United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
D.M., Appellant
and
DEPARTMENT OF THE NAVY, CIVILIAN
PERSONNEL DEPARTMENT, Mayport, FL,
Employer
__________________________________________

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

Docket No. 17-0983
Issued: August 3, 2018

Case Submitted on the Record

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

JURISDICTION
On April 4, 2017 appellant timely appealed from November 16 and December 16, 2016
merit decisions 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 appellant’s claim.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $48,000.17 for the period August 8, 2004 through July 23, 2016; (2) whether OWCP
properly determined that appellant was at fault in the creation of the overpayment of compensation,
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence with his appeal to the Board. The Board’s
jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the Board is
precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

thereby precluding waiver of recovery of the overpayment; (3) whether OWCP properly required
recovery of the overpayment by deducting $100.00 every 28 days from appellant’s continuing
compensation payments; and (4) whether appellant met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
Appellant, then a 49-year-old mechanic, injured his right knee in the performance of duty
on March 5, 1991. He filed a traumatic injury claim (Form CA-1) alleging that, as he was stepping
from the pier to a crane, he twisted his right knee when boarding the crane. OWCP accepted
appellant’s claim for lose body of the right knee, strain of the right knee, and aggravation of the
degenerative arthritis of the right knee.
On April 8, 1991 appellant underwent right knee arthroscopy. He subsequently underwent
a total knee replacement on August 6, 1991. On May 8, 1992 OWCP issued appellant a schedule
award for 24 percent permanent impairment of his right leg. The award covered the period May 3,
1992 to August 29, 1993. On July 12, 1993 appellant was reemployed by the employing
establishment as a clerk with wages of $365.11 per week. He was placed on the periodic
compensation rolls commencing August 30, 1993.
Between August 23, 1991 and April 1, 2016, appellant regularly submitted annual Form
EN1032 statements regarding his employment status, volunteer work, dependents, and other
federal benefits received. He consistently denied receiving any retirement benefits from the Office
of Personnel Management (OPM) or the Social Security Administration (SSA). When appellant
reached age 62 in 2004, he became eligible to receive age-related Social Security retirement
benefits. The record indicates that he was subject to Federal Insurance Contributions Act (FICA)
withholding while a federal employee.3
By letter dated July 29, 2004, OPM was notified by OWCP that appellant had elected to
receive retirement benefits in lieu of compensation benefits. A copy of the election form was
provided to OPM. The effective date of election was April 26, 2004.
On March 4, 2015 OWCP was informed by SSA that appellant was receiving SSA benefits
partially based upon his civilian federal service, or FERS, which began in May 2004. SSA advised
OWCP that he was entitled to retirement benefits, which began in May 2004. It provided a
breakdown of appellant’s monthly SSA benefits that included contributions from his Federal
service (w/ FERS), as well as a monthly benefit that excluded his federal service contributions
(w/o FERS). Beginning May 2004, appellant’s total monthly SSA benefit was $1,170.20 and the
corresponding monthly amount excluding his federal service contributions was $888.40. SSA
provided additional calculations for subsequent periods beginning December 2004
($1,201.80/912.40), December 2005 ($1251.10/949.70), December 2006 ($1,292.30/981.10),
December 2007 ($1,322.00/1,003.60), December 2008 to November 2011 ($1,398.60/1,061.70),
3

An April 9, 1991 notification of personnel action (Standard Form 50-B) identified appellant’s retirement plan as
“FICA,” with an August 1, 1980 service computation date. As a temporary employee (Tenure “0”), appellant was not
eligible for certain employee fringe benefits such as life insurance Federal Employees Group Life Insurance and a
retirement annuity under the Federal Employees Retirement System (FERS).

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December 2011($1,448.90/1,099.90), December 2012 ($1,473.60/1,118.60), December 2013
($1,495.60/1,135.40), and December 2014 ($1,521.00/1,154.70).
In a development letter dated June 30, 2016, OWCP noted that they were contacting
appellant in reference to the telephone conversation on June 30, 2016, regarding claiming a
schedule award. It advised him that, in further consideration of his claim for a schedule award, he
should arrange for the submission of a detailed narrative report from his treating physician, based
on a recent examination, which included appellant’s physician’s opinion with regard to whether
his conditions had reached maximum medical improvement (MMI), and if so, the date MMI was
reached. Additional details were also requested, including a detailed description of any permanent
impairment of the same member or function which preexisted the injury. OWCP noted that
appellant should provide an impairment rating utilizing the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment, (hereinafter A.M.A., Guides)4
with an explanation of how the calculation was derived.
On July 25, 2016 OWCP notified appellant that SSA confirmed that a portion of his SSA
benefits that he had been receiving since 2004 were attributable to federal service under FERS. It
explained that his current monthly benefit was $1,521.00. However, if appellant’s FERS benefits
were not included in his SSA computation, his SSA benefits would only be $1,154.70. OWCP
explained that his FERS increased his monthly benefit by $366.30. Furthermore, the difference
was the portion of appellant’s SSA benefit amount attributed by his federal service and the amount
that must be offset by his compensation payments. OWCP also explained that since SSA payments
were monthly and compensation payments were made every 28 days. It calculated the SSA
deduction/offset to be $338.12 every 28 days. The offset was effective August 20, 2016 and
appellant’s new net compensation payment was $446.52.
On September 15, 2016 appellant filed a claim for a schedule award (Form CA-7).
In letters dated September 21 and October 12, 2016, OWCP advised appellant that his
claim would remain open for 30 days in order to afford him an opportunity to submit the required
medical evidence regarding permanent impairment from his treating physician.
In a September 28, 2016 report, Dr. William G. Pujadas, a Board-certified orthopedic
surgeon, noted appellant’s history of injury and treatment. He examined appellant and determined
that he had a small effusion of the right knee, with a grating sensation from the patellofemoral joint
incision well healed and no drainage or erythema. Dr. Pujadas noted a right artificial knee joint
presence. He explained that appellant appeared to have worn out his knee. Dr. Pujadas
recommended a workup and additional testing. He noted that appellant appeared to have a Striker
total knee implant. Dr. Pujadas recommended proceeding with a complex revision right total knee
arthroplasty.
On September 30, 2016 OWCP adjusted appellant’s compensation for the period July 24
through August 20, 2016, to reflect the proper offset on a prospective basis. It explained that, since
no FERS offset deductions were taken from his compensation for the period August 8, 2004
through July 23, 2016, there was an overpayment of compensation. OWCP determined that, based
4

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

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upon the figures provided by SSA, the amount that should have been offset from appellant’s
compensation in the case would range from $281.80 per calendar month (prorated to $260.12 per
each 28-day “plate.”) to $366.30 per calendar month (prorated to $338.12 per each 28-day “plate”).
It explained that the period in question, August 8, 2004 through July 23, 2016, compromised a
total of 4,368 days. OWCP calculated the amount of the offset per plate, to $48,000.17. A copy
of the calculation worksheet was provided.
On September 30, 2016 OWCP issued a preliminary determination that appellant received
an overpayment of compensation in the amount of $48,000.17 for the period August 8, 2004
through July 23, 2016. It explained that the overpayment was a result of him having received both
FECA wage-loss compensation and social security retirement benefits based on his federal service,
which was a prohibited dual benefit. Additionally, OWCP advised that appellant was at fault in
the creation of the overpayment because he accepted payments which he knew or reasonably
should have known were incorrect. It determined that although he signed numerous EN1032 forms
indicating that he was not in receipt of SSA benefits as part of an annuity for federal service, SSA
provided information which indicated that he was in receipt of these benefits since 2004. OWCP
advised appellant that, within 30 days, he could request a telephone conference, a final decision
based on the written evidence, or a prerecoupment hearing. It requested that he complete an
enclosed overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
documents.
In an October 16, 2016 response to the preliminary overpayment decision, appellant
questioned the fact of overpayment as well as the finding of fault. He questioned why the dual
benefit calculation was dated March 3, 2015, when he had contacted the office many times over
the years. Appellant also noted that he had requested a congressional inquiry which confirmed
that his FECA compensation was correctly paid. He argued that he was the sole provider for two
disabled children, a son and a daughter. Appellant noted that his daughter died and his son still
lived with him and his wife, who was battling cancer. He explained that they could not afford her
medicine and she took her meds every other day so they would last longer, even though they were
supposed to be taken daily. Appellant requested a waiver and explained that it would be against
equity and good conscience to make him choose between his medicine and food and an
overpayment.
By decision dated November 16, 2016, OWCP denied appellant’s claim for a schedule
award as the evidence submitted was insufficient to establish permanent impairment of a scheduled
member or function of the body. It found that the medical evidence of record supported a finding
that his condition had not reached a fixed and permanent state, which was a requirement for a
schedule award.
During a telephone conference, held on December 9, 2016, OWCP noted that the
information on the Form OWCP-20 showed that appellant had a combined monthly income of
$2,075.00 from his OWCP and SSA benefits, and his spouse’s SSA benefits. OWCP’s claims
examiner noted that appellant indicated that there were two other adults in the home who did not
have any income to contribute to the monthly expenses. Additionally, the claims examiner
confirmed that appellant did not have any assets such as stocks, bonds, etc. It noted that his
expenses included: his rent/mortgage, $875.00, food, $500.00, car payment, $350.00, credit card
payments, $80.00, and utilities, $500.00. The claims examiner found that, based on the above, the

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monthly income minus monthly expenses left a surplus of $330.00. Appellant also provided
documentation to include: copies of bank statements, his lease agreement, electric bill, credit card
payment, and a cable/telephone bill.
OWCP noted that appellant’s monthly income was his OWCP compensation and SSA,
$1,646.52 and his spouse’s SSA, $600.00 for a total monthly income of $2,246.52. During the
conference, appellant reiterated that the above listed income was used to support the entire
household. He also explained they had additional expenses of pharmacy costs not covered by
insurance for him and his wife of approximately $200.00. Appellant explained that they both had
serious medical issues. He also clarified that the utilities included: $334.00 for electric; and
cable/telephone $160.00. Appellant provided additional expenses of car insurance $178.00. He
also explained that he had a disabled son who did not receive any monetary benefits, including
SSA or health insurance, and he had to pay periodic medical expenses for him. Appellant also
explained that he also supported his adult daughter who did not work and did not receive any
federal benefits. Furthermore, appellant’s daughter did not have health insurance.
On the completed Form OWCP-20 overpayment recovery questionnaire, appellant
requested waiver of recovery of the overpayment. He explained that he met with SSA in 2004 and
was told that there would be no offset since he worked in the private sector prior to working for
the Federal Government. Appellant listed the names of the SSA employees he met with, whom
he listed as the office director. In response to why he believed that the incorrect payment was due
to him and why the overpayment was not his fault, he explained that his income did not change
much from 1991. Furthermore, it went by direct deposit to his bank. Appellant explained that he
also went to the SSA in 2004 and he was told that if OWCP “had paid this long, it was paying the
correct amount.” He further explained that there was no change in his pay. Appellant noted that,
after being paid for “[20] plus years, you would think if the pay was wrong, OWCP would correct
it way before now. How in the world would we know we were being overpaid?” He indicated
that, in 1991, after all the telephone calls he made to OWCP over the years, “not one time did any
one mention anything about overpayment.” Appellant reiterated his inquiry of how was he
supposed to know that he was being paid the correct amount. His income was listed as $2,075.00
and his expenses were listed as $2,405.00.
By decision dated December 16, 2016, OWCP finalized the preliminary determination
regarding the fact and amount of the overpayment, as well as its finding that appellant was at fault
in the creation of the overpayment. Regarding appellant’s request for waiver of recovery of the
overpayment, it found that he had not relinquished a valuable right or changed his position for the
worse in reliance on the excess compensation he received. OWCP further found that recovery of
the overpayment would not defeat the purpose of FECA or be against equity and good conscience
based on the information provided on OWCP-20 form and in the conference since appellant was
receiving benefits from OWCP. It found that he was at fault in the creation of the overpayment
because he accepted compensation payments that he knew or should have known to be incorrect,
thereby precluding waiver of recovery of the overpayment.
With respect to monthly expenses, OWCP found appellant’s reasonable and documented
monthly expenses were: $875.00 rent, $500.00 food, $350.00 car payment, $80.00 credit card
payments, $500.00 utilities, ($334.00 electric and $160.00 cable/telephone), $178.00 car
insurance, and $200.00 pharmacy prescriptions, totaling $2,683.00 per month. It noted that he

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indicated that he had a disabled son who did not receive any monetary benefits or health insurance
and he also had periodic medical expenses related to his care. Furthermore, OWCP noted that
appellant indicated that he also supported his adult daughter, who had no income and did not
receive any benefits or health insurance. Appellant’s monthly income was found to be $1,646.52
based on compensation and SSA benefits and his wife’s income was $600.00 from SSA benefits.
The combined income was $2,246.52. The expenses exceeded the monthly income by $436.48
per month. OWCP directed repayment of the overpayment by deducting $100.00 per 28 days from
appellant’s continuing compensation. It explained that this was to minimize the hardship on him
to repay the overpayment while minimizing interest charges.
LEGAL PRECEDENT -- ISSUE 1
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion of
SSA benefits that are attributable to federal service and that, if an employee receives SSA benefits
based on federal service, his or her compensation benefits shall be reduced by the amount of SSA
benefits attributable to his or her federal service.5
OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply: in disability cases, FECA benefits will be reduced by
SSA benefits paid on the basis of age and attributable to the employee’s federal service.6 The
offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: where a claimant has received SSA benefits, OWCP will obtain information from SSA
on the amount of the claimant’s benefits beginning with the date of eligibility to FECA benefits.
SSA will provide the actual amount of SSA benefits received by the claimant/beneficiary. SSA
will also provide a hypothetical SSA benefit computed without the FERS covered earnings.
OWCP will then deduct the hypothetical benefit from the actual benefit to determine the amount
of benefits which are attributable to federal service and that amount will be deducted from FECA
benefits to obtain the amount of compensation payable.7
ANALYSIS -- ISSUE 1
The record supports that appellant received FECA wage-loss compensation beginning on
August 30, 1993 and that he received SSA benefits beginning August 8, 2004. The portion of the
SSA benefits he earned as a federal employee was part of his FERS retirement package, and the
receipt of benefits under FECA and federal retirement benefits concurrently is a prohibited dual
benefit.8 Appellant’s FECA compensation was not offset until July 26, 2016. SSA notified
OWCP of the applicable SSA rates for him and their effective dates. Based on these rates, OWCP
was able to calculate the dual benefit appellant received from August 8, 2004 to July 23, 2016,
5

5 U.S.C. § 8116(d). See G.T., Docket No. 15-1314 (issued September 9, 2016).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a) (February 1995); Chapter
2.1000(e)(2) (February 1995). OWCP does not require an election between FECA benefits and SSA benefits except
when they are attributable to the employee’s federal service. See R.C., Docket No. 09-2131 (issued April 2, 2010).
7

E.C., Docket No. 14-1743 (issued December 4, 2014); FECA Bulletin No. 97-09 (issued February 3, 1997).

8

See P.G., Docket No. 13-0589 (issued July 9, 2013).

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which yielded an overpayment of compensation in the amount of $48,000.17. The record includes
an overpayment worksheet explaining the overpayment calculation. Therefore, the evidence of
record establishes that appellant received an overpayment of compensation in the amount of
$48,000.17.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA9 provides that an overpayment of compensation shall be
recovered by OWCP unless incorrect payment has been made to an individual who is without fault
and when adjustment or recovery would defeat the purpose of FECA or would be against equity
and good conscience.10 OWCP may not waive the overpayment of compensation unless appellant
was without fault.11 Adjustment or recovery must, therefore, be made when an incorrect payment
has been made to an individual who is with fault.12
On the issue of fault, section 10.433 of OWCP’s regulations, provides that an individual
will be found at fault if he or she has done any of the following:
“(1) made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; (2) failed to provide information which he or
she knew or should have known to be material; or (3) accepted a payment which he
or she knew or should have known was incorrect.”13
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provides in relevant part:
“Whether or not [OWCP] determines that an individual was at fault with respect to
the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those
circumstances and the individual’s capacity to realize that he or she is being
overpaid.”14
ANALYSIS -- ISSUE 2
OWCP applied the third standard in determining that appellant was at fault in the creation
of the overpayment. Thus, the issue is whether, at the time of acceptance of the compensation
payment, he knew or should have known that it was incorrect.

9

5 U.S.C. § 8129(b).

10

Michael H. Wacks, 45 ECAB 791, 795 (1994).

11

Norman F. Bligh, 41 ECAB 230 (1989).

12

Diana L. Booth, 52 ECAB 370, 373 (2001); William G. Norton, Jr., 45 ECAB 630, 639 (1994).

13

20 C.F.R. § 10.433(a).

14

Id. at § 10.433(b).

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Appellant alleged that the overpayment occurred through no fault of his own and requested
waiver of recovery of the overpayment. He explained that he met with SSA in 2004 and was told
that there would be no offset since he worked in the private sector prior to working for the Federal
Government. Appellant listed the names of the SSA employees he met with, whom he listed as
the office director. In response to why he believed that the incorrect payment was due to him and
why the overpayment was not his fault, he explained that his income did not change much
from 1991. Furthermore, it went by direct deposit to appellant’s bank. Appellant explained that
he also went to the SSA in 2004 and he was told that if OWCP “had paid this long, it was paying
the correct amount.” He further explained that there was no change in his pay. Appellant noted
that after being paid for “[20] plus years, you would think if the pay was wrong, OWCP would
correct it way before now. How in the world would we know we were being overpaid?” He
indicated that, in 1991, after all the telephone calls he made to OWCP over the years, “not one
time did any one mention anything about overpayment.” Appellant’s income was listed as
$2,075.00 and his expenses were listed as $2,405.00. However, the Board notes that he over the
years signed the multiple periodic EN1032 forms, indicating that he was not in receipt of the SSA
benefits as part of his annuity for federal service since 2004. The Board notes that although
appellant would contact OWCP over the years his explanation does not show that he did not know
he was accepting an incorrect payment. The evidence establishes that he reasonably should have
known that he was accepting a payment which was incorrect. The Board finds that appellant is at
fault in the creation of the overpayment under the third criterion noted above. To the extent that
he is arguing that OWCP made the mistake and that he should not be considered at fault, the fact
that OWCP may have been negligent in issuing the continuing compensation checks does not
mitigate this finding.15 As the evidence of record establishes that appellant was at fault in the
creation of the overpayment in compensation, the Board finds that he is not entitled to waiver of
recovery of the overpayment.16
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation.17 Section 10.441(a) of the
regulations provides:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [OWCP] the amount of the overpayment
as soon as the error is discovered or his [or her] attention is called to same. If no
refund is made, [OWCP] shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual, and any other relevant factors, so as to
minimize any hardship.”18
15

See id., at § 10.435(a); William E. McCarty, 54 ECAB 525 (2003).

16

Sinclair L. Taylor, 52 ECAB 227 (2001).

17

Lorenzo Rodriguez, 51 ECAB 295 (2000).

18

20 C.F.R. § 10.441(a).

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The analysis that determines the amount of adjustment is substantially the same as that
used to determine waiver.19
ANALYSIS -- ISSUE 3
Appellant submitted a Form OWCP-20 and supporting financial documentation. His noted
expenses were: $875.00 rent, $500.00 food, $350.00 car payment, $80.00 credit card, $500.00
utilities, $178.00 car insurance, and $200.00 pharmacy prescriptions, totaling $2,683.00 per
month. Appellant’s monthly income was reported at $2,256.52, based on compensation and SSA
benefits. OWCP concluded that he could repay the overpayment by deducting $100.00 every 28
days from his continuing compensation payments. It also noted that this was to minimize the
hardship on appellant to repay the overpayment while minimizing interest charges.
The Board finds that OWCP properly considered the relevant factors under 20 C.F.R.
§ 10.441. OWCP procedures indicate that OWCP’s hearing representative should evaluate the
claimant’s financial information and establish the highest reasonable rate of repayment which will
collect the debt promptly and at the same time minimize any hardship to the claimant. The hearing
representative considered the financial information submitted and reasonably found that the
overpayment of compensation could reasonably be recovered by deducting $100.00 from
continuing compensation every 28 days.20 The Board finds that OWCP properly determined the
recovery of the overpayment in this case.
On appeal appellant maintains that he was not at fault in creating the overpayment and
repayment would cause financial hardship. He explained that he was paid the same from OWCP
since 1991. Appellant also noted that he had worked for 25 years in the private sector. He
indicated that his SSA was for his heart disability and not with his OWCP file. Appellant also
notes that he went to the SSA office, and was told that it was not an annuity. He also explains that
he believed that his SSA was not for his federal service and he reiterated that he had no idea that
it was. Appellant again explained all of his expenses and that he was the sole supporter for his
family. He requested a hardship waiver. For the reasons set forth above OWCP properly denied
waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 4
Section 8107 of FECA21 sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions, and organs of the body.22 FECA does not
specify the manner by which the percentage loss of a member, function, or organ shall be
determined. To ensure consistent results and equal justice for all claimants under the law, good

19

See Howard R. Nahikian, 53 ECAB 406 (2002).

20

As noted in the informal conference, the documented expenses left a surplus of $330.00 per month.

21

Supra note 1.

22

5 U.S.C. § 8107.

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administrative practice requires the use of uniform standards applicable to all claimants.23 The
A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for
evaluating schedule losses.24
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment that it should be Class of Diagnosis (CDX) condition, which is then adjusted by grade
modifiers based on Functional History (GMFH), Physical Examination (GMPE), and Clinical
Studies (GMCS).25 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX).26
OWCP’s procedures provide that, to support a schedule award, the file must contain
competent medical evidence which shows that the impairment has reached a permanent and fixed
state and indicates the date on which this occurred (date of MMI), describes the impairment in
sufficient detail so that it can be visualized on review, and computes the percentage of impairment
in accordance with the A.M.A., Guides.27
ANALYSIS -- ISSUE 4
The Board finds that the evidence of record is insufficient to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
Appellant has not submitted any medical evidence to support a claim for a schedule award.
In letters dated June 30, September 21, and October 12, 2016, OWCP requested that his treating
physician provide an opinion on impairment. However, no evidence of impairment was received.
The only report received was a September 28, 2016 report from Dr. Pujadas, who recommended
additional treatment, but did not provide an impairment rating.
Consequently, appellant has not established that his accepted condition reached MMI and
that his accepted knee conditions caused a permanent impairment to a scheduled member of the
body. As such evidence has not been submitted, he has not established entitlement to a schedule
award.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.

23

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

24

20 C.F.R. § 10.404.

25

A.M.A., Guides 494-531; see J.B., Docket No. 09-2191 (issued May 14, 2010).

26

Id. at 521.

27
Supra note 6 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a
(March 2017).

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CONCLUSION
The Board finds that appellant received an overpayment in the amount of $48.000.17 for
the period August 8, 2004 through July 23, 2016. The Board further finds that he was at fault in
the creation of the overpayment and, therefore, not subject to waiver of recovery of the
overpayment. The Board finds that OWCP properly required recovery of the overpayment by
deducting $100.00 every 28 days from his continuing compensation payments. The Board also
finds that appellant did not meet his burden of proof to establish permanent impairment of a
scheduled member or function of the body, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the December 16 and November 16, 2016 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 3, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING
& DISTRIBUTION CENTER, Providence, RI,
Employer
__________________________________________

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Appearances:
John L. Whitehouse, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1751
Issued: December 27, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 30, 2016 appellant, through counsel, timely appealed from the August 19,
2016 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.
ISSUE
The issue is whether appellant established a left upper extremity condition causally
related to the June 22, 2015 employment incident.
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.

FACTUAL HISTORY
On June 28, 2015 appellant, then a 56-year-old mobile unit driver (mail handler), filed an
occupational disease claim (Form CA-2) alleging that on June 22, 2015 he injured his left upper
extremity in the performance of duty. He subsequently clarified that he was claiming a traumatic
injury. Appellant explained that he was pulling a bulk mail container (BMC) with both hands
when he felt pain shoot up his left arm. The pain reportedly extended from his forearm to his
elbow and bicep. Appellant further explained that it was quite painful to make a fist.3 He
continued to work following the June 22, 2015 incident. Appellant indicated that he reported the
injury to his supervisor, T.R. He did not submit any medical evidence with his June 28, 2015
claim.
On July 22, 2015 OWCP informed appellant of the type of evidence needed to support
his claim. It noted, among other things, that the record did not include a diagnosis of a medical
condition resulting from the alleged employment incident. Appellant was afforded at least 30
days to submit the requested information.
In a July 29, 2015 statement, T.R., a distribution operations supervisor, indicated that he
agreed with appellant’s statements regarding the June 22, 2015 incident. He noted that appellant
told him he was pulling an extremely heavy BMC off the line when he felt a sharp pain in his left
arm. T.R. further stated that mobile drivers push and pull various types of equipment to be
attached to their units. He also indicated that these activities continued throughout an 8-hour
shift. T.R. stated that when he asked appellant if he could continue to do his job, appellant
replied that he wanted to try. Appellant began to wear a Velcro brace just below his left elbow
and T.R. explained that it seemed that appellant was favoring the left arm and using his right arm
more.
Although OWCP received additional factual information regarding the June 22, 2015
employment incident, it did not receive any medical evidence during the allotted 30-day
development period.
By decision dated August 27, 2015, OWCP denied appellant’s claim as he had failed to
establish fact of injury. The record established that appellant pulled heavy BMCs off the dock
with a mobile unit. However, OWCP found that it had not received any medical evidence
demonstrating that he sustained a medical condition as a result of this incident.
On September 29, 2015 appellant requested reconsideration.
OWCP received various reports and treatment notes from Dr. Leonard F. Hubbard, a
Board-certified orthopedic surgeon. In a July 22, 2015 note, Dr. Hubbard advised that appellant
came in with a recurrence of his previous injury. He noted that appellant was pulling a “bullet”
weighing about 2,000 pounds when he felt a sudden onset of pain. Dr. Hubbard provided
findings for the left arm, which were essentially normal with full range of motion and some
tenderness over the lateral condyle aspect and over the radial tunnel. He opined that appellant
had a recurrence of the previous injury and recommended that he stay out of work and get a
3

Appellant has an accepted occupational disease claim for bilateral carpal tunnel syndrome, left lateral
epicondylitis, and left radial nerve lesion under OWCP File No. xxxxxx698 with a July 12, 2011 date of injury. He
reported that his current left arm complaints felt similar to when he previously tore a tendon in his left arm.

2

splint. Dr. Hubbard explained that the current injury was “causally related to the injury as
described.” He also advised that appellant would be out until July 27, 2015.
In his August 12, 2015 notes, Dr. Hubbard indicated that appellant had persistent pain in
the elbow after his recent re-injury. He found that the elbow revealed full range of motion, but
there was considerable tenderness over the radial tunnel and lateral epicondyle. Dr. Hubbard
indicated that appellant could return to employment in approximately one month, but only if he
was able to utilize a splint to protect his dominant right hand.
Dr. Hubbard also provided an August 28, 2015 disability certificate, advising appellant
could return to light-duty work only with a splint.
In a September 9, 2015 duty status (Form CA-17) report, the physician reported clinical
findings of chronic pain and indicated that appellant could resume work as of September 14,
2015 with restrictions. Appellant was limited to off-belt work picking up letters behind the
advanced facer-canceller (“AFC”).
In an October 7, 2015 report, Dr. Hubbard explained that appellant previously underwent
work-related surgery for left elbow lateral epicondylitis. He noted that appellant did quite well
and was able to return to the workforce. Dr. Hubbard advised that on June 22, 2015 appellant
had a recurrence of that injury when he was pulling a heavy bullet at work, which resulted in
precisely the same symptoms he previously had. Those symptoms had since ameliorated and
appellant was at the point where he could return to work in a light-duty capacity. Dr. Hubbard
provided a duty status report with restrictions. He again noted that appellant was limited to offbelt work picking up letters behind the AFC.
In an October 14, 2105 decision, OWCP denied modification. The decision noted that,
while Dr. Hubbard reported that appellant was experiencing pain, he did not provide a firm
diagnosis.
On July 11, 2016 counsel requested reconsideration.
OWCP received additional evidence from Dr. Hubbard, which included several treatment
notes dating from October 7, 2015 to June 20, 2016. In his October 7, 2015 note, Dr. Hubbard
indicated that appellant continued to have pain in the left elbow, but was back at work. He
recommended continued light duty.
Dr. Hubbard saw appellant on January 18, 2016 and diagnosed lateral epicondylitis. He
continued appellant with light duty. On April 4, 2016 Dr. Hubbard explained that appellant was
able to do modified duty, but remained restricted with regard to more vigorous activities. He
again diagnosed lateral epicondylitis and continued modified duty. In a June 20, 2016 treatment
note, Dr. Hubbard reiterated his diagnosis of left lateral epicondylitis.
OWCP also received physical therapy treatment records from September 11, 2015 and
July 22, 2016.
By decision dated August 19, 2016, OWCP modified the October 14, 2015 decision to
reflect that the attending physician had provided a diagnosis of left lateral epicondylitis.

3

However, it further found that the claim remained denied as the medical evidence was
insufficient to establish causal relationship.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.4
To determine if an employee sustained a traumatic 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 that must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident that
allegedly occurred.5 The second component is whether the employment incident caused a
personal injury.6 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.7
Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.8
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.9
ANALYSIS
In this case, appellant alleged that on June 22, 2015 he sustained an injury to his left
upper extremity in the performance of duty. OWCP accepted that the June 22, 2015 employment
incident occurred as alleged and that he received a diagnosis of left lateral epicondylitis.
However, it denied appellant’s traumatic injury claim because the medical evidence failed to

4

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

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s). Id.
7

Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

9

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician
assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified
physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013).

4

establish a causal relationship between the accepted June 22, 2015 employment incident and his
left upper extremity condition.
Dr. Hubbard provided several reports dating from July 22, 2015 to June 20, 2016. In an
initial July 22, 2015 note, he advised that appellant came in with recurrence of his previous
injury. Dr. Hubbard noted that appellant was pulling a bullet weighing about 2,000 pounds when
he felt a sudden onset of pain. He provided findings for the left arm, which were essentially
normal, with full range of motion and some tenderness over the lateral condyle aspect and over
the radial tunnel. Dr. Hubbard opined that appellant had a recurrence of the previous injury and
it was recommended that he stay out of work and get a splint. He explained that the current
injury was “causally related to the injury as described.” The Board initially notes that other than
a diagnosis of pain, Dr. Hubbard is relating the condition to a previous injury. The Board finds
that this opinion lacks probative value as it did not provide a firm diagnosis, is vague, and failed
to explain the causal relationship between appellant’s condition and any work-related
exposures.10
Dr. Hubbard also treated appellant on August 12 and 28, 2015 and advised that he could
not return to full duty. In his August 12, 2015 notes, he indicated that appellant had persistent
pain in the elbow after his recent reinjury, and on his August 28, 2015 disability certificate, he
noted that appellant could return to light-duty work only with a splint. In September 9 and
October 7, 2015 duty status reports, Dr. Hubbard noted clinical findings of chronic pain and
indicated that appellant could resume light duty on September 14, 2015 with restrictions.
However, as noted above, other than noting appellant’s chronic pain, Dr. Hubbard did not
diagnose a specific condition or address causal relationship by explaining how a specific activity
at work on June 22, 2015 either caused or contributed to appellant’s left upper extremity
condition.11
In an October 7, 2015 report, Dr. Hubbard explained that appellant previously underwent
work-related surgery for left lateral epicondylitis. He advised that on June 22, 2015, appellant
had a “recurrence” of that injury when he was pulling a heavy bullet at work, which resulted in
precisely the same symptoms appellant previously experienced. Dr. Hubbard advised that
appellant was able to return to work in a light-duty capacity. While he opined that appellant had
a recurrence of a prior injury at work due to the incident of June 22, 2015, the Board notes that it
is unclear to which prior injury he is referring or how the incident of June 22, 2015 resulted in
the diagnosed condition of left lateral epicondylitis. A medical opinion not fortified by rationale
is of little probative value.12
In an April 4, 2016 report, Dr. Hubbard diagnosed lateral epicondylitis, but he did not
provide an opinion on causal relationship. As such, this report is of limited probative value on
the issue of causal relationship.
In a June 20, 2016 treatment note, Dr. Hubbard advised that appellant was in for further
clarification regarding the origin of his injury. He repeated the diagnosis of left lateral
10

See Michael E. Smith, 50 ECAB 313 (1999).

11

Id.

12

Annie L. Billingsley, 50 ECAB 210 (1998); supra note 10.

5

epicondylitis, but did not otherwise elaborate on the cause of appellant’s left upper extremity
condition. Accordingly, this report is of limited probative value.
Appellant also submitted copies of physical therapy notes. However, reports from
physical therapist do not rise to the level of competent medical opinion evidence under FECA as
physical therapists are not physicians under FECA.13
Because the medical evidence of record does not address how the June 22, 2015
employment incident either caused or contributed to appellant’s claimed left upper extremity
condition, appellant failed to establish causal relationship. On appeal, counsel argues that
OWCP should at least refer appellant for a second opinion examination. The Board found that
appellant has not demonstrated a prima facie case of entitlement under FECA. Accordingly, the
Board finds that he has failed to meet his burden of proof.
CONCLUSION
Appellant failed to establish that his claimed left upper extremity condition is causally
related to the June 22, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 19, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 27, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13

See supra notes 8 and 9.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POSTAL SERVICE,
Detroit, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:

Docket No. 16-0815
Issued: October 25, 2016

Case Submitted on the Record
1

Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 15, 2016 appellant, through counsel, filed a timely appeal from a
January 11, 2016 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 the case.
ISSUE
The issue is whether appellant has more than 31 percent permanent impairment of the
right lower extremity for which she had received a schedule award.
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.

FACTUAL HISTORY
On April 21, 2008 appellant, then a 43-year-old letter carrier, filed a Form CA-2, notice
of occupational disease, alleging that she had developed bilateral knee osteoarthritis as a result of
work duties, which included prolonged standing, squatting, and stair climbing.3 On August 3,
2009 OWCP accepted permanent aggravation of right knee osteoarthritis. It later expanded
appellant’s claim to include generalized osteoarthrosis, multiple sites, and bilateral localized
primary osteoarthritis bilateral legs. OWCP authorized a total right knee replacement, which
was performed on June 20, 2008. Appellant did not stop work, but returned to a light-duty
position. She was granted disability retirement, effective February 19, 2010.
Appellant came under the treatment of Dr. Ronald Little, a Board-certified orthopedist on
February 18, 2008 for significant right knee pain. She reported that her job consisted of sitting
practically eight hours per day. On June 20, 2008 Dr. Little performed total knee arthroplasty on
the right knee and diagnosed degenerative arthritis of the right knee. Appellant submitted a
November 13, 2009 report from Dr. Little who diagnosed right lower extremity radicular pain
likely from the back. Dr. Little noted range of motion of the right knee of 5 to 120 degrees and
on the left of 0 to 130 degrees.
Appellant was treated by Dr. Carla E. Morton, a Board-certified physiatrist, from
August 19, 2009 to February 16, 2010, for injuries sustained to her right knee at work. She
reported undergoing a total right knee replacement in 2008. Dr. Morton diagnosed right knee
pain by history, status post right total knee arthroplasty, status post osteoarthritis of the right
knee, and right knee swelling. On February 16, 2010 she noted range of motion of 0 to 120
degrees. Dr. Morton noted that appellant could work subject to restrictions. An electromyogram
dated December 3, 2009 revealed no evidence of a right or left lower extremity radiculopathy,
plexopathy, or mononeuropathy.
On June 3, 2010 appellant filed a claim for a schedule award (Form CA-7). She
submitted a report dated May 16, 2010 from Dr. William N. Grant, a Board-certified internist.
Dr. Grant diagnosed right general osteoarthritis. He noted the history of injury, reviewed the
medical record, and presented his findings. Dr. Grant opined that appellant had 36 percent
permanent impairment of the right lower extremity pursuant to the American Medical
Association, Guides to the Evaluation of Permanent Impairment,4 (A.M.A., Guides). He noted
examination of the right knee revealed synovial change, a well-healed surgical scar, and
tenderness to palpation. Dr. Grant noted range of motion for the right knee revealed flexion
contracture of 15 degrees for a 20 percent lower extremity impairment and flexion of 70 degrees
for a 20 percent lower extremity impairment. He used the Combined Values Chart of the
A.M.A., Guides to calculate that 20 percent lower extremity impairment for flexion contracture

3

Appellant filed a claim for muscle spasms in her right knee on February 25, 2005 which was accepted for
sprains and strains of the right knee and leg under File No. xxxxxx126. On March 3, 2009 OWCP consolidated
File No. xxxxxx126 and the current claim before the Board, File No. xxxxxx939, for administrative case
management purposes.
4

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

2

and 20 percent lower extremity impairment for flexion results in 36 percent impairment of the
right lower extremity.
In a June 28, 2010 report, an OWCP medical adviser reviewed the medical records
provided and disagreed with Dr. Grant’s impairment rating. Dr. Grant opined that appellant had
36 percent right lower extremity impairment based on the range of motion impairment rating
method. He noted range of motion for flexion contracture was 15 degrees and for flexion
70 degrees. The medical adviser noted, however, that he could not provide a well-reasoned
assessment of the true impairment based on range of motion because the examination recorded
by Dr. Grant was not consistent with the medical evidence documented elsewhere in the record.
He noted on May 16, 2010, Dr. Grant had reported 15 degrees of flexion contracture and
70 degrees for flexion; on February 16, 2010 Dr. Morton had noted 0 degrees for flexion
contracture and 85 degrees for flexion; and on November 23, 2009 Dr. Little noted 5 degrees for
flexion contracture and 120 degrees for flexion. The great degree of variation in evaluation had
a significant impact on an impairment rating and, therefore, range of motion could not be
assumed to provide any reliable measure of impairment. The medical adviser noted the
diagnosis-based impairment method would be used with no grade modifier for physical
examination. Pursuant to the A.M.A., Guides, Table 16-3, page 511, he noted a class 3 right
total knee replacement with fair results, which has a default rating of 37 percent. The medical
adviser assigned a grade 2 modifier for functional history adjustment under Table 16-6, page
516. He assigned a grade 2 modifier for clinical studies adjustment under Table 16-8, page 519.
The medical adviser utilized the net adjustment formula to find a net adjustment of -2. He
opined the final right lower extremity impairment after net adjustment was 31 percent.
In a decision dated March 30, 2011, OWCP granted appellant a schedule award for 31
percent permanent impairment of the right lower extremity. The period of the award was from
August 18, 2009 to May 4, 2011.
In a report dated October 16, 2012, Dr. Little diagnosed status post right total knee
arthroplasty in June 2008 and left knee degenerative joint disease. He noted that appellant
reported left knee pain which became unbearable. Dr. Little recommended a left total knee
arthroplasty. The medical adviser concurred in Dr. Little’s assessment and approved the left
knee arthroplasty as work related. On September 9, 2013 Dr. Little performed a left total knee
arthroplasty and diagnosed osteoarthritis of the left knee.
Appellant continued to be treated by Dr. Morton from January 14 to September 3, 2014,
for bilateral knee pain. She reported an improvement in her bilateral knee pain, but continued to
complain of intermittent knee swelling, warmth, and popping with increased activity. On
September 3, 2014 Dr. Morton noted that appellant reached maximum medical improvement for
her bilateral knee pain.
On September 24, 2014 appellant filed a Form CA-7, claim for an additional schedule
award. In an October 15, 2014 letter, OWCP requested that she obtain a medical report from her

3

treating physician and evaluate the extent of permanent impairment of the bilateral lower
extremities under the A.M.A., Guides.5
Appellant submitted a January 23, 2015 report from Dr. Catherine Watkins Campbell,
Board-certified in occupational therapy and family medicine. Dr. Campbell noted that appellant
developed osteoarthritis of both knees as a result of multiple falls during her employment and
cumulative trauma due to many years walking as a letter carrier. She noted that appellant had
her right knee replaced in 2008. Dr. Campbell noted that appellant’s lower extremity assessment
scale was a score of 80 for no functional deficits. She noted that appellant ambulated with a
moderately antalgic gait, no localized tenderness of the right knee, and ballotable patella on the
left with tenderness and warmth. Dr. Campbell noted that range of motion for the right knee was
-12, -13, -12 degrees and for flexion range of motion was 110, 104, 100 degrees with mild
anterior/posterior laxity.
She noted maximum medical improvement occurred on
September 3, 2014. For the right leg, Dr. Campbell assigned under Table 16-3, page 511, 34
percent impairment for a class 3 right total knee replacement. Based on bilateral total knee
replacements and continued use of a wheeled walker, she assigned a grade 3 modifier for
Functional History (GMFH) adjustment under Table 16-6, page 516. Based on the degree of
flexion contracture documented, she assigned a grade 2 modifier for Physical Examination
(GMPE) adjustment under Table 16-7, page 517. Dr. Campbell noted that there were no
applicable clinical studies so the Clinical Studies (GMCS) adjustment under Table 16-8, page
519 was not used. She utilized the net adjustment formula to find a net adjustment of -1.
Dr. Campbell opined that the final right lower extremity permanent impairment after net
adjustment was 34 percent.6
In an April 1, 2015 report, the medical adviser reviewed the medical record and disagreed
with Dr. Campbell’s impairment rating. He noted that the date of maximum medical
improvement was October 23, 2014. The medical adviser found that the most impairing
diagnosis in the knee region was arthroplasty with a fair result, which would be used for final
impairment calculations. He noted that appellant was status post right knee arthroscopy with
good hardware placement, mild laxity, and mild motion loss. The medical adviser assigned
under Table 16-3, page 511, 31 percent impairment for a class 3 right total knee replacement
with fair results. He assigned a grade 3 modifier for a GMFH adjustment under Table 16-6, page
516 based on his observation that appellant still had symptoms in the knee joint and the rating
report documents that she used a walker for ambulation. Based on the medical adviser’s
observation and palpatory findings, he assigned a grade 1 modifier for GMPE adjustment under
Table 16-7, page 517. He noted that Dr. Campbell used range of motion deficits to assign
GMPE, but range of motion was used to place appellant into the correct diagnostic class and
cannot be used again to assign a GMPE. The medical adviser noted tightness, but no other
objective deficits were documented. He noted that GMCS were used to place appellant in the
right diagnostic class and may not be used again to assign GMCS. The medical adviser utilized

5

Id.

6

Dr. Campbell also rated left leg permanent impairment. However, OWCP’s January 11, 2016 decision did not
make a final decision on left leg impairment. Matters regarding left leg impairment are not before the Board on the
present appeal. See 20 C.F.R. § 501.2(c).

4

the net adjustment formula to find a net adjustment of -2 for a final grade A. He noted the final
right lower extremity permanent impairment after net adjustment was 31 percent.
In a decision dated April 8, 2015, OWCP denied appellant’s claim for an additional
schedule award.
On April 14, 2015 appellant requested an oral hearing that was held on October 22, 2015.
In a decision dated January 11, 2016, an OWCP hearing representative affirmed the
April 8, 2015 decision.7
LEGAL PRECEDENT
The schedule award provision of FECA8 and its implementing federal regulations,9 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.10 For decisions issued
beginning May 1, 2009, the sixth edition of the A.M.A., Guides will be used.11
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).12 Under the sixth edition, the evaluator identifies the impairments class for the
diagnosed condition, which is then adjusted by grade modifiers based on GMFH, GMPE, and
GMCS.13 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).14
Evaluators are directed to provide reasons for their impairment rating choices, including the
choices of diagnoses from regional grids and calculations of modifier scores.15
7

With respect to permanent impairment of the left leg, the hearing representative directed OWCP to refer the
matter to an OWCP medical adviser for review. As noted, this aspect of the claim is not before the Board on the
present appeal. See id.
8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id. at § 10.404(a).

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); and Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2003).
12

A.M.A., Guides, 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement.
13

Id. at 385-419.

14

Id. at 494-531.

15

Id. at 23-28; see also R.V., Docket No. 10-1827 (issued April 1, 2011).

5

In determining impairment of the lower extremities, an evaluator must establish the
appropriate diagnosis for each part of the lower extremity to be rated. With respect to the knee,
the relevant portion of the leg for the present case, reference is made to Table 16-3 (Knee
Regional Grid) beginning on page 509.16 After the Class of Diagnosis (CDX) is determined
from the Knee Regional Grid (including identification of a default grade value), the net
adjustment formula is applied using the grade modifier for functional history, grade modifier for
physical examination, and grade modifier for clinical studies.17
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical consultant for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides with the medical consultant
providing rationale for the percentage of impairment specified.18
ANALYSIS
OWCP accepted appellant’s claim for permanent aggravation of right knee osteoarthritis,
generalized osteoarthrosis, multiple sites, and bilateral localized primary osteoarthritis of the
bilateral legs. It authorized a total right knee replacement, which was performed on
June 20, 2008. On March 30, 2011 appellant was granted a schedule award for 31 percent
permanent impairment of the right lower extremity using the applicable table of the sixth edition
of the A.M.A., Guides. She claimed an additional award and submitted a new medical report.
Dr. Campbell opined that appellant sustained 34 percent permanent impairment of the
right leg in accordance with the A.M.A., Guides. She explained that, under Table 16-3, page
511, Knee Regional Grid, Total Knee Replacement, appellant was a class 3 for fair results with a
default, grade C, impairment rating of 37 percent. Based on bilateral total knee replacements and
continued use of a wheeled walker, Dr. Campbell assigned a grade 3 modifier for GMFH
adjustment under Table 16-6, page 516. Based on the degree of flexion contracture documented,
she assigned a grade 2 modifier for GMPE adjustment under Table 16-7, page 517.
Dr. Campbell utilized the net adjustment formula to find a net adjustment of -1, which moved the
default grade C rating one place to the left, to grade B, for 34 percent impairment of the right leg.
She opined that the final right lower extremity permanent impairment after net adjustment was
34 percent.
In an April 1, 2015 report, the medical adviser reviewed Dr. Campbell’s January 23, 2015
report. He agreed with her diagnosis and class utilized. The medical adviser also agreed that
appellant’s GMFH was 3 and that GMCS was not applicable. His only difference was with
Dr. Campbell was for GMPE, which he found was 1 while she found it to be 2. The medical
adviser disagreed with her GMPE finding of 2 stating that, as range of motion was used to place
appellant into the diagnostic class, it could not be used again to assign GMPE.19 He noted
16

See id. at 509-11.

17

Id. at 515-23.

18

See supra note 11 at Chapter 2.808.6(f) (February 2013).

19

See A.M.A., Guides 521.

6

tightness warranting GMPE of 1, but no other documented objective deficits. Using the net
adjustment formula the medical adviser noted an adjustment of -2 for a final grade A, which
yields 31 percent permanent impairment of the right leg. He noted the final right lower
extremity impairment after net adjustment was 31 percent.
The Board finds that the medical adviser properly calculated permanent impairment
under the sixth edition of the A.M.A., Guides, and explained why GMPE of 1 was warranted
based on Dr. Campbell’s findings. There is no current medical evidence in accordance with the
A.M.A., Guides, which supports that appellant sustained more than 31 percent permanent
impairment for the right lower extremity for which she has already received a schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than 31 percent impairment of the right lower
extremity for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED that the January 11, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 25, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
U.S. POSTAL SERVICE, TRENTON
PROCESSING & DISTRIBUTION CENTER,
Monroe, NJ, Employer
__________________________________________

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

Docket No. 08-1176
Issued: November 26, 2008

Case Submitted on the Record

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

JURISDICTION
On March 12, 2008 appellant, through counsel, filed a timely appeal of the Office of
Workers’ Compensation Programs’ merit decisions dated February 23 and October 3, 2007,
finding that he had no more than a 30 percent impairment of the left upper extremity and a 20
percent impairment of the right upper extremity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 30 percent impairment of the left upper
extremity and more than a 20 percent impairment of the right upper extremity, for which he
received schedule awards.
FACTUAL HISTORY
On May 19, 2004 appellant, then a 50-year-old clerk, filed a claim for an occupational
disease. He alleged that on March 28, 2003 he first became aware of his bilateral carpal tunnel
syndrome and bilateral shoulder tendinitis, and first realized that his conditions were caused by

his federal employment. By letter dated July 1, 2004, the Office accepted the claim for bilateral
carpal tunnel syndrome and shoulder tendinitis.
On July 29, 2005 appellant filed a claim for a schedule award. He submitted a
February 10, 2005 medical report of Dr. Nicholas P. Diamond, a Board-certified pain
management specialist, who stated that appellant sustained bilateral carpal tunnel syndrome, left
C5-6 radiculopathy, rotator cuff tendinitis, subacromial bursitis and bilateral wrist tenosynovitis.
Dr. Diamond opined that appellant sustained a 43 percent impairment of the left upper extremity
and a 34 percent impairment of the right upper extremity based on the A.M.A., Guides. He
concluded that appellant reached maximum medical improvement on February 10, 2005.
On August 18, 2005 Dr. Henry Megliato, an Office medical adviser, reviewed appellant’s
case record. He opined that appellant sustained a 30 percent impairment of the left upper
extremity and a 13 percent impairment of the right upper extremity.
By letter dated October 18, 2005, the Office referred appellant, together with a statement
of accepted facts, the case record and a list of questions to be addressed, to Dr. Dean L. Carlson,
a Board-certified orthopedic surgeon, for an impartial medical examination to resolve the
conflict in the medical opinion evidence.1 In an October 25, 2005 report, Dr. Carlson opined that
appellant sustained a 30 percent impairment of the left upper extremity and an 18 percent
impairment of the right upper extremity based on the A.M.A., Guides.
On November 13, 2005 an Office medical adviser reviewed appellant’s case record. The
medical adviser agreed with Dr. Carlson’s finding that appellant sustained a 30 percent
impairment of the left upper extremity and an 18 percent impairment of the right upper
extremity. The medical adviser stated that appellant reached maximum medical improvement on
October 25, 2005.
By decision dated November 16, 2005, the Office granted appellant a schedule award for
a 30 percent impairment of the left upper extremity and an 18 percent impairment of the right
upper extremity. In a November 21, 2005 letter, appellant, through counsel, requested an oral
hearing before an Office hearing representative.
Following the March 29, 2006 hearing, appellant’s attorney, contended in an April 20,
2006 letter, that Dr. Carlson was not selected from the PDS and, thus, his report was not
sufficient to carry the weight of the medical opinion evidence as an impartial medical specialist
in determining appellant’s permanent impairment.
By decision dated June 13, 2006, an Office hearing representative set aside the
November 16, 2005 decision and remanded the case to the Office. She could not determine
whether the Office followed its procedures in selecting Dr. Carlson as an impartial medical
specialist from the PDS. The hearing representative stated that, if the Office was unable to
present records demonstrating that his selection was proper, then it must select a new impartial
1

The Office stated that Dr. Daniel A. Shaw, a Board-certified orthopedic surgeon, who was originally selected
from the PDS to conduct appellant’s impartial medical examination, was unable to do so because sufficient notice of
the examination was not provided.

2

medical specialist in accordance with its procedures. She instructed the Office to issue a de novo
decision after further development of the case record.
On October 26, 2006 the Office determined that Dr. Carlson was not properly selected as
an impartial medical specialist. By letter dated November 17, 2006, it referred appellant to
Dr. Robert Dennis, a Board-certified orthopedic surgeon, for an impartial medical examination.
In a December 1, 2006 report, Dr. Dennis reviewed a history of appellant’s accepted
employment-related injuries, medical treatment, and social and employment background. On
physical examination, he reported some minimal loss of motion in the planes of flexion and
abduction of both shoulders. Dr. Dennis found no evidence of biceps or triceps dysfunction or
any other abnormalities. There was almost perfect symmetry. Dr. Dennis reported complete
symmetry between appellant’s right and left wrists. He found some minimal loss of flexion and
extension of both wrists. Dr. Dennis stated that appellant’s left upper extremity, which was the
dominant upper extremity, had greater sensory deficit throughout multiple fingers just beyond
the medial nerve, than the right upper extremity. He reported no difference in grip strength.
There was a slight deficit that was equal in both upper extremities regarding pinch strength.
Dr. Dennis found no deficits in either extremity regarding the deltoid, biceps and triceps
muscles. He stated that an unbundling of appellant’s impairment did not allow for a separate
determination for carpal tunnel syndrome based on page 494 of the A.M.A., Guides. Dr. Dennis
determined that he sustained an additional one percent impairment for pain in deference to the
intermittent discomforts he described. He diagnosed appellant as having mild and spontaneous
bilateral carpal tunnel syndrome that had improved from a prior examination, bilateral shoulder
impingement and tendinitis with minimal current residual and degenerative changes of the left
elbow that had resolved and were no longer producing any findings or symptoms. Dr. Dennis
stated that his tenosynovitis of the wrists had also resolved for the most part.
Dr. Dennis opined that appellant sustained a 30 percent impairment of the left upper
extremity. His range of motion measurements for the left shoulder indicated 165 degrees of
flexion which constituted a one percent impairment (A.M.A., Guides 476, Figure 16-40) and 150
degrees of abduction which constituted a one percent impairment (A.M.A., Guides 477, Figure
16-43), resulting in a two percent impairment. Regarding the left wrist, Dr. Dennis reported 55
degrees of flexion and 55 degrees of extension which each constituted a one percent impairment
(A.M.A., Guides 467, Figure 16-28), resulting in a three percent impairment. He stated that a
measurement for grip strength was not applicable as the median nerve was not involved.
Dr. Dennis determined that 6.5 kilograms of lateral pinch strength represented a 10 percent
impairment (A.M.A., Guides 509, Figure 16-34). He combined the impairment ratings for loss
of range of motion and pinch strength to calculate a 14 percent impairment. Dr. Dennis
determined that appellant sustained a 16 percent impairment for sensory deficit, greater on the
left than on the right (A.M.A., Guides 482, Figure 16-10a). He combined this impairment rating
with the 14 percent impairment rating for loss of motion and pinch strength to calculate a 28
percent impairment of the left upper extremity (A.M.A., Guides 604, Combined Values Chart).
Dr. Dennis stated that appellant sustained an additional 2 percent impairment for pain which he
added to the 28 percent impairment rating, resulting in a 30 percent impairment of the left upper
extremity.

3

Regarding the right shoulder, Dr. Dennis reported 165 degrees of flexion which
constituted a one percent impairment (A.M.A., Guides 476, Figure 16-40) and 150 degrees of
abduction which constituted a one percent impairment (A.M.A., Guides 477, Figure 16-43),
resulting in a two percent impairment. Regarding the right wrist, he determined that 55 degrees
of flexion and 55 degrees of extension each constituted a one percent impairment (A.M.A.,
Guides 467, Figure 16-28), resulting in a three percent impairment. Dr. Dennis reiterated that an
impairment rating for grip strength was not applicable. He determined that 6.0 kilograms of
lateral pinch strength constituted a 10 percent impairment (A.M.A., Guides 509, Figure 16-34).
Dr. Dennis combined his impairment ratings for loss of range of motion and pinch strength to
calculate a 14 percent impairment. He determined that appellant sustained a five percent
impairment for sensory deficit (A.M.A., Guides 482, Figure 16-10a). Dr. Dennis combined this
impairment rating with the 14 percent impairment rating noted above to calculate an 18 percent
impairment. He determined that appellant sustained an additional 2 percent impairment for pain
which he added to the 18 percent impairment rating, resulting in a 20 percent impairment of the
right upper extremity. Dr. Dennis concluded that appellant reached maximum medical
improvement on October 25, 2005.
In a January 10, 2007 report, Dr. Morley Slutsky, an Office medical adviser, reviewed
Dr. Dennis’ December 1, 2006 report. He agreed with Dr. Dennis that appellant reached
maximum medical improvement on October 25, 2005. Dr. Slutsky, however, disagreed with
Dr. Dennis’ finding that appellant sustained a 30 percent impairment of the left upper extremity
and a 20 percent impairment of the right upper extremity. He opined that appellant sustained an
18 percent impairment of the right upper extremity and a 19 percent impairment of the left upper
extremity.
Dr. Slutsky stated that appellant had a Grade 4 sensory impairment of both wrists due to
his very mild residual symptoms of bilateral carpal tunnel syndrome. He determined that, since
appellant did not meet the full criteria of a Grade 4 impairment, he sustained a 13 percent deficit
of the right wrist and a 15 percent deficit of the left wrist (A.M.A., Guides 482, Table 16-10).
Dr. Slutsky noted that Dr. Dennis assigned significantly more impairment for carpal tunnel
syndrome of the left wrist although his examination findings did not justify such a difference
between the wrists. He determined that the maximum sensory deficit for median nerve below the
mid-forearm was 39 percent for each wrist (A.M.A., Guides 492, Table 16-15). Dr. Slutsky
multiplied the 39 percent impairment rating with the 13 percent sensory deficit to calculate a
5 percent impairment for sensory median nerve impairment of the right wrist. He multiplied the
39 percent impairment by the 15 percent sensory deficit of the left wrist to calculate a 5.85 or 6
percent impairment. Regarding the left upper extremity, Dr. Slutsky subtracted 6.5 kilograms of
measured pinch strength from 7.5 kilograms, the normal pinch strength, multiplied by 100 and
divided by 7.5 kilograms to calculate a 13.3 percent impairment which represented a 10 percent
impairment (A.M.A., Guides 509, Table 16-34). Regarding the right upper extremity, he
subtracted 6.0 kilograms of measured pinch strength 7.1 kilograms, the normal grip strength,
multiplied by 100 and divided by 7.1 kilograms to calculate a 15.49 percent impairment which
represented a 10 percent impairment (A.M.A., Guides 509, Table 16-34).
Dr. Slutsky did not agree with Dr. Dennis’ finding that an additional one percent
impairment for appellant’s intermittent discomforts was warranted. He stated that, since such
discomforts were not permanent impairments which affected the activities of daily living, they

4

were not ratable impairments based on the A.M.A., Guides. Dr. Slutsky further stated that pain
was already addressed when appellant was rated for median nerve sensory impairment according
to the A.M.A., Guides. He stated that his impairment rating was consistent with Chapter 3.0800
of the Office’s procedures which provided that pain may not be rated while using methods which
measure impairment due to sensory pain as in the case of median nerve sensory impairments.
Regarding the right wrist, Dr. Slutsky determined that 55 degrees of flexion and 55
degrees of extension each constituted a one percent impairment, resulting in a two percent
impairment (A.M.A., Guides 467, Figure 16-28). He determined that 165 degrees of flexion and
150 degrees of abduction of the right shoulder each constituted a one percent impairment,
resulting in a two percent impairment (A.M.A., Guides 476, Figure 16-40). Dr. Slutsky
combined the range of motion impairment ratings for the wrist and shoulder to calculate a four
percent impairment. He combined the 4 percent impairment with the 5 percent impairment for
sensory deficit of the median nerve and 10 percent impairment due to loss of pinch strength to
calculate an 18 percent impairment of the right upper extremity.
Regarding the left wrist, Dr. Slutsky determined that 165 degrees2 of flexion and 55
degrees of extension each constituted a one percent impairment, resulting in a two percent
impairment (A.M.A., Guides 467, Figure 16-28). He further determined that 165 degrees of
flexion and 150 degrees abduction of the left shoulder each constituted a one percent
impairment, resulting in a two percent impairment. Dr. Slutsky combined the impairment ratings
for the wrist and shoulder to calculate a four percent impairment. He combined the 4 percent
impairment for loss of range of motion with the 6 percent impairment for sensory deficit of the
median nerve and 10 percent impairment due to loss of pinch strength to calculate a 19 percent
impairment of the left upper extremity.
By decision dated February 23, 2007, the Office granted appellant a schedule award for a
30 percent impairment of the left upper extremity and 20 percent impairment of the right upper
extremity. In a letter dated March 6, 2007, appellant, through counsel, requested an oral hearing
before an Office hearing representative.
By decision dated October 3, 2007, an Office hearing representative affirmed the
February 23, 2007 decision, finding that appellant was not entitled to an additional schedule
award for his left and right upper extremities. She accorded special weight to Dr. Dennis’s
medical opinion as an impartial medical specialist. The hearing representative also found that
his opinion was supported by Dr. Slutsky’s findings.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulation4 set forth the number of weeks of compensation to be paid for
2

The Board notes that Dr. Dennis reported 55 degrees of flexion and not 165 degrees as stated by Dr. Slutsky.

3

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

4

20 C.F.R. § 10.404.

5

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 of loss of use.5 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.6
The fifth edition of the A.M.A., Guides, regarding carpal tunnel syndrome, provides:
“If, after optimal recovery time following surgical decompression, an individual
continues to complain of pain, paresthesias and/or difficulties in performing
certain activities, three possible scenarios can be present -1. Positive clinical findings of median nerve dysfunction and electrical
conduction delay(s): the impairment due to residual [carpal tunnel
syndrome] is rated according to the sensory and/or motor deficits as
described earlier.
2. Normal sensibility and opposition strength with abnormal sensory
and/or motor latencies or abnormal [electromyogram] testing of the thenar
muscles: a residual [carpal tunnel syndrome] is still present and an
impairment rating not to exceed five percent of the upper extremity may
be justified.
3. Normal sensibility (two-point discrimination and Semmes-Weinstein
monofilament testing), opposition strength and nerve conduction studies:
there is no objective basis for an impairment rating.”7
The Board has found that, in accordance with the fifth edition of the A.M.A., Guides,
impairment arising from carpal tunnel syndrome should be rated on motor and sensory deficits
only.8 The A.M.A., Guides provides that, in compression neuropathies, additional impairment
values are not given for decreased motion strength in the absence of a complex regional pain
syndrome.9 Carpal tunnel syndrome is an entrapment/compression neuropathy of the median
nerve.10

5

5 U.S.C. § 8107(c)(19).

6

20 C.F.R. § 10.404.

7

A.M.A., Guides 495; Silvester DeLuca, 53 ECAB 500 (2002).

8

Id. at 494; Robert V. Disalvatore, 54 ECAB 351 (2003).

9

Id. at 494; see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700,
Exhibit 4 (June 2003); Kimberly M. Held, 56 ECAB 670 (2005).
10

Id. at 492.

6

Section 8123 of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician, who shall make an examination.11 When there exist opposing
medical reports of virtually equal weight and rationale and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.12
When the Office obtains an opinion from an impartial medical specialist for the purpose
of resolving a conflict in the medical evidence and the specialist’s opinion requires clarification
or elaboration, the Office must secure a supplemental report from the specialist to correct the
defect in his original report.13 However, when the impartial specialist is unable to clarify or
elaborate on his original report or if his supplemental report is also vague, speculative or lacking
in rationale, the Office must submit the case record and a detailed statement of accepted facts to
a second impartial specialist for the purpose of obtaining his rationalized medical opinion on the
issue.14
ANALYSIS
The Office granted appellant a schedule award for 20 percent impairment of the right
upper extremity and a 30 percent impairment of the left upper extremity due to his employmentrelated bilateral carpal tunnel syndrome and shoulder tendinitis. On appeal, appellant contends
that he is entitled to greater than the schedule award he previously received. The Board,
however, finds that the case is not in posture for decision.
The Board finds that a conflict in the medical opinion existed between Dr. Diamond, an
attending physician, and Dr. Megliato, an Office medical adviser, as to the extent of permanent
impairment of appellant’s right and left upper extremities. Dr. Diamond opined that appellant
sustained a 43 percent impairment of the left upper extremity and a 34 percent impairment of the
right upper extremity based on the A.M.A., Guides. Dr. Megliato opined that appellant sustained
a 30 percent impairment of the left upper extremity and a 13 percent impairment of the right
upper extremity based on the A.M.A., Guides.
The Office referred appellant to Dr. Dennis, selected as the impartial medical specialist,
but the Board finds that Dr. Dennis provided inadequate rationale for his impairment ratings.
11

5 U.S.C. § 8123.

12

James F. Weikel, 54 ECAB 660 (2003); Beverly Grimes, 54 ECAB 543 (2003); Sharyn D. Bannick, 54 ECAB
537 (2003); Daniel F. O Donnell, Jr., 54 ECAB 456 (2003); Phyllis Weinstein (Elliot H. Weinstein), 54 ECAB 360
(2003); Robert V. Disalvatore, supra note 8; Bernadine P. Taylor, 54 ECAB 336 (2003); Karen L. Yeager, 54
ECAB 317 (2003); Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).
13

Raymond A. Fondots, 53 ECAB 637, 641 (2002); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988);
Ramon K. Ferrin, Jr., 39 ECAB 736 (1988).
14

Nancy Keenan, 56 ECAB 687 (2005); Roger W. Griffith, 51 ECAB 491 (2000); Talmadge Miller, 47 ECAB
673 (1996).

7

The Board has held that a medical opinion lacking in rationale is of diminished probative value.15
Dr. Dennis incorrectly included separate ratings for range of motion, loss of pinch strength and
pain. As noted, the A.M.A., Guides indicate that only sensory and motor deficits are to be
considered when rating impairment due to carpal tunnel syndrome.16 Further, in determining
that appellant sustained an additional two percent impairment for pain, Dr. Dennis did not
reference the A.M.A., Guides. Moreover, he did not explain how or why appellant was entitled
to an additional impairment for pain when he had already determined his impairment for sensory
loss. Therefore, the Board finds that Dr. Dennis’ total impairment ratings are insufficient to form
the basis for a schedule award.
Similarly, the Board finds that the impairment ratings of Dr. Slutsky, an Office medical
adviser, are of diminished probative value because he did not properly apply the A.M.A., Guides.
While Dr. Slutsky correctly stated that appellant was not entitled to an additional one
percent impairment for his intermittent discomforts as they were not considered ratable
impairments based on the A.M.A., Guides or additional impairment rating for pain because it
was already addressed in the impairment rating for median nerve sensory impairment according
to the A.M.A., Guides,17 he calculated impairment ratings based on loss of range of motion and
pinch strength which as stated, are not allowed in rating compression neuropathy such as, carpal
tunnel syndrome.18
For the stated reasons, the case should be remanded to the Office for a proper evaluation
of appellant’s claim for an additional schedule award in accordance with the above-described
standards. The Office should request a supplemental opinion from Dr. Dennis. If he is unwilling
or unavailable to render such, the Office should select another impartial medical specialist for an
evaluation of appellant and an opinion as to whether appellant has more than a 20 percent
impairment of the right upper extremity and a 30 percent impairment of the left upper extremity.
After such development it deems necessary, the Office should issue an appropriate decision.19
CONCLUSION
The Board finds that the conflict in the medical evidence was not properly resolved and
the case requires further development.

15

Cecilia M. Corley, 56 ECAB 662 (2005); see Tara L. Hein, 56 ECAB 431 (2005) (medical consultant’s failure
to explain selection of sensory deficit value on Table 16-10, page 482, basis for remand of case).
16

See supra note 8.

17

See e.g., A.M.A., Guides 571, section 18.3b

18

See supra note 9.

19

See cases cited in supra note 15.

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ORDER
IT IS HEREBY ORDERED THAT the October 3 and February 23, 2007 decisions of
the Office of Workers’ Compensation Programs are set aside and the case is remanded for
further action consistent with this decision.
Issued: November 26, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9