United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.G., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Jersey City, NJ, Employer
__________________________________________

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

Docket No. 14-1420
Issued: November 12, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 9, 2014 appellant, through his attorney, filed a timely appeal from a March 25,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained a right shoulder injury in
the performance of duty on June 9, 2012.
FACTUAL HISTORY
On July 3, 2012 appellant, then a 60-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on June 9, 2012 he sustained a right shoulder injury when he tripped
over an empty pallet and fell back on his shoulder. The record contains a Form CA-16
1

5 U.S.C. § 8101 et seq.

(authorization for examination and treatment) dated July 2, 2012 indicating that Meadowlands
Hospital was authorized to provide necessary treatment.
Appellant received treatment at the hospital on July 2, 2012 from Dr. Fabian Morales,
Board-certified in emergency medicine, who provided a history that appellant was status post
right rotator cuff tear and injury sustained at work one year earlier and repaired. Dr. Morales
indicated that appellant had fallen at work three weeks earlier. He provided results on
examination and diagnosed rotator cuff impingement syndrome. In a July 3, 2012 Form CA-20
report, Dr. Morales indicated that appellant had undergone rotator cuff surgery in 2011. He
diagnosed rotator cuff impairment syndrome and shoulder pain, checking a box “yes” that the
conditions were employment related.
In a report dated July 16, 2012, Dr. Edward Decter, a Board-certified orthopedic surgeon,
stated that appellant had prior right shoulder surgery from a Dr. Zafer A. Termanini in 2011 and
“June 2012.” Dr. Decter stated that appellant had tripped over a pallet and reinjured his shoulder
and an magnetic resonance imaging (MRI) scan was necessary to determine if he had a retear of
his rotator cuff. Appellant underwent an MRI scan on October 3, 2012 and in a report of that
date, Dr. Anuj Tolia, a radiologist, stated that the MRI scan did not show a rotator cuff retear or
labral tear, but did indicate stable, moderate acromioclavicular (AC) joint osteoarthritis. In a
brief report dated October 5, 2012, Dr. Decter noted the MRI scan results and stated that
arthroscopic surgery was planned to treat the arthritis.
In a decision dated November 27, 2012, OWCP denied the claim for compensation. It
found that the medical evidence was insufficient to establish the claim.
Appellant requested a hearing, which was held on March 25, 2013. In a report dated
March 4, 2013, Dr. Decter noted that appellant “is still having persistence of pain of his right AC
joint, which [appellant] injured over of the years of doing repetitive motions.” He indicated that
appellant was still interested in surgery. By report dated May 16, 2013, Dr. Decter stated that
appellant injured his right shoulder on June 2012 when he tripped and fell backwards on his
shoulder. He diagnosed AC joint osteoarthritis, stating that appellant continued to have right
shoulder pain and arthroscopic surgery should be authorized.
By decision dated June 12, 2013, the hearing representative affirmed the November 27,
2012 OWCP decision. The hearing representative found that the medical evidence was not
sufficient to establish causal relationship between a diagnosed condition and the employment
incident.
On February 3, 2014 appellant, through his representative, requested reconsideration. He
submitted a January 23, 2014 report from Dr. Decter, stating that in June 2012 appellant had
fallen and injured his shoulder. Dr. Decter indicated that appellant had surgery by a
Dr. Termanini and appellant was sent back to work and then he hurt his shoulder. He again
stated that appellant had osteoarthritis of the AC joint and surgery was recommended.
Dr. Decter further stated, “I believe that this accident is the precipitating cause of [appellant’s]
shoulder pain and he has had an unsuccessful procedure by Dr. Termanini.”

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In a decision dated March 25, 2014, OWCP reviewed the case on its merits and denied
modification. It found that the medical evidence was insufficient to establish the claim.
LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”2 The
phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of “arising out of an in the course of
employment.”3 An employee seeking benefits under FECA has the burden of establishing that
he or she sustained an injury while in the performance of duty.4 In order to determine whether
an employee actually sustained an injury in the performance of duty, OWCP begins with an
analysis of whether “fact of injury” has been established. Generally, “fact of injury” consists of
two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred. The second component is whether the employment incident
caused a personal injury and generally this can be established only by medical evidence.5
OWCP’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.6 In clear-cut
traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.7
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background, of reasonable medical certainty and supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of the analysis
manifested and the medical rationale expressed in support of the physician’s opinion.8

2

5 U.S.C. § 8102(a).

3

Valerie C. Boward, 50 ECAB 126 (1998).

4

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

5

See John J. Carlone, 41 ECAB 354, 357 (1989).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (June 1995).

7

Id.

8

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

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ANALYSIS
In the present case, appellant alleged that he fell backward on his right shoulder while in
the performance of duty on June 9, 2012. OWCP accepted that the incident occurred as alleged.
The issue is whether there is sufficient medical evidence to establish causal relationship between
a diagnosed condition and the employment incident.
Appellant initially received treatment from Dr. Morales on July 2, 2012. He diagnosed a
rotator cuff impingement syndrome and shoulder pain, without providing a rationalized medical
opinion on causal relationship with the June 9, 2012 employment incident. The checking of a
box “yes” in the July 3, 2012 CA-20 form report is of little probative value without further
explanation.9
With respect to the reports from Dr. Decter, the Board finds that appellant has not
submitted a report with a rationalized medical opinion based on a complete and accurate
background. In his initial July 16, 2012 report, Dr. Decter indicated that appellant had two prior
right shoulder surgeries. He stated that the first was in 2011 and a second in June 2012.
Dr. Morales referred to only a prior surgery in 2011 and in his January 23, 2014 report Dr. Decter
appears to discuss only one prior surgery, without providing the date. The relevant medical history
regarding the right shoulder is not clearly set forth for proper foundation in the reports of record.
In his brief March 4, 2013 report, Dr. Decter states that the diagnosed arthritis condition
was the result of years of repetitive motion. However, appellant has not alleged an occupation
disease claim.10 As to the June 9, 2012 incident, Dr. Decter states in his January 23, 2014 report
that this was the “precipitating cause” of appellant’s arthritis condition. Stating that an incident is
the precipitating cause of a condition is not sufficient to show causal relationship without
additional explanation.11 That is particularly true in this case, as Dr. Decter had previously referred
to years of repetitive motion as the cause of appellant’s shoulder condition. He did not clearly
explain the relationship between the employment incident and the diagnosed osteoarthritis
condition.
The Board finds that the record does not contain a rationalized medical opinion, based on a
complete and accurate background, as to the causal relationship between a diagnosed AC joint
arthritis and the June 9, 2012 employment incident. It is appellant’s burden of proof and for the
reasons set forth herein, he did not meet his burden in this case.
On appeal, appellant argues that Dr. Decter’s January 23, 2014 report is sufficient to
establish causal relationship, as he opined that the employing establishment incident was the
precipitating cause of appellant’s condition. For the reasons noted above, the Board finds that
the medical evidence is not sufficient to establish a right shoulder arthritis condition as causally
related to the June 9, 2012 employment incident.
9

See Barbara J. Williams, 40 ECAB 649, 656 (1989).

10

An occupational disease or illness is a condition produced by the work environment over a period longer than a
single workday or shift. 20 C.F.R. § 10.5(q).
11

See. e.g., Roberta Kirwin, Docket No. 97-1772 (issued February 25, 1999).

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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.
The Board also notes that the employing establishment issued appellant a CA-16 form on
July 2, 2012 authorizing medical treatment.12 The Board has held that where an employing
establishment properly executes a CA-16 form, which authorizes medical treatment as a result of
an employee’s claim for an employment-related injury, it creates a contractual obligation, which
does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim.13 Although OWCP denied appellant’s claim for an injury, it did
not address whether he is entitled to reimbursement of medical expenses pursuant to the CA-16
form. Upon return of the case record, OWCP should further address this issue.14
CONCLUSION
The Board finds that appellant has not established that he sustained a right shoulder
injury in the performance of duty on June 9, 2012. Upon return of the case record, OWCP
should address the issue of whether appellant is entitled to reimbursement of medical expenses
pursuant to the CA-16 form.

12

20 C.F.R. § 10.300 provides that, when an employee sustains a work-related traumatic injury requiring medical
treatment, the employing establishment should issue a CA-16 form.
13

See D.M., Docket No. 13-535 (issued June 6, 2013).

14

See P.B., Docket No. 14-837 (issued August 12, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 25, 2014 is affirmed as modified.
Issued: November 12, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


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

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-330
Issued: September 27, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 23, 2010 appellant filed a timely appeal from a September 16, 2010
schedule award decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant
to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the schedule award decision.
ISSUES
The issues are: (1) whether appellant established that he has more than an eight percent
impairment of the right arm or an eight percent impairment of the left arm for which he received
schedule awards; and (2) whether OWCP properly determined the date of maximum medical
improvement and his rate of pay.
On appeal appellant’s attorney asserts that OWCP should have adjudicated appellant’s
schedule award under the fifth edition of the American Medical Association, Guides to the

1

5 U.S.C. §§ 8101-8193.

Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),2 rather than the sixth edition
of the A.M.A., Guides.3 He further contended that cost-of-living adjustments should have been
applied to appellant’s schedule award since the adjustments went through 2000 but the date of
the schedule award decision was in September 2010.
FACTUAL HISTORY
On May 8, 1998 appellant then a 48-year-old letter carrier, filed an occupational disease
claim for bilateral carpal tunnel syndrome. A May 6, 1998 electromyographic (EMG) study
demonstrated bilateral carpal tunnel syndrome affecting both motor and sensory fibers with no
evidence of diffuse peripheral polyneuropathy in the upper extremities and no evidence of C8-T1
radiculopathy on either side. By decision dated April 8, 1999, an OWCP hearing representative
accepted bilateral carpal tunnel syndrome. On March 23, 1999 Dr. Abram E. Kirschenbaum,
Board-certified in orthopedic and hand surgery, performed a right carpal tunnel release. On
May 18, 1999 he performed a surgical release on the left. Appellant returned to modified duty.
Appellant filed a schedule award claim on May 14, 2002. On June 5, 2002 OWCP
advised him of the medical evidence needed to support an impairment rating and asked that he
provide a recent evaluation. In a November 5, 2002 report, Dr. Arthur H. Tiger, a Boardcertified orthopedic surgeon, provided physical examination findings. He noted that appellant
had a positive Phalen’s sign, persistent bilateral thumb numbness, diminished grip strength,
bilateral thenar atrophy and sensory loss in the median nerve distribution in each hand. He
advised that, in accordance with the A.M.A., Guides, appellant had 30 percent impairment of
both the right and left upper extremities.
In a July 17, 2005 report, an OWCP medical adviser stated that no objective hand data
was provided by Dr. Tiger for an impairment rating. By report dated May 24, 2006,
Dr. Kirschenbaum noted appellant’s report that he had some triggering in his right index, middle
and ring fingers over the past year, no numbness or tingling and that he recently began a desk job
because of ankle problems. He provided physical examination findings of the upper extremities,
noting no significant swelling or scar tenderness. Sensory and motor examination of each hand
was normal with minimal triggering in the right middle finger solely. Tinel’s and Phalen’s signs
were negative. Dr. Kirschenbaum diagnosed favorable outcome following bilateral carpal tunnel
releases with minimal triggering in the right middle finger which did not require treatment.
On November 13, 2007 appellant filed a second schedule award claim and submitted an
August 28, 2007 report from Dr. David Weiss, an osteopath, who advised that in accordance
with the fifth edition of the A.M.A., Guides, appellant had a grade 2 sensory deficit of the right
median nerve of 31 percent, an III/V motor strength deficit of right thumb abduction of 18
percent, a right lateral pinch deficit of 20 percent, for a combined right upper extremity
impairment of 55 percent. Dr. D. Weiss found that appellant had a grade 2 sensory deficit of the
left median nerve of 31 percent, an IV/V motor strength deficit of left thumb abduction of 9
percent, a left lateral pinch deficit of 20 percent, for a total 50 percent left upper extremity
2

A.M.A., Guides (5th ed. 2001).

3

A.M.A., Guides (6th ed. 2008).

2

impairment. He provided QuickDASH scores of 76 percent impairment on the right and 72
percent on the left and advised that maximum medical improvement was reached on
August 28, 2007.
On December 28, 2007 Dr. Henry J. Magliato, an OWCP medical adviser Board-certified
in orthopedic surgery, reviewed the medical record including Dr. D. Weiss’ August 28, 2007
report. He noted that Dr. Kirschenbaum, the treating orthopedic surgeon, who performed both
hand surgeries, advised on May 22, 2006 that appellant’s sensory and motor examination were
normal. Dr. Magliato found that it was hard to believe that appellant’s extremities could have
deteriorated to the degree found by Dr. D. Weiss. He stated that maximum medical
improvement was probably reached on May 22, 2006 and recommended a second opinion
evaluation.
OWCP referred appellant to Dr. Andrew B. Weiss, a Board-certified orthopedic surgeon,
for an impairment evaluation. In a February 11, 2008 report, Dr. A. Weiss noted the history of
injury, reviewed the medical record, and listed appellant’s complaint of right wrist pain with no
complaints of left wrist pain or numbness, tingling or burning in either wrist or hand. He
provided upper extremity examination findings noting negative median nerve compression tests,
negative Phalen’s tests, and negative Tinel’s signs bilaterally. Dr. A. Weiss found normal range
of motion of the fingers and thumbs, and no evidence of de Quervain’s disease in either wrist or
thumb with negative Finkelstein’s tests and no evidence of finger or thumb locking or triggering
in either hand. He diagnosed status post surgical release, bilateral carpal tunnel syndrome, with
no clinical symptomatology of active carpal tunnel syndrome in either wrist or hand.
Dr. A. Weiss advised that, although maximum medical improvement had been reached, he was
unable to determine a date, and concluded that appellant had no impairment, based on the fifth
edition of the A.M.A., Guides.
In a March 14, 2008, Dr. Arnold T. Berman, an OWCP medical adviser and Boardcertified orthopedic surgeon, reviewed the medical record, including Dr. A. Weiss’ February 11,
2008 report. Dr. Berman advised that, in accordance with the fifth edition of the A.M.A.,
Guides, appellant had a 10 percent right impairment of each upper extremity due to residual pain.
In letters dated December 10, 2009 and January 25, 2010, OWCP informed appellant
that, effective May 1, 2009, impairment evaluations were to be completed in accordance with the
sixth edition of the A.M.A., Guides, and asked that his physician provide an appropriate report.
On April 22, 2010 Dr. D. Weiss updated his August 28, 2007 report.4 He diagnosed
cumulative and repetitive trauma disorder and bilateral carpal tunnel syndrome with surgical
releases. Dr. D. Weiss advised that maximum medical improvement was achieved on August 28,
2007 and that, in accordance with Table 15-23 of the sixth edition of the A.M.A., Guides,
appellant had entrapment neuropathy of the right and left median nerves at the wrist. He
determined that appellant had a grade 3 modifier for test findings, a grade 3 modifier for history,
and a grade 3 modifier for physical examination on the right due to decreased thumb abduction
and physical examination, and a grade 3 modifier on the left due to atrophy, for a total of 9.
Dr. D. Weiss then found an average of three or an eight percent impairment of each upper
4

Dr. D. Weiss did not reexamine appellant.

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extremity. He also noted that a QuickDASH score of 76 and 72 on the right and left respectively
also yielded an eight percent impairment of each upper extremity.
On May 7, 2010 Dr. Robert Y. Pick, an OWCP medical adviser Board-certified in
orthopedic surgery, reviewed the record, including the April 22, 2010 report of Dr. D. Weiss. He
advised that maximum medical improvement was reached within six months of appellant’s
May 23, 1999 carpal tunnel release, or no later than December 31, 1999. Dr. Pick agreed that
under Table 15-23, grade 3 modifiers were appropriate for history and physical findings. He
used a grade 2 modifier for test results, based on the May 6, 1998 EMG study, rather than the
grade 3 found by Dr. Weiss. OWCP’s medical adviser then totaled the modifiers and found an
average of 2.67, which he rounded up to 3, and concluded that this also resulted in an eight
percent impairment of each upper extremity.
In letters dated June 22 and August 16, 2010, OWCP forwarded Dr. Pick’s report to
Dr. D. Weiss and asked that he respond to Dr. Pick’s conclusion that maximum medical
improvement was reached on December 31, 1999.
By letter dated August 13, 2010,
Dr. D. Weiss advised that he agreed with Dr. Pick’s assessment that appellant reached maximum
medical improvement on December 31, 1999.
By decision dated September 16, 2010, appellant was granted a schedule award for an
eight percent impairment of the right upper extremity and an eight percent impairment on the
left. The award was for 49.92 weeks, to run from December 31, 1999 to December 14, 2000.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA,5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP adopted the
A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.8
For decisions issued after May 1, 2009, the sixth edition will be used.9
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.10 In
Table 15-23, grade modifiers levels (ranging from zero to four) are described for the categories
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

9

FECA Bulletin No. 09-03 (issued March 15, 2009).

10

A.M.A., Guides, supra note 3 at 449.

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test findings, history and physical findings. The grade modifier levels are averaged to arrive at
the appropriate overall grade modifier level and to identify a default rating value. The default
rating value may be modified up or down by one percent based on functional scale, an
assessment of impact on daily living activities.11
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.12
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome. On May 14,
2002 appellant filed a schedule award, and by decision dated September 16, 2010, he was
granted a schedule award for an eight percent impairment of the right upper extremity and an
eight percent impairment on the left.
Regarding appellant’s argument on appeal that the fifth edition of the A.M.A., Guides
should be used in assessing his impairment, the Board notes that the method used in rating
impairment for purposes of a schedule award is a matter which rests in the sound discretion of
the Director. In the case Harry D. Butler,13 the Board addressed OWCP’s use of the A.M.A.,
Guides to evaluate impairment since the first edition single volume published in 1971. The
Director has adopted the subsequent editions of the A.M.A., Guides and stated the specific date
when use of each edition should be made applicable to claims under FECA. Appellant has not
established that the Director abused the discretion delegated under section 8107 or the
implementing federal regulations to make the sixth edition of the A.M.A., Guides applicable to
all claimants as of May 1, 2009. The fact that the sixth edition revises the evaluation methods
used in previous editions does not establish an abuse of discretion. As noted in FECA Bulletin
No. 09-03,14 the American Medical Association periodically revises the A.M.A., Guides to
incorporate current scientific clinical knowledge and judgment and to establish standardized
methodologies for calculating permanent impairment.
The sixth edition of the A.M.A., Guides became effective on May 1, 2009.15 The only
medical reports of record that comport with an impairment analysis in accordance with the sixth
edition are those of Dr. D. Weiss, appellant’s physician, dated April 22, 2010, and that of
Dr. Pick, an OWCP medical adviser, dated May 7, 2010. Both physicians properly applied the
standards of the sixth edition and utilized Table 15-23 and addressed the appropriate grade
11

Id. at 448-50.

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
13

43 ECAB 859 (1992).

14

Supra note 10.

15

Id.

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modifiers. While their individual analyses may have differed to a minor extent regarding the
modifier for test results, this did not result in a different impairment rating. Each concluded that
appellant had an eight percent impairment of the right upper extremity and an eight percent
impairment on the left.
As there is no additional probative medical evidence regarding appellant’s entitlement to
a schedule award under the sixth edition of the A.M.A., Guides, OWCP properly found that he
was entitled to an eight percent impairment for each upper extremity.16
LEGAL PRECEDENT -- ISSUE 2
It is well established that the period covered by the schedule award commences on the
date that the employee reaches maximum medical improvement from the residuals of the
accepted employment injury. The Board has explained that maximum medical improvement
means that the physical condition of the injured member of the body has stabilized and will not
improve further. The determination of whether maximum medical improvement has been
reached is based on the probative medical evidence of record, and is usually considered to the
date of the evaluation by the attending physician which is accepted as definitive by OWCP.17
The Board has noted a reluctance to find a date of maximum medical improvement, which is
retroactive to the award, as retroactive awards often result in payment of less compensation
benefits. The Board requires persuasive proof of maximum medical improvement of the
selection of a retroactive date of maximum medical improvement.18
ANALYSIS -- ISSUE 2
Regarding appellant’s argument on appeal that he is entitled to cost-of-living adjustments
to his schedule award pay rate through 2010, as noted above, the period covered by the schedule
award commences on the date that the employee reaches maximum medical improvement from
the residuals of the accepted employment injury.19 The Board has noted a reluctance to find a
date of maximum medical improvement which is retroactive to the award, as retroactive awards
often result in payment of less compensation benefits.20 In this case, the record contains
persuasive evidence of maximum medical improvement reached in 1999. OWCP’s medical
adviser, Dr. Pick, advised that maximum medical improvement was reached within six months of
appellant’s May 23, 1999 carpal tunnel release, or no later than December 31, 1999.
Dr. D. Weiss, an attending physician, agreed with this conclusion on August 13, 2010.
The determination of maximum medical improvement rests with the medical evidence.
As the two physicians, who provided impairment ratings in accordance with the sixth edition of
16

See B.C., Docket No. 10-2061 (issued May 19, 2011).

17

Mark A. Holloway, 55 ECAB 321 (2004).

18

P.C., 58 ECAB 529 (2007).

19

Mark A. Holloway, supra note 17.

20

P.C., supra note 18.

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the A.M.A., Guides, advised that maximum medical improvement was reached on December 31,
1999, the Board finds this evidence clear and convincing such that it was proper for OWCP to
begin payment for his schedule award at that time.21
Appellant may request an increased schedule award based on evidence of a new exposure
or medical evidence showing progression of an employment-related condition resulting in an
increased impairment.
CONCLUSION
The Board finds that appellant has no more than an eight percent permanent impairment
of the each upper extremity, and that OWCP properly determined the date of maximum medical
improvement.
ORDER
IT IS HEREBY ORDERED THAT the September 16, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: September 27, 2011
Washington, DC

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

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

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

21

L.H., 58 ECAB 561 (2007).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0075
Issued: September 25, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 19, 2015 appellant, through counsel, filed a timely appeal from a July 1,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met her burden of proof to modify an October 28, 2008
loss of wage-earning capacity.
On appeal counsel asserts that the original loss of wage-earning capacity determination
was in error as it was based on a part-time position and that the September 14, 2007 statement of
accepted facts was incorrect.
FACTUAL HISTORY
On September 14, 2005 appellant, then a 36-year-old customer service representative
who worked full time, filed a traumatic injury claim (Form CA-1) alleging that she injured her
right wrist, lower back, and left knee when she slipped and fell on a wet floor that day. She
stopped work. On December 12, 2005 OWCP accepted brachial neuritis/radiculitis, other, and
unspecified thoracic/lumbar neuritis/radiculitis. Appellant received appropriate continuation of
pay and was placed on the periodic compensation rolls.
Dr. Leonard A. Bruno, a Board-certified neurosurgeon, began treating appellant in
December 2005. He diagnosed cervical sprain and herniated disc at C6-7, C7 radiculitis,
sciatica, questionable nerve bruising, and lumbar sprain secondary to the September 2005 fall.
Dr. Bruno continued to submit reports describing appellant’s treatment. He referred her to
Dr. Gregory W. Cooper, a Board-certified neurologist, who opined that appellant’s complaints of
neck pain and left arm paresthesias were the result of the September 14, 2005 work injury.
Dr. Simon Galapo, Board-certified in anesthesia and pain medicine, began pain management in
November 2006.3
In September 2006, OWCP referred appellant to Dr. Richard J. Mandel, a Board-certified
orthopedic surgeon, for a second-opinion evaluation. In a November 2, 2006 report, Dr. Mandel
concluded that she could work part-time modified duty.
On September 18, 2007 OWCP referred appellant to Dr. Kevin F. Hanley, a Boardcertified orthopedic surgeon, for a second-opinion evaluation. On October 12, 2007 Dr. Hanley
diagnosed aggravated cervical disc disease with whiplash syndrome, mild lumbar discomfort,
tinnitus, and vertigo of the left side. He opined that the September 14, 2005 employment injury
permanently aggravated a degenerative process in the neck, manifested by significant pain,
limitation of motion, and unresponsiveness to normal treatment. Dr. Hanley advised that
appellant could work eight hours a day with permanent restrictions.
Appellant continued treatment with Dr. Bruno and Dr. Galapo. On August 14, 2008
Dr. Bruno advised that she could work a four-hour day of limited duty.
By letter dated August 28, 2008, the employing establishment advised appellant that
medical evidence revealed she was capable of returning to part-time work effective
3

An October 9, 2006 electrodiagnostic study of the upper extremities was mildly abnormal, consistent with mild
nerve root irritation to either the C5-6 nerve root or to the upper brachial plexus trunk on the left.

2

August 25, 2008. It offered her the position of a part-time customer service representative. On
August 29, 2008 appellant accepted the modified customer service representative position for
four hours daily.
OWCP next referred appellant to Dr. Raoul Biniaurishvili, a Board-certified neurologist.
On September 3, 2008 Dr. Biniaurishvili diagnosed mild degenerative cervical spine disease,
myofasciitis of the cervical paraspinal musculature, and tension headaches. He advised that
appellant could continue working as a customer service representative and could gradually
increase her work hours.
By decision dated October 28, 2008, OWCP determined that appellant’s actual earnings
in the part-time modified customer service representative position fairly and reasonably
represented her wage-earning capacity and reduced her compensation accordingly.4
Appellant received a third-party settlement regarding the September 14, 2005
employment injury. She continued treatment with Dr. Bruno and Dr. Galapo.
In reports dated November 4 and 7, 2014, Dr. Bruno noted appellant’s complaint of neck
pain radiating into her head with severe headaches, bilateral arm pain, and increasing vertigo.
He diagnosed worsening C5-6 and C6-7 herniated disc, recommended surgery, and advised that
she could not work from November 4, 2014 to March 1, 2015 due to the herniated discs from C5
to C7.
Appellant stopped work on November 4, 2014 and filed Form CA-7 claims for
compensation beginning that day. Dr. Bruno continued to advise that she could not work.
Dr. Stephen J. Dante, a Board-certified neurosurgeon, examined appellant on
February 10, 2015. He reviewed imaging studies and diagnosed cervical spondylosis with
radiculopathy. Dr. Dante concluded that a treatment option would be cervical decompression
and fusion surgery.
In February 2015, OWCP referred appellant to Dr. Robert Allen Smith, a Board-certified
orthopedic surgeon, for a second-opinion evaluation. In a February 27, 2015 report, Dr. Smith
opined that there were no objective examination findings to support her complaints and nothing
to suggest an ongoing soft tissue sprain of the neck or any active neuritis/radiculitis in the
extremities, and that, based on multiple MRI scan reports, she had preexisting degenerative
disease of both her neck and back. He advised that appellant could return to work with regard to
the accepted conditions. On April 8, 2015 Dr. Smith advised that, as the findings of the
October 9, 2006 electrodiagnostic study were mild and more than eight years old,5 it would be
inappropriate to base any decision on surgery without an updated study showing a progressive
neurological deficit.
4

In a September 15, 2008 decision, OWCP determined that an overpayment of compensation in the amount of
$277.72 was created because appellant continued to receive FECA compensation after her return to work on
August 25, 2008. Appellant repaid the overpayment.
5

Supra note 3.

3

In reports dated March 26 to April 3, 2015, Dr. James S. Harrop, a Board-certified
neurosurgeon, noted seeing appellant for a long history of chronic neck and arm pain. He
described physical examination and MRI scan findings. Dr. Harrop diagnosed cervical
myelopathy and recommended anterior cervical fusion at C5-6 and C6-7. He requested surgical
authorization.
OWCP determined that a conflict in medical evidence had been created between
Dr. Bruno and Dr. Smith regarding whether appellant had continuing residuals of the
September 14, 2005 employment injury. In April 2015, it referred her to Dr. William H. Simon,
a Board-certified orthopedic surgeon, for an impartial evaluation. In a June 7, 2015 report,
Dr. Simon described appellant’s complaints and his physical examination findings. He
diagnosed degenerative disc disease of the cervical spine, particularly at C5-6, with mild
degenerative changes at C4-5 and C6-7, which had worsened with the passage of time, noting
that it had been 10 years since the September 14, 2005 work injury.6 Dr. Simon concluded that
the requested surgery, which was scheduled for June 8, 2015, was not for an employment-related
condition, but for her underlying degenerative disc disease.
In a May 14, 2015 report, Dr. Bruno noted treating appellant since 2005 for neck and arm
pain from a cervical disc herniation that also caused cervical vertigo and migraine headaches,
and that, as of November 4, 2014, her disc herniations were worsening. He opined that, within a
reasonable degree of medical certainty, she had herniated cervical discs at C5-6 and C6-7, which
required surgery to prevent further deterioration in her clinical condition, further nerve damage
and increase in symptoms of neck pain, arm pain, weakness, and numbness.
Dr. Harrop performed C5-6 and C6-7 anterior cervical discectomy and fusion on
June 8, 2015.
By decision dated July 1, 2015, OWCP denied modification of the October 28, 2008 loss
of wage-earning capacity decision. It found that the weight of the medical evidence rested with
the opinion of Dr. Simon, the referee examiner, who determined that appellant’s employment
injury had resolved without residuals and that she could return to her modified part-time work,
with regard to the accepted conditions.

6

Appellant had a number of magnetic resonance imaging (MRI) scans of the cervical spine. An October 13,
2005 scan demonstrated mild disc bulges and spurring at C4-5, C5-6, and C6-7 with possible foraminal
encroachment. A September 26, 2006 scan showed disc bulging and spondylotic changes at C4-5, C5-6, and C5-7
with mild ventral impingement and mild multilevel encroachment. A May 16, 2007 scan demonstrated no major
change from the September 26, 2006 study. An April 12, 2011 scan showed multilevel spondylosis resulting in
multilevel neural foraminal stenosis and no evidence of frank disc herniation. An April 13, 2012 scan demonstrated
no significant change when compared to the April 2011 study. A September 4, 2014 scan showed left foraminal
stenosis at C6-7 due to an eccentric disc bulge, a prominent right disc herniation at C5-6, and right foraminal
stenosis at C4-5. A cervical spine scan on April 14, 2015 demonstrated degenerative changes including tiny right
disc protrusions at C4-5 and C5-6. A cervical spine computerized tomography scan that day revealed mild-tomoderate degenerative changes with no high-grade central or foraminal narrowing.

4

LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his or her duty.7 Disability means the incapacity,
because of an employment injury, to earn the wages the employee was receiving at the time of
injury. It may be partial or total.8
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.9 OWCP procedures at section 2.1501 contain
provisions regarding the modification of a formal loss of wage-earning capacity.10 The relevant
part provides that a formal loss of wage-earning capacity will be modified when: (1) the original
rating was in error; (2) the claimant’s medical condition has materially changed; or (3) the
claimant has been vocationally rehabilitated.11
OWCP’s procedures provide that factors to be considered in determining whether the
claimant’s work fairly and reasonably represents his or her wage-earning capacity include the
kind of appointment, that is, whether the position is temporary, seasonal or permanent, and the
tour of duty, that is, whether it is part time or full time.12 Further, a makeshift or odd-lot position
designed for a claimant’s particular needs will not be considered suitable.13
In the case of O.V.,14 the Board found that OWCP abused its discretion when it
determined that the claimant’s actual earnings in part-time reemployment fairly and reasonably
represented his or her capacity to earn wages in the open labor market. The Board explained that
OWCP procedures prohibited a loss of wage-earning capacity determination based on part-time
reemployment unless the claimant was a part-time worker at the time of injury.15

7

5 U.S.C. § 8102(a).

8

20 C.F.R. § 10.5(f).

9

Katherine T. Kreger, 55 ECAB 633 (2004).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity, Chapter
2.1501 (June 2013).
11

Id. at Chapter 2.1501.3(a).

12

Id. at Chapter 2.815.5.c(1).

13

Id. at Chapter 2.815.5.c(2)(a).

14

Docket No. 11-0098 (issued September 30, 2011).

15

Id.

5

ANALYSIS
OWCP accepted that on September 14, 2005 appellant sustained brachial
neuritis/radiculitis, thoracic/lumbar neuritis/radiculitis, and cervical sprain. In an October 28,
2008 decision, it reduced her compensation based on its determination that her actual earnings in
the modified part-time position of customer service representative fairly and reasonably
represented her wage-earning capacity. Appellant continued to work in the modified position
until November 4, 2015 when she stopped work on the advice of Dr. Bruno, her attending
neurosurgeon.
By decision dated July 1, 2015, OWCP denied modification of the October 28, 2008 loss
of wage-earning capacity decision. It found that the special weight of the medical evidence
rested with the opinion of Dr. Simon, the referee examiner, who had determined that appellant’s
employment injury had resolved without residuals and that she could return to her modified parttime work, with regard to the accepted conditions.
OWCP procedures that were in effect at the time of OWCP’s original wage-earning
capacity determination prohibited a loss of wage-earning capacity determination based on parttime reemployment where the claim, as here, was a full-time worker at the time of injury.16 Its
procedures were changed effective June 4, 2013, to allow that, in some circumstances, a loss of
wage-earning capacity determination could be based on actual earnings in a part-time position,
even if the date-of-injury position was full time. OWCP did not specify that the new procedures
contemplated retroactive application.17 Chapter 2.815.5c(1)(b)(ii) of the new procedures
provides that OWCP’s policy change is consistent with the statutory purpose of section 8115 of
FECA, which anticipates loss of wage-earning capacity determination for partial disability based
on actual earnings where those earnings fairly and reasonably represent the injured employee’s
wage-earning capacity.18 Since OWCP did not clearly indicate its intention to retroactively
apply the new procedures, the Board finds that these procedures do not apply to appellant’s
wage-earning capacity in the case at hand.19
A basis for modifying a loss of wage-earning capacity decision is to establish that the
original decision was in error.20 The Board finds that, under the facts of this case, appellant was
a full-time worker on the day of injury, it was error for OWCP to determine on October 28, 2008
that a part-time modified position fairly and reasonably represented her wage-earning capacity.
The Board finds, therefore, that OWCP abused its discretion in determining appellant’s loss of

16

See supra note 10 at Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.7a
(July 1997).
17

Id. at Chapter 2.815.5.c(1)(b)(2) (June 2013); see FECA Transmittal 13-09 (issued June 4, 2013).

18

Id.

19

See R.R., Docket No. 15-0129 (issued December 28, 2015).

20

Supra note 10 at Chapter 2.1501.4 (June 2013).

6

wage-earning capacity based on a part-time position.21 The Board will reverse OWCP’s July 1,
2015 decision.22
CONCLUSION
The Board finds that OWCP abused its discretion when it found that appellant’s actual
earnings in part-time reemployment fairly and reasonably represented her wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the July 1, 2015 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: September 25, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

21

See O.V., Docket No. 11-98 (issued September 30, 2011).

22

Based on the Board’s posture in this decision, appellant’s additional arguments on appeal need not be
addressed.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, St. Louis, MO, Employer
__________________________________________

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

Docket No. 07-2007
Issued: June 10, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 2, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated February 2, 2007. Under 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
This is the third appeal before the Board. Appellant, a sales and service associate, filed a
Form CA-2 claim for benefits on August 4, 2000, alleging that she sustained a heart attack and
coronary disease causally related to employment factors. She asserted that her condition developed
due to a hostile work environment and reprisal for filing prior complaints before the Equal
Employment Opportunity (EEO) Commission.

Appellant had undergone coronary artery bypass surgery on February 18, 2000, which was
performed by Dr. M. Wayne Flye, a Board-certified cardiologist, who diagnosed hypertension and
coronary artery disease.
On March 29, 2000 appellant underwent cardiac consultation provided by Drs. Elizabeth
Tracy and Dr. Alan Braverman, Board-certified cardiologists, after being seen the previous month
for substernal chest pain and electrocardiogram changes consistent with an anterolateral
myocardial infarction. In a July 24, 2000 Form CA-20, Dr. Braverman indicated that appellant had
coronary artery disease which required hospitalization. He indicated that her condition was not
work related.
By decision dated February 27, 2001, the Office denied the claim, finding that appellant
failed to establish a compensable work factor which could have contributed to her cardiac
condition. By decision dated November 15, 2001, an Office hearing representative affirmed the
February 27, 2001 decision. By nonmerit decision dated July 15, 2002, the Office denied
reconsideration.
In a February 9, 2002 report, Dr. Rahmi R. Nakra, Board-certified in psychiatry and
neurology, diagnosed the following conditions: major affective disorder, depression, severe and
post-traumatic stress disorder (PTSD); coronary artery disease; carpal tunnel syndrome; and severe
job-related stress. She stated:
“On examination, [appellant] was in a profound state of severe psychomotor
agitation, severely down and depressed, hopeless, worthless, tearful, crying, sad,
sobbing, with feelings of despair and severe work-related stress. There was no
evidence of psychotic symptoms.... [Appellant] continues at this time to remain
totally disabled.... [She] continues to remain severely depressed, anxious and
continues to experience severe psychological stress secondary to her work-related
situation and remains disabled.”
In a March 4, 2002 report, Dr. Tracy stated:
“[Appellant] is disabled based on the following:
(1) Coronary artery disease status post acute myocardial infarction
February 17, 2000 requiring coronary artery bypass grafting [on]
February 18, 2000. She has persistent fatigue, dyspnea with exertion and
palpitations. An echocardiogram [EKG] in January 2001 showed normal
LV function;
(2) Hyperthyroidism for which she is status post radioactive iodine ablation
December 12, 2000. She is currently on thyroid replacement with normal
lab values;
(3) Carpal tunnel syndrome.
(4) Depression. See note from Dr. Nakra.”

2

In a May 5, 2002 report, Dr. Nakra stated that she had initially seen appellant for her
diagnosed conditions on March 28, 2001, but that the date of onset was 1990. She stated:
“On initial evaluation, [appellant] was in a profound state of severe psychomotor
agitation, severely down and depressed, hopeless, worthless, tearful, crying, sad,
sobbing with feelings of despair and severe work-related stress. There was no
evidence of any psychotic symptoms. There is no history of alcohol or substance
abuse.... [Appellant] continues to remain totally disabled at the time of this
dictation. Patient continues to remain severely depressed, anxious and continues to
experience severe psychological stress secondary to her work-related situation and
remains disabled.”
In a decision dated December 9, 2002,1 the Board affirmed the Office decisions denying
appellant’s claim for benefits based on an emotional condition. The Board found that appellant
had not substantiated a compensable work factor as contributing to the claimed conditions of
stress, coronary disease and a heart attack. The Board noted that, although appellant alleged that
the September 20, 1990 decision from the EEO had ordered the employing establishment to
reinstate appellant to her former position, the record did not contain a copy of the decision.
On September 15, 2003 appellant requested reconsideration. In support of her claim, she
submitted a copy of the September 1990 EEO decision ordering the employing establishment to
reinstate her to her former position. By decision dated December 9, 2003, the Office denied
modification of its prior decisions. It stated that the evidence submitted by appellant consisted of
settlement agreements that did not establish error or abuse by the employing establishment. In a
decision dated July 9, 2004,2 the Board set aside the December 9, 2003 Office decision. The Board
found that appellant had submitted probative and reliable evidence of a compensable work factor
with regard to an action of the employing establishment; i.e., her termination in 1987. The Board
therefore found that the Office was required to make findings regarding this evidence. It therefore
remanded the case to the district office for a determination of whether appellant had established
that she sustained an injury causally related to a compensable work factor. The complete facts of
this case are set forth in the Board’s July 9, 2004 decision and are herein incorporated by
reference.
By decision dated August 20, 2004, the Office denied appellant’s emotional condition
claim. The Office accepted the EEO decision and termination as a compensable factor of
employment. It found, however, that the medical evidence of record did not establish that
appellant’s claimed emotional condition was causally related to the accepted employment factor.
The Office stated that the medical evidence appellant had submitted was not sufficient to
establish that she had sustained her emotional condition in the performance of duty.
By letter dated September 17, 2004, appellant requested an oral hearing, which was held on
July 26, 2005.
1

Docket No. 02-2025 (issued December 9, 2002).

2

Docket No. 04-813 (issued July 9, 2004).

3

In an August 23, 2005 report, Dr. Nakra stated:
“[Appellant] has been a patient under my care since March 28, 2001. Extensive
documentation dating from 1987 relating that [appellant] has very severe anxieties
and stress[-]related conditions secondary to situations at the workplace. When the
patient filed EEO complaints further harassment and reprisals were experienced by
her. All of these events have continued to cause severe anxiety that resulted in her
suffering from [PTSD] also significantly contributing to physical symptoms
including coronary artery disease.
“The patient continues to do very poorly, continues to be severely anxious, tearful,
depressed and hyper, labile, etc. She also continues to suffer from [PTSD]
symptoms.”
By decision dated November 3, 2005, an Office hearing representative affirmed the
August 20, 2004 decision.
By letter dated November 1, 2006, appellant requested reconsideration.
submitted an October 25, 2006 report from Dr. Nakra who stated:

Appellant

“[Appellant] was initially seen March 28, 2001 and at that time my working
diagnosis was [m]ajor [a]ffective [d]isorder, [d]epression, [s]evere and PTSD Axis
II; None, Axis III: [c]oronary [a]rtery [d]isease, [c]arpal [t]unnel [s]yndrome, Axis
IV: [s]evere job-related stress, Axis: 45.
“[Appellant] has provided extensive documentation dating back from [the]
February 24, 1987 incident, when she was terminated due to her race, but was
reinstated by [the employing establishment]. Subsequent to that she experienced a
very hostile environment at her workplace which has all been documented in the
enclosed list including November 1991, December 1992, July 1994, August 1995
[and] September 1996. It is to be noted that she was included in settlement on
November 10, 2004 by [the employing establishment]. Details of specific incidents
are included as stated previously.
“My initial diagnosis based on [appellant’s] prior work record, which was
impeccable and her having to work in a very hostile work environment in a severe
state of anxiety, resulted in contributing significantly to her severe coronary artery
disease, PTSD, which [appellant] continues to suffer since then. [Appellant]
continues doing poorly and severely anxious.
“In [the] final conclusion the stress [appellant] experienced at work [was] directly
related to work-related issues. She has continued to work in a very hostile
environment, stemming back to [her] 1987 EEO complaint.
“Leading up to February 17, 2000, [appellant] experienced severe chest pain and
left work, then was taken to the hospital that night with a diagnosis of a heart attack

4

and severe coronary disease. She was then hospitalized and had to undergo bypass
grafts.”
Appellant also submitted a statement from [the employing establishment] which reviewed
her work history and the various EEO complaints she had filed throughout her career.
By decision dated February 2, 2007, the Office denied appellant’s request for
modification. The Office found that Dr. Nakra’s October 25, 2006 report was not sufficient to
establish that appellant’s claimed emotional condition was causally related to the accepted
employment factor.
LEGAL PRECEDENT
To establish that an emotional condition was sustained in the performance of duty there
must be factual evidence identifying and corroborating employment factors or incidents alleged
to have caused or contributed to the condition, medical evidence establishing that the employee
has an emotional condition and rationalized medical opinion establishing that compensable
employment factors are causally related to the claimed emotional condition.3 There must be
evidence that implicated acts of harassment or discrimination did, in fact, occur supported by
specific, substantive, reliable and probative evidence.4
The first issue to be addressed is whether appellant has cited factors of employment that
contributed to her alleged emotional condition or disability. Where the disability results from an
emotional reaction to regular or specially assigned work duties or a requirement imposed by the
employment, the disability comes within the coverage of the Act.5 On the other hand, disability
is not covered where it results from an employee’s fear of a reduction-in-force, frustration from
not being permitted to work in a particular environment or to hold a particular position, or to
secure a promotion. Disabling conditions resulting from an employee’s feeling of job insecurity
or the desire for a different job do not constitute a personal injury sustained while in the
performance of duty within the meaning of the Act.6
ANALYSIS
In the instant case, the Office accepted one incident as compensable, i.e., her 1987
termination from work. The Board finds that, given the circumstances described by appellant
and accepted as factual by the Office hearing representative, the 1987 termination incident
constitutes a compensable factor of employment.7

3

See Debbie J. Hobbs, 43 ECAB 135 (1991).

4

See Ruth C. Borden, 43 ECAB 146 (1991).

5

Lillian Cutler, 28 ECAB 125 (1976).

6

Id.

7

Mary J. Summers, 55 ECAB 730 (2004).

5

However, appellant’s burden of proof is not discharged by the fact that she has established
an employment factor which may give rise to a compensable disability under the Act. To establish
her occupational disease claim for an emotional condition, appellant must also submit rationalized
medical evidence establishing that she has an emotional or psychiatric disorder and that such
disorder is causally related to the accepted compensable employment factor.8 Appellant submitted
reports dated February 9 and May 5, 2002, August 23, 2005 and October 25, 2006 from Dr. Nakra.
None of these reports, however, contained a rationalized medical opinion, based on a proper
factual and medical background, explaining her opinion on causal relationship or otherwise
relating her diagnosis to the factor found compensable in this case. The weight of medical
opinion is determined by the opportunity for and thoroughness of examination, the accuracy and
completeness of physician’s knowledge of the facts of the case, the medical history provided, the
care of analysis manifested and the medical rationale expressed in support of stated conclusions.9
Dr. Nakra does not provide a complete factual background or provide an opinion relating
appellant’s 1987 termination as a causative factor to her diagnosed emotional condition.
Although Dr. Nakra presented diagnoses of appellant’s condition, she did not adequately address
how these conditions were causally related to the 1987 termination. The reports indicate that
appellant was harassed at work and experienced stress at the worksite due to a hostile work
environment, which resulted in her conditions of coronary artery disease, major affective disorder,
depression, severe and PTSD. However, Dr. Nakra’s reports merely present summary conclusions
that appellant’s conditions were causally related to the accepted employment factor. The record
also contains cardiology reports from Drs. Wayne, Braverman and Tracy from 2000 and 2002,
but none of these physicians related appellant’s coronary artery disease and myocardial
infarction to factors of appellant’s employment. There is therefore insufficient rationalized
evidence in the record that appellant’s emotional condition was work related.
For these reasons, the Board finds that appellant did not submit sufficient medical
evidence to establish that appellant sustained an emotional condition causally related to her
compensable work factor.
CONCLUSION
The Board finds that the Office properly found that appellant failed to meet her burden of
proof to establish that she sustained an emotional condition in the performance of duty.

8

See William P. George, 43 ECAB 1159, 1168 (1992).

9

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

6

ORDER
IT IS HEREBY ORDERED THAT the February 2, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: June 10, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 15-0992
Issued: August 11, 2015

Case Submitted on the Record

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

JURISDICTION
On March 30, 2015 appellant filed a timely appeal from a January 27, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established permanent impairment causally related to
his accepted March 27, 2006 employment injury.
FACTUAL HISTORY
On April 3, 2006 appellant, then a 47-year-old mail clerk, filed a traumatic injury claim
alleging that on March 27, 2006 he experienced lower neck pain when throwing letters. He

1

5 U.S.C. § 8101 et seq.

stopped work on April 4, 2006 and returned on April 6, 2006.2 OWCP accepted appellant’s
claim for neck sprain. Appellant continued to receive medical treatment for his accepted
condition.
On December 11, 2012 appellant requested a schedule award.
In a February 29, 2012 magnetic resonance imaging (MRI) scan report of the cervical
spine, Dr. George G. Kuritza, a Board-certified diagnostic radiologist, reviewed and observed
minimal posterior annular disc bulges, measuring approximately two millimeters (mm), noted to
slightly indent the thecal sac without significant spinal stenosis nor significant neuroforaminal
narrowing. He reported that the remainder of the cervical spine appeared unremarkable and
revealed no fractures or significant subluxations.
By letter dated December 12, 2012, OWCP advised appellant that the medical evidence
was insufficient to establish his claim for a schedule award. It requested that he submit medical
evidence that included an impairment rating in accordance with the sixth edition of the A.M.A.,
Guides and a statement that his condition had reached maximum medical improvement.
Appellant submitted April 2 and November 19, 2012 reports of Dr. Anatoly M. Rozman,
Board-certified in physical medicine and rehabilitation. Dr. Rozman reported that appellant
suffered from neck pain related to work activities since 2006, but that appellant had reached
maximum medical improvement as of July 16, 2012. Upon examination of appellant’s neck, he
observed pain to palpation over the cervical paraspinal muscles with mild spasm and a couple of
trigger points on palpation of the cervical paraspinal muscles. Dr. Rozman found that range of
motion was mildly decreased on extension by 20 percent, but was otherwise unremarkable.
Spurling maneuver, Hoffman test, Adson maneuver, and impingement sign were negative.
Utilizing the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides), Table 17-2, page 564, Dr. Rozman determined that
appellant was class 1 impairment for cumulative history of cervical sprain injury with continued
complaints of axial and nonradicular pain. He also referred to Table 17-7 for Physical
Examination (GMPE) and Table 17-9 for Clinical Studies (GMCS) adjustments and noted grade
modifiers of zero. Dr. Rozman stated that Table 17-6 for Functional History (GMFH)
adjustment resulted in grade modifier of 2. Thus, he concluded that appellant had a permanent
impairment of two percent whole person impairment.
Appellant was referred to Dr. Allan Brecher, a Board-certified orthopedic surgeon, for a
second opinion evaluation to determine the nature and extent of his accepted employment
conditions, including his accepted neck strain. In a report dated June 30, 2013, Dr. Brecher
2

The record reveals that appellant has multiple active cases before OWCP. Appellant has three previously
accepted occupational disease claims, combined under master File No. xxxxxx768, for conditions of right lateral
epicondylitis, left shoulder sprain, adhesive capsulitis of the right shoulder, and right shoulder bursitis. He received
a schedule award for two percent impairment of his right upper extremity under File No. xxxxxx768 on
April 4, 2000. OWCP also accepted a June 9, 2004 occupational disease claim for aggravation of right thumb
osteoarthritis (File No. xxxxxx180) and a December 30, 2012 occupational disease claim for herniated lumbar disc
(File No. xxxxxx165). On August 5, 2012 appellant filed an occupational disease claim (File No. xxxxxx958)
alleging that he sustained right knee problems as a result of standing and dispatching heavy equipment containing
large volumes of mail as associated with his mail processing clerk duties. He stopped work.

2

related that based upon his examination findings, as well as electromyogram and MRI scans,
appellant had no clear ongoing neck or back condition.
On January 6, 2014 OWCP found a conflict in medical evidence and referred appellant’s
cases to Dr. Jaroslaw B. Dzwinyk, a Board-certified orthopedic surgeon and impartial medical
examiner, for a referee examination.
In his April 28, 2014 report, Dr. Dzwinyk related appellant’s history regarding his
various claims and accepted injuries and noted that he reviewed extensive documentation
regarding his work-related injuries. He stated that appellant continued to complain of persistent
symptoms associated with all of his work-related conditions, including pain and stiffness in his
right elbow, significant pain in the left shoulder, persistent pain in his neck and lower back, and
exacerbation of right knee, lower leg, and ankle pain with most weight bearing activities. Upon
examination of the neck, Dr. Dzwinyk observed no spasm or spinous process tenderness. He
stated that range of motion of the neck was voluntarily restricted to 50 percent of normal in all
directions. Dr. Dzwinyk stated that there were no documented injuries or diagnostic tests to
support any type of injury to appellant’s neck and lower back. He opined that any ongoing
symptoms in the neck or lower back were attributable to preexisting and degenerative conditions,
rather than to any occupational injury or work-related condition.
In a March 7, 2014 MRI scan of the cervical spine, Dr. Kuritza stated that when
compared to the February 29, 2012 MRI scan appellant continued to demonstrate two-millimeter
annular disc bulges at the C3-4, C4-5, C5-6, C6-7, and C7-T1 levels. He noted that the rest of
the cervical spine appeared stable and unremarkable with no abnormal contrast-enhancing
lesions.
On January 20 and April 8, 2014 appellant provided handwritten statements requesting
that his accepted neck sprain condition be changed to reflect the conditions according to the
February 29, 2012 and March 7, 2014 MRI scan reports.
In a May 2, 2014 report, Dr. Rozman stated that appellant’s condition had not changed
since the last examination. He recommended a follow-up examination in two months.
In a decision dated January 27, 2015, OWCP denied appellant’s schedule award claim
finding that the evidence was insufficient to establish that he sustained a permanent impairment
of the neck causally related to his employment injury.
LEGAL PRECEDENT
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his employment.3

3

Veronica Williams, 56 ECAB 367 (2005).

3

The schedule award provision of FECA4 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter 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 the appropriate standards for evaluating schedule
losses.5
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, under FECA a schedule award is not payable for injury to the spine.6 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.7
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decade has offered an
alternative approach to rating spinal nerve impairments.8 OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures, which memorializes proposed tables outlined in a
July/August 2009 The Guides Newsletter.9
Section 8123(a) of FECA provides, if there is a disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician, who shall make an examination.10 In situations where there are
opposing medical reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such

4

5 U.S.C. §§ 8101-8193.

5

20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

6

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

7

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

8

Rozella L. Skinner, 37 ECAB 398 (1986).

9

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700, Exhibit 1, n.5 (January 2010); The Guides Newsletter is included as Exhibit 4.
10

5 U.S.C. § 8123(a).

4

specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.11
ANALYSIS
OWCP accepted that on March 27, 2006 appellant sustained a neck sprain in the
performance of duty. On December 11, 2012 appellant requested a schedule award. In a
decision dated January 27, 2015, OWCP denied his claim for a schedule award based on the
April 28, 2014 report of Dr. Dzwinyk, the impartial medical examiner, who determined that
appellant did not have any ongoing neck or lower extremity symptoms causally related to the
March 27, 2006 employment injury. The Board finds that appellant has not established a
permanent impairment in accordance with the sixth edition of the A.M.A., Guides.
On January 6, 2014 OWCP referred appellant to Dr. Dzwinyk as an impartial medical
examiner in order to resolve a conflict in medical evidence. In an April 28, 2014 report,
Dr. Dzwinyk accurately described appellant’s history and noted that he had reviewed extensive
documentation regarding appellant’s work-related injuries. Upon examination of the neck, he
observed no spasm or spinous process tenderness. Dr. Dzwinyk stated that there were no
documented objective findings or diagnostic tests to support any type of injury to appellant’s
neck and lower back. He reported that neurological examination demonstrated normal strength
to manual testing throughout all muscle groups of both the upper and lower extremities.
Dr. Dzwinyk opined that any ongoing symptoms in the neck or lower back were attributable to
preexisting and degenerative conditions, rather than to any occupational injury or work-related
condition.
The Board finds that Dr. Dzwinyk provided a well-rationalized report based on a proper
factual and medical history and is, therefore, entitled to the special weight due to an impartial
medical specialist. Dr. Dzwinyk reviewed the medical record and accurately summarized the
relevant medical history. He also conducted a thorough physical examination and provided
findings on examination.
The Board notes that absent any evidence of radiculopathy, there is no basis for rating
spinal or cervical nerve extremity impairment under FECA.12 Dr. Dzwinyk reported that
appellant’s ongoing neck symptoms were not related to his accepted neck sprain. Furthermore,
he did not find any impairment to appellant’s upper or lower extremities due to radiculopathy,
related to his accepted neck condition. Because there is no medical evidence to demonstrate that
appellant sustained any impairment to his upper or lower extremities as a result of his accepted
cervical sprain, the Board finds that OWCP properly denied appellant’s claim for a schedule
award.
Following Dr. Dzwinyk’s April 28, 2014 impartial medical report, appellant submitted a
March 7, 2014 MRI scan report of the cervical spine that showed disc bulges and a May 2, 2014
report by Dr. Rozman. None of these reports provided a medical opinion to establish that
11

Barbara J. Warren, 51 ECAB 413 (2000).

12

Supra note 8.

5

appellant sustained a permanent impairment to his upper or lower extremities causally related to
the accepted March 7, 2006 neck injury.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established a permanent impairment causally
related to his March 27, 2006 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the January 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 11, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Memphis, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1619
Issued: February 21, 2007

Case Submitted on the Record

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

JURISDICTION
On July 10, 2006 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ May 19, 2006 nonmerit decision, January 25, 2006 merit decision and
September 2, 2005 decision denying his claim for a schedule award. Under 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 sustained any permanent impairment to a
scheduled member of his body causally related to his accepted left shoulder condition, thereby,
entitling him to a schedule award under 5 U.S.C. § 8107; and (2) whether the Office properly
refused to reopen appellant’s case for reconsideration of his claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
On January 21, 2004 appellant, then a 43-year-old case manager, strained his left
shoulder while undergoing physical training. He filed a claim for benefits, which the Office
accepted for left shoulder impingement syndrome and partial left rotator cuff tear. On

August 13, 2004 appellant underwent arthroscopic surgery of the left shoulder to repair a
partially torn rotator cuff, left anterior labral tear with anterior instability and lesion tear of the
left shoulder. The procedure was performed by Dr. Jeffrey A. Dlabach, a specialist in orthopedic
surgery.
In a report dated June 2, 2005, Dr. Dlabach found that appellant had a 22 percent
permanent impairment of the left upper extremity. He stated that appellant was having no pain
and could perform all of his activities. Dr. Dlabach opined that appellant had reached maximum
medical improvement as of that date and would have no permanent restrictions. He derived his
impairment rating by: (1) utilizing Table 16-26 of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (fifth edition), finding that appellant’s labral injury
placed him into the category of a subluxing humeral head, which translated to a 12 percent upper
extremity impairment; and (2) relying on Table 16-27 at page 506 of the A.M.A., Guides, which
equated appellant’s decompression and rotator cuff repair surgery with a distal clavicle excision
procedure, from which he derived a 10 percent upper extremity impairment. Dr. Dlabach
combined these impairments for a total 22 percent upper extremity impairment.
On June 28, 2005 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of his left upper extremity.
In an impairment evaluation August 2, 2005, an Office medical adviser reviewed
Dr. Dlabach’s findings. He determined that appellant had a zero percent impairment of the left
upper extremity under the A.M.A., Guides. The Office medical adviser found that Dr. Dlabach
did not properly apply the A.M.A., Guides in calculating his impairment rating. He stated:
“Appellant had left rotator cuff repair with debridement of subacromial space and
labral tear. At maximum medical improvement, according to Dr. Dlabach’s
report of June 2, 2005, he had only occasional aches with weather changes; had
full range of motion of shoulder; good strength; no pain; no impingement; no
tenderness; and a full range of motion of elbow and wrist. According to this
report he is not entitled to any impairment of left upper extremity. Dr. Dlabach
does not use the A.M.A., Guides correctly. Table 16-26 (at page 505) addresses
‘[s]ymptomatic shoulder instability’ which according to his report [appellant]
does not have. Table 16-27 addresses impairment following [i]mplant or
[r]esection arthroplasty which [appellant], according to operative report, did not
have.”
By decision dated September 2, 2005, the Office denied appellant’s claim for a schedule
award. It found that the opinion of the Office medical adviser, which was entitled to greater
weight than the opinion of Dr. Dlabach, established that appellant did not sustain any impairment
of his left upper extremity due to his accepted left shoulder condition.
By letter dated December 1, 2005, appellant requested reconsideration. In support of his
request, he submitted a September 13, 2005 report from Dr. Dlabach who argued that the
A.M.A., Guides provided only guidelines, not strict rules, by which to rate impairments. He
asserted that, because it was not possible to specifically list every injury or procedure, the
A.M.A., Guides were used as a guideline to equate certain injuries which might not be listed

2

specifically with listed diagnoses; e.g., a rotator cuff repair and a subacromial decompression.
Dr. Dlabach advised that it is standard protocol in the realm of orthopedic surgery to equate a
distal clavicle excision with a rotator cuff tear and subacromial decompression, since there is no
specific impairment rating provided in the A.M.A., Guides for those procedures. With regard to
his impairment rating based on appellant’s labral repair, Dr. Dlabach similarly opined that it was
fair to equate the effects of this procedure with an injury which resulted in symptomatic
instability and a permanent disruption of the normal anatomy regarding his shoulder.
In a January 18, 2006 report, the Office medical adviser reviewed Dr. Dlabach’s
September 13, 2005 report and found that it contained no basis for a schedule award based on
impairment of the left upper extremity. He stated:
“There is no evidence of subluxing humeral head (Table 16-26, page 505 of the
A.M.A., Guides.) There is no loss of range of motion of the left shoulder (Figures
16-40, 16-43, 16-46, [pages 476, 477, 479] of the A.M.A., Guides.
“[Pursuant to] the A.M.A., Guides, surgery for subacromial decompression does
not qualify as a permanent impairment. Overall [appellant] is quite functional
with his shoulder and upper extremity and has no demonstrable impairment.”
By decision dated January 25, 2006, the Office denied appellant’s request, finding that
the medical evidence that appellant submitted was not sufficient to modify the September 2,
2005 decision denying a schedule award.
On May 8, 2006 appellant requested reconsideration. He submitted an April 13, 2006
report from Dr. Dlabach who essentially reiterated his previously stated disagreements with the
findings of the Office medical adviser and his opinion that the A.M.A., Guides were not strict
rules, but were intended to be used as guidelines to equate certain injuries which might not be
specifically listed with those that were specifically enumerated in the A.M.A., Guides.
By decision dated May 19, 2006, the Office denied appellant’s application for review on
the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require the Office to review its prior decision.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act1 set forth the
number of weeks of compensation to be paid for permanent loss, or loss of use of the members
of the body listed in the schedule. Where the loss of use is less than 100 percent, the amount of
compensation is paid in proportion to the percentage loss of use.2 However, the Act does not
specify the manner in which the percentage of loss of use of a member is to be determined. For
consistent results and to ensure equal justice under the law to all claimants, the Office has

1

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

2

5 U.S.C. § 8107(c)(19).

3

adopted the A.M.A., Guides (fifth edition) as the standard to be used for evaluating schedule
losses.3
ANALYSIS -- ISSUE 1
In the instant case, the Office medical adviser determined that appellant had no ratable
permanent impairment under the A.M.A. Guides based on Dr. Dlabach’s June 2, 2005 report.
The Office medical adviser found that Dr. Dlabach did not properly apply the A.M.A., Guides in
calculating his impairment rating. He stated that Dr. Dlabach rated an impairment based on
Table 16-26, page 505 of the A.M.A. Guides, which measures impairment based on symptomatic
shoulder instability, despite the fact that he found that appellant had only occasional aches with
weather changes, full range of motion of shoulder, good strength, no pain, no impingement and
no tenderness at maximum medical improvement. In addition, Dr. Dlabach derived impairment
from Table 16-27, page 506 of the A.M.A. Guides, which rates impairment based on an implant
or resection arthroplasty, notwithstanding the fact that appellant underwent a procedure for left
rotator cuff repair with debridement of subacromial space and labral tear. The Office medical
adviser therefore properly determined that Dr. Dlabach’s impairment rating was not calculated in
conformance with the applicable standards of the A.M.A. Guides and that appellant in fact did
not have a ratable impairment pursuant to the A.M.A., Guides.
Based on the evidence of record discussed above, the Board finds that the Office medical
adviser properly determined that Dr. Dlabach’s findings were not sufficient to provide a basis for
a schedule award under the Act. The Board therefore affirms the September 2, 2005 Office
decision.
Following the September 2, 2005 decision, appellant requested reconsideration and
submitted Dr. Dlabach’s September 19, 2005 report. Dr. Dlabach argued that the A.M.A.,
Guides provided only guidelines, not strict rules, by which to rate impairments. He asserted that
because not every possible entity or injury could be listed specifically, the A.M.A., Guides were
used as a guideline in an effort to equate certain injuries which might not be listed specifically
with listed diagnoses; e.g., a rotator cuff repair and a subacromial decompression. Dr. Dlabach
advised that it is standard protocol in the realm of orthopedic surgery to equate a distal clavicle
excision with a rotator cuff tear and subacromial decompression, since there is no specific
impairment rating provided in the A.M.A., Guides for those procedures. With regard to his
impairment rating based on appellant’s labral repair, Dr. Dlabach similarly opined that it was fair
to equate the effects of this procedure with an injury which resulted in symptomatic instability
and a permanent disruption of the normal anatomy regarding his shoulder. The Office medical
adviser found that Dr. Dlabach’s September 13, 2005 report contained no basis for a schedule
award based on impairment of the left upper extremity. He noted that there was no evidence of
subluxing humeral head pursuant to Table 16-26, page 505 of the A.M.A., Guides; no loss of
range of motion of the left shoulder pursuant to Figures 16-40, 16-43, 16-46, at pages 476, 477,
479 of the A.M.A., Guides; and no permanent impairment accorded for surgery for a
subacromial decompression procedure under the A.M.A., Guides. As Dr. Dlabach merely
expressed disagreement with the Office medical adviser’s opinion and restated his previously
3

20 C.F.R. § 10.404.

4

stated findings and conclusions, the Office properly found that appellant did not submit medical
evidence sufficient to modify its September 2, 2005 decision denying a schedule award.
As there is no other medical evidence establishing that appellant sustained any permanent
impairment of a schedule member, the Office properly found that he was not entitled to a
schedule award due to his accepted left shoulder condition.
LEGAL PRECEDENT -- ISSUE 2
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered by the Office; or by submitting
relevant and pertinent evidence not previously considered by the Office.4 Evidence that repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.5
ANALYSIS -- ISSUE 2
In the present case, appellant has not shown that the Office erroneously applied or
interpreted a specific point of law; he has not advanced a relevant legal argument not previously
considered by the Office; and he has not constituted relevant and pertinent evidence not
previously considered by the Office. The evidence that appellant submitted is not pertinent to
the issue on appeal. Dr. Dlabach merely restated arguments which were cumulative and
repetitive of arguments which the Office considered and rejected in previous decisions. The
Board has held that the submission of evidence which does not address the particular issue
involved in the case does not constitute a basis for reopening the claim.6 Dr. Dlabach’s report
did not present any additional evidence pertaining to the relevant issue of whether appellant
sustained a permanent impairment causally related to his accepted left shoulder condition.
Appellant’s reconsideration request failed to show that the Office erroneously applied or
interpreted a point of law nor did it advance a point of law or fact not previously considered by
the Office. The Office did not abuse its discretion in refusing to reopen appellant’s claim for a
review on the merits.
CONCLUSION
The Board finds that appellant has not sustained any permanent impairment to a
scheduled member of his body causally related to his accepted left shoulder condition, thereby,
entitling him to a schedule award under 5 U.S.C. § 8107. The Board finds that the Office
properly refused to reopen appellant’s case for reconsideration on the merits of his claim under
5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

5

Howard A. Williams, 45 ECAB 853 (1994).

6

See David J. McDonald, 50 ECAB 185 (1998).

5

ORDER
IT IS HEREBY ORDERED THAT the May 19 and January 25, 2006 and September 2,
2005 decisions of the Office of Workers’ Compensation Programs be affirmed.
Issued: February 21, 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

6