injury or occupational illness and the full amount of his sickness benefits. The
Office paid a lump sum of $3,460.03 ($5,221.03 total entitlement less $1,761.00 previously
paid).
LEGAL PRECEDENT
Section 8137 of the Federal Employees’ Compensation Act (FECA or Act) provides
compensation to an employee, or a dependent, who is neither a citizen nor a resident of the
United States or Canada. Subsection (a) provides that when the Office finds that the amount of
compensation payable to such an employee or dependent under the Act is substantially
disproportionate to compensation payable in similar cases under local law, the Office may
provide for payment of compensation on a basis reasonably in accord with prevailing local
payments in similar cases, either by “the adoption or adaption of the substantive features, by a
schedule or otherwise, of local workmen’s compensation provisions or other local statute,
regulation, or custom applicable in cases of personal injury or death,” or by “establishing special
schedules of compensation for injury, death and loss of use of members and functions of the
body for specific classes of employees, areas and places.”3
Exchange rates in effect as of the date of injury, date disability began or date of
recurrence should be used to convert local currencies to United States dollars.4 Consumer Price
Index increases apply only if the claimant is being paid under the FECA benefit structure.5 The
Act contains no provision which either in specific terms or by way of implication would
authorize the payment of interest when awards of compensation are made retroactively.6

2

The facts of this case as set forth in the Board’s prior decision are hereby incorporated by reference.

3

5 U.S.C. § 8137(a).

4

Federal (FECA) Procedure Manual, Chapter 4 -- Special Case Procedures, Foreign National Claims, Chapter
4.801.9.n (September 1994).
5

Id. at Chapter 4.801.9.d.

6

Ralph W. Moody, 42 ECAB 364, 370 (1991).

2

ANALYSIS
Appellant does not argue the fundamentals of the Office’s May 10, 2007 decision. The
Office paid compensation for the 700 points his physician assigned for permanent effects, which
is what he sought on the prior appeal. Rather, appellant’s disagreement is at the margins. He
argues that the Office should have used the exchange rate in effect on May 10, 2007, the date of
its decision, and not the rate in effect on the date of injury. He also requests an adjustment for
inflation and interest paid from November 2004 to May 2007.
Office procedures directly answer two of appellant’s concerns. The Board finds that the
Office properly followed its procedures when it applied the exchange rate in effect on the date of
injury. The Office also properly denied an adjustment for inflation, as appellant was being paid
under the local benefit structure, not the FECA benefit structure. Finally, Board precedent well
establishes that the Office has no authority to pay interest on retroactive awards of compensation.
Because the Office has awarded compensation on a basis “reasonably in accord” with
prevailing local payments in similar cases, as required by section 8137 of the Act, and because
there is no authority to support the additional compensation appellant requests, the Board will
affirm the Office’s May 10, 2007 decision.
CONCLUSION
The Board finds that appellant is not entitled to additional compensation based on
exchange rates, inflation or interest.

3

ORDER
IT IS HEREBY ORDERED THAT the May 10, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 7, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
U.S. POSTAL SERVICE, HOUSTON
PERFORMANCE & DISTRIBUTION CENTER,
North Houston, TX, Employer
__________________________________________

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

Docket No. 18-1219
Issued: January 25, 2019

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 May 30, 2018 appellant filed a timely appeal from an April 11, 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 over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the April 11, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that her bilateral
carpal tunnel syndrome was causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On February 11, 2018 appellant, then a 46-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that she sustained a medical condition due to the
performance of her automation clerk duties using a delivery bar code sorter machine. She
indicated, “after a long period of time working on the machines, and a continuous repetitive motion
from working on the machines, I realized that [my condition] was caused by the job.”
In a February 26, 2018 development letter, OWCP advised appellant of the deficiencies of
her claim. Appellant was advised that she should submit a medical report which provided a
diagnosis of her medical condition and which provided a rationalized medical explanation as to
how the diagnosed medical condition was causally related to the alleged factors of her federal
employment. OWCP afforded appellant 30 days to submit additional evidence.
In March 16 and 18, 2018 narrative statements, appellant described the detailed duties of a
mail processor. She noted that all mail processing duties of feeding, sweeping, pushing, and
pulling of equipment were manually performed and that she had performed those duties for over
20 years for 8 to 10 hours per day. A copy of a position description of mail processing clerk was
received. In a March 16, 2018 statement, the supervisor of distribution operations concurred with
appellant’s description of her work duties.
In a March 12, 2018 report, Dr. Timothy Miller, an orthopedic surgeon, noted that
appellant presented with a work-related injury which occurred on February 11, 2018. His
examination of her bilateral wrist hand revealed tenderness to palpation at the right wrist ulnar side
and pain on pisiform. Pain on the left ulnar side of wrist was also present. Appellant had decreased
sensation to her thumbs. X-rays of the both wrists were negative for fracture, subluxation, or
dislocation. Dr. Miller provided an assessment of pain in right wrist, left carpal tunnel syndrome,
and right carpal tunnel syndrome. Due to his bilateral carpal tunnel diagnoses, he referred
appellant for an electromyogram/nerve conduction (EMG/NCV) study of the bilateral upper
extremities. Dr. Miller also ordered a magnetic resonance imaging (MRI) scan of the right wrist.
By decision dated April 11, 2018, OWCP denied appellant’s claim. It found that the
medical evidence of record was insufficient to establish causal relationship between the diagnosed
conditions and the accepted factors of her federal employment.
LEGAL PRECEDENT
A claimant seeking benefits under FECA3 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,

3

Supra note 1.

2

including that an injury was sustained in the performance of duty as alleged, and that any specific
condition or disability claimed is causally related to the employment injury.4
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.5
Causal relationship is a medical question, which generally requires rationalized medical
opinion evidence to resolve the issue.6 A physician’s opinion on whether there is causal
relationship between the diagnosed condition and the implicated employment factors must be
based on a complete factual and medical background.7 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 factors.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her bilateral
carpal tunnel syndrome was causally related to the accepted factors of her federal employment.
Appellant provided a March 12, 2018 report from Dr. Miller. Dr. Miller provided an
assessment of pain in right wrist, and bilateral carpal tunnel syndrome. Pain is a description of a
symptom rather than a clear diagnosis of a medical condition.9 While Dr. Miller noted a workrelated injury and diagnosed bilateral carpal tunnel syndrome, his opinion was conclusory. The
Board has held that a medical opinion is of limited probative value if it is speculative and
conclusory in nature.10 A medical opinion must provide an explanation of how the specific
employment factors physiologically caused or aggravated the diagnosed conditions.11 Without

4

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

See M.B., Docket No. 17-1999 (issued November 13, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

6

See M.B., id.; Robert G. Morris, 48 ECAB 238 (1996).

7

See M.B., supra note 5.

8

Id.; see also L.G., Docket No. 18-0321 (issued October 25, 2018).

9

C.B., Docket No. 09-2027 (issued May 12, 2010); Robert Broome, 55 ECAB 339 (2004) (the Board has
consistently held that pain is a symptom rather than a compensable medical diagnosis).
10

See M.W., Docket No. 17-0186 (issued March 13, 2018).

11

See V.T., Docket No. 18-0881 (issued November 19, 2018).

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medical reasoning explaining how the accepted employment activities caused or contributed to the
diagnosed condition(s), Dr. Miller’s report is insufficient to establish the claim.12
As appellant has not submitted rationalized medical evidence to establish a medical
condition causally related to the accepted employment factors, the Board finds that she has not met
her burden of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her bilateral
carpal tunnel syndrome was causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the April 11, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 25, 2019
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

12

See R.T., Docket No. 17-2019 (issued August 24, 2018).

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