United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, BEVERLY POST
OFFICE, Beverly, MA, Employer
__________________________________________

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Appearances:
Katherine A. Harrell, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0420
Issued: April 21, 2021

Case Submitted on the Record

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

JURISDICTION
On December 13, 2019 appellant, through his representative, filed a timely appeal from an
October 16, 2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
As more than 180 days has elapsed from the last merit decision dated December 18, 2018 to the
filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks 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 OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a)
FACTUAL HISTORY
On September 17, 1996 appellant, then a 43-year-old machine operator, filed a timely
occupational disease claim (Form CA-2) alleging that he developed chronic shoulder tendinitis,
Achilles tendinitis, rupture of the labrum ischial tuberosity, and hip tendinitis of the sides and
buttocks due to factors of his federal employment, including bending and stooping.3 He noted that
he first became aware of his condition on March 24, 1995 and realized its relation to his federal
employment on September 17, 1996. By decision dated November 9, 2001, OWCP accepted
appellant’s claim for left foot Achilles bursitis/tendinitis, left hip enthesopathy/trochanteric
tendinitis, left plantar fascial fibromatosis, and right shoulder adhesive capsulitis/tendinitis. It paid
him intermittent wage-loss compensation on the supplemental rolls from October 5, 1995 to
June 14, 2002.
On October 23, 2018 appellant filed a notice of recurrence (Form CA-2a), claiming
disability beginning August 21, 2018. He indicated that, following the original injury, he was on
limited light-duty work. Appellant related that his right shoulder tendinitis had caused continual
pain and he had undergone a total right shoulder replacement in February 2017.
In a letter dated November 15, 2018, OWCP noted that appellant appeared to be claiming
disability due to a material worsening of his condition. It advised that his claim had been accepted
for left leg Achilles tendinitis, right shoulder tendinitis, left plantar fasciitis, and left hip
trochanteric bursitis. OWCP noted that a review of the record revealed that appellant had returned
to full-duty work on June 28, 2002. It provided a definition of a recurrence of disability and
advised appellant of the type of evidence required to support his claim. OWCP afforded him 30
days to provide the requested information. No response was received.
By decision dated December 18, 2018, OWCP denied appellant’s claim for recurrence of
disability.
On July 24, 2019 appellant requested reconsideration. He provided a narrative summary
regarding his right shoulder complaints and medical treatment history. In support of his request,
appellant submitted medical evidence.

3
OWCP assigned this claim OWCP File No. xxxxxx127. Appellant has a prior traumatic injury claim (Form CA1),
filed on September 14, 1994, alleging that he fractured his right toes when a plastic tray fell on his right foot. OWCP
assigned that claim OWCP File No. xxxxxx258. On April 8, 2001 appellant filed a Form CA-2, assigned OWCP File
No. xxxxxx148, alleging that he developed acute inflammation and bilateral repetitive stress syndrome in his feet due
to poor gait. That claim was denied by decision dated August 8 2001. On June 17, 2005 appellant filed Form CA-1
alleging that on June 13, 2005 he sustained a right foot fracture and avascular necrosis due to pushing a cart. OWCP
accepted that claim, assigned OWCP File No. xxxxxx298, for right foot sesamoid bone fracture. On August 26, 2005
OWCP administratively combined OWCP File Nos. xxxxxx258, xxxxxx148, xxxxxx298, and xxxxxx127, with the
latter serving as the master file.

2

In reports dated December 1, 2000 and October 6, 2003, Dr. William N. Pachas, a Boardcertified internist, detailed appellant’s history of injury, reviewed diagnostic testing, and provided
examination findings. In his December 1, 2000 report, he attributed appellant’s musculoskeletal
pains to appellant’s employment. Dr. Pachas, in his October 6, 2003 report, similarly detailed
examination findings, diagnosed bilateral Achilles tendon tendinitis, trochanteric bursitis, right
shoulder rotator cuff tendinitis, and bilateral hip bursitis.
In progress notes dated March 14, 2013, Dr. William N. Boyd, a Board-certified internist,
provided physical examination findings and diagnosed right shoulder pain. He noted that appellant
had a history of bilateral shoulder and leg musculoskeletal overuse problems.
In reports dated March 27 and April 10, 2013, Dr. Todd O’Brien, a Board-certified
orthopedic surgeon, provided physical examination findings and diagnosed right shoulder
osteoarthritis.
In progress notes dated July 13, 2016, Kyle Wayne Dore, a certified physician assistant,
noted appellant’s history of injury, provided examination findings, reviewed diagnostic tests, and
diagnosed right shoulder osteoarthritis.
An operative report dated February 16, 2017 indicated that Dr. Mark D. Price, a Boardcertified orthopedic surgeon, performed appellant’s right shoulder total shoulder arthroplasty and
right shoulder biceps tendon tenodesis surgery. Diagnoses included right shoulder osteoarthritis
and right shoulder biceps tendon disease.
A November 9, 2017 hospital report indicated that Dr. Price performed right shoulder lysis
of adhesions with manipulation and right shoulder extensive debridement that day. Dr. Price
advised that his pre- and postoperative diagnoses were right shoulder adhesive capsulitis after total
shoulder arthroplasty and right shoulder synovitis and bursitis.
Appellant also submitted right shoulder x-ray interpretations dated July 13, 2016,
February 28, October 18, and June 13, 2017, and August 23, 2018 right shoulder computerized
tomography (CT) scans, and June 13, 2017 and August 21, 2018 right shoulder arthrograms.
Diagnoses included right glenohumeral severe osteoarthritis, mild right acromioclavicular
osteoarthritis, status post right shoulder arthroplasty.
By decision dated October 16, 2019, OWCP denied appellant’s request for reconsideration
of the merits of his claim.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation, at any time, on his or her own motion or on application.4

4
5 U.S.C. § 8128(a); see F.H., Docket No. 20-0309 (issued January 26, 2021); T.K., Docket No. 19-1700 (issued
April 30, 2020); W.C., 59 ECAB 372 (2008).

3

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.6 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.7 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s July 24, 2019 request for reconsideration neither alleged nor demonstrated that
OWCP erroneously applied or interpreted a specific point of law. While he provided a narrative
summary regarding his right shoulder condition and history of medical treatment, the Board has
held that his own factual interpretation does not constitute relevant medical evidence as lay persons
are not competent to render a medical opinion.9 Additionally, the Board finds that appellant did
not advance a relevant legal argument not previously considered by OWCP. Consequently,
appellant is not entitled to further review of the merits of his claim based on either the first or
second above-noted requirements under 20 C.F.R. § 10.606(b)(3).10
In support of his reconsideration request, appellant submitted numerous progress reports,
diagnostic tests, and surgical reports. These documents, however, either do not address the specific
period of disability claimed, predate the claimed period of disability. The Board finds that the
evidence submitted is, therefore, irrelevant to the underlying issue of whether appellant was
disabled from work commencing August 21, 2018 due to his accepted conditions. The Board has
held that the submission of evidence that does not address the particular issue involved does not
5

20 C.F.R. § 10.606(b)(3); see C.C., Docket No. 19-1622 (issued May 28, 2020); C.N., Docket No. 08-1569 (issued
December 9, 2008).
6
Id. at § 10.607(a). The one-year period begins on the next day after the date of the originally contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

Id. at § 10.608(a); see F.V., Docket No. 18-0230 (issued May 8, 2020); M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); see C.C., supra note 5; E.R., Docket No. 09-1655 (issued March 18, 2010).

9

J.G., Docket No. 16-1533 (issued March 15, 2018); see B.R., Docket No. 17-1661 (issued January 4, 2018);
James A. Long, 40 ECAB 538 (1989).
10
D.B., Docket No. 19-1963 (issued July 1, 2020); M.O., Docket No. 19-1677 (issued February 25, 2020); C.B.,
Docket No. 18-1108 (issued January 22, 2019).

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constitute a basis for reopening a case.11 As such, appellant is not entitled to further review of the
merits of his claim based on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).12
The Board accordingly finds that appellant has not met any of the three requirements under
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT October 16, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 21, 2021
Washington, DC

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

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

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

11

See F.H., Docket 20-0309 (issued January 26, 2021); T.T., Docket No. 19-0319 (issued October 26, 2020);
Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).
12

Supra note 6 at § 10.606(b)(3).

13

V.D., Docket No. 20-0569 (issued December 7, 2020); C.C., Docket No. 18-0316 (issued March 14, 2019); M.E.,
58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006) (when an application for reconsideration does not meet
at least one of the three requirements enumerated under section 10.606(b), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
GENERAL SERVICES ADMINISTRATION,
FEDERAL PROTECTIVE SERVICES,
CRIMINAL INVESTIGATION SECTION,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 06-1615
Issued: February 5, 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 the Office of Workers’
Compensation Programs’ decision dated April 12, 2006 which denied his request for merit
review. Because more than one year has elapsed between the last merit decision dated January 7,
2005 and the filing of this appeal on July 10, 2006, the Board lacks jurisdiction to review the
merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 9, 2003 appellant, then a 48-year-old special agent, filed an occupational
disease claim alleging that on February 14, 2003 he realized that he had developed

gastroesophageal reflux disease. He first attributed this condition to his employment on
March 12, 2003. In support of appellant’s claim, he submitted a detailed statement addressing
the employment factors that he felt caused or contributed to his reflux disease as well as to his
previously filed claims for adjustment disorder.1 He attributed his condition to stress from the
employing establishment’s retaliation following his whistle-blowing activities including a notice
of proposed removal. Appellant stated:
“In brief, the above employment conditions clearly resulted in the previously
diagnosed ongoing [a]djustment [d]isorder (with [m]ixed [d]epression and
[a]nxiety)…. The accompanying related [g]astrointestinal [p]roblems (which
occurred over a long period of time) this later contributed to the recently
diagnosed [g]astroesophageal [r]eflux [d]isease (w/erosion, scarring and
formation of a [s]tricture in my esophagus). The nexus between the two illnesses
will be more clearly defined once the medical and nonmedical evidence has been
reviewed.”
The Office denied appellant’s claim by decision dated November 21, 2003 finding that he
had not submitted sufficient factual and medical evidence to meet his burden of proof. The
Office noted that as appellant’s claims for adjustment disorder had not been accepted as causally
related to the alleged factors of employment, his assertion that he developed gastroesophageal
reflux disease as a consequence of gastrointestinal problems which accompanied his adjustment
disorder could not be considered employment related.
Appellant requested reconsideration of the November 21, 2003 merit decision on
November 20, 2004. In support of his claim, he submitted extensive documentation regarding
the factors of employment which he felt caused or contributed to his adjustment disorder and
gastroesophageal reflux disease. By decision dated January 7, 2005, the Office reviewed
appellant’s claim on the merits and noted that he had substantiated an additional employment
event, a notice of proposed removal which was eventually rescinded by the employing
establishment. However, the Office found that this employment event was not a compensable
factor of employment as he had not established error or abuse on the part of the employing
establishment. The Office concluded that appellant had not substantiated any further
compensable employment factors to which he attributed his gastroesophageal reflux disease and
to which he had previously attributed his emotional condition of adjustment disorder. The Office
also noted that as appellant’s previously filed emotional condition claims had not been
established, he could not establish that he had developed gastroesophageal reflux disease as a
consequence of his diagnosed condition of adjustment disorder. The Office denied his claim for
gastroesophageal reflux disease.

1

Appellant filed claims for adjustment disorder with the Office on November 4, 1998 (13-1175995), August 23,
2000 (13-2010525) and May 2, 2001 (13-2030065). These claims have not been accepted by the Office. The Board
reviewed the August 23, 2000 claim on July 6, 2004 and affirmed a September 19, 2003 Office decision which
declined to reopen appellant’s claim for consideration of the merits. James W. Scott, 55 ECAB 606 (2004). In a
decision dated June 25, 2001, the Board adopted and affirmed the hearing representative’s June 15, 2000 denial of
appellant’s October 29, 1998 emotional condition claim. James W. Scott, Docket No. 00-2784 (issued
June 25, 2001).

2

Appellant requested reconsideration of the January 7, 2005 merit decision on
January 6, 2006. He did not submit any additional evidence in support of his reconsideration
claim, but instead provided his narrative review of each of the employment events to which he
attributed his stress and resultant adjustment disorder and gastroesophageal reflux disease.
Appellant described what he believed to be his whistle-blowing activities, the resulting
workplace retaliation and the filing of his emotional condition claims. He also provided
extensive discussion of the denial of the notices of proposed removal as compensable
employment factors. Appellant reviewed the evidence, medical and narrative he had initially
submitted in support of his claim for reflux disease. He noted that he had not been contacted by
the Office following the filing of his claim prior to the November 21, 2003 decision. Finally,
appellant again argued that as he felt his claim for adjustment disorder should be accepted as
compensable, the consequential reflux disease should also be accepted.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,2 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.3 When a claimant fails to meet one of the above standards, the Office
will deny the application for reconsideration without reopening the case for review on the
merits.4
The requirements for reopening a claim for merit review do not include the requirement
that a claimant submit all evidence which may be necessary to discharge his or her burden of
proof. The requirements pertaining to the submission of evidence in support of reconsideration
only specify that the evidence be relevant and pertinent and not previously considered by the
Office.5
ANALYSIS
In an attempt to require the Office to reopen appellant claim for consideration of the
merits, he submitted a detailed narrative statement addressing the factors of employment to
which he attributed both his diagnosed conditions, adjustment disorder and gastroesophageal
reflux disorder. His statement did not contain any relevant new evidence. Therefore, appellant
did not meet the third standard for requiring the Office to reopen his claim for consideration of
the merits.

2

5 U.S.C. §§ 8101-8193, § 8128(a).

3

20 C.F.R. § 10.606(b)(2).

4

20 C.F.R. § 10.608(b).

5

Donald T. Pippin, 54 ECAB 631 (2003).

3

Appellant’s narrative statement consisted of arguments regarding the compensability of
work events previously considered by the Office in this claim for a physical condition as well as
in his multiple claims for an emotional condition. In regard to these arguments, he did not
submit or reference any citation to Board authority or other supportive documentation to
establish that the Office erroneously applied or interpreted a specific point of law with regard to
whether the alleged employment factors were compensable. Appellant has therefore failed to
meet the first standard requiring the Office to reopen his claim for consideration of the merits as
he failed to show that the Office erroneously applied or interpreted a specific point of law with
regard to the denial of compensability of employment factors.
Appellant has attributed his gastroesophageal reflux disease to two legal constructs. He
initially claimed that he developed gastroesophageal reflux disease as a consequence of his
diagnosed emotional condition of adjustment disorder. As noted by the Office, neither the Office
nor the Board has accepted that appellant developed adjustment disorder due to compensable
factors of his employment. It is an accepted principle of workers’ compensation law that, when
the primary injury is shown to have arisen out of and in the course of employment, every natural
consequence that flows from the injury is deemed to arise out of the employment.6 However, as
appellant has not established that the primary injury, adjustment disorder, arose in the course of
his employment, the gastroesophageal reflux disease, even if established as a natural
consequence of his diagnosed adjustment disorder, cannot be established as arising out of his
employment. Therefore, his arguments as related to gastroesophageal reflux disease as a
consequence of his adjustment disorder lack a reasonable color of validity and are not sufficient
to require the Office to reopen his claim for consideration of the merits.
Appellant alleged that the Office improperly developed his claim for gastroesophageal
reflux disease as the Office failed to provide him with notice of the additional evidence needed to
meet his burden of proof in establishing that he developed gastroesophageal reflux disease as a
result of his employment.7 This is not a new argument as appellant also addressed this issue in
his November 20, 2004 request for reconsideration. Furthermore, as noted above, in appellant’s
initial claim form and supportive statements, it appeared that appellant was attributing his
development of reflux disease as a consequence of his emotional condition claims. Since there is
no basis for establishing a consequential injury until the underlying condition has been accepted
as employment related, there was no evidence that appellant could submit under this claim, that
would establish a relationship between his reflux and his employment until he had established his
adjustment disorder as employment related through submission of evidence or argument in his
prior claims. Even if the Office should have understood that appellant was alleging in the
alternative that his reflux disease was a physical condition resulting from the same employment
factors which contributed to his emotional condition rather than a direct consequential injury,
6

Albert F. Ranieri, 55 ECAB 598, 602 (2004); A. Larson, The Law of Workers’ Compensation § 10.01(2000).

7

20 C.F.R. § 10.121. This regulation states, “If the claimant submits factual evidence, medical evidence or both,
but [the Office] determines that this evidence is not sufficient to meet the burden of proof, [the Office] will inform
the claimant of the additional evidence needed. The claimant will be allowed at least 30 days to submit the evidence
required. [The Office] is not required to notify the clamant a second time if the evidence submitted in response to its
first request is not sufficient to meet the burden of proof.”

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this is a procedural matter which was later cured by the receipt of the decisions on the merits on
November 21, 2003 and January 7, 2005 as well as the submission of extensive documents by
appellant in support of his November 20, 2004 request for reconsideration. This argument is not
new and relevant nor is it a demonstration that the Office erroneously applied or interpreted a
specific point of law.
CONCLUSION
The Board finds that appellant failed to submit the necessary relevant new evidence or
legal argument or to show that the Office erroneously applied or interpreted a specific point of
law. Therefore, the Office properly declined to reopen appellant’s claim for consideration of the
merits.
ORDER
IT IS HEREBY ORDERED THAT April 12, 2006 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 5, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.P., Appellant
and
U.S. POSTAL SERVICE, SUNSET STATION,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 08-2036
Issued: May 15, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 17, 2008 appellant filed a timely appeal from a November 8, 2007 decision of the
Office of Workers’ Compensation Programs denying modification of a September 12, 2006
decision terminating his compensation benefits for refusing an offer of suitable work and an
April 23, 2008 nonmerit decision denying his request for reconsideration. Pursuant to 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 the Office properly denied modification of its decision
terminating appellant’s compensation based on her refusal of suitable work; and (2) whether the
Office abused its discretion in denying appellant’s request for reconsideration.
FACTUAL HISTORY
On July 14, 2003 appellant, then a 38-year-old custodial laborer filed an occupational
disease claim alleging that he injured his back due to heavy lifting and pulling required in his

job. The Office accepted his claim for cervical and lumbar strains. It later expanded his claim to
include herniated discs at L2-3 and L5-S1. Appellant stopped work on December 15, 2003.
Appellant was released to modified duty as of April 12, 2005 by his attending physician,
Dr. Michael D. Smith, a Board-certified orthopedic surgeon, who was referred for vocational
rehabilitation services on February 7, 2006. In a work capacity evaluation dated March 16,
2006, Dr. Smith indicated that appellant could work eight hours a day. His permanent work
restrictions included no twisting, bending, stooping, squatting or climbing, limited reaching and
reaching above the shoulder, two-hour limitations on sitting, walking and standing and a 10minute break every hour.
On August 4, 2006 the employing establishment offered appellant a position as a
modified custodial laborer for eight hours a day, effective August 19, 2006, based on the work
restrictions provided by Dr. Smith on March 16, 2006. The job description indicated that sitting,
walking and standing were limited to two hours, reaching and reaching above the shoulder was
limited, there was no pushing or pulling above shoulder level and there was no twisting, bending,
stooping, squatting or climbing.
On August 9, 2006 the Office advised appellant that the offered position was suitable and
conformed to the work limitations provided by Dr. Smith. It allowed appellant 30 days to accept
the position or provide his reasons for refusal. The Office advised that an employee who refuses
an offer of suitable work without reasonable cause is not entitled to compensation. There was no
response from appellant.
On September 12, 2006 the Office terminated appellant’s compensation benefits on the
grounds that he refused an offer of suitable work.1
On June 4, 2007 appellant submitted a letter accepting the job offer. On September 5,
2007 he advised that he had returned to work on that date and requested reconsideration of the
September 12, 2006 decision. Appellant stated that he did not return to work at an earlier time
because he was hospitalized. A June 29, 2007 report from a psychiatrist at a Department of
Veterans Affairs hospital indicated that appellant was hospitalized on August 29, 2006 and had
continued in outpatient treatment. Appellant also submitted progress reports from Dr. Smith
dated November 28, 2006 and January 9, February 5, May 7 and June 6, 2007 in which the
physician diagnosed cervical, thoracic and lumbar strains2 and described appellant’s subjective
complaints, objective findings and treatment. The January 9, 2007 report indicated that he was
temporarily totally disabled for three days. A January 17, 2007 radiology report indicated that
appellant had severe disc degeneration at L2-3 and a dessication of the L5-S1 disc space with a
mild disc protrusion.

1

The Board notes that the Office indicated that appellant’s wage-loss compensation and entitlement to a schedule
award were terminated. The record shows that appellant filed a claim for a schedule award but it appears that the
issue of entitlement to a schedule award was not adjudicated prior to the September 12, 2006 termination decision.
2

Only cervical and lumbar strains are accepted conditions in appellant’s case.

2

By decision dated November 8, 2007, the Office denied modification of the
September 12, 2006 termination decision.
Appellant requested reconsideration and submitted additional medical evidence. In a
February 15, 2008 report, Dr. Smith indicated that appellant was off work from October 19, 2006
to September 5, 2007 due to “condition being accepted by [the Office].” On July 17, 2007 he
diagnosed a herniated lumbar disc, thoracic strain and cervical strain. Dr. Smith provided work
restrictions which included light work with no lifting over 20 pounds, no repeated or prolonged
twisting, turning or uncomfortable neck positions such as desk work, driving or overhead work.
By decision dated April 23, 2008, the Office denied appellant’s request for reconsideration on
the grounds that the evidence did not warrant further merit review of the claim.3
LEGAL PRECEDENT -- ISSUE 1
Section 8106(c)(2) of the Federal Employees’ Compensation Act4 states that a partially
disabled employee who refuses to seek suitable work, or refuses or neglects to work after
suitable work is offered to, procured by or secured for him is not entitled to compensation.5 The
Office has authority under this section to terminate compensation for any partially disabled
employee who refuses or neglects suitable work when offered. Before compensation can be
terminated, however, the Office has the burden of demonstrating that the employee can work,
setting forth the specific restrictions, if any, on the employee’s ability to work, and has the
burden of establishing that a position has been offered within the employee’s work restrictions,
setting forth the specific job requirements of the position.6 In other words, to justify termination
of compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision, the Office has the
burden of showing that the work offered to and refused or neglected by the employee was
suitable.7 The issue of whether an employee has the physical ability to perform a modified
position offered by the employing establishment is primarily a medical question that must be
resolved by medical evidence of record.8
With respect to the procedural requirements of termination under 5 U.S.C. § 8106(c)(2),
the Board has held that the Office must inform the employee of the consequences of refusal to
accept suitable work and allow the employee an opportunity to provide reasons for refusing the
offered position.9 If the employee presents reasons for refusing the offered position, the Office
3

Subsequent to the April 23, 2008 Office decision, additional evidence was associated with the file. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
4

5 U.S.C. §§ 8101-8193.

5

Id. at § 8106(c)(2).

6

M.L., 57 ECAB 746, 750 (2006); Frank J. Sell, Jr., 34 ECAB 547, 552 (1983).

7

M.L., supra note 6; Albert Pineiro, 51 ECAB 310, 312 (2000).

8

Stephen A. Pasquale, 57 ECAB 396, 402 (2006); see also Camillo R. DeArcangelis, 42 ECAB 941, 943 (1991).

9

Alfred Gomez, 53 ECAB 149, 150 (2001); see Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon.,
43 ECAB 818, 824 (1992).

3

must inform the employee if it finds the reasons inadequate to justify the refusal of the offered
position and afford the employee a final opportunity to accept the position.10
ANALYSIS -- ISSUE 1
On August 4, 2006 the employing establishment offered appellant a position as a
modified custodial laborer for eight hours a day based on the work restrictions provided by
Dr. Smith on March 16, 2006. The job description indicated that sitting, walking and standing
were limited to two hours, reaching and reaching above the shoulder was limited, there was no
pushing or pulling above shoulder level and there was no twisting, bending, stooping, squatting
or climbing. On August 9, 2006 the Office advised appellant that the offered position was
suitable and conformed to the work limitations provided by Dr. Smith. It allowed appellant 30
days to accept the position or provide his reasons for refusal. The Office advised that an
employee who refuses an offer of suitable work without reasonable cause is not entitled to
compensation. There was no response from appellant. Appellant did not accept the position and
provided no reasons for refusing the position. On September 12, 2006 the Office properly
terminated his compensation benefits on the grounds that he refused an offer of suitable work
based on the record as of that time.
Where the Office shows that an offered limited-duty position was suitable based on the
claimant’s work restrictions at that time, the burden shifts to the claimant to show that his or her
refusal to work in that position was justified.11 Office procedures also provide that, if it is not
possible to determine whether a claimant’s reason for refusal is justified without further
investigation of the issues, the claims examiner should contact the claimant for clarifying
information.12
The Board finds that the case is not in posture for decision. With his request for
reconsideration appellant submitted a report indicating that he was hospitalized for psychiatric
treatment between August 9, 2006, the date the Office informed appellant that he had been
offered a suitable work position, which he had 30 days to accept, and September 12, 2006, the
date the Office terminated appellant’s compensation benefits. While this report was vague as to
the actual length of appellant’s hospitalization, the Office, instead of seeking clarification of this
report, dismissed the report on the grounds that such hospitalization was not related to an
employment-related condition. Office procedures note that, if medical reports in the record
document a condition which has arisen since the compensable injury, and this condition disables
the claimant from the offered job, the job will be considered unsuitable, even if the subsequently
acquired condition is not work related.13 Consequently, the evidence requires further

10

Id.

11

Kathy E. Murray, 55 ECAB 288, 290 (2004).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-earning Capacity,
Chapter 2.814.5(d) (December 1993).
13

Federal (FECA) Procedure Manual Part 2 -- Claims, Reemployment: Determining Wage-earning Capacity,
Chapter 2.814.4(b) (4) December 1993).

4

development by the Office on whether the Office’s termination of appellant’s compensation
based on his refusal of suitable work should be modified.14
CONCLUSION
The Board finds that the Office improperly denied modification of the prior decision
dated September 12, 2006 terminating appellant’s compensation benefits for refusal of suitable
work.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 23, 2008 and November 8, 2007 are set aside and the case is
remanded for further development consistent with the decision.
Issued: May 15, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

Given the resolution of the first issue, the second issue is moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 07-129
Issued: May 14, 2007

Case Submitted on the Record

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

JURISDICTION
On October 18, 2006 appellant filed a timely appeal from the April 28, 2006 merit
decision of a hearing representative of the Office of Workers’ Compensation Programs
concerning her schedule award. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the schedule award issue.
ISSUE
The issue is whether appellant has established that she has more than 12 percent
impairment to her right upper extremity and 12 percent impairment to her left upper extremity,
for which she received a schedule award.
FACTUAL HISTORY
On June 11, 2001 appellant, then a 43-year-old clerk, filed an occupational disease claim
for bilateral carpal tunnel syndrome which she attributed to the duties of her federal employment.
She also mentioned a December 24, 2000 work incident whereby a 40-pound mail bundle came
down the chute and fell on her right arm at the wrist. Following the December 24, 2000 incident,

appellant was assigned limited-duty work repairing damaged mail. The Office accepted the
claim for bilateral carpal tunnel syndrome and a right wrist contusion. The Office also accepted
a recurrence of disability for the period March 7 to July 12, 2002. Appellant received
appropriate benefits and returned to light-duty work on July 13, 2002.
On March 11, 2005 appellant, through her attorney, requested a schedule award. In a
report dated December 7, 2004, Dr. David Weiss, an osteopath and family practitioner, noted the
history of appellant’s work injuries and reviewed medical records. He reported that a
January 2001 and a repeat December 2001 electromyogram and nerve conduction velocity
(EMG/NCV) studies, which showed mild bilateral median nerve entrapment. A somatosensory
evoked potential (SSEP) study showed a left brachial plexopathy. Dr. Weiss reported that
appellant had a history of left and right wrist numbness and increased symptoms with weather
changes. Right wrist pain, stiffness and swelling were also noted along with restrictions in
activities of daily living. Dr. Weiss presented his examination findings and diagnosed
cumulative and repetitive trauma disorder, bilateral carpal tunnel syndrome, right ulnar nerve
neuropathy at the cubital tunnel and chronic post-traumatic flexor tendinitis to the right wrist
secondary to the December 24, 2000 work-related injury. He opined that appellant reached
maximum medical improvement. Citing to various tables in the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001), Dr. Weiss
opined that appellant had sustained a 56 percent right arm and a 21 percent left arm impairment.
The right arm impairment was comprised of: a 31 percent sensory deficit right median nerve;1 a
6 percent sensory deficit right ulnar nerve2; a 9 percent motor strength deficit due to a 4/5 right
thumb abduction;3 a 20 percent right key pinch deficit,4 which Dr. Weiss calculated to be a 53
percent impairment. He then combined the 53 percent arm impairment with a 3 percent painrelated impairment5 to total 56 percent right arm impairment. The left arm impairment was
comprised of a 9 percent motor strength left thumb abduction6 and a 10 percent left key pinch
deficit,7 which Dr. Weiss calculated was an 18 percent impairment. Dr. Weiss combined the 18
percent impairment with a 3 percent pain impairment8 to get the total 21 percent left arm
impairment.
On March 28, 2005 the Office referred appellant’s medical record to an Office medical
adviser. In a report dated March 30, 2005, the Office medical adviser opined that, based on
Dr. Weiss’ December 7, 2004 examination findings, appellant had 12 percent impairment to each
1

A.M.A., Guides 482, Table 16-10 and 492, Table 16-15.

2

Id.

3

Id. at 484, Table 16-11 and 492, Table 16-15.

4

Id. at 509, Tables 16-33 and 16-34.

5

Id. at 574, Table 18-1.

6

Id. at 484, Table 16-11 and 492, Table 16-15.

7

Id. at 509, Tables 16-33 and 16-34.

8

Id. at 574, Table 181.

2

upper extremity due to sensory loss or pain. Based on Table 16-10 on page 482 of the A.M.A,
Guides, the Office medical adviser found that appellant had a Grade 4 or a 25 percent sensory
deficit. Under Table 16-15 on page 492 of the A.M.A., Guides, he noted that the maximum
sensory deficit of the median nerve below the mid forearm was 39 percent. The Office medical
adviser then multiplied the 39 percent maximum sensory deficit with the 25 percent sensory
deficit to rate sensory loss of 9.75 or 10 percent impairment for both the left and right upper
extremities.9 He also opined that, based on the A.M.A., Guides, page 574, Figure 18-1, an
additional two percent impairment for pain could be added to each extremity. The Office
medical adviser noted that an impairment rating for strength deficit was not appropriate as there
was no evidence of a motor deficit. He also stated that, under section 16.8a on page 508 of the
A.M.A., Guides, strength could not be rated on the presence of loss.
By decision dated April 28, 2005, the Office granted appellant a schedule award for a 12
percent impairment to each upper extremity. The award ran for the period December 7, 2004 to
May 15, 2006.
On May 12, 2005 appellant, through her attorney, disagreed with the schedule award and
requested an oral hearing which was held on February 24, 2006. No additional medical evidence
relevant to a schedule award impairment determination was submitted.
By decision dated April 28, 2006, an Office hearing representative affirmed the April 28,
2005 schedule award decision. The Office hearing representative found that its medical
adviser’s opinion constituted the weight of the medical opinion evidence.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act10 and its
implementing regulation11 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. 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.12

9

Id. at 482, Table 16-10 and 492, Table 16-15.

10

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

11

20 C.F.R. § 10.404.

12

See Joseph Lawrence, Jr., 53 ECAB 331 (2002).

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Office procedures13 provide that upper extremity impairment secondary to carpal tunnel
syndrome and other entrapment neuropathies should be calculated using section 16.5d and
Tables 16-10, 16-11 and 16-15.14
Office procedures also indicate that referral to an Office medical adviser is appropriate
when a detailed description of the impairment from a physician is obtained.15
ANALYSIS
Appellant received a schedule award for a 12 percent impairment to each upper extremity
based on the opinion of the Office medical adviser. An Office hearing representative found that
an additional schedule award on the basis of the medical evidence was not warranted.
In a December 7, 2004 report, Dr. Weiss advised that under the A.M.A., Guides appellant
had a 56 percent right upper extremity impairment and a 21 percent left upper extremity
impairment due to sensory loss, strength loss and pain. However, he failed to discuss how he
arrived at his impairment rating or indicate how his examination findings conformed to the cited
figures and tables of the A.M.A., Guides.16
With respect to impairment due to sensory loss, Dr. Weiss did not properly calculate the
percentage of impairment by using Table 16-15. A proper application of the A.M.A., Guides for
impairments to the arms due to peripheral nerve disorders requires that specific nerves be
identified under Table 16-15, in order to determine the maximum impairment for sensory or
motor deficit in the identified nerve.17 Then the impairment is graded according to Table 16-10
for sensory deficits and 16-11 for motor deficits.18 These tables provide specific descriptions
and a corresponding grade from one to five according to the severity of the impairment.
Dr. Weiss generally identified both the median and ulnar nerves but offered no further
explanation for his rating under the A.M.A., Guides. Table 16-15 includes both the median and
ulnar nerves, but also includes specific parts and areas as affected by the listed nerves. For the
right upper extremity only, Dr. Weiss opined that appellant had a 31 percent sensory deficit of
the median nerve and a 6 percent sensory deficit of the ulnar nerve, without explaining how he
used Table 16-15 to determine the maximum impairment or how he graded such impairments

13

See FECA Bulletin No. 01-05 (issued January 29, 2001); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700, exhibit 4 (June 2003). See also Cristeen Falls, 55 ECAB 420 (2004).
14

A.M.A., Guides 491, 482, 484, 492, respectively; Joseph Lawrence, Jr., supra note 12.

15

See Thomas J. Fragale, 55 ECAB 619 (2004). Federal (FECA) Procedure Manual, Part 2 -- Claims,
Evaluation of Schedule Awards, Chapter 2.808.6(d) (August 2002).
16

See James R. Hill, 57 ECAB ___ (Docket No. 05-1899, issued May 12, 2006) (schedule awards are to be based
on the A.M.A., Guides; an estimate of permanent impairment is irrelevant and of diminished probative value where
it is not based on the A.M.A., Guides).
17

A.M.A., Guides 492, Table 16-15.

18

Id. at 482, Table 16-10 and 484, Table 16-11.

4

under Tables 16-10. No sensory deficit for the left upper extremity was calculated. The Board
finds that Dr. Weiss’ report is of diminished probative value to the issue presented.
The Office medical adviser reviewed Dr. Weiss’ December 7, 2004 report and found that
rating impairment due to sensory loss was appropriate. Table 16-15 page 492 of the A.M.A.,
Guides provides that the maximum sensory deficit of the median nerve below the mid forearm is
39 percent. Dr. Weiss advised that appellant had a history of left and right upper extremities
numbness with increased symptoms with weather changes. The Office medical adviser
determined that these symptoms are consistent with a Grade 4 or 25 percent sensory deficit under
Table 16-10 on page 482 of the A.M.A., Guides. He multiplied this grade by the 39 percent
maximum impairment found at Table 16-15 to total a left and right upper extremity impairment
at 10 percent. The medical evidence of record, therefore, establishes that appellant has 10
percent impairment to both the left and right upper extremity due to a sensory deficit.
The Office medical adviser excluded Dr. Weiss’ impairment rating due to motor deficit
strength as there was no evidence of any motor deficit. The record does not support evidence of
motor deficit. Thus, the Office medical adviser properly excluded such determination when
calculating appellant’s impairment. He found that Dr. Weiss’s impairment rating due to strength
deficit did not conform to the A.M.A., Guides. The A.M.A., Guides at page 508, prohibit a
rating for decreased strength in the presence of decreased motion, painful conditions, deformities
or absence of parts that prevent effective application of force in the region being evaluated.19
The Office medical adviser properly excluded Dr. Weiss’s strength deficit impairment rating for
thumb abduction and key pinch deficit in light of the noted sensory loss.
The Office medical adviser agreed with Dr. Weiss that appellant had ratable impairment
due to pain under Chapter 18 of the A.M.A., Guides. He assigned, under Figure 18-1, page 574
of the A.M.A., Guides, two percent impairment. Dr. Weiss assigned three percent impairment
due to pain under this provision. However, both Dr. Weiss and the Office medical adviser erred
in assigning impairment for pain under Chapter 18 of the A.M.A., Guides. The Board notes that
the A.M.A., Guides prohibit use of Chapter 18 to rate pain-related impairments for conditions
that can be adequately rated in other chapters of the A.M.A., Guides.20 Having rated appellant
with a 10 percent impairment for sensory deficit (pain) of the median nerve, the Office medical
adviser unwittingly by duplicated a rating for pain under Chapter 18.
Consequently, the Board finds that the medical evidence does not establish that appellant
has greater than 10 percent impairment of each arm. There is no other evidence of record,
conforming to the A.M.A., Guides, indicating that appellant has any greater degree of
impairment.
19

Office procedures also state that grip or pinch strength should not be used to calculate upper extremity
impairment caused by a compression neuropathy such as carpal tunnel syndrome. Federal (FECA) Procedure
Manual, Part 4 -- Medical, Schedule Awards, Chapter 3.700 Exhibit 4 (June 2003).
20

Linda Beale, 57 ECAB ___ (Docket No. 05-1536, issued February 15, 2006); Frantz Ghassan, 57 ECAB ___
(Docket No. 05-1947, issued February 2, 2006). Section 18.3b of Chapter 18 at page 571 of the fifth edition of the
A.M.A., Guides provides that “Examiners should not use this chapter to rate pain-related impairment for any
condition that can be adequately rated on the basis of the body and organ impairment rating systems given in other
chapters of the A.M.A., Guides.”

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained more than 12 percent impairment to each upper extremity, for which she received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 28, 2006 is affirmed, as modified.
Issued: May 14, 2007
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
TOMAH VETERANS ADMINISTRATION
MEDICAL CENTER, Tomah, WI, Employer
__________________________________________

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

Docket No. 13-1435
Issued: March 13, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 4, 2013 appellant filed a timely appeal from a May 17, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) regarding a schedule award. 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 the case.
ISSUE
The issue is whether appellant has more than two percent permanent impairment of the
right lower extremity for which she received a schedule award.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On September 25, 2009 appellant, then a 41-year-old psychiatric nursing assistant,
injured her right ankle while transferring a patient to the bathroom. OWCP accepted the claim
for right ankle sprain. It authorized a November 5, 2009 and March 17, 2010 right ankle
surgery. Appellant worked intermittently thereafter.2
Appellant was treated by Dr. Kevin J. Weber, a Board-certified orthopedist, from
November 5 to December 15, 2009, for a right ankle injury that occurred at work three years
prior which she reinjured on September 25, 2009. Dr. Weber performed an arthroscopy of the
right ankle with chondroplasty of the medial talus and partial synovectomy and diagnosed
chronic right ankle pain. A magnetic resonance imaging (MRI) scan of the right ankle revealed a
small tibiotalar and subtalar joint effusion with multiple ganglion cysts, mild synovitis of the
joints of the ankle and mid foot and scarring of the anterior syundesmotic ligament. Appellant
was also treated by Dr. Richard G. Rilling, a Board-certified orthopedist, who performed a
March 17, 2010 right ankle arthroscopy and debridement of scar tissue and right ankle
superficial and deep peroneal nerve decompression. Dr. Rilling diagnosed right ankle medial
tara dome osteochondritis dissecans (OCD) and right ankle superficial deep peroneal neuropathy.
On May 19, 2010 appellant filed a claim for a schedule award.3 She subsequently
submitted a December 15, 2010 report from Dr. Steven R. Kirkhorn, a Board-certified
physiatrist, who noted a history of injury and diagnosed chronic ankle pain and possible
instability of the right ankle. Appellant reported numbness up to her knees and ankles, periodic
falls, difficulty going up stairs and squatting and uses a cane for longer distances. Dr. Kirkhorn
noted findings of antalgic gait, pain on squatting, discoloration around the ankle with erythema,
no edema or effusion, and tenderness in the dorsum of the ankle. Reflexes were symmetrical and
strength and sensation were intact. Calf measures were 36 centimeters on the right and 38.5
centimeters on the right. Dorsiflexion was 15 degrees on the right and 20 degrees on the left,
plantar flexion was 25 degrees on the right and 40 degrees on the left, inversion was 25 degrees
on the right 25 degrees on the left, and eversion was 20 degrees on the right and 38 degrees on
the left. Dr. Kirkhorn noted that he could not provide an impairment rating until he reviewed her
x-rays and operative reports.
In a January 25, 2011 report, an OWCP medical adviser reviewed Dr. Kirkhorn’s reports
as well as the second opinion physician, Dr. Barron, and opined that appellant had subjective
complaints without examination findings. In accordance with the sixth edition of the American
2

On March 10, 2007 appellant tripped and bumped her right ankle on an intervaneous pole and OWCP accepted
right ankle sprain, claim number xxxxxx678. This claim is consolidated with the current claim before the Board.
3

OWCP subsequently referred appellant to Dr. Stephen Barron, a Board-certified orthopedist, for a second
opinion regarding the extent of her condition. In an August 3, 2010 report, Dr. Barron opined that appellant’s
subjective complaints were not consistent with any objective medical finding. He advised that appellant did not
have work restrictions from her 2007 to 2009 injuries. OWCP referred her to Dr. Gordon L. Clark, a Board-certified
orthopedic surgeon, to resolve the medical conflict regarding the extent of any residuals and work restrictions from
the accepted injuries. In a November 22, 2003 report, Dr. Clark opined that appellant’s objective findings supported
chronic pain secondary to her work injures. He opined that her 2007 and 2009 work injuries caused her ankle
pathology and she was permanently restricted from using stairs or squatting.

2

Medical Association, Guides to the Evaluation of Permanent Impairment4 (A.M.A., Guides), the
medical adviser opined that appellant had no impairment of the right leg.
Appellant submitted a March 3, 2011 report from Dr. Kirkhorn, who opined that pursuant
to Chapter 16 of the sixth edition of the A.M.A., Guides appellant had seven percent right lower
extremity impairment. In a permanent impairment worksheet, he diagnosed chronic ankle pain
and ankle instability. He noted under Table 16-2, Foot and Ankle Regional Grid, arthritis of the
ankle, appellant was a class 1. Applying grade modifiers, Dr. Kirkhorn found a Functional
History (GMFH) grade modifier of 2, a Physical Examination (GMPE) grade modifier of 2,
Clinical Studies (GMCS) grade modifier of 0 and an American Association of Orthopedic
Surgeons (AAOS) inventory score of two. He used the net adjustment formula to find a net
adjustment of two, which yielded a grade E impairment of seven percent leg impairment.
In an April 2, 2011 report, an OWCP medical adviser noted that Dr. Kirkhorn rated
appellant based on ankle osteoarthritis which was not an accepted condition. The medical
adviser opined that appellant had no impairment of the right leg under the A.M.A., Guides.
Appellant submitted an August 16, 2011 report from Dr. Kirkhorn, who opined that
appellant had post-traumatic arthrosis from her work injury. Dr. Kirkhorn diagnosed chronic
ankle pain, post-traumatic arthrosis, complex regional pain syndrome symptoms, gait disorder
and weakness of the right ankle. He opined that appellant had work-related synovitis.
Dr. Kirkhorn calculated a score of -10 in the lower limb questionnaire, for a grade 3 modifier.
Pursuant to Table 16-20, page 549 of the A.M.A., Guides, appellant had two percent leg
impairment for inversion and two percent impairment for eversion. Under Table 16-22, he had
seven percent leg impairment for plantar flexion and for extension for a total of 18 percent
impairment for active range of motion. Dr. Kirkhorn then noted appellant’s rating under Table
16-2, page 501 for a strain with motion deficits. He advised that the adjustment formula yielded
a -1 or grade B impairment consistent with four percent leg impairment. Dr. Kirkhorn noted that
appellant had four percent impairment of the lower extremity or two percent whole person
impairment using the diagnosis-based estimate. Using the range of motion figures appellant had
18 percent leg impairment which correlated to seven percent whole person impairment. In a
September 22, 2011 report, Dr. Kirkhorn noted that appellant had some, but not all, elements of
complex regional pain syndrome. He stated that he rated appellant based on range of motion and
the grid method.
In an October 23, 2011 report, an OWCP medical adviser reviewed Dr. Kirkhorn’s
reports. He noted that Dr. Kirkhorn did not report on x-ray findings that would support posttraumatic degenerative changes. The medical adviser further advised that, although Dr. Kirkhorn
reported decrease range of motion of the right ankle, the second opinion physician found full
range of motion of the right ankle. He determined that without x-ray evidence of arthrosis and
with full range of motion of the ankle, he could not support the diagnoses of post-traumatic
arthrosis. The medical adviser opined that appellant had no permanent impairment of the lower
extremity.

4

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

3

A December 9, 2011 x-ray of the right ankle revealed spurring of the inferior calcaneal
tuberosity with no evidence of acute or chronic bone, joint or soft tissue pathology.
OWCP referred appellant’s case record to an OWCP medical adviser. In a January 15,
2012 report, the medical adviser noted that Dr. Kirkhorn reported right ankle arthrosis despite a
second opinion physician showing excellent range of motion. He reviewed the December 9,
2011 x-ray report which was essentially normal and opined that there was no evidence to support
ankle arthrosis. The medical adviser opined that appellant sustained a zero percent impairment
of the right lower extremity.
In a decision dated April 20, 2012, OWCP denied appellant’s claim for a schedule award.
On April 25, 2012 appellant requested a review of the written record. She submitted a
May 4, 2012 report from Dr. Kirkhorn who noted that appellant presented limping with, pain in
the dorsum of the foot, swelling, coolness of the right foot with paresthesias into the toes.
Dr. Kirkhorn diagnosed persistent ankle pain and right calf atrophy secondary to ankle pain. He
noted findings of moderate antalgic gait, moderately tender over the dorsum of the ankle and
incisions, no edema of the ankle, normal color and temperature, no instability, intact sensation
with some atrophy on the right calf as compared to the left calf. Dorsiflexion of the right ankle
was 10 degrees and on the left 20 degrees, plantar flexion was 10 degrees on the right and 40
degrees on the left, inversion was 15 degrees on the right and 40 degrees on the left and eversion
was 10 degrees on the left and 30 degrees on the right. Dr. Kirkhorn noted that appellant’s
AAOS questionnaire score was -13.25 which indicates moderate disability. He noted that,
pursuant to Table 16-2, page 501 of the A.M.A., Guides, under strain, chronic tendinitis,
appellant was Class 1, mild motion deficit, for a default impairment of five percent.
Dr. Kirkhorn noted a grade 2 modifier for functional history, a grade 2 modifier for observed and
palpatory findings under Table 16-7, page 517 and a grade zero for clinical studies. He opined
that using the net adjustment formula appellant was a grade E for strain, tendinitis under mild
motion deficits for seven percent impairment of the lower extremity.
In a decision dated August 6, 2012, an OWCP hearing representative affirmed the
decision dated April 20, 2012.
Appellant appealed his case to the Board. In an April 12, 2013 order, the Board
remanded the case to OWCP. The Board found that OWCP, in its August 6, 2012 decision,
failed to consider the May 4, 2012 report from Dr. Kirkhorn that was received by OWCP on
May 14, 2012. The Board instructed OWCP to consider all the evidence submitted at the time of
the August 6, 2012 decision and issue an appropriate decision.5
Appellant submitted a December 31, 2012 CT of the right ankle which revealed no
significant osteoarthritis involving the ankle joint or subtalar joint, an age commensurate
degeneration of the first metatarsophalangeal joint. A February 5, 2013 electromyogram (EMG)
revealed right superficial peroneal sensory neuropathy and no evidence of right lumbosacral
radiculopathy.
5

Docket No. 13-134 (issued April 12, 2013).

4

OWCP referred appellant’s case record to a medical adviser. In an April 28, 2013 report,
an OWCP medical adviser reviewed Dr. Kirkhorn’s reports as well as reports from OWCP
referral physicians. He noted that based on Dr. Barron’s August 3, 2010 report appellant had full
range of motion of the right ankle without sensory deficits. Maximum medical improvement
occurred on August 3, 2010. The medical adviser noted that in accordance with Chapter 16 of
the sixth edition of the A.M.A., Guides appellant had two percent impairment of the right lower
extremity. He noted that, under Table 16-2, Foot and Ankle Regional Grid, appellant had a
class 1, full thickness articular cartilage defect of the ankle joint, which yielded a default grade C
impairment of two percent pursuant to Table 16-2, page 506 of the A.M.A., Guides. The
medical adviser applied grade modifiers, finding that the grade for functional history, pursuant to
Table 16-6, was one (for antalgic gait) for a mild problem; the grade for physical examination at
Table 16-7 was one, for a mild problem (normal range of motion with minimal palpatory
findings) and the grade for clinical studies pursuant to Table 16-8 was one (for an osteochondral
lesion debridement on MRI scan, mild pathology). The medical adviser utilized the net
adjustment formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) or (1-1) + (1-1) +
(1-1) to find a net adjustment of zero which yielded a grade C modifier or two percent
impairment of the right lower extremity. The medical adviser noted that Dr. Kirkhorn
incorrectly rated appellant for tendinitis and not objective finding of the OCD lesion which was
treated surgically.
On May 17, 2013 appellant was granted a schedule award for two percent impairment of
the right lower extremity. The period of the award was May 5 to June 14, 2013.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing federal regulations,7 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.8 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.9
For decisions issued beginning May 1, 2009, the sixth edition of the A.M.A., Guides will be
used.10
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
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

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

10

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

5

and Health (ICF).11 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on GMFH, GMPE and GMCS.12 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).13 The grade modifiers are used on the net
adjustment formula described above to calculate a net adjustment. The final impairment grade is
determined by adjusting the grade up or down the default value C, by the calculated net
adjustment.14
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 OWCP’s medical
consultant providing rationale for the percentage of impairment specified.15
ANALYSIS
On appeal, appellant contends that he is entitled to a schedule award greater than two
percent permanent impairment of the right lower extremity. OWCP accepted appellant’s claim
for right ankle sprain. The Board finds that there is a conflict in medical opinion between
OWCP’s medical adviser and Dr. Kirkhorn, appellant’s treating physician, regarding the
impairment of the right lower extremity.
OWCP’s medical adviser who, in a report dated April 28, 2013, advised that based on the
A.M.A. Guides appellant had two percent impairment of the right lower extremity. He based his
report on the findings of Dr. Barron, the second opinion physician, who issued a report on
August 3, 2010. The medical adviser rated appellant pursuant to Table 16-2, Foot and Ankle
Regional Grid, noting that appellant had a class 1, full thickness articular cartilage defect of the
ankle joint, which yielded a default grade C impairment of two percent pursuant to Table 16-2,
page 506 of the A.M.A., Guides. He applied grade modifiers, finding that the grade for
functional history, was one for a mild problem; the grade for physical examination was one, for a
mild problem (relying on Dr. Barron’s findings of normal range of motion with minimal
palpatory findings) and the grade for clinical studies pursuant to Table 16-8 was one (for an
osteochondral lesion debridement on MRI scan, mild pathology). The medical adviser utilized
the net adjustment formula to find a net adjustment of zero which yielded a grade C modifier or
two percent impairment of the right lower extremity. He noted that Dr. Kirkhorn incorrectly
rated appellant for tendinitis and not objective finding of the OCD lesion which was treated
surgically.
11

A.M.A., Guides 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement.
12

Id. at 494-531.

13

Id. at 521.

14

A.M.A., Guides 497.

15

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

6

By contrast, in a May 4, 2012 report, Dr. Kirkhorn advised that based on the A.M.A.,
Guides appellant had seven percent impairment of the right lower extremity. He rated appellant
pursuant to Table 16-2, page 501 of the A.M.A., Guides, under ankle strain, chronic tendinitis.
Dr. Kirkhorn noted mild range of motion deficits in his physical examination on May 4, 2012
contrary to Dr. Barron’s report of August 3, 2010 which found normal range of motion of the
right ankle. He noted range of motion for dorsiflexion of the right ankle was 10 degrees and on
the left 20 degrees, plantar flexion was 10 degrees on the right and 40 degrees on the left,
inversion was 15 degrees on the right and 40 degrees on the left and eversion was 10 degrees on
the left and 30 degrees on the right. Dr. Kirkhorn noted appellant’s AAOS questionnaire score
was -13.25 which indicates moderate disability. He noted that, pursuant to Table 16-2, page 501
of the A.M.A., Guides, under strain, chronic tendinitis, appellant was class 1, mild motion
deficit, for a default impairment of five percent. Dr. Kirkhorn noted a grade 2 modifier for
functional history, a grade 2 modifier for physical examination with observed and palpatory
findings under Table 16-7, page 517 and a grade zero for clinical studies. He opined that using
the net adjustment formula appellant was a grade E for strain, tendinitis under mild motion
deficits for seven percent impairment of the lower extremity. Dr. Kirkhorn supported an
increased impairment rating of the right lower extremity, noting the basis of his rating under the
A.M.A., Guides, while OWCP’s medical adviser opined that appellant sustained no more than
two percent permanent impairment of the right lower extremity pursuant to the A.M.A., Guides.
Each physician used the A.M.A., Guides to come to differing calculations regarding appellant’s
permanent impairment of the right lower extremity.
Section 8123(a) of FECA provides in pertinent part: “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.”16 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.17 The Board finds that OWCP should have referred appellant to an impartial medical
specialist to resolve the medical conflict regarding the extent of permanent impairment arising
from appellants accepted employment injury.
Therefore, in order to resolve the conflict in the medical opinions as to permanent
impairment, the case will be remanded to OWCP for referral of the case record, including a
statement of accepted facts, and, if necessary, appellant, to an impartial medical specialist for a
determination regarding the extent of appellant’s right lower extremity impairment as determined
in accordance with the relevant standards of the A.M.A., Guides.18 After such further
development as OWCP deems necessary, an appropriate decision should be issued regarding the
extent of appellant’s right lower extremity impairment.

16

5 U.S.C. § 8123(a).

17

William C. Bush, 40 ECAB 1064 (1989).

18

See Harold Travis, 30 ECAB 1071, 1078-79 (1979).

7

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 17, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
development in accordance with this decision.
Issued: March 13, 2014
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF COMMERCE, CENSUS
BUREAU, Villa Park, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1001
Issued: August 1, 2013

Case Submitted on the Record

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

JURISDICTION
On March 26, 2013 appellant filed a timely appeal of a November 20, 2012 merit
decision of the Office of Workers’ Compensation Programs’ (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained a
right wrist condition causally related to an April 17, 2009 employment injury.
FACTUAL HISTORY
On April 19, 2009 appellant, then a 61-year-old census enumerator, filed a traumatic
injury claim alleging that on April 17, 2009 he was almost hit by a truck, but struck his head
while leaping out of the way. He listed his injury-related conditions as left knee muscle strain,
1

5 U.S.C. § 8101 et seq.

concussion, neck and lower back pain, chipped tooth and sore jaw. On June 12, 2009 OWCP
accepted a left knee tear of medial meniscus and sprain of the lumbosacral spine as a result of the
April 17, 2009 employment injury. It included the additional condition of broken tooth on
December 11, 2009.
On May 1, 2009 appellant reported tingling and numbness to his right hand to a
physician’s assistant. On January 28, 2010 Dr. Joseph Pierce Conaty, a Board-certified
orthopedic surgeon and OWCP second opinion physician, found that appellant had normal range
of motion of both wrists. He found that Phalen’s test, Tinel’s sign, shoulder impingement and
tendinitis tests were all negative bilaterally.
In a telephone call to OWCP on July 23, 2010, appellant stated that he injured his right
wrist in the April 17, 2009 employment injury.
Dr. Gabriel T. Fabella, a Board-certified orthopedic surgeon, completed a second opinion
report on August 12, 2010 and noted appellant’s accepted conditions due to his April 17, 2009
employment injury. He noted that appellant reported right wrist pain at the time of his 2009
employment injury. Dr. Fabella stated that appellant had problems with handling, gripping and
grasping using his right hand due to his right wrist condition. Appellant reported tingling and
numbness in his fingers on the right. He requested that his right wrist be evaluated and treated
before he underwent surgical repair of the left knee medial meniscus. Dr. Fabella examined
appellant’s right wrist and found minimal tenderness with full range of motion and pain on full
dorsiflexion and palmar flexion. Appellant had negative Tinel’s signs and Phalen’s test.
Dr. Fabella stated that appellant had slight wrist pain with no clearcut indication that he had
either osteoarthritic or significant carpal tunnel syndrome in the right hand.
OWCP referred appellant for vocational rehabilitation services on October 18, 2010.
By decision dated February 7, 2011, OWCP reduced appellant’s compensation to zero
effective February 13, 2010 due to his failure to cooperate with the vocational efforts.
On August 11, 2010 appellant underwent a magnetic resonance imaging (MRI) scan of
his right upper extremity which demonstrated small enhancing erosions in the lunate, capitate
and hamate as well as moderate synovitis involving the distal radicular joint suggestive of early
inflammatory arthritis. He sought physical therapy for his right wrist pain on October 28, 2010.
Appellant also sought treatment from an acupuncture clinic for his wrist condition. He submitted
a note from a physician’s assistant dated April 1, 2011 which stated that he had wrist pain and
paresthesias associated with his April 2009 employment injury.

2

Appellant requested an oral hearing before an OWCP hearing representative and testified
on June 20, 2011 regarding his wrist condition. He stated that during his first visit with his
primary care physician he was unable to hold a cup in his right hand. Appellant stated that he
was unable to turn his right wrist or lift.2
In notes dated October 28 and November 9, 2010, Dr. Patricia Nance, a physician Boardcertified in physical medicine and rehabilitation, diagnosed right wrist pain, soft tissue injury in
2009 with persistent pain, likely complex regional pain syndrome type I.
By decision dated September 15, 2011, OWCP’s hearing representative affirmed the
finding that appellant’s compensation benefits should be reduced to zero. The hearing
representative further found that OWCP should proceed with development of the wrist condition
and determine if it is causally related to appellant’s accepted employment injury.
Appellant submitted a report dated January 3, 2012 from Dr. S. Tang, a surgeon,
diagnosing a fall injury with unresolved pain in the low back, left knee, right wrist and jaw since
2009. Dr. Tang indicated with a checkmark “yes” that appellant’s condition was caused or
aggravated by his employment activity.
OWCP referred appellant for a second opinion examination with Dr. Steven Ma, a Boardcertified orthopedic surgeon on February 10, 2012. In a report dated March 12, 2012, Dr. Ma
noted appellant’s history of an employment-related fall on April 17, 2009. He noted that
appellant reported pain in his right wrist and numbness in his right middle, ring and little fingers
when he twisted his right wrist. Dr. Ma stated that examination of both of appellant’s hands and
wrists revealed no obvious deformities and no tenderness to palpation. Appellant had no
swelling and normal range of motion. Dr. Ma stated that Tinel’s sign and Phalen’s test were
negative as was Finkelstein’s and Allen’s test. He found normal strength with no evidence of
thenar atrophy. Dr. Ma stated that appellant’s sensory examination was intact and that x-ray
examination showed no fractures or dislocations. Appellant had some erosion of the radial
aspect of the index metacarpal head area. Dr. Ma diagnosed possible right wrist inflammatory
arthropathy. He reviewed the medical records and responded to questions from OWCP noting
that the cystic change in appellant’s right hamate was not medically significant, that his
electrodiagnostic studies were normal and that appellant’s August 11, 2010 MRI scan showed
findings of inflammatory arthritic changes which were not employment related. Dr. Ma stated
that appellant’s right wrist diagnosis was nonwork-related inflammatory arthritis. He stated that
appellant’s right wrist condition was unrelated to his employment injury.
In a report dated February 27, 2011, Dr. Sophie Thuy Nguyen, an acupuncturist, stated
that appellant sought treatment beginning April 20, 2009 due to neck, low back, right wrist, leg
and knee pain.

2

Appellant failed an appeal with the Board. In an Order Dismissing Appeal, dated February 17, 2012, the Board
noted that as he had participated in an oral hearing and as the hearing representative had not issued a final decision,
the case was in an interlocutory posture and dismissed appellant’s appeal. Docket No. 11-1717 (issued
February 17, 2012).

3

By decision dated June 11, 2012, OWCP denied appellant’s claim for a wrist condition as
a result of his accepted April 17, 2009 employment injury.
Appellant requested an oral hearing on June 14, 2012. He submitted a form report dated
July 18, 2012 from Dr. Sabrina M. Kobylinski, an osteopath, diagnosing right wrist strain, left
knee strain, low back pain and jaw pain due to his April 17, 2009 employment injury.
Dr. Kobylinski described the injury as appellant falling three or four feet when the asphalt gave
way as he was walking from house to house. He indicated with a checkmark “yes” that
appellant’s condition was due to his employment injury and stated, “Obviously! Patient fell as a
result of asphalt giving way. This caused injury to his wrist, back, jaw and knee.”
By decision dated November 20, 2012, OWCP’s hearing representative noted that Dr. Ma
found that appellant’s current right wrist condition was not due to his employment injury. She
noted that there was no other medical evidence establishing a causal relationship between
appellant’s right wrist condition and his employment and affirmed OWCP’s decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.4 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.5
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”6 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit

3

5 U.S.C. §§ 8101-8193.

4

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

20 C.F.R. § 10.5(ee).

7

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

4

sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.8
A medical report is of limited probative value on a given medical question if it is
unsupported by medical rationale.9 Medical rationale includes a physician’s opinion on the issue
of whether these is a causal relationship between the claimant’s diagnosed condition and the
implicated employment activity. The opinion of the physician must be based on a complete
factual and medical background of the claim, must be one of reasonable medical certainty and
must be supported by medical reasoning explaining the nature of the relationship between the
diagnosed condition and specific employment activity or factors identified by the claimant.10
ANALYSIS
Appellant alleged that, in addition to the conditions accepted by OWCP as arising from
his April 17, 2009 employment injury, he also sustained a right wrist condition. In support of his
claim, he submitted notes from a physician’s assistant. As physician’s assistants do not qualify
as physicians under FECA, the Board finds that these notes do not constitute probative medical
evidence.11 Appellant also submitted reports from an acupuncturist. Section 8101(2) of FECA
provides that the term physician includes surgeons, podiatrist, dentists, clinical psychologists,
optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by state law.12 Lay individuals such acupuncturists are not physicians as defined under
FECA and thus their reports do not constitute competent medical evidence.13
The medical evidence in support of appellant’s claim consists of notes from Dr. Nance
dated October 28 and November 9, 2010 which included the diagnosis of right wrist pain, soft
tissue injury in 2009 with persistent pain, likely complex regional pain syndrome type 1. These
notes are not sufficient to meet appellant’s burden of proof as Dr. Nance did not include a history
of injury and did not provide any opinion on the causal relationship between his diagnosed wrist
condition and his accepted employment incident.
Dr. Tang completed a form report on January 3, 2012 describing a fall injury. He
diagnosed unresolved pain in the low back, left knee, right wrist and jaw since 2009. Dr. Tang
indicated with a checkmark “yes” that appellant’s condition was caused or aggravated by his
employment activity. The Board has held that an opinion on causal relationship which consists
only of a physician checking “yes” to a medical form report question on whether the claimant’s
condition was related to the history given is of little probative value. Without any explanation or
8

J.Z., 58 ECAB 529 (2007).

9

T.F., 58 ECAB 128 (2006).

10

A.D., 58 ECAB 149 (2006).

11

B.D., Docket No. 11-464 (issued September 19, 2011); Merton J. Sills, 39 ECAB 572 (1988).

12

5 U.S.C. § 8101(2).

13

B.P., Docket No. 07-420 (issued May 31, 2007).

5

rationale for the conclusion reached, such report is insufficient to establish causal relationship.14
Dr. Tang did not provide a detailed history of injury and did not explain how appellant’s fall
resulted in his right wrist condition. Furthermore, the Board has held that the mere diagnosis of
“pain,” without more by way of an explanation, does not constitute the basis for payment of
compensation.15
Dr. Kobylinski completed a form report diagnosing right wrist strain, left knee strain, low
back pain and jaw pain. She provided a history of injury which included a fall of three or four
feet when the asphalt gave way as appellant was walking from house to house. Dr. Kobylinski
also indicated with a checkmark “yes” that appellant’s condition was due to his employment
incident. In further explanation she stated, “Obviously! Patient fell as a result of asphalt giving
way. This caused injury to his wrist, back, jaw and knee.” The Board notes that
Dr. Kobylinski’s report is not based on an accurate history of injury. Dr. Kobylinski’s
description of appellant’s fall does not correspond with his history of the accepted employment
injury that he leaped out of the way of an oncoming truck. For this reason her report is not
sufficient to meet his burden of proof.
OWCP referred appellant to three second opinion physicians, Dr. Conaty on January 28,
2010, Dr. Fabella on August 12, 2010 and Dr. Ma on February 10, 2012. These physicians did
not support appellant’s claim for a wrist condition as a result of his 2009 employment injury.
Dr. Fabella examined appellant’s wrist and found slight wrist pain. Dr. Ma provided extensive
findings on physical examination and noted appellant had some erosion of the radial aspect of
the index metacarpal head area on x-ray. He diagnosed nonwork-related inflammatory arthritis
of the right wrist.
The Board finds that appellant has not submitted the necessary medical opinion evidence
to meet his burden of proof to establish that he sustained a right wrist condition due to his
April 19, 2009 employment injury as alleged.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that the favorable medical evidence is not sufficiently detailed and based
on a proper factual background to establish appellant’s claim for an additional traumatic injury
on April 17, 2009

14

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

15

See Robert Broome, 55 ECAB 339 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the November 20, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 1, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7