United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fayetteville, NC, Employer
__________________________________________

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Appearances:
Mark T. Freeman, for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0045
Issued: June 2, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 13, 2020 appellant, through his representative, filed a timely appeal from an
April 16, 2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As
more than 180 days has elapsed from OWCP’s last merit decision, dated November 8, 2019, 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.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.

ISSUE
The issue is whether 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 April 27, 2018 appellant, then a 66-year-old mail handler, filed an occupational disease
claim (Form CA-2) alleging that he developed a left shoulder strain due to factors of his federal
employment, including repetitive lifting, pulling, and carrying. He noted that he sustained an
employment injury in October 2014 and performed physical therapy treatment. Appellant stopped
work on April 27, 2018.
In support of his claim, appellant submitted a June 15, 2017 report from Dr. Kurt Wohlrab,
a Board-certified orthopedic surgeon, who provided physical examination findings. Dr. Wohlrab
diagnosed shoulder pain and right rotator cuff tendinitis. He noted appellant’s work restrictions
of no overhead lifting of more than 30 pounds.
In a development letter May 7, 2018, OWCP informed appellant that the evidence of record
was insufficient to establish his claim. It advised him of the type of factual and medical evidence
needed and provided a questionnaire for his completion. In a separate development letter of even
date, OWCP requested that the employing establishment provide additional information, including
comments from a knowledgeable supervisor and an explanation of appellant’s work activities. It
afforded both parties 30 days to submit the necessary evidence.
OWCP subsequently received a May 27, 2018 narrative statement from appellant who
noted that he felt discomfort in his left shoulder while repetitively loading a belt with mail and
containers weighing up to 45 pounds. Appellant indicated that his left shoulder was previously
injured in October 2014 and that he took extra precautions not to pull or push mail that was too
heavy. He reported that despite using proper lifting procedures, the repetitive motion of lifting
mail caused him significant discomfort and he had to stop work. Appellant noted that he continued
to experience left shoulder pain after stopping work and that he informed his supervisor of his
condition on April 27, 2018.
By decision dated June 13, 2018, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish a medical diagnosis causally related to the accepted
factors of his federal employment. It concluded, therefore, that the requirements had not been met
to establish an injury as defined by FECA.
OWCP subsequently received a May 21, 2018 report from Dr. Mark Brenner, a Boardcertified orthopedic surgeon, who noted that appellant experienced left shoulder pain while lifting
packages on April 22, 2018. Dr. Brenner examined appellant and diagnosed left shoulder pain and
left shoulder sprain.
A magnetic resonance imaging (MRI) scan of appellant’s left shoulder, dated May 31,
2018, revealed small full-thickness tear of the anterior fibers of the supraspinatus, moderate
hypertrophic degenerative change of the acromioclavicular (AC) joint with inferior spurring, mild
degenerative change of the glenohumeral joint, and mild subacromial/subdeltoid bursitis.

2

In a June 5, 2018 report, Dr. Brenner noted that appellant continued to experience throbbing
left shoulder pain. He examined appellant and diagnosed left shoulder pain. Dr. Brenner
recommended surgical intervention for appellant’s left shoulder.
In a June 6, 2018 preoperative report, Dr. Brenner noted that appellant was a retired 66year-old mail handler with a several-year history of left shoulder pain. He reviewed x-rays and an
MRI scan of appellant’s left shoulder and provided physical examination findings. Dr. Brenner
diagnosed symptomatic rotator cuff dysfunction and AC joint dysfunction and recommended
surgical repair.
On July 24, 2018 appellant requested reconsideration and submitted a July 9, 2018 report
from Dr. Brenner who provided physical examination findings and diagnosed left shoulder pain
and rotator cuff tear. Dr. Brenner opined that it was probable that appellant’s rotator cuff
dysfunction was related to factors of his federal employment, including repetitive lifting of objects
greater than 30 pounds.
By decision dated August 29, 2018, OWCP modified the June 13, 2018 decision, finding
that appellant had established a medical diagnosis causally related to the accepted factors of his
federal employment. The claim remained denied, however, because the medical evidence of
record was insufficient to establish causal relationship between appellant’s diagnosed conditions
and factors of his federal employment.
On November 19, 2018 appellant requested reconsideration and submitted a September 6,
2018 letter from Dr. Brenner who noted that appellant experienced a left shoulder injury on
October 3, 2014 and was treated conservatively. Dr. Brenner indicated that appellant experienced
a new onset of pain and discomfort on April 22, 2018. He reported that, since that date, appellant
had recurrent left shoulder pain and that he had x-rays and an MRI scan that were consistent with
an anterior rotator cuff tear. Dr. Brenner opined that, in the absence of an injury, it was difficult
to establish issues regarding causation.
By decision dated February 6, 2019, OWCP denied modification of the August 29, 2018
decision.
OWCP subsequently received a March 19, 2019 report from Dr. Brenner who examined
appellant and noted active problems of right shoulder pain, left shoulder pain, rotator cuff
tendinitis, and left shoulder sprain and diagnosed localized osteoarthrosis of the left shoulder.
Dr. Brenner opined that appellant’s lifting of mail and tubs weighing 30 pounds or more was the
probable cause of his anterior shoulder pain due to the strain of his rotator cuff.
On May 1, 2019 appellant requested reconsideration.
In a letter dated April 2, 2019, Dr. Brenner noted that appellant experienced continued pain
in his left shoulder. He again opined that appellant’s lifting of mail and tubs weighing 30 pounds
or more was the probable cause of his anterior shoulder pain due to the strain of his rotator cuff.
Dr. Brenner indicated that if appellant’s pain persisted, surgical reconstruction of his rotator cuff
would be recommended.
By decision dated November 8, 2019, OWCP modified the February 6, 2019 decision,
finding that the newly submitted medical evidence established that appellant sustained a left
shoulder rotator cuff strain. It noted, however, that appellant’s claim remained denied for rotator
3

cuff tear, degenerative joint disease, rotator cuff dysfunction, AC joint dysfunction, osteoarthrosis,
rotator cuff tendinitis, and right shoulder sprain. By decision of even date, OWCP accepted
appellant’s claim for left shoulder rotator cuff strain.
OWCP subsequently received an April 2, 2019 report from Dr. Brenner who examined
appellant and diagnosed left shoulder sprain.
In a December 10, 2019 report, Dr. Brenner examined appellant and diagnosed nontraumatic incomplete tear of the left rotator cuff and left shoulder osteoarthrosis.
Dr. Brenner noted in a December 11, 2019 preoperative report that appellant experienced
neck and left shoulder pain after lifting mail and containers weighing 30 pounds. He indicated
that appellant’s pain had persisted and recommended arthroscopic rotator cuff reconstruction.
Dr. Brenner provided physical examination findings and diagnosed left shoulder rotator cuff tear
with AC joint dysfunction.
On March 26, 2020 appellant requested reconsideration and asserted that the medical
evidence of record established that he had a left shoulder rotator cuff tear. He resubmitted a
May 31, 2018 MRI scan of his left shoulder, a July 9, 2018 report from Dr. Brenner, and an April 2,
2019 letter from Dr. Brenner.
By decision dated April 16, 2020, OWCP denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128 (a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation, at any time, on his or her own motion or on application.4
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

4

5 U.S.C. § 8128(a); see J.T., Docket No. 19-1829 (issued August 21, 2020); W.C., 59 ECAB 372 (2008).

5
20 C.F.R. § 10.606(b)(3); see J.V., Docket No. 19-0990 (issued August 26, 2020); C.N., Docket No. 08-1569
(issued December 9, 2008).
6

Id. at § 10.607(a); see M.M., Docket No. 20-0523 (issued August 25, 2020). The one-year period begins on the
next day after the date of the original contested decision. For merit decisions issued on or after August 29, 2011, a
request for reconsideration must be received by OWCP within one year of OWCP’s decision for which review is
sought. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (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.

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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 filed a timely request for reconsideration on March 26, 2020. In support of his
request, he argued that the medical evidence of record established that he sustained a left shoulder
rotator cuff tear. The Board finds that this argument does not show that OWCP erroneously
applied or interpreted a specific point of law, nor does it 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).9
The Board further finds that appellant did not submit relevant and pertinent new evidence
in support of his reconsideration request under 20 C.F.R. § 10.606(b)(3). The underlying issue on
reconsideration is whether appellant’s diagnosed left shoulder rotator cuff tear is causally related
to the accepted factors of his federal employment. This is a medical issue which is addressed by
relevant medical evidence not previously considered.10
With his request for reconsideration, appellant resubmitted a May 31, 2018 MRI scan of
his left shoulder, a July 9, 2018 report from Dr. Brenner, and an April 2, 2019 letter from
Dr. Brenner. Providing additional medical evidence that either duplicates or is substantially
similar to evidence of record does not constitute a basis for reopening a case.11 Appellant also
submitted April 2, December 10 and 11, 2019 reports from Dr. Brenner who provided physical
examination findings and diagnosed left shoulder rotator cuff tear with AC joint dysfunction.
However, Dr. Brenner’s reports failed to address causal relationship and are, therefore, irrelevant
to the underlying issue in this case.12 The Board has held that the submission of evidence that does
not address the particular issue involved does not constitute a basis for reopening a case.13 As
such, appellant is not entitled to further review of the merits of his claim based on the third abovenoted requirement under 20 C.F.R. § 10.606(b)(3).14

7

Id. at § 10.608(a); see M.M., Docket No. 20-0574 (issued August 19, 2020); M.S., 59 ECAB 231 (2007).

8

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

9

Supra note 5.

10

Y.L., Docket No. 20-1025 (issued November 25, 2020).

11

See B.S., Docket No. 20-0927 (issued January 29, 2021); Eugene F. Butler, 36 ECAB 393, 398 (1984).

12

See Y.L., supra note 10.

13

See T.T., Docket No. 19-0319 (issued October 26, 2020); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M.
Nixon-Steward, 52 ECB 140 (2000).
14

Supra note 5.

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The Board, therefore, finds that OWCP properly determined that appellant was not entitled
to further review of the merits of his claim pursuant to 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.15
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 16, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 2, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

15
See C.M., Docket No. 19-1610 (issued October 27, 2020); A.K., Docket No. 09-2032 (issued August 3, 2010);
M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet
at least one of the three requirements enumerated under section 10.606(b), OWCP will deny the request for
reconsideration without reopening the case for a review on the merits).

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

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

Docket No. 17-0065
Issued: March 28, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 19, 2016 appellant filed a timely appeal from a September 6, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty on July 12, 2016.

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2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 6, 2016 decision, OWCP received additional evidence.
However, the Board may only review evidence that was in the record at the time OWCP issued its final decision.
See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008);
G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

FACTUAL HISTORY
On July 14, 2016 appellant, then a 34-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on July 12, 2016 she sustained a lower back strain due to a motor
vehicle accident which occurred while she was on her way to lunch.
In support of her claim appellant submitted a copy of the Houston Police Department
Accident Information report, which was illegible. She also submitted medical evidence.
A July 12, 2016 Memorial Hermann Emergency Department report noted that appellant
had been involved in a motor vehicle accident with no apparent injury. The report noted that
appellant was pregnant and was instructed to see her treating physician for a follow-up visit.
In a July 13, 2016 school/work status report, Dr. Jarrod Drab, Board-certified in
osteopathic medicine, diagnosed a lumbar strain and released appellant to work with restrictions
effective July 18, 2016.
On July 15, 2016 Dr. David P. Gonzalez, a family practitioner, noted that appellant was
pregnant, had been involved in a motor vehicle accident while on her way to lunch, and had
injured her lower back. Appellant’s physical examination revealed decreased lumbar range of
motion and lower extremity tingling and numbness. He diagnosed lower back and pelvic
contusions and low back strain. Dr. Gonzalez indicated that appellant was capable of performing
restricted work.
In a July 22, 2016 Texas Workers’ Compensation form, Dr. Frank J. Kromelis, a treating
Board-certified internist, reported that on July 12, 2016 appellant had been involved in a motor
vehicle accident while on her way to lunch. He indicated that appellant was capable of working
with restrictions, which were provided.
In a letter dated August 3, 2016, OWCP noted the evidence submitted and informed
appellant that the evidence was insufficient to establish that she had been in the performance of
duty at the time of the July 12, 2016 incident or that she had established a medical condition. It
also advised her that the Houston police report was illegible. OWCP requested that appellant
complete an attached questionnaire. Appellant was afforded 30 days to provide the requested
evidence.
On August 8, 2016 OWCP received a July 22, 2016 report from Dr. Kromelis. Dr.
Kromelis noted that appellant was pregnant and that she had injured her lower back in a motor
vehicle accident while on her way to lunch. Appellant’s complaints included continuing back
pain. Dr. Kromelis found no change from the July 15, 2016 examination findings. He diagnosed
lower back and pelvic contusions and low back strain. Dr. Kromelis opined that appellant was
capable of performing restricted work.
By decision dated September 6, 2016, OWCP denied appellant’s claim. It found that she
had failed to establish that she had been in the performance of duty at the time of the July 12,
2016 motor vehicle accident. OWCP explained that appellant had failed to complete the
questionnaire and had failed to provide any witness statements.

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LEGAL PRECEDENT
FECA provides for the payment of compensation for the disability or death of an
employee resulting from a personal injury sustained while in the performance of duty.3 The
phrase sustained while in the performance of duty has been interpreted by the Board to be the
equivalent of the commonly found requisite in workers’ compensation law of arising out of and
in the course of employment. In the course of employment deals with the work setting, locale,
and time of injury, whereas, arising out of the employment encompasses not only the work
setting, but also the requirement that an employment factor caused the injury.4
To occur in the course of employment, in general, an injury must occur: (1) at a time
when the employee may reasonably be said to be engaged in his master’s business; (2) at a place
where she may reasonably be expected to be in connection with the employment; and (3) while
she was reasonably fulfilling the duties of her employment or engaged in doing something
incidental thereto.5
In determining whether an injury occurs in a place where the employee may reasonably
be or constitutes a deviation from the course of employment, the Board will focus on the nature
of the activity in which the employee was engaged and whether it is reasonably incidental to the
employee’s work assignment or represented such a departure from the work assignment that the
employee becomes engaged in personal activities unrelated to his or her employment.6
Once an employee establishes that he or she sustained an injury in the performance of
duty, he or she has the burden of proof to establish that any subsequent medical condition or
disability for work, for which he or she claims compensation, is causally related to the accepted
injury.7
ANALYSIS
The Board finds that appellant has not established that the motor vehicle accident on
July 12, 2016 occurred while she was in the performance of her federal employment.
It is the employee’s burden of proof to submit sufficient evidence necessary for OWCP to
make a determination as to whether she was in the course of federal employment at the time of
the incident.8

3

5 U.S.C. § 8102(a). See also P.S., Docket No. 08-2216 (issued September 25, 2009).

4

A.K., Docket No. 09-2032 (issued August 3, 2010); C.O., Docket No. 09-217 (issued October 21, 2009).

5

T.F., Docket No. 08-1256 (issued November 12, 2008); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

6

See T.C., Docket NO. 16-1070 (January 24, 2017).

7

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

8

T.S., Docket No. 09-2184 (issued June 9, 2010); Ricky A. Paylor, 57 ECAB 568 (2006).

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As an off-premises employee, a letter carrier is most often out on a route when a lunch
period commences.9 The evidence of record must therefore establish that the injury occurred at a
place the employee was expected to be during the lunch break.
Appellant was provided opportunity to establish that her alleged injury occurred in the
performance of duty. In its August 3, 2016 development letter, OWCP informed appellant that
the information initially provided was insufficient to support her claim and that the Houston
Police report was illegible. Appellant was provided a series of questions regarding the factual
circumstances of the alleged incident and advised to provide details which would clarify whether
the July 12, 2016 accident occurred in the performance of duty. She provided no response to the
questions posed.
Other than noting that she had sustained injuries due to being involved in a motor vehicle
accident on July 12, 2016 while on the way to lunch in her Form CA-1, appellant failed to
provide any specific details of where and how the injury occurred so that it could be determined
whether appellant’s injury occurred in the performance of duty. In the absence of such
evidence, OWCP properly found that appellant failed to establish an injury in the performance of
duty.
As appellant has not met her burden of proof to establish performance of duty, it is not
necessary to discuss the probative value of the medical reports.10
On appeal appellant provided a brief description of her claim and requested further
investigation of her claim. As noted above, OWCP denied the claim because appellant failed to
provide answers to the questions posed by OWCP or provide a statement or witness statements.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established an injury in the performance of duty on
July 12, 2016, as alleged.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5(a) (August 1992).

10

Tracey P. Spillane, 54 ECAB 608 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 6, 2016 is affirmed.
Issued: March 28, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 14-962
Issued: August 15, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 17, 2014 appellant, through her representative, filed a timely appeal from a
January 6, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that modification of
her July 26, 2012 loss of wage-earning capacity determination is warranted.
FACTUAL HISTORY
This case has previously been before the Board.2 On August 14, 2013 the Board affirmed
a January 17, 2013 OWCP decision which reduced appellant’s wage-loss compensation as she
1

5 U.S.C. § 8101 et seq.

2

Docket No. 13-857 (issued August 14, 2013).

had the capacity to earn wages in the constructed position of security surveillance monitor.3 The
facts and findings contained in the Board’s prior decision are incorporated by reference. The
facts germane to the present appeal are set forth.
On October 23, 2013 appellant through her attorney requested reconsideration. Appellant
noted that on September 23, 2013 OWCP accepted additional conditions as work related in a
separate compensation claim, file number xxxxxx187. Under that claim, OWCP accepted
lumbar sprain, degeneration of lumbar or lumbosacral intervertebral disc and facet arthropathy of
the lumbar spine. Appellant asserted that she was unable to perform the duties of the constructed
position of security surveillance monitor due to the newly accepted conditions. She submitted a
copy of the September 20, 3013 letter of acceptance.
In a January 6, 2014 decision, OWCP denied modification of the August 14, 2013
decision finding that appellant failed to establish that the original wage-earning capacity
determination was in error or that she has been trained or vocationally rehabilitated, or that her
accepted condition in file number xxxxxx355 had materially worsened.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.4 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.5 OWCP’s regulations provide that, if OWCP
issues a formal loss of wage-earning capacity determination, including a finding of no loss of
wage-earning capacity, that determination and rate of compensation, if applicable, remains in
place until that determination is modified by OWCP.6 In this instance, the claims examiner will

3

On or before January 7, 2006 appellant, a distribution clerk, sustained injury to her hands. OWCP accepted for
left trigger finger (acquired) and bilateral tenosynovitis in file number xxxxxx355. Appellant worked modified duty
eight hours a day with a lifting restriction. In a July 7, 2010 work capacity evaluation, Dr. Juon-Kin K. Fong, a
Board-certified orthopedic surgeon and OWCP referral physician, advised that appellant could work full time within
certain restrictions. A November 10, 2010 functional capacity evaluation (FCE) showed that she could perform
light duty for eight hours a day within restrictions. On November 17, 2010 appellant was referred for vocational
rehabilitation services and completed vocational testing on December 3, 2010. On January 10, 2011 Dr. Fong
agreed with the FCE results and reiterated that appellant could work full time, light duty. In October 2011, a
vocational rehabilitation counselor identified positions that included security surveillance monitor as within
appellant’s physical limitations. She advised that the position was reasonably available in the local labor market and
noted its wage level. On November 10, 2011 appellant completed a one-day training class at The Loss Prevention
Group on the power to arrest, weapons of mass destruction and terrorism awareness. Appellant participated in 90
days of placement services but was not offered a job. In a July 26, 2012 decision, OWCP reduced appellant’s wageloss compensation effective July 29, 2012 based on her capacity to earn wages as a security surveillance monitor.
4

D.M., 59 ECAB 164 (2007).

5

Katherine T. Kreger, 55 ECAB 633 (2004); see Robert H. Merritt, 11 ECAB 64 (1959).

6

20 C.F.R. § 10.511. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of WageEarning Capacity Decisions, Chapter 2.1501.2(a) (June 2013).

2

need to evaluate the request to determine whether one of the three criteria for modification has
been met.7
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original rating was in error.8 The burden of proof is on the party attempting
to show a modification of the wage-earning capacity determination.9
ANALYSIS
OWCP accepted left trigger finger (acquired) and bilateral tenosynovitis. Appellant
worked modified duty eight hours a day with a lifting restriction of four pounds. By decision
dated July 26, 2012, OWCP reduced her wage-loss compensation effective July 29, 2012 based
on her capacity to earn wages as a security surveillance monitor. The question is whether
appellant established that the July 26, 2012 wage-earning capacity decision should be modified.
After OWCP found that appellant could perform the duties of a security surveillance
monitor, the pertinent medical issue is whether there had been any change in her condition that
would render her unable to perform those duties.10 For a physician’s opinion to be relevant on
this issue, the physician must address the duties of the constructed position.11 Appellant did not
submit any medical evidence. Rather, she submitted an OWCP acceptance of additional
conditions under a separate compensation claim, file number xxxxxx187. This evidence
submitted after the loss of wage-earning capacity determination, pertaining to a separate claim,
does not address why appellant could not perform the duties of the position of a security
surveillance monitor.
Appellant did not allege that the original wage-earning capacity determination was
erroneous or that she had been retrained or otherwise vocationally rehabilitated. She has
contended that based upon the newly accepted conditions in an unrelated claim, she was not able
to perform the duties of security surveillance monitor. The record does not contain medical
evidence establishing that appellant’s accepted work-related conditions, left trigger finger and
bilateral tenosynovitis, materially changed or that she was now unable to perform the security
surveillance monitor duties. Appellant’s contentions do not meet the criteria for modifying a
formal loss of wage-earning capacity determination. The evidence does not establish that her
accepted work-related medical condition has materially changed, that the original wage-earning
7

Federal (FECA) Procedure Manual, id., at 2.1501.3. See Harley Sims, Jr., 56 ECAB 320 (2005).

8

See id.; D.M., supra note 4; Stanley B. Plotkin, 51 ECAB 700 (2000); Tamra McCauley, 51 ECAB 375 (2000);
Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).
9

Federal (FECA) Procedure Manual, id., at 2.1501.4 (June 2013). See Jack E. Rohrabaugh, 38 ECAB 186,
190 (1986).
10

Phillip S. Deering, 47 ECAB 692 (1996).

11

Id.

3

capacity determination was in error or that she had been retrained or otherwise vocationally
rehabilitated.
For these reasons, appellant has not established that the July 26, 2012 wage-earning
capacity determination should be modified.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP properly denied modification of the established July 26,
2012 wage-earning capacity determination.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 6, 2014 is affirmed.
Issued: August 15, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 09-635
Issued: January 27, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 2, 2009 appellant filed a timely appeal from an October 31, 2008 decision of
the Office of Workers’ Compensation Programs that denied her claim for compensation and a
November 21, 2008 decision regarding a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant is entitled to disability compensation from
September 1, 2007 to July 3, 2008 causally related to her accepted employment conditions; and
(2) whether she has more than 24 percent permanent impairment of the right upper extremity for
which she received a schedule award.

FACTUAL HISTORY
On August 10, 2001 appellant, then a 40-year-old clerk filed an occupational disease
claim for neck and shoulder pain as a result of lifting, pushing and pulling heavy mail. The
Office accepted a left rotator cuff tear.1
An October 3, 2001 magnetic resonance imaging scan of the left shoulder revealed a
partial tear of the supraspinatus tendon in the middle and distal aspects. Dr. Larry F. Frevert, a
Board-certified orthopedic surgeon, diagnosed left rotator cuff tear, impingement and possible
right rotator cuff tear. On March 13, 2003 he performed a left subacromial decompression,
excision of lateral clavicle open rotator cuff repair. Dr. Frevert noted that appellant experienced
persistent left shoulder pain and noted an arthrogram revealed a recurrent tear which required
arthroscopic repair. On November 16, 2004 he performed a open left rotator cuff repair with
lysis of adhesions and graft jacket patch augmentation and diagnosed recurrent left rotator cuff
tear. On August 3, 2006 Dr. Frevert returned appellant to work full-time, limited duty with
restrictions.
On February 26, 2007 appellant came under the care of Dr. Paul F. Nassab, a Boardcertified orthopedic surgeon, who noted appellant’s history was significant for bilateral carpal
tunnel syndrome with surgical releases and left rotator cuff tear with arthroscopic surgery.
Dr. Nassab diagnosed right shoulder rotator cuff tear, right medial and lateral epicondylitis, right
hand arthritis and multiple left-sided complaints not addressed in his examination. He saw
appellant on October 2, 2007 and recommended right shoulder surgery. In a work status report
dated October 2, 2007, Dr. Nassab diagnosed right rotator cuff tear and advised that appellant
could work at modified duty with right arm restrictions pending surgery. On November 2, 2007
he noted that appellant was undecided about surgery. Dr. Nassab noted that appellant reached
maximum medical improvement with the right rotator cuff tear and provided work restrictions.
On March 27, 2008 he opined that appellant had 15 percent permanent impairment of the right
arm. In an April 29, 2008 report, Dr. Nassab noted that he had not treated appellant since
November 2007 and her condition remained unchanged. Appellant decided to forego right
shoulder surgery and had reached maximum medical improvement.
On March 9, 2007 Dr. John F. Ervins, a Board-certified rheumatologist, diagnosed
ruptured rotator cuff. He opined that appellant had three prior shoulder surgeries and had
residuals of her work injury without further recovery expected.
Appellant had an
electromyogram (EMG) on October 18, 2007, which revealed mild to moderate right median
neuropathy at the wrist consistent with mild to moderate right carpal tunnel syndrome with no
evidence of cervical radiculopathy. On October 18, 2007 Dr. Ann Y. Lee, a Board-certified
neurologist, noted that appellant presented with right shoulder and elbow pain with
radiculopathy. Appellant’s history was significant for bilateral carpal tunnel releases and a left
rotator cuff repair. In an October 18, 2007 work status report, Dr. Lee advised that appellant
could work modified duty with restrictions.
1

Appellant filed the following claims for compensation: File No. xxxxxx306, the Office accepted left trigger
thumb; File No. xxxxxx291, the Office accepted bilateral carpal tunnel syndrome and File No. xxxxxx738, the
Office accepted a right rotator cuff tear. These claims were combined with the current claim before the Board.

2

On September 21 and 25, 2007 the employing establishment offered appellant a job as a
modified mail processor subject to the restrictions from Dr. Frevert on August 3, 2006, with a
tour of duty from 3:00 p.m. to 11:30 p.m. On September 27, 2007 appellant rejected the offer
contending that she should have been offered tour two, a daylight shift.
On April 25, 2008 the Office referred appellant for a second opinion to Dr. Ronald
Zipper, an osteopath and Board-certified orthopedic surgeon, for determination of permanent
impairment based on the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment.2 In a May 15, 2008 report, Dr. Zipper reviewed the
history of appellant’s shoulder conditions and diagnosed full thickness tear of the right rotator
cuff with symptomatic acromioclavicular arthritis, status post left rotator cuff tear with multiple
revision surgeries, status post bilateral carpal tunnel releases with residual right carpal tunnel
syndrome. He found that right shoulder abduction was 154 degrees, adduction was 24 degrees,
internal rotation was 38 degrees, external rotation was 60 degrees, flexion was 148 degrees and
extension was 46. Dr. Zipper noted triceps strength deficit was mild measured at four out of
five. He advised that maximum medical improvement was reached as of that date. Dr. Zipper
opined that appellant had 16 percent right arm impairment based on lost range of motion, 20
percent decrease in strength of the supraspinatus (suprascapular nerve) and 10 percent weakness
of the triceps (upper radial nerve).
On July 13, 2008 an Office medical adviser found that Dr. Zipper did not adequately
explain his impairment rating pursuant to the A.M.A., Guides because he failed to cite to tables
or charts to support his rating.
Appellant submitted several CA-7 forms, claiming compensation for intermittent periods
of partial disability from September 1, 2007 to July 3, 2008. The employer submitted
corresponding time analysis forms, Form Ca-7a. The claim was controverted as were there were
no medical records placing appellant off work and that she had the ability to work limited duty.
On July 17, 2008 the Office requested that appellant submit additional medical evidence
to support total disability from work beginning September 1, 2007. In statements dated July 18
and 21, 2008, appellant advised that she had not received any pay from the employer since 2005
and requested her claims be processed.
On July 19, 2008 the Office requested clarification from Dr. Zipper regarding his
May 15, 2008 impairment rating. On August 5, 2008 Dr. Zipper reviewed the medical adviser’s
comments and opined that the criteria of Table 16-35 of the A.M.A, Guides, was inapplicable in
this case because appellant had multiple co-morbid diagnosis including entrapment neuropathy
and cervical radiculopathy which overlap. He reiterated his May 15, 2008 impairment estimate.
In an August 27, 2008 letter, the Office advised appellant that she would be referred to
another physician for an impairment rating.
On September 10, 2008 appellant filed a claim for a schedule award.

2

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

3

The Office referred appellant to Dr. William O. Hopkins, a Board-certified orthopedic
surgeon, for a determination of permanent impairment in accordance with the A.M.A, Guides.
In a September 24, 2008 report, Dr. Hopkins reviewed the history of appellant’s shoulder
conditions and diagnosed right full thickness rotator cuff tear involving the supraspinatus with
arthritis of the acromioclavicular joint. He noted right shoulder abduction was 68 degrees for 5
percent impairment,3 external rotation was 20 degrees for 10 percent impairment4 and loss of
flexion was 7 percent impairment,5 for 22 percent impairment of the right arm for loss of range
of motion. Dr. Hopkins noted additional impairment for loss of strength on external rotation of
two percent impairment6 and one percent for pain related impairment.7 He recommended 25
percent impairment for the right arm pursuant to the A.M.A., Guides. Dr. Hopkins noted that
appellant reached maximum medical improvement.
On September 30, 2008 the Office requested clarification from Dr. Hopkins requesting
the degrees of lost range of motion for flexion of the right shoulder and a revised impairment
rating if appropriate. In an October 16, 2008 report, Dr. Hopkins noted flexion of the right
shoulder measured 170 degrees for two percent impairment pursuant to the A.M.A., Guides.8
In an October 31, 2008 decision, the Office denied appellant’s claim for compensation
for intermittent partial disability from September 1, 2007 to July 3, 2008. It found that she was
entitled to compensation on October 13, 18 and November 2, 2007 and March 27, 2008. The
Office noted that Dr. Frevert returned appellant to work full-time limited duty effective
August 3, 2006.
On November 8, 2008 an Office medical adviser reviewed the reports from Dr. Hopkins.
Based on the A.M.A., Guides, appellant had nine percent impairment of the right arm. The
medical adviser noted right shoulder abduction was 68 degrees for five percent impairment,9
adduction was 50 degrees for zero percent impairment,10 internal rotation was 100 degrees for
zero percent impairment,11 external rotation was 20 degrees for a one percent impairment,12
extension was 51 degrees for a zero percent impairment13 and flexion was 170 degrees for a one
3

Id. at 477, Figure 16-43.

4

Id. at 479, Figure 16-46.

5

Id. at 476, Figure 16-40.

6

Id. at 510, Table 16-35.

7

Id. at 574, Figure 18-1.

8

Id. at 475, Table 16-39.

9

Id. at 477, Figure 16-43.

10

Id.

11

Id. at 479, Figure 16-46.

12

Id.

13

Id. at 476, Figure 16-40.

4

percent impairment.14 He noted additional impairment for loss of strength on external rotation
would be two percent impairment.15 The medical adviser noted that Dr. Hopkins erroneously
attributed pain-related impairment under Chapter 18 without any supporting information as
required under the A.M.A., Guides. Using the Combined Values Chart on page 604 of the
A.M.A., Guides, appellant had nine percent impairment of the right upper extremity.
On November 13, 2008 the Office informed the medical adviser that appellant previously
received a schedule award for 16 percent impairment of the right upper extremity for workrelated carpal tunnel syndrome and requested that he address whether the prior award would
effect his final impairment determination. On November 14, 2008 the medical adviser opined
that based on the Combined Values Chart, appellant had a total 24 percent impairment of the
right upper extremity.
In a decision dated November 21, 2008, the Office granted appellant a schedule award for
24 percent permanent impairment of the right upper extremity. As appellant previously received
an award for 16 percent impairment to the right arm for her accepted carpal tunnel syndrome in
File No. xxxxxx291, she was entitled to an additional 8 percent impairment. The award ran from
August 27, 2006 to February 17, 2007.
LEGAL PRECEDENT -- ISSUE 1
A claimant has the burden of proving by a preponderance of the evidence that he or she is
disabled for work as a result of an accepted employment injury and submit medical evidence for
each period of disability claimed.16 Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues.17 The issue of
whether a particular injury causes disability for work must be resolved by competent medical
evidence.18
The Board will not require the Office to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation. For each period of disability claimed, the employee has the burden
of establishing that he or she was disabled for work as a result of the accepted employment
injury.19

14

Id.

15

Id. at 510, Table 16-35.

16

See Fereidoon Kharabi, 52 ECAB 291 (2001).

17

Id.

18

See Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

19

Sandra D. Pruitt, 57 ECAB 126 (2005).

5

ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for left rotator cuff tear, left trigger thumb,
bilateral carpal tunnel syndrome and right rotator cuff tear. It found that she was partially
disabled on October 13, October 18 and November 2, 2007 and March 27, 2008. The record
supports that appellant had an appointment with Dr. Nassab on October 13, 2007 and used 2.83
hours of leave without pay and on November 2, 2007 and March 27, 2008 used 8 hours of leave
without pay each day for treatment of her work-related injuries. The record further supports that
on October 18, 2007, appellant underwent an EMG and was evaluated by Dr. Lee for her work
injury and used eight hours leave without pay. For this reason, appellant received compensation
for these days. She was advised to submit additional medical evidence to support other dates of
disability for work.
The medical evidence submitted in support of wage-loss for intermittent disability from
September 1, 2007 to July 3, 2008 is insufficient to establish that appellant was totally disabled
due to the accepted conditions. The record indicates that the employing establishment made
available appropriate modified-duty work.
On March 9, 2007 Dr. Ervins diagnosed ruptured rotator cuff and noted that appellant
was status post three shoulder surgeries and had residuals of the work injury. However, this
report predates the period of wage loss claimed and the physician did not otherwise address
disability due to the accepted conditions.
On October 2 and November 2, 2007 Dr. Nassab diagnosed right rotator cuff tear but
found that appellant could work modified duty with restrictions on her right arm pending
surgery. He noted that she reached maximum medical improvement. However, Dr. Nassab did
not find her disabled due to residuals of her accepted condition. In reports dated March 27 and
April 29, 2008, he stated that appellant’s condition was unchanged. Dr. Nassab provided a
disability rating and noted appellant was released from his care. These reports reiterated that she
could work full time within restrictions. Dr. Nassab did not support that her accepted left rotator
cuff tear, left trigger thumb, bilateral carpal tunnel syndrome or right rotator cuff tear precluded
her from working full-time modified duty on any particular date during the claimed period.
These reports are insufficient to establish that appellant sustained compensable wage loss.
On October 18, 2007 Dr. Lee noted that appellant presented with right shoulder and
elbow pain with radiculopathy. She advised that appellant could work full-time modified duty
within restrictions. The reports of Dr. Lee do not support work-related disability for any dates
from September 1, 2007 to July 3, 2008. Therefore, this evidence is insufficient to discharge
appellant’s burden of proof.
The Board finds that there is insufficient probative medical evidence to establish
appellant’s claim of intermittent disability beginning September 1, 2007. Consequently,
appellant is not entitled to wage-loss compensation.

6

LEGAL PRECEDENT -- ISSUE 2
The schedule award provision of the Federal Employees’ Compensation Act20 and its
implementing regulations21 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, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.
ANALYSIS -- ISSUE 2
The Office accepted appellant’s claim for sprain of the left rotator cuff tear, left trigger
thumb, bilateral carpal tunnel syndrome and right rotator cuff tear. It authorized arthroscopic
surgery on the left shoulder which was performed on March 13, 2003 and November 16, 2004.
The Board finds that appellant has no more than 24 percent permanent impairment of the right
upper extremity.
The Office referred appellant to Dr. William O. Hopkins, a Board-certified orthopedic
surgeon, for a determination of permanent impairment under the A.M.A., Guides.22 In a
September 24, 2008 report, Dr. Hopkins reviewed the records provided to him and set forth
findings on examination. He diagnosed right full thickness rotator cuff tear involving the
supraspinatus with arthritis of the acromioclavicular joint. The Board notes that Dr. Hopkins
incorrectly found that external rotation of 20 degrees constituted 10 percent impairment. The
A.M.A., Guides provide one percent impairment for 20 degrees of external rotation.23
Dr. Hopkins further noted that flexion was 170 degrees for seven percent impairment; however,
the A.M.A., Guides provide one percent impairment for 170 degrees of flexion.24 The Board
notes that Dr. Hopkins properly found that appellant had five percent impairment for a range of
motion deficit for abduction measured at 68 degrees.25

20

5 U.S.C. § 8107.

21

20 C.F.R. § 10.404.

22

The Board notes that, after the Office initially referred appellant for a second opinion with Dr. Zipper, it
requested a supplemental report from Dr. Zipper who issued an August 5, 2008 report but did not adequately address
the discrepancy in his impairment rating. The Office acted properly in referring appellant for another opinion. See
Ayanle A. Hashi, 56 ECAB 234 (2004) (when the Office refers a claimant for a second opinion evaluation and the
report does not adequately address the relevant issues, the Office should secure an appropriate report on the relevant
issues).
23

Id. at 479, Figure 16-46.

24

Id. at 476, Figure 16-40.

25

Id. at 477, Figure 16-43.

7

Dr. Hopkins noted additional impairment for loss of strength for external rotation for two
percent impairment and the medical adviser concurred in this finding.26 However, the Board
notes that section 16.8, page 508 of the A.M.A., Guides, specifically states that decreased
strength cannot be rated in the presence of decreased motion.27 Therefore, impairment
attributable for decreased strength under section 16.8 cannot be combined with impairment for
decreased motion. Dr. Hopkins also rated pain under Chapter 18 of the A.M.A., Guides. The
medical adviser properly noted, however, that Chapter 18 may not be utilized to rate pain-related
impairments for any condition that can be adequately rated on the basis of the body and organ
impairment systems given in other chapters of the A.M.A., Guides.28
The Office medical adviser properly applied the A.M.A., Guides to the findings in
Dr. Hopkin’s report. Based on the A.M.A., Guides, appellant had five percent impairment for
the range of motion deficit for abduction of 68 degrees,29 zero percent impairment for range of
motion deficit for adduction of 50 degrees,30 zero percent impairment for the range of motion
deficit for internal rotation of 100 degrees,31 one percent impairment for the range of motion
deficit for external rotation of 20 degrees,32 zero percent impairment for the range of motion
deficit for extension measured at 51 degrees33 and one percent impairment for the range of
motion deficit for flexion measured at 170 degrees,34 seven percent impairment for loss of range
of motion to the right shoulder. The medical adviser noted in a November 14, 2008 report that
appellant was previously granted a 16 percent schedule award for the accepted carpal tunnel
syndrome in File No. xxxxxx291. Using the Combined Values Chart on page 604 of the
A.M.A., Guides, the revised rating is 22 percent permanent impairment of the right upper
extremity.
As the Office has issued schedule awards totaling 24 percent permanent impairment of
the right upper extremity, the Board finds that the medical evidence does not establish greater
impairment pursuant to the A.M.A., Guides.
CONCLUSION
The Board finds that appellant has failed to establish that her claimed disability for the
intermittent period of September 1, 2007 to July 3, 2008 is causally related to the accepted
26

Id. at 510, Table 16-35.

27

Id. at 508, section 16.8a.

28

See Linda Beale, 57 ECAB 429 (2006); Frantz Ghassan, 57 ECAB 349 (2006).

29

Id.

30

Id.

31

Id. at 479, Figure 16-46.

32

Id.

33

Id. at 476, Figure 16-40.

34

Id.

8

employment injury. The Board further finds that appellant has no more than 24 percent
permanent impairment of the right upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 21 and October 31, 2008 are affirmed, as modified.
Issued: January 27, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Saint Louis, MO, Employer
__________________________________________

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

Docket No. 16-1585
Issued: August 17, 2017

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 1, 2016 appellant filed a timely appeal from a July 14, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has more than four percent permanent impairment of the
left lower extremity, for which he previously received a schedule award.

1
2

5 U.S.C. § 8101 et seq.

Appellant timely requested an oral argument before the Board. By order dated April 11, 2017, the Board
exercised its discretion and denied appellant’s request for an oral argument, finding that his arguments on appeal
could adequately be addressed in a decision based on a review of the case record. Order Denying Request for Oral
Argument, Docket No. 16-1585 (issued April 11, 2017).

FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as set forth in the
Board’s prior decisions and order are incorporated herein by reference. The relevant facts are as
follows.
On January 31, 2009 appellant, then a 51-year-old customer service supervisor, filed an
occupational disease claim (Form CA-2) alleging that he developed a bulging disc in his lower
back as a result of climbing, walking, and bending while completing route inspections in the
performance of duty. He first became aware of his condition and realized that it resulted from
his federal employment on January 20, 2009. The claim form did not indicate whether appellant
stopped work.
OWCP accepted appellant’s claim for lumbar sprain.
On May 22, 2009 appellant filed a claim for a schedule award (Form CA-7).
In a September 11, 2009 letter, Dr. Randall J. Rogalsky, a Board-certified orthopedic
surgeon, noted that appellant was not at maximum medical improvement (MMI). He provided
examination findings. Dr. Rogalsky opined that according to the fifth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),
appellant’s whole person permanent impairment was approximately 27 percent.
In a January 20, 2010 report, Dr. Neil Ghodadra, a Board-certified orthopedic surgeon
and OWCP medical adviser, reviewed appellant’s claim, including Dr. Rogalsky’s
September 11, 2009 impairment rating. He reported that according to Table 16-2 of the sixth
edition of the A.M.A., Guides, appellant had four percent permanent impairment of the left lower
extremity due to sciatic nerve symptoms. Dr. Ghodadra explained that appellant had zero
percent right lower extremity impairment as appellant’s right leg symptoms were a result of his
right knee medial meniscal tear, which was not accepted as work related by OWCP. He noted
that appellant had reached MMI on September 11, 2009.
On April 20, 2010 OWCP granted four percent permanent impairment of his left lower
extremity. It also determined that he did not have any permanent impairment of his right lower
extremity as a result of his accepted lumbar condition.
On May 3, 2010 appellant requested a telephonic hearing before an OWCP hearing
representative, which was held on August 4, 2010.4 In a decision dated October 20, 2010, the
hearing representative affirmed OWCP’s April 20, 2010 decision and determined that the
medical evidence of record failed to establish that appellant had greater than four percent
permanent impairment of the left lower extremity.
3

Docket No. 11-0198 (issued August 3, 2011); Docket No. 12-1279 (issued November 26, 2012); Docket No. 130600 (issued July 26, 2013).
4

The record reveals that appellant testified that he did not wish to contest the zero percent impairment rating for
his right lower extremity.

2

Appellant filed an appeal with the Board on November 2, 2010. In a decision dated
August 3, 2011, the Board determined that Dr. Ghodadra’s January 20, 2010 medical report was
not well reasoned as he did not apply the appropriate methodology for rating appellant’s left
lower extremity impairment due to his accepted lumbar condition. The Board set aside the
October 20, 2010 decision and remanded the case for further medical development, to be
followed by a de novo decision on the schedule award issue.5
OWCP referred appellant’s claim to Dr. Sanjai Shukla, a Board-certified orthopedic
surgeon and OWCP medical adviser. In a September 4, 2011 report, Dr. Shukla noted his
disagreement with Dr. Rogalsky’s September 11, 2009 report as the impairment was based on
the whole person and utilized the fifth edition of the A.M.A., Guides. He opined that because
appellant had no complaints of radiculopathy, he had zero percent permanent impairment of each
lower extremity. Dr. Shukla noted a date of MMI of September 11, 2009.
In an October 17, 2011 report, Dr. William R. Bartley, a Board-certified orthopedic
surgeon, noted appellant’s continued complaints of low back pain with bilateral radiculopathy.
He related that an October 14, 2011 nerve conduction velocity (NCV) study was abnormal and
consistent with left L5-S1 radiculopathy. Dr. Bartley provided physical examination findings.
He referenced various tables in the fifth edition of the A.M.A., Guides, July/August 2009 The
Guides Newsletter and concluded that appellant had a “disability” impairment rating of 27
percent.
Dr. Shukla reviewed Dr. Bartley’s October 17, 2011 impairment rating and in a
February 19, 2012 report noted that appellant’s symptoms of right-sided radiculopathy were
inconsistent with appellant’s accepted condition of lumbar sprain. He opined that it was most
likely due to a new injury. Regarding appellant’s left leg radiculopathy, Dr. Shukla referenced
Table 16-12, page 535 of the A.M.A., Guides, and assigned a class 1 diagnosis for four percent
permanent impairment. He reported grade modifiers of one for walking with a slight limp, one
for physical examination, and one for clinical studies. After utilizing the net adjustment formula,
Dr. Shukla indicated that appellant had four percent permanent impairment of the left lower
extremity. He noted a date of MMI of October 17, 2011.
In a de novo decision dated May 3, 2012, OWCP granted four percent permanent
impairment of the left lower extremity and zero percent permanent impairment of the right lower
extremity. The date of MMI was found to be October 17, 2011.
On May 24, 2012 appellant again appealed to the Board.6 In an Order Remanding Case
dated November 26, 2012, the Board found that Dr. Shukla’s September 4, 2011 report was
insufficiently rationalized because he did not properly utilize the July/August 2009 edition of
The Guides Newsletter for rating spinal nerve extremity impairments pursuant to the sixth edition
of the A.M.A., Guides. The Board remanded the case for further development, to be followed by
a de novo decision.”

5

Docket No. 11-0198 (issued August 3, 2011).

6

Docket No. 12-1279 (issued November 26, 2012).

3

OWCP referred appellant’s claim to Dr. Christopher Gross, a Board-certified orthopedic
surgeon and OWCP medical adviser. In a December 24, 2012 report, Dr. Gross related his
disagreement with Dr. Bartley’s impairment rating because he had not used the proper method
for rating radiculopathy pursuant to FECA. He referenced the sixth edition of the A.M.A.,
Guides, and the July/August 2009 edition of The Guides Newsletter, Proposed Table 2 and
concluded that appellant had zero percent permanent impairment of each lower extremity.
Dr. Gross noted an MMI date of September 11, 2009.
In a decision dated January 9, 2013, OWCP found that appellant was not entitled to an
additional schedule award greater than the four percent permanent impairment previously
awarded for his left lower extremity. It found that the weight of the medical evidence rested with
Dr. Gross’ December 24, 2012 report.
On January 17, 2013 appellant filed another appeal with the Board. By decision dated
July 26, 2013, the Board determined that Dr. Gross’ December 24, 2012 report was not well
rationalized because it was not based on a complete and accurate factual history. The Board
pointed out that Dr. Gross reported that Dr. Bartley had not mentioned any sensory or motor
deficits and that generally radicular pain is not a sign of sensory impairment. However, the
Board found that, although Dr. Bartley specifically mentioned that appellant’s October 14, 2011
nerve conduction velocity study (NCV) was abnormal and that the “F” wave abnormality on the
left was indicative of L5-S1 radiculopathy, Dr. Gross did not address these results. The Board
remanded the case for further medical development and a de novo decision on appellant’s
schedule award claim.7
OWCP referred appellant’s case, along with the record, back to Dr. Gross to determine
whether appellant had a ratable impairment of the right lower extremity and greater than four
percent permanent impairment of the left lower extremity pursuant to the sixth edition of the
A.M.A., Guides and the July/August 2009 edition of The Guides Newsletter.
In a September 2, 2013 report, Dr. Gross reviewed appellant’s claim and noted the
accepted condition of lumbar sprain. He related that he disagreed with Dr. Bartley’s October 17,
2011 impairment rating because it was based on lumbar and hip range of motion, which was not
the proper methodology to determine an impairment rating for radiculopathy according to FECA.
Dr. Gross noted that Dr. Bartley’s report did not discuss appellant’s objective findings such as
motor strength and sensory loss. He explained that in order to make a final determination
regarding appellant’s permanent impairment of the bilateral lower extremities, he needed the
latest report of the “treating surgeon,” Dr. Rogalsky, which contained appellant’s motor or
sensory examination. Dr. Gross added that there was no evidence to support an impairment of
the right lower extremity.
On September 10, 2013 OWCP forwarded Dr. Gross appellant’s medical record,
including Dr. Rogalsky’s September 11, 2009 report, the February 20, 2008 operative report for
appellant’s employment-related back sprain (L5-S1 microdiscectomy), and the NCV results
referenced by Dr. Bartley. It requested a supplemental report regarding the degree of any
7

Docket No. 13-0600 (issued July 26, 2013).

4

permanent impairment of the lower extremities utilizing The Guides Newsletter and the sixth
edition of the A.M.A., Guides.
In a September 14, 2013 report, Dr. Gross related that he had reviewed the record and
referenced the sixth edition of the A.M.A., Guides and the July/August 2009 edition of The
Guides Newsletter in determining the date of MMI and whether there was any permanent
impairment. He indicated that according to Dr. Shukla’s February 19, 2012 report, a
preoperative EMG study showed an L5-S1 radiculopathy. Dr. Gross noted that the EMG report
was not provided. He also related that Dr. Rogalsky indicated in his September 11, 2009 report,
that appellant had no myotomal or dermatomal deficit and, thus, the L5 radiculitis resulted in a
class zero diagnosis with zero percent permanent impairment. Dr. Gross opined that appellant
had no permanent impairment of the bilateral lower extremities. He noted a date of MMI of
September 11, 2009.
By decision dated November 7, 2013, OWCP found that appellant was not entitled to a
schedule award greater than the four percent permanent impairment of the left lower extremity,
for which he previously received a schedule award. It determined that the weight of the medical
evidence rested with Dr. Gross’ September 14, 2013 medical report, which established that
appellant did not have any permanent impairment of the bilateral lower extremities.
On November 14, 2013 appellant requested a review of the written record by an OWCP
hearing representative. By decision dated March 13, 2014, an OWCP hearing representative
found that appellant’s claim was not in posture for decision and vacated the November 7, 2013
decision. She determined that there was no medical evidence of record that diagnosed a lumbar
sprain in connection with his employment, but there was a medical opinion from Dr. Bartley that
attributed appellant’s herniated disc condition to his employment. The hearing representative
remanded the case for OWCP to refer appellant to Dr. Rogalsky to provide a medical opinion on
whether appellant sustained a herniated disc and/or recurrent herniated disc causally related to
his federal employment. She instructed Dr. Rogalsky that, if appellant’s herniated disc condition
was causally related to his employment, he should provide an impairment rating of appellant’s
bilateral lower extremities in accordance with the July/August 2009 edition of The Guides
Newsletter.
By letter dated May 29, 2014, OWCP requested that Dr. Rogalsky provide a rationalized
opinion on whether appellant’s federal employment duties caused or contributed to his herniated
discs prior to the February 2008 surgery and/or to any recurrent herniated disc(s) subsequent to
that surgery. If so, Dr. Rogalsky should further opine whether appellant had additional
permanent impairment of his bilateral lower extremities according to the July/August 2009
edition of The Guides Newsletter. It provided an updated SOAF and description of appellant’s
employment duties. Dr. Rogalsky was afforded 30 days to respond. He did not respond within
the time allotted.
In a decision dated July 16, 2014, OWCP determined that the medical evidence of record
failed to establish that appellant was entitled to an additional schedule award, greater than the
four percent permanent impairment of the left lower extremity, for which he previously received
a schedule award.

5

On July 21, 2014 OWCP received a June 13, 2014 report from Dr. Rogalsky, who related
appellant’s complaints of continued mechanical low back symptoms of stiffness and soreness
and left lower extremity radicular pain. Upon physical examination, Dr. Rogalsky reported
lumbar spasms and 50 percent loss of motion in the lumbar spine, worse on the left. Straight leg
raise testing was positive at 70 degrees with positive Lesague test. Dr. Rogalsky diagnosed
chronic lumbar degeneration/radiculopathy.
On July 25, 2014 appellant requested a review of the written record by an OWCP hearing
representative of the July 16, 2014 decision. In a decision dated July 7, 2015, OWCP’s hearing
representative found that Dr. Rogalsky’s July 23, 2014 report failed to address OWCP’s
questions. He remanded the case to OWCP for further medical development to determine
whether appellant’s federal employment caused or contributed to his herniated disc condition
and, if so, whether appellant had a permanent impairment of the bilateral lower extremities
causally related to the herniated disc condition in accordance with the sixth edition of the
A.M.A., Guides.
On February 20, 2015 OWCP referred appellant, along with an updated SOAF and the
record, to Dr. Richard Katz, Board-certified in physical medicine and rehabilitation, for a second
opinion examination in order to determine whether appellant’s federal employment caused or
contributed to his herniated disc condition prior to the February 20, 2008 surgery, whether a
diagnosis had been established, and whether the diagnosed condition was in any way causally
related to his federal employment. For schedule award purposes, OWCP requested that he
provide a rationalized medical opinion indicating the “permanent functional loss of use of the left
and right lower extremities” in accordance with the A.M.A., Guides and the July/August 2009
edition of The Guides Newsletter. It also requested him to provide the date of MMI.
In a March 26, 2015 report, Dr. Katz provided a detailed account of appellant’s history
and noted that his claim was accepted for lumbar sprain. He indicated that a January 30, 2008
lumbar spine magnetic resonance imaging (MRI) examination showed L5-S1 concentric disc
bulge and large broad-based disc herniation and bilateral foraminal stenosis. Dr. Katz related
appellant’s complaints of ongoing low back pain and left lower extremity radicular pain. Upon
physical examination of appellant’s lumbar spine, he observed superficial palpation lateral to the
spine or axial compression and normal range of motion. Dr. Katz reported that muscle strength
was normal. Straight leg raise testing, Thomas test, and femoral stretch tests were negative.
Dr. Katz indicated that sensory examination was notable for slight numbness/tingling in the left
lateral three toes. He reported that chart review, history, and physical examination were
consistent with largely resolved left lumbar S1 radiculopathy, mild residual reflux change, low
back pain, and left-sided foot numbness. Dr. Katz diagnosed lumbar radiculopathy.
In response to OWCP’s questions, Dr. Katz opined that appellant’s federal employment
did not cause or contribute to appellant’s herniated disc. He explained that appellant’s lumbar
pathology was a chronic degenerative process which was not work related. Dr. Katz noted that
the evidence showed that the degenerative changes in appellant’s spine and discs were hereditary
and age related, not work related, and referenced various published medical articles, as well as
medical textbooks supporting his opinion. He reported that he was not providing an impairment
rating in accordance with the sixth edition of the A.M.A., Guides as he did not feel that
appellant’s herniated disc condition was causally related to his employment.

6

In a decision dated May 7, 2015, OWCP found that appellant was not entitled to more
than the four percent permanent impairment of the left lower extremity. It determined that the
weight of medical opinion rested with Dr. Katz who concluded in his March 26, 2015 report that
he did not need to provide an impairment rating because appellant’s lumbar disc herniation was
not causally related to his employment.
On May 21, 2015 appellant requested a review of the written record by an OWCP hearing
representative. He asserted that Dr. Katz conducted his second opinion evaluation as if appellant
sustained a traumatic injury, not an occupational disease that had occurred over a lengthy period
of time. Appellant alleged that Dr. Katz knew there was a problem with his back, but chose not
to evaluate appellant based on the information given to him by OWCP, and instead, cited
appellant’s age as the cause of appellant’s lumbar disc herniation.
By decision dated October 30, 2015, an OWCP hearing representative found that the
weight of medical opinion rested with Dr. Katz’ March 26, 2015 report and found no workrelated permanent impairment. Therefore, she affirmed OWCP’s May 7, 2015 decision.
On April 14, 2016 appellant requested reconsideration. He related that he had worked for
the employing establishment for over 30 years and had sustained a few injuries during his career.
Appellant alleged that he felt discriminated against because Dr. Katz suggested his injury was
age related. He stated that he started work at 23 years of age and asserted that the wear and tear
on a person could cause injury.
Appellant resubmitted various progress notes dated January 24, 2014 to October 27, 2015
from Dr. Thomas B. Brummett, a Board-certified anesthesiologist, regarding treatment for his
low back pain. In an October 27, 2015 note, Dr. Brummett related that appellant was doing well
with his current pain medication regimen. Upon physical examination of appellant’s lumbar
spine, he observed normal curvature of the spine and no spine tenderness, no paraspinal spasm,
no facet tenderness, and no tenderness on the sacroiliac (SI) joints. Dr. Brummett reported
normal range of motion. Sensory examination was normal to light touch/deep pressure.
Dr. Brummett diagnosed lumbar stenosis, lumbar post-laminectomy syndrome, lumbosacral
neuritis, and chronic pain syndrome.
By decision dated July 14, 2016, OWCP denied modification of the October 30, 2015
decision. It found that the medical evidence of record failed to establish that appellant was
entitled to an additional schedule award greater than the four percent permanent impairment of
the left lower extremity, for which he was previously granted a schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The

7

A.M.A., Guides has been adopted by OWCP as a standard for evaluation of schedule losses and
the Board has concurred in such adoption.8 For schedule awards after May 1, 2009, the
impairment is evaluated under the sixth edition of the A.M.A., Guides, published in 2009.9
Neither FECA nor its regulations provide for a schedule award for impairment to the
back or to the body as a whole.10 Furthermore, the back is specifically excluded from the
definition of organ under FECA.11 For peripheral nerve impairments to the upper or lower
extremities resulting from spinal injuries, OWCP procedures indicate that the July/August 2009
edition of The Guides Newsletter “Rating Spinal Nerve Impairment Using the Sixth Edition” is
to be applied for rating spinal nerve impairments consistent with sixth edition methodology.12
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the responsibility to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. It has the obligation to see that
justice is done.14 Accordingly, once OWCP undertakes to develop the medical evidence further,
it has the responsibility to do so in the proper manner.15
13

ANALYSIS
OWCP accepted appellant’s claim for lumbar sprain and granted appellant a schedule
award for four percent permanent impairment of his left lower extremity. On July 14, 2016 it
denied modification of its hearing representative’s October 30, 2015 decision, which found that
the medical evidence of record failed to establish that appellant was entitled to an additional
schedule award greater than the four percent permanent impairment of the left lower extremity,
for which he previously received a schedule award. OWCP found that the weight of medical
opinion rested with the March 26, 2015 report of Dr. Katz, the second opinion examiner, who
determined that appellant had not sustained a herniated disc condition as a result of his federal
employment and, accordingly, did not provide any impairment rating.
The Board finds that this case is not in posture for decision. OWCP referred appellant’s
claim to Dr. Katz for a second opinion examination to determine whether appellant’s federal
employment caused or contributed to his herniated disc condition and, if so, whether he sustained
8

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

9

Federal (FECA) Procedure Manual, Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700.2 and Exhibit 1 (January 2010); Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013).
10

See N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).

11

See 5 U.S.C. § 8101(19); Francesco C. Veneziani, 48 ECAB 572 (1997).

12

Supra note 9 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.

13

See Vanessa Young, 55 ECAB 575 (2004).

14

See Richard E. Simpson, 55 ECAB 490 (2004).

15

See R.M., Docket No. 16-0147 (issued June 17, 2016); Melvin James, 55 ECAB 406 (2004).

8

a ratable permanent impairment of his bilateral lower extremities due to his herniated disc
condition in accordance with the sixth edition of the A.M.A., Guides and The Guides Newsletter
July/August 2009 edition. In a March 26, 2015 report, Dr. Katz reviewed appellant’s claim and
provided examination findings. He indicated that sensory examination was notable for slight
numbness/tingling in the left lateral three toes. Dr. Katz reported that chart review, history, and
physical examination were consistent with largely resolved left lumbar S1 radiculopathy, mild
residual reflux change, low back pain, and left-sided foot numbness. He diagnosed lumbar
radiculopathy. In response to OWCP’s questions, Dr. Katz opined that appellant’s federal
employment did not cause or contribute to appellant’s herniated disc, but resulted from a chronic
degenerative process which was hereditary and age related. He reported that he was not
providing an impairment rating in accordance with the sixth edition of the A.M.A., Guides
because appellant’s herniated disc condition was not causally related to his employment.
The Board finds that, while Dr. Katz responded to OWCP’s questions regarding the
etiology of appellant’s herniated disc, it failed to ask him to address whether appellant had any
additional permanent impairment to his left lower extremity as a result of his accepted condition
of lumbar sprain, which was the basis for the initial schedule award and the subject of appellant’s
claim. The Board notes that Dr. Katz acknowledged that appellant had left lumbar S1
radiculopathy, which is a basis for rating spinal nerve impairments consistent with sixth edition
methodology.16 As noted above, once OWCP undertakes to develop the medical evidence
further, it has the responsibility to do so in a manner that will resolve the relevant issues in the
case.17 As OWCP did not request that Dr. Katz address whether appellant had any additional
permanent impairment of appellant’s left lower extremity causally related to his accepted lumbar
sprain and, if so, to provide an impairment rating, his report is insufficient to resolve the
pertinent issue in this case. The case will be remanded for OWCP to obtain a supplemental
report from Dr. Katz for a proper evaluation of any left extremity impairment due to the accepted
lumbar sprain in accordance with the sixth edition of the A.M.A., Guides and the
July/August 2009 edition of The Guides Newsletter. After such further development as OWCP
deems necessary, it shall issue a de novo decision on appellant’s claim for an increased schedule
award.
CONCLUSION
The Board finds that the case is not in posture for decision and is remanded to OWCP for
further development.

16

Supra note 9.

17

Supra note 12.

9

ORDER
IT IS HEREBY ORDERED THAT the July 14, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: August 17, 2017
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

10