United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.K., Appellant
and
U.S. POSTAL SERVICE, SEMINOLE
PROCESSING & DISTRIBUTION CENTER,
Orlando, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1443
Issued: February 2, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 27, 2020 appellant, through counsel, filed a timely appeal from a January 29, 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 January 2, 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.

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 July 11, 2017 appellant, then a 63-year-old manager of maintenance operations support,
filed an occupational disease claim (Form CA-2) alleging he sustained stress-related conditions
due to factors of his federal employment, specifically constant harassment by his supervisors. He
asserted that he first became aware of the relation of his claimed condition to his federal
employment on May 12, 2017 and advised that he stopped work on that date. Appellant asserted
that a delay in submitting medical reports was caused by the fact that he was visiting multiple
doctors in an attempt to obtain documentation. On the reverse side of the form, appellant’s
immediate supervisor, M.D.W., indicated that he did not “necessarily agree” with appellant’s
claim.
In a July 11, 2017 statement, appellant asserted that, for a year, he had been “harassed and
[berated] with the constant threat of dismissal” by his superiors. He alleged that the affected body
parts/functions of his claimed conditions were his brain, his left eye (left-sided sight), and the left
side of his body (including his left arm and leg).
In a July 19, 2017 letter, M.D.W. advised that the employing establishment was
challenging appellant’s emotional condition claim. He maintained that he had encouraged
appellant to perform up to the standards of his supervisory position and to perform the tasks he
had been assigned. M.D.W. asserted that appellant did not take criticism well and continued to do
as he desired rather than as he was instructed to do. He believed that appellant failed to “see the
big picture” and just focused on small tasks and projects. M.D.W. asserted that appellant’s
response in his Form CA-2 demonstrated that he had been “shopping for a doctor.” The case
record contains a description for the manager of maintenance operations support position.
In an August 7, 2017 development letter, OWCP requested that appellant submit additional
evidence in support of his claim, including a physician’s opinion supported by a medical
explanation regarding the cause of his claimed emotional condition. It provided a questionnaire
for his completion, which posed questions regarding his reported employment factors. By letter
of even date, OWCP also requested additional information from the employing establishment. It
afforded both parties 30 days to respond.
Appellant submitted medical reports, dated from May 17 to August 28, 2017, in which
various hospital health care providers evaluated him for a stroke after he reported falling at home
on May 14, 2017. In several of the reports, appellant reported that he had experienced muscle
weakness and vision problems for a few days prior to his fall. In a May 22, 2017 report,
Dr. David A. Henderson, a Board-certified internist, diagnosed: large intra-parenchymal
hematoma centered within the right parieto-occipital lobe region; status post coronary artery
bypass graft with mitral valve repair and aortic valve replacement in 2012; atherosclerotic heart
disease with history of stenting in 2016; essential hypertension; left ventricular hypertrophy;
ischemic cardiomyopathy; mixed hyperlipidemia; and hypokalemia. In a June 1, 2017 report,

2

Dr. Vincent Sciortino, a Board-certified family medicine physician, advised that appellant had
some anxiety and a history of post-traumatic stress disorder. On August 21, 2017 he indicated that
appellant could not work or drive due to his stroke and visual field deficit.
By decision dated October 2, 2017, OWCP denied appellant’s emotional condition claim
because he failed to establish a compensable employment factor. It found that he did not submit
evidence supporting his claims of harassment. OWCP concluded, therefore, that the requirements
had not been met to establish an injury as defined by FECA.
On October 2, 2018 appellant, through counsel, requested reconsideration of the October 2,
2017 decision. In an October 2, 2018 letter, counsel advised that appellant had filed a claim with
the Equal Employment Opportunity Commission (EEOC), but that the claim had been dismissed.
He asserted that, in an affidavit, appellant discussed the harassment to which he was subjected at
work. Counsel maintained that OWCP’s procedures recognized harassment as a compensable
employment factor and noted that appellant had discussed his allegations regarding lack of
management support, improper threats about investigations by the employing establishment’s
Office of Inspector General (OIG), and wrongful denial of wounded warrior leave accompanied
by derogatory statements about veterans. He quoted language from the Board case of Lillian
Cutler, 28 ECAB 125 (1976), which indicated that where an employee experiences emotional
stress in carrying out his employment duties, or has fear and anxiety regarding his ability to carry
out his duties and the medical evidence establishes that the disability resulted from his emotional
reaction to such situation, the disability is generally regarded as due to an injury arising out of and
in the course of the employment.
In an affidavit signed on September 27, 2018, appellant reported that he began working for
the employing establishment in 1996 at a post office in Providence, Rhode Island, and that he
transferred to his current work location in Orlando, Florida, in 2010 or 2011. He alleged that, after
he requested leave under the Wounded Warriors Federal Leave Act on or around May 12, 2017,
M.D.W. wrongly denied his request and said to him, “You disabled veterans think you should have
everything handed to you on a silver platter.”3 Appellant maintained that M.D.W. had been aware
that he sustained post-traumatic stress syndrome due to his military service in Vietnam. He
asserted that, after this leave was denied, M.D.W. advised him that he would be placed in an absent
without leave status if he went home, but that M.D.W. allowed him to leave the workplace after
he informed him that the denial of his leave request violated federal law. Appellant indicated that
he sought treatment in the hospital that evening due to vomiting and high blood pressure. He
claimed that, since he started working in Orlando, he had problems with M.D.W. and M.W., the
plant manager. Appellant asserted that M.W. asked him to write up employees for no reason and
encouraged other employees to write him up for not doing his job, despite the fact he had proven
he was doing his job. He alleged that M.W. told him he was not a team player, gave him excessive
performance reviews (four in one year), and improperly removed him from maintenance duties.
Appellant indicated that M.W.’s secretary spied on him and “bad-mouth[ed]” him, and that a prior
maintenance manager, M.M., was told to fire him. He asserted that, after M.W.’s job was posted,
M.W. asked if he was trying to take his job away. Appellant also alleged that he was wrongly
3

Appellant submitted a copy of a form, signed on March 21, 2017, in which he requested leave under the Wounded
Warriors Federal Leave Act for psychiatric treatment.

3

accused of losing $135,000.00 for the employing establishment because he sent trucks out, which
were not full. He asserted that M.D.W. and M.W. falsely told him that the employing
establishment’s OIG was investigating him over the matter as a means of scaring him.
Appellant submitted notes, some of which bore dates from 2017, in which he discussed
sources of stress at work. He alleged that management subjected him to improper disciplinary
actions, falsely accused him of breaking safety rules, wrongly changed his days off, improperly
assigned work tasks, and blamed him for work problems that were not his fault.
In a February 16, 2017 e-mail, M.D.W. questioned appellant about why he had not
addressed various matters, including the securing of work areas and locking of bins, checkout
procedures for parts/supplies, removal of bad batteries, and disposal of fluorescent tubes. He
maintained that the chaos in appellant’s work unit was due to his disorganization, poor
management, and lack of oversight. On that date appellant responded by e-mail and asserted that
he had insufficient staffing and that management blocked his efforts to resolve problems. In an
April 4, 2017 decision, the EEOC dismissed appellant’s complaint that management discriminated
against him on the basis of age, wrongly accused him of incompetence, and threatened to fire him.
The EEOC found that appellant had not shown that he was aggrieved or specified an employment
harm from the alleged harassment.
In an undated statement, a supervisor, T.S, advised that he first came to know appellant in
an official capacity in July 2014 and noted that, in addition to performing his duties as manager of
maintenance operations support, appellant assisted maintenance managers in day -to-day
operations. He asserted that, as several maintenance managers had come and gone, appellant had
been the person who had been expected to run the maintenance department. T.S. indicated, “This
especially becomes a problem when in between [m]aintenance [m]anagers or when they take
leave.”
By decision dated January 2, 2019, OWCP denied modification of its October 2, 2017
decision.
On January 2, 2020 appellant, through counsel, requested reconsideration of the January 2,
2019 decision. In a January 2, 2020 letter, counsel argued that appellant suffered undue stress
when his leave request as a wounded warrior was denied. He maintained that the stress caused
elevated blood pressure, which necessitated a hospitalization and that the stress was compounded
by M.D.W. who claimed that appellant was engaged in “doctor shopping” while undergoing
medical care at the hospital. Counsel discussed appellant’s hospital records and noted that he had
a preexisting condition of post-traumatic stress syndrome. He advised that appellant was
diagnosed at the hospital with a hemorrhage, which was hypertensive in origin and noted, “[t]his
was brought on by his post-traumatic stress disorder aggravated by his employment.” Counsel
asserted that, in his September 27, 2018 affidavit, appellant discussed compensable employment
factors. He indicated that appellant had a prior claim that was accepted by the employing
establishment and asserted that the present claim was “either a new incident or an aggravation of
the prior claim.” Counsel maintained that OWCP’s procedures recognized harassment as a
compensable employment factor and noted that appellant had discussed his allegations regarding
lack of management support, improper threats about investigations by the employing
establishment’s OIG, and wrongful denial of wounded warrior leave accompanied by derogatory

4

statements about veterans. He quoted language from the Board case of Lillian Cutler, 28 ECAB
125 (1976), which indicated:
“Where an employee experiences emotional stress in carrying out his employment
duties, or has fear and anxiety regarding his ability to carry out his duties and the
medical evidence establishes that the disability resulted from his emotional reaction
to such situation, the disability is generally regarded as due to an injury arising out
of and in the course of the employment.”
Appellant submitted a May 4, 1994 document in which an OWCP claims examiner (CE)
requested that an OWCP district medical adviser (DMA) provide an opinion regarding whether he
had an employment-related emotional condition, which prevented him from working. The CE
noted that OWCP had accepted an October 8, 1985 injury for lumbosacral strain, cerebral
concussion, and compression fracture at L5 with emotional overlay. In a June 3, 1993 document,
a CE indicated that appellant’s case record for the same claim had been transferred to OWCP’s
office in Jacksonville, Florida. Appellant also submitted additional medical evidence, including a
September 19, 2019 report from Dr. Shawnna Patterson, a Board-certified neurologist.
By decision dated January 29, 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
and reviews the case on its merits. 7 If the request is timely, but fails to meet at least one of the
4

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

20 C.F.R. § 10.606(b)(3); see M.S., Docket No. 18-1041 (issued October 25, 2018); L.G., Docket No. 09-1517
(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
6

20 C.F.R. § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (September 2020).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

Id. at § 10.608(a); see D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., 59 ECAB 231 (2007).

5

requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 8
The Board has held that the submission of evidence or argument which repeats or duplicates
evidence or argument already in the case record9 and the submission of evidence or argument which
does not address the particular issue involved does not constitute a basis for reopening a case. 10
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 did not establish that OWCP erroneously applied or interpreted a specific point
of law, nor did he advance a relevant legal argument not previously considered by OWCP.
In a January 2, 2020 letter, counsel argued that appellant suffered undue stress du e to
various incidents and conditions at work, which led him to develop physical conditions including
elevated blood pressure and a brain hemorrhage. He asserted that appellant discussed these
claimed incidents and conditions in his September 27, 2018 affidavit and noted that he had claimed
compensable employment factors with respect to harassment by M.D.W. and other supervisors,
lack of management support, improper threats about OIG investigations, and wrongful denial of
wounded warrior leave (accompanied by a derogatory statement about veterans). However,
OWCP had previously considered and rejected these same arguments when it denied appellant’s
claim on the merits. The claimed employment factors discussed in counsel’s January 2, 2020 letter
were also referenced in appellant’s September 27, 2018 affidavit and counsel’s prior letter dated
October 2, 2018. The Board has held that the submission of evidence or argument, which repeats
or duplicates evidence or argument already in the case record does not constitute a basis for
reopening a case. 11 Accordingly, the Board finds that appellant is not entitled to a review of the
merits based on either the first or second requirement under 20 C.F.R. § 10.606(b)(3).
On reconsideration, appellant submitted June 3, 1993 and May 4, 1994 documents
concerning an October 8, 1985 injury that OWCP had accepted for lumbosacral strain, cerebral
concussion, and compression fracture at L5 with emotional overlay. The submission of this
evidence does not warrant a review of appellant’s claim on the merits because these documents
relate to an entirely different OWCP claim, which was filed many years before the filing of the
present emotional condition claim on July 11, 2017. Appellant has not adequately articulated why
this prior claim would be relevant to his present emotional condition claim. The Board has held
that the submission of evidence or argument, which does not address the particular issue involved,

8

20 C.F.R. § 10.608(b); see T.V., Docket No. 19-1504 (issued January 23, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).
9

N.L., Docket No. 18-1575 (issued April 3, 2019); Eugene F. Butler, 36 ECAB 393, 398 (1984).

10

M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

11

See supra note 9.

6

does not constitute a basis for reopening a case. 12 On reconsideration appellant also submitted
additional medical evidence in support of his claim. However, this evidence is irrelevant to
appellant’s present emotional condition claim because OWCP has not accepted a compensable
employment factor. The Board has held that it is not necessary to consider the medical evidence
of record if a claimant has not established any compensable employment factors. 13 Therefore,
appellant also failed to satisfy the third requirement under 20 C.F.R. § 10.606(b)(3).
Accordingly, the Board finds that appellant has not met any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
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 January 29, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 2, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

12

See supra note 10.

13

See B.O., Docket No. 17-1986 (issued January 18, 2019); Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
U.S. POSTAL SERVICE, EAST
GERMANTOWN STATION, Philadelphia, PA
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-139
Issued: July 15, 2009

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 October 20, 2008 appellant filed a timely appeal from a July 3, 2008 decision of the
Office of Workers’ Compensation Programs adjudicating her claim for a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has more than 17 percent impairment to her right upper
extremity or more than 2 percent for her left upper extremity, for which she received a schedule
award.
FACTUAL HISTORY
Beginning July 21, 1993 appellant, then a 30-year-old distribution and window clerk,
developed bilateral de Quervain’s disease and bilateral ganglion cysts due to factors of her

employment.1 On May 3, 1994 this case was combined with the Office File No. xxxxxx325,
which was accepted for right radial styloid tenosynovitis and a right ganglion and cyst of the
synovium, tendon and bursae sustained on April 6, 1992. On September 6, 1994 appellant
underwent left wrist arthroscopy. On August 12, 2006 she filed a claim for a schedule award.2
In a report dated November 17, 2005, Dr. David Weiss, a Board-certified family
practitioner and osteopathic physician, reviewed appellant’s medical history and provided
findings on physical examination.3 He stated that her right wrist and hand revealed no thenar or
hypothenar atrophy. Range of motion was normal. Tinel’s, Phalen’s, Finkelstein’s and carpal
compressions tests were positive. There was tenderness in the first dorsal compartment and
along the abductor policies longus and extensor policies brevis muscles. Resistive thumb
abduction was graded 3+/5. Resisted 4th and 5th finger flexion was graded at 4/5. Fist
presentation was normal to the distal palmar crease. Appellant was able to touch her thumb to
the distal palmar crease of the 5th digit. For the left wrist and hand, Tinel’s, Phalen’s and carpal
compression tests were positive but Finkelstein’s test was negative. Resistive thumb abduction
was graded at 5/5. Resisted 4th and 5th finger flexion was 4/5. There was no thenar or
hypothenar atrophy. Range of motion was normal. There was tenderness along the first dorsal
compartment and along the abductor pollicis longus and extensor pollicis brevis muscles. Fist
presentation was normal and appellant could touch her thumb to the distal palmar crease of the
5th digit. Grip strength testing performed via Jamar Dynamometer at Level III revealed
8 kilograms (kg) of force strength on the right and 10kg on the left. Pinch key testing revealed
5kg in both hands. Semmes-Weinstein Monofilament testing revealed a diminished light touch
sensibility over both the median and ulnar nerve distribution of both the right hand and left hand.
Subjective findings included daily bilateral wrist pain and stiffness, numbness and tingling and
swelling. Dr. Weiss calculated 45 percent combined impairment to the right upper extremity,
including 31 percent and 6 percent, respectively, for Grade 2 sensory deficit of the median nerve
and ulnar nerve, based on Table 16-10 at page 482 and Table 16-15 at page 492 of the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) and 10 percent for lateral pinch deficit, based on Table 16-33 and
Table 16-34 at page 509 (Per Table 16-33: 6kg for the dominant hand in a normal female
performing manual work, minus appellant’s 5 kg for her right hand, divided by 6kg, equates to
16.6 percent strength loss index. Per Table 16-34: a strength loss index between 10 and 30
constitutes 10 percent upper extremity impairment). Dr Weiss calculated 35 percent impairment
1

The condition of de Quervain’s disease, also called de Quervain’s syndrome, is a tenosynovitis (inflammation of
a tendon sheath) due to relative narrowness of the common tendon sheath of the abductor pollicis longus and
extensor pollicis brevis muscles of the thumb. See DORLAND’S, Illustrated Medical Dictionary (30th ed. 2003)
531, 1865.
2

The Board notes that the accepted conditions in this case are unclear. The Office’s May 3, 1994 acceptance
letter and the July 3, 2008 decision state that bilateral de Quervain’s disease and bilateral ganglion cysts are the
accepted conditions. However, in a statement of accepted facts dated July 10, 2007, a July 10, 2007 memorandum
from a claims examiner to Dr. Arnold T. Berman and Dr. Berman’s July 20, 2007 impairment rating, the accepted
conditions are listed as bilateral synovitis and tenosynovitis, bilateral ganglion cysts and radial styloid tenosynovitis
on the right. The latter two conditions are accepted in the combined cases. However, it is unclear why the July 10,
2007 statement of accepted facts includes bilateral synovitis and bilateral tenosynovitis.
3

In February 2008, Dr. Weiss corrected his original November 17, 2005 report because he had misstated that
appellant’s right upper extremity impairment was 35 percent and left upper extremity was 45 percent.

2

for the left upper extremity for the same Grade 2 sensory deficit of the median and ulnar nerves
as in the right upper extremity. He did not indicate any pinch strength deficit in the left wrist.4
On July 20, 2007 Dr. Berman, a Board-certified orthopedic surgeon and an Office
medical adviser, reviewed the November 17, 2005 report from Dr. Weiss. He disagreed with
Dr. Weiss’ determination of Grade 2 sensory deficit, stating that this grade was not consistent
with a December 5, 2001 report from a Dr. A. Lee Osterman who found borderline median
neuropathy on the right and no neuropathy on the left. Dr. Berman calculated 17 percent
combined right upper extremity impairment, including 6 percent for loss of range of motion of
the right shoulder, based on the physical findings in Dr. Weiss’ report, for 160 degrees of
flexion, (1 percent), 110 degrees of abduction (3 percent) and 60 degrees of internal rotation
(2 percent), based on Figures 16-40, 16-43 and 16-46 at pages 476, 477 and 479, respectively, of
the A.M.A., Guides, 10 percent for Grade 4 median nerve sensory deficit, based on Table 16-10
at page 482 and Table 16-15 at page 492 and 2 percent for Grade 4 sensory deficit of the ulnar
nerve, based on Table 16-10 and Table 16-15.5 Dr. Berman calculated two percent left upper
extremity impairment for Grade 4 sensory deficit of the ulnar nerve, based on Tables 16-10 and
16-15.
By decision dated October 4, 2007, the Office granted appellant a schedule award based
on 17 percent right upper extremity impairment and 2 percent left upper extremity impairment,
for 414.96 days or 59.28 weeks, from November 17, 2005 to January 5, 2007.6
On October 9, 2007 appellant requested a hearing that was held on February 27, 2008.
By decision dated July 3, 2008, the Office hearing representative affirmed the October 4, 2007
schedule award decision.
LEGAL PRECEDENT
Section 8107 of the Act7 authorizes the payment of schedule awards for the loss or loss of
use of specified members, organs or functions of the body. Such loss or loss of use is known as

4

Dr. Weiss provided an impairment rating for appellant’s right shoulder. However, the Office has not accepted a
right shoulder condition in this case.
5

See Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (October 2005) (these procedures contemplate that, after obtaining all necessary medical
evidence, the file should be routed to an Office medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale for the
percentage of impairment specified, especially when there is more than one evaluation of the impairment present).
6

The Federal Employees’ Compensation Act provides for 312 weeks of compensation for 100 percent loss or loss
of use of the upper extremity. 5 U.S.C. § 8107(c)(1). Multiplying 312 weeks by 19 percent equals 59.28 weeks of
compensation.
7

5 U.S.C. § 8107.

3

permanent impairment. The Office evaluates the degree of permanent impairment according to
the standards set forth in the specified edition of the A.M.A., Guides.8
Section 8123(a) of the Act provides that “if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
[of Labor] shall appoint a third physician who shall make an examination.”9 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.
ANALYSIS
The Board finds that this case is not in posture for a decision. Further development of the
medical evidence is required due to a conflict in the medical evidence between Dr. Weiss and
Dr. Berman.
Dr. Weiss reviewed appellant’s medical history and provided findings on physical
examination which included positive Tinel’s, Phalen’s, Finkelstein’s and carpal compressions
tests. There was tenderness in the first dorsal compartment and along the abductor pollicis
longus and extensor pollicis brevis muscles. Resistive thumb abduction was graded 3+/5.
Resisted 4th and 5th finger flexion was graded at 4/5. For the left wrist and hand, Tinel’s,
Phalen’s and carpal compression tests were positive but Finkelstein’s test was negative.
Resistive thumb abduction was graded at 5/5. Resisted 4th and 5th finger flexion was 4/5. There
was tenderness along the first dorsal compartment and along the abductor pollicis longus and
extensor pollicis brevis muscles. Pinch key testing revealed 5kg in both hands. SemmesWeinstein Monofilament testing revealed a diminished light touch sensibility over both the
median and ulnar nerve distribution of both the right hand and left hand. Subjective findings
included daily bilateral wrist pain, stiffness, numbness, tingling and swelling. Dr. Weiss
calculated 45 percent combined impairment to the right upper extremity, including 31 percent
and 6 percent, respectively, for Grade 2 sensory deficit of the median nerve and ulnar nerve and
10 percent for lateral pinch deficit. He calculated 35 percent impairment for the left upper
extremity for the same Grade 2 sensory deficit of the median and ulnar nerves as in the right
upper extremity. Dr. Weiss did not indicate any pinch strength deficit in the left wrist.
Dr. Berman disagreed with Dr. Weiss’ determination of Grade 2 sensory deficit. He
calculated 17 percent combined right upper extremity impairment, including 6 percent for loss of
range of motion of the right shoulder,10 10 percent for Grade 4 sensory deficit of the right median
nerve and 2 percent for Grade 4 sensory deficit of the right ulnar nerve. Dr. Berman calculated
two percent left upper extremity impairment for Grade 4 sensory deficit of the left ulnar nerve.
8

20 C.F.R. § 10.404 (1999). Effective February 1, 2001, the Office began using the A.M.A., Guides (5th ed.
2001).
9

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan),
45 ECAB 207 (1993).
10

As noted, a right shoulder condition is not accepted.

4

The Board finds that there is a conflict in the medical opinion evidence between
Dr. Weiss and Dr. Berman regarding appellant’s right and left upper extremity impairment.
Therefore, the issue of appellant’s impairment requires further development. Accordingly, the
Office should refer her to an appropriate impartial medical specialist for a thorough physical
examination and evaluation of her right and left upper extremity impairment. On remand, the
Office should also clarify the conditions that are accepted as causally related to appellant’s
July 21, 1993 employment injury. After such further development as it deems necessary, the
Office should issue an appropriate decision.
CONCLUSION
The Board finds that this case is not in posture for a decision. Further development of the
medical evidence is required on the issue of appellant’s right and left upper extremity
impairment. On remand, the Office should refer her to an appropriate impartial medical
specialist to resolve the conflict in the medical evidence. After such further development as it
deems necessary, it should issue an appropriate decision on appellant’s schedule award claim.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 3, 2008 is set aside and the case is remanded for further
development consistent with this decision of the Board.
Issued: July 15, 2009
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
__________________________________________
A.C., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF SAFETY & ENVIRONMENTAL
ENFORCEMENT, Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

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

Case Submitted on the Record

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

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

1

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

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

to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case. 4
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 25, 2017 appellant, then a 63-year-old administrative specialist, filed a
traumatic injury claim (Form CA-1) alleging that on that date she injured her left foot when a
19-pound box fell on her foot while in the performance of duty. She stopped work on the date of
injury. OWCP accepted appellant’s claim for left ankle and foot arthropathies and left foot
fracture. It paid wage-loss compensation on the supplemental rolls beginning March 20, 2017 and
placed her on the periodic rolls, effective February 4, 2018.
On March 1, 2018 OWCP referred appellant, along with a statement of accepted facts
(SOAF), a copy of the case record, and a series of questions, to Dr. Robert Smith, a Board-certified
orthopedic surgeon, for second opinion evaluation regarding the status of her accepted January 25,
2017 employment injury. In a March 15, 2018 report, Dr. Smith reviewed her history, including
the SOAF, and conducted a physical examination. In response to OWCP’s questions, he indicated
that appellant’s accepted left foot fracture and left foot and ankle arthropathies had resolved and
that the only remaining medical condition of concern was Complex Regional Pain Syndrome
(CPRS)/Reflex Sympathetic Dystrophy (RSD). Dr. Smith recommended a bone scan for the left
lower extremity.
On March 14, 2018 OWCP also referred appellant to Dr. Ira Kornbluth, a Board-certified
pain management and physical medicine and rehabilitation physician, for a second -opinion
examination. In an April 6, 2018 progress note, Dr. Kornbluth indicated that he had reviewed the
SOAF, and provided examination findings. In response to OWCP’s questions, he reported that
appellant had residuals of her left foot arthropathy condition. Dr. Kornbluth opined that she was
capable of working in “a light physical capacity level.” He completed a work capacity evaluation
form (Form OWCP-5c) which indicated that appellant could work full time with restrictions of
sitting up to 4 hours, walking, standing, bending/stooping, and operating a motor vehicle up to 1
hour, pushing, pulling, and lifting up to 10 pounds, and no squatting, kneeling, or climbing.
In a June 15, 2018 report, Dr. Lee Ann Rhodes, a Board-certified anesthesiologist and pain
medicine physician, recounted appellant’s complaints of left lower extremity pain since a
January 2017 work-related injury. She noted physical examination findings of slightly reduced
3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the August 13, 2021 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id

2

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

3

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

5

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

4

By decision dated August 13, 2021, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 6
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.7
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 8 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 9 If the request is timely but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsidera tion without
reopening the case for review on the merits. 10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
With appellant’s July 23, 2021 request for reconsideration, counsel submitted a statement
alleging that OWCP erroneously interpreted the law regarding a conflict in the medical evidence.
He argued that OWCP erred in terminating appellant’s wage-loss compensation benefits before an
impartial medical examiner could resolve the conflict in medical evidence between Dr. Smith and
Dr. Rhodes regarding whether appellant had CPRS causally related to the accepted January 25,
2017 employment incident and whether appellant required further medical treatment in order to
6

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

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

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
9

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

10

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

5

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

11

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

13

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

14

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

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

6

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 14-1167
Issued: October 23, 2014

Case Submitted on the Record

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

JURISDICTION
On April 23, 2014 appellant filed a timely appeal from a January 31, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP), which denied her claim for 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 OWCP properly denied appellant’s claim for a schedule award from
an alleged work injury to both upper extremities.
FACTUAL HISTORY
This is the second appeal of this matter considered by the Board in the present case. In a
decision dated January 30, 2014, the Board affirmed a January 30, 2013 decision, which found
that the position of information clerk reflected appellant’s wage-earning capacity effective
1

5 U.S.C. § 8101 et seq.

January 30, 2013.2 The facts and circumstances of the case up to that point are set forth in the
Board’s prior decision and incorporated herein by reference.
There was previously evidence submitted which is relevant to the current appeal.
Appellant was treated by Dr. Richard A. Nolan, a Board-certified orthopedic surgeon, from
October 7, 2009 to June 16, 2010. Dr. Nolan diagnosed bilateral trigger thumb and bilateral
carpal tunnel syndrome. On August 27, 2010 he performed an authorized exploration of the
flexor pollicis longus tendon at sesamoids with release of the fibrous pulley and inspection of the
flexor pollicis longus tendon and diagnosed right trigger thumb. On February 11, 2011
Dr. Nolan performed an authorized exploration of the trigger thumb left side, release of the
pulley and inspection of the flexor pollicis longus tendon and diagnosed left trigger thumb and
status post release of the right trigger thumb. A December 23, 2009 electromyogram (EMG)
revealed no abnormalities, no evidence of carpal tunnel syndrome, cervical radiculopathy or
peripheral neuropathy.
On April 10, 2013 appellant filed a claim for a schedule award. She submitted an
April 24, 2013 report from Dr. Nolan who noted findings of a visible scar from a procedure on
her right thumb, tenderness to palpation with prominence of sesamoids and tenderness of the left
thumb to palpation in the volar aspect radiating to the thenar eminence. Examination of the right
and left wrist revealed negative Finkelstein and carpal tunnel testing. Dr. Nolan released
appellant to work modified duty.
In a letter dated May 28, 2013, OWCP requested that appellant submit a rating of
permanent impairment pursuant to the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3
Appellant submitted reports from Dr. Nolan, dated May 22 to October 28, 2013, who
treated her for trigger finger. On October 28, 2013 Dr. Nolan noted findings of right-side
inflammation of the sesamoids and intermittent bilateral paresthesia with fine motor activities.
He noted a positive carpal Tinel’s sign on the right wrist and a negative carpal and cubital
Tinel’s sign on the left wrist. Dr. Nolan diagnosed trigger finger acquired, status post trigger
thumb release bilaterally and carpal tunnel syndrome bilaterally. He opined that the triggering of
the thumbs resolved but appellant had tenderness over the sesamoids on the right and persistent
carpal tunnel symptoms on the right.
On November 6, 2013 OWCP referred appellant for a second opinion to Dr. Bruce E.
Thompson, a Board-certified physiatrist, to determine whether she had permanent impairment
due to her work-related condition. In a December 13, 2013 report, Dr. Thompson diagnosed
status post successful operative trigger thumb repair of the right and left thumbs. Examination
findings included a negative Tinel’s sign at the cubital and carpal tunnel and Guyon’s canal,
2

Docket No. 13-1232 (issued January 30, 2014). On or before September 15, 2009 appellant, then a 55-year-old
mail processing clerk, developed bilateral finger and hand symptoms as a result of performing repetitive duties at
work. OWCP accepted the claim for bilateral trigger finger and bilateral carpal tunnel syndrome and authorized
bilateral trigger thumb releases which were performed on August 27, 2010 and February 11, 2011.
3

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

2

negative Finkelstein’s bilaterally and no evidence of atrophy, weakness or decreased sensibility
in the upper extremities. Appellant had well-healed surgical scars at the base of both thumbs on
the palmar surface consistent with trigger thumb release. Manual motor testing of the elbow and
wrist was 5/5 bilaterally, there was no triggering of the fingers or thumbs on passive and active
motion and no numbness. Dr. Thompson noted good capillary refill in the nail beds, normal
distribution, size, bulk and movement of the musculature of the forearm, wrist, hands, thumbs
and fingers. He noted range of motion of the wrists for flexion was 70 degrees bilaterally, ulnar
deviation was 30 degrees bilaterally, radial abduction was 50 degrees bilaterally and adduction of
the thumb was eight centimeters bilaterally. Dr. Thompson noted range of motion of the fingers
was 90 degrees of flexion, 0 degrees on extension and the distal interphalangeal joint and
proximal interphalangeal joint were normal. Appellant’s bilateral trigger thumb repair was
successful and there was no evidence of carpal tunnel syndrome and the prior EMG was normal.
Dr. Thompson noted that appellant was permanent and stationary six months after the second
surgery and that there was no significant change since August 1, 2011. He noted her symptoms
of direct light tenderness over the right palmar area of the prior surgery and adjacent fibrosis and
small postoperative stable fasciitis but advised that these symptoms were not a ratable condition.
Appellant had no interference with her activities of daily living and she could perform the duties
of her prior job. Dr. Thompson provided prophylactic restrictions to avoid aggravating the
postsurgical status of appellant’s trigger thumb. He noted that she required no further treatment.
Dr. Thompson noted permanent impairment could be rated as appellant was permanent and
stationary since June 2011. Under the A.M.A., Guides he opined that she had no permanent
impairment of the arms due to her work-related bilateral carpal tunnel syndrome and bilateral
trigger thumb. Relying on Table 15-2 of the A.M.A., Guides, Digital Regional Grid 2, the table
utilized to rate upper extremity digital impairments, Dr. Thompson stated that appellant’s
bilateral trigger thumb was rated as zero percent impairment of the digits and zero percent
impairment of each upper extremity. In an accompanying December 13, 2013 worksheet,
pursuant to Table 15-2, Dr. Thompson noted that appellant had no residual or objective findings
of bilateral trigger thumbs and was a class zero, for zero percent hand-thumb impairment and
zero percent impairment of the upper extremities.
Appellant submitted reports from Dr. Nolan dated December 11, 2013. Dr. Nolan had
treated her for carpal tunnel syndrome and bilateral trigger thumbs. He noted findings of the
thumbs as a slight prominence in the volar aspect of the sesamoid on the left, moderate fibrosis
from scarring on the right, tenderness bilaterally and no triggering on active flexion and
extension. Dr. Nolan opined that the bilateral thumb trigger release surgery resolved the
triggering but appellant still had pain at the base of the thumbs with repetitive use and thickness
over the sesamoids on the right with no crepitation or sensory loss. He diagnosed bilateral
trigger finger acquired and bilateral carpal tunnel syndrome. Dr. Nolan noted that appellant’s
bilateral carpal tunnel symptoms were aggravated with repetitive activities. On January 22, 2014
he noted examination of the wrists revealed no deformity, effusion or tenderness, negative
Finkelstein’s testing and negative Phalen’s test. Range of motion for flexion was 80 degrees
bilaterally, ulnar deviation was 60 degrees on the right and 50 degrees on the left and radial
deviation was 15 degrees on the right and 10 degrees on the left. With regard to the thumbs there
was fullness at the volar aspect of the thumb carpometacarpal joints at the sesamoids that was
moderate on the right and slight on the left, no triggering on active flexion and extension and the
right thumb interphalangeal joint lacked 20 degrees of full extension. Dr. Nolan noted the carpal
tunnel symptoms persisted with paresthesia and weakness in the right hand. He diagnosed
3

bilateral trigger finger acquired and bilateral carpal tunnel syndrome. No rating was provided in
his report of December 11, 2013.
On January 2, 2014 OWCP asked its medical adviser to address whether appellant had
impairment of the bilateral upper extremities. In a January 27, 2014 report, an OWCP medical
adviser noted reviewing Dr. Thompson’s report and advised that maximum medical
improvement occurred on December 13, 2013. The medical adviser noted that, under the
A.M.A., Guides, Dr. Thompson’s examination findings resulted in zero percent impairment to
the bilateral upper extremities. She noted that, with regard to impairment due to bilateral digital
stenosing tenosynovitis (trigger finger), he noted no triggering with normal motion. The medical
adviser noted that, pursuant to Table 15.2, Digit Regional Grid, page 392, appellant had zero
percent impairment per digit bilaterally.4 She further noted that this also resulted in no arm
impairment. The medical adviser concluded that appellant had no ratable impairment in either
arm.
In a decision dated January 31, 2014, OWCP denied appellant’s claim for a schedule
award.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 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 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,7 has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.8 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).10 Under the sixth edition, for upper extremity impairments the evaluator
4

The medical adviser noted that appellant had no triggering with normal motion for a class 1; however, this
appears to be a typographical error as these findings are consistent with a class zero.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

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

8

See supra note 6.

9

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

10

The A.M.A., Guides, supra note 3 at 3, section 1.3, The ICF, Disability and Health: A Contemporary Model of
Disablement.

4

identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX).11
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.12
ANALYSIS
OWCP accepted appellant’s claim for bilateral trigger finger and bilateral carpal tunnel
syndrome and authorized bilateral trigger thumb releases which were performed on August 27,
2010 and February 11, 2011. Appellant sought a schedule award for the upper extremities based
on impairment from bilateral trigger finger and bilateral carpal tunnel syndrome and bilateral
trigger thumb releases. OWCP referred appellant to Dr. Thompson to determine if she had
residuals of her work-related conditions. In his December 13, 2013 report, Dr. Thompson opined
that appellant sustained zero percent impairment based on Table 15.2, Digit Regional Grid:
Digit Impairments, under the sixth edition of the A.M.A., Guides.
Dr. Thompson reported findings, noting that, manual motor testing of the elbow and wrist
was 5/5 bilaterally, there was no triggering of the fingers or thumbs on passive and active motion
and no numbness. He noted range of motion of the fingers for flexion was 90 degrees, extension
was 0 degrees and the distal interphalangeal joint and proximal interphalangeal joint were
normal. Dr. Thompson noted that there was no evidence of carpal tunnel syndrome and the prior
EMG was within normal limits. He noted that the bilateral trigger thumb repair was successful.
Dr. Thompson noted appellant’s symptoms consist of direct light tenderness over the right
palmar area of the prior surgery and adjacent fibrosis and small postoperative stable fasciitis was
not ratable. Appellant had no interference with her activities of daily living. Dr. Thompson
found that appellant’s diagnosis of digital stenosing tenosynovitis, bilateral trigger thumb status
post successful trigger thumb repair was a class zero impairment under Table 15-2 of the
A.M.A., Guides. Pursuant to the A.M.A., Guides he opined that appellant had no permanent
impairment of the upper extremities due to her work-related conditions.
The medical adviser concurred with Dr. Thompson’s findings that appellant had no
ratable impairment for the accepted conditions. As this finding was rendered in accordance with
the applicable tables and protocols in the A.M.A., Guides for rating the bilateral upper
extremities impairments based on digital impairments, the Board finds that he and the medical
adviser properly determined that she had no permanent ratable impairment of the bilateral upper
extremities.

11

Id. at 411.

12

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

5

Appellant submitted reports from Dr. Nolan dated December 11, 2013 and January 22,
2014 who treated appellant for carpal tunnel syndrome and bilateral trigger thumbs. He noted
findings and opined that the trigger release of the bilateral thumbs resolved the triggering but
appellant still had pain at the base of the thumbs with repetitive use and thickness over the
sesamoids on the right. Dr. Nolan stated that carpal tunnel symptoms persisted with paresthesia
and weakness in the right hand that was greater than the left hand. Dr. Nolan diagnosed bilateral
trigger finger acquired and bilateral carpal tunnel syndrome. However, Dr. Nolan did not
provide an impairment rating in accordance with the relevant standards of the A.M.A., Guides.
The Board has held that an attending physician’s report is of little probative value where the
A.M.A., Guides were not properly followed.13 As Dr. Nolan did not correlate his findings with
the A.M.A., Guides, his report is insufficient to establish any permanent impairment.
The Board finds that the record supports that appellant has no ratable impairment for the
bilateral upper extremities for the accepted bilateral trigger finger and bilateral carpal tunnel
syndrome. The medical adviser concurred with Dr. Thompson’s assessment. OWCP properly
found in its January 31, 2014 decision that appellant had zero percent permanent impairment of
the bilateral upper extremities.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant failed to establish that she is entitled to a schedule award.

13

See Paul R. Evans, Jr., 44 ECAB 646 (1993); John Constantin, 39 ECAB 1090 (1988) (medical report not
explaining how the A.M.A., Guides are utilized is of little probative value).

6

ORDER
IT IS HEREBY ORDERED THAT the January 31, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 23, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)

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

Docket Nos. 15-0281, 15-0679
Issued: August 5, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 19, 2014 appellant filed a timely appeal from a November 5, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). He also filed an appeal on
February 9, 2015 of a January 29, 2015 OWCP merit decision. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an employment-related disability
commencing May 22, 2014.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case was before the Board on a prior appeal.2 The facts and the circumstances set
forth in the prior Board decision are incorporated herein by reference. The relevant facts are set
forth below.
On June 26, 2007 appellant, then a 42-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained injuries in a motor vehicle accident on June 21,
2007 while in the performance of duty. OWCP has accepted the following conditions: abrasion
of multiple sites; contusion of left knee; sprain of right hand; closed dislocation of left thumb;
right shoulder rotator cuff tear; right shoulder impingement; right biceps rupture; cervical strain;
cervical radiculopathy; aggravation of cervical degenerative disc disease; and herniated cervical
disc. Appellant worked intermittently and received compensation for total disability on the
periodic rolls commencing November 21, 2010.
OWCP referred appellant for a second opinion examination by Dr. Mojinder Nijjar, a
Board-certified orthopedic surgeon. In a report dated January 31, 2013, Dr. Nijjar provided a
history and results on examination. He opined that appellant could return to his regular full-time
job. Dr. Nijjar stated that appellant had good range of motion and a lifting restriction was not
appropriate.
Appellant received wage-loss benefits through June 14, 2013 and returned to work in a
modified position on June 15, 2013. He filed a claim for a recurrence of disability (Form
CA-2a), commencing June 22, 2013. OWCP denied the claim for compensation by decision
dated September 5, 2013. By decision dated June 4, 2014, an OWCP hearing representative
affirmed the September 5, 2013 decision. The Board found that appellant had not established a
recurrence of disability from June 22 to August 23, 2013.3 With respect to the medical evidence,
the Board found that the reports from attending physicians Dr. Amajit Mangat, a preventive
medicine specialist, and Dr. Ali Najafi, a Board-certified orthopedic surgeon, were insufficient to
establish the claim.
The record indicates that appellant continued to file Form CA-7 claims for compensation
for August 24, 2013 and continuing. On November 19, 2013 appellant accepted a limited-duty
job offer as a city carrier.
Appellant continued to submit medical evidence with respect to disability. In a report
dated February 11, 2014, Dr. Najafi diagnosed status post cervical fusion and indicated that
appellant should remain off work for “an additional” week. In a report dated March 26, 2014,
Dr. Mangat stated that appellant had reported increased neck pain after lifting a heavy box at
work recently. He diagnosed chronic neck pain and indicated that appellant could work
modified duty with a 20-pound lifting restriction. Dr. Najafi submitted a May 13, 2014 report
diagnosing cervical disc degeneration. He indicated in a note dated May 13, 2014 that appellant
should do no bending or lifting until surgery.
2

Docket No. 14-1511 (issued March 2, 2015).

3

Id.

2

In a letter dated May 19, 2014, OWCP noted that appellant had claimed compensation
from August 24 to November 15, 2013. It stated that the evidence did not establish an
employment-related disability for the period claimed. In addition, on May 19, 2014 OWCP
completed a referee physician referral form and a medical conflict statement. It found that the
treating physicians, Dr. Najafi and Dr. Mangat, had found appellant to be disabled, but second
opinion physician Dr. Nijjar opined in his January 31, 2013 report that appellant could return to
full duty. OWCP prepared a statement of accepted facts (SOAF) dated May 19, 20144 and found
that a conflict existed as to whether appellant continued to have an employment-related
disability. It prepared a list of questions for a referee physician on the issue.
On May 28, 2014 appellant filed a claim for compensation (Form CA-7) claiming
compensation as of May 22, 2014. He submitted additional CA-7 forms claiming compensation
through July 31, 2014.
In a report dated June 3, 2014, Dr. Mangat reported that appellant had complained of
severe neck pain for the last four days and had been told by Dr. Najafi to go to the emergency
room. According to Dr. Mangat, appellant had been told that he needed further cervical surgery.
Dr. Mangat diagnosed neck pain and cervical degenerative disc disease.
By report dated June 13, 2014, Dr. Mangat stated that appellant had reported getting off
his mail truck, when he bent down and his neck popped, with pain and numbness in his arms. He
stated that he continued to have neck pain with limited range of motion. Dr. Mangat stated that
appellant would be disabled for two weeks. In a June 30, 2014 report, he indicated that appellant
continued to have neck pain. Dr. Mangat indicated that appellant could return to work on
June 27, 2014 with restrictions that included no more than 20 pounds lifting. By report dated
July 8, 2014, he indicated that appellant was working modified duty. Dr. Mangat provided
results on examination and reported appellant had neck pain and limited neck range of motion.
He indicated that appellant should be off work from July 7 to 13, 2014. In a report dated July 14,
2014, Dr. Mangat provided results on examination and indicated that appellant should be off
work until July 31, 2014.
By decision dated August 7, 2014, OWCP denied appellant’s claims for compensation for
the period May 22 to July 31, 2014, finding that the medical evidence of record was insufficient
to establish the claims.
On August 9, 2014 appellant requested reconsideration of the August 7, 2014 decision
and submitted a July 31, 2014 report from Dr. Najafi, who diagnosed cervical stenosis with
radiculopathy. Dr. Najafi stated that appellant was “unable to perform his work duties.” He
stated that she needed an anterior cervical discectomy and fusion C4-5. By report dated
August 25, 2014, an OWCP medical adviser opined that the proposed surgery was appropriate.
4

The SOAF states that appellant stopped work on January 30, 2014. In this regard Dr. Mangat had reported in a
January 28, 2014 report that appellant was placed off work from January 28 to 30, 2014. As noted above, Dr. Najafi
indicated in his February 11, 2014 report that appellant should be off work for an additional week. But Dr. Najafi
reported in his May 13, 2014 that appellant worked eight hours per day. The record does not contain a Form CA-7
claiming compensation during the period January 28 to May 21, 2014, and appellant’s work history from January 28
to May 21, 2014 is not clear from the record.

3

On August 19, 2014 appellant filed a Form CA-7 claim for compensation from July 31 to
August 15, 2014. He continued to file Form CA-7 claims for compensation through
November 28, 2014.5
Appellant requested reconsideration of his claim on September 6, 2014. By letter dated
September 9, 2014, OWCP advised him that a referee physician, Dr. Perminder Bhatia, a Boardcertified neurologist, had been selected to resolve a conflict in medical opinion between treating
physicians Drs. Najafi and Mangat, who found appellant disabled and second opinion physician
Dr. Nijjar, who found that appellant could return to full duty. An appointment for an impartial
medical evaluation with Dr. Bhatia was scheduled for October 29, 2014. Dr. Bhatia was asked
specifically to determine whether appellant continued to suffer residuals of the accepted work
injury and the nature and extent of any work-related disability.6
By decision dated October 28, 2014, OWCP denied appellant’s claim for compensation
for the period July 31 to October 17, 2014. It found that the medical evidence of record was
insufficient to establish the claim.
By decision dated November 5, 2014, OWCP denied modification of its August 7, 2014
decision.
The record indicates that on November 5, 2014 appellant underwent cervical surgery. In
a report of that date, Dr. Najafi described the surgery as anterior cervical discectomy with partial
corpectomy of C4 and C5 for decompression of nerve roots and spinal cord.
On November 7, 2014 appellant requested reconsideration of the October 28, 2014
decision.
In a report dated November 10, 2014, Dr. Bhatia, the referee physician, provided a
He diagnosed:
cervical
history and results of a November 8, 2014 examination.7
musculoskeletal ligamental pain status post cervical laminectomy for cervical disc disease and
degenerative changes; significant cervical disc disease, still present mainly C3-C4, C4-C5 and
again C7-TI level with compression of the right side CX nerve root and also C5-C6 nerve root,
status post right shoulder impingement syndrome, status post rotator cuff tear surgery and SLAP
repair, which had almost returned back to normal, left hand, first metacarpophalangeal ulnar
ligament joint surgery, headaches; secondary to cervicogenic in nature due to cervical disc
disease and also muscle spasm, and tremors of the right upper extremity, more prominent than
the left side which were more likely nonindustrial in nature.

5

The record indicates that appellant began receiving wage-loss compensation as of November 5, 2014, the date of
the cervical surgery.
6

The record also contains an ME023 appointment schedule notification and notes regarding physicians bypassed
by the referee selection process.
7

With respect to cervical surgery, Dr. Bhatia stated that appellant had authorization for surgery “on November 1,
2014, which is three or four days from today.” He does not explain the discrepancy between this statement and a
date of examination reported as November 8, 2014.

4

As to disability, Dr. Bhatia opined that appellant could not perform his regular job and
could not work full time with restrictions. He stated that this was because of the cervical disc
disease, radiculopathy, significant pain, and the proposed surgery. According to Dr. Bhatia,
appellant would be restricted to 10 pounds lifting even if surgery was not planned. He indicated
that appellant could work a sedentary job, such as computer or data entry, with some breaks in
between. Dr. Bhatia also completed an OWCP-5c work capacity evaluation.
In a decision dated January 29, 2015, OWCP denied modification of the October 28,
2014 decision, finding that the evidence of record was insufficient to warrant modification. It
noted that while referee physician Dr. Bhatia did not directly address the period of disability
commencing May 22, 2014, he did opine that as of the date of surgery, if the patient had not been
scheduled for surgery, he could work in some fashion on the job until then.
LEGAL PRECEDENT
An employee seeking benefits under FECA8 has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.9 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.10 Whether a particular injury causes an employee to be disabled for employment and
the duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.11 However, regardless of the burden of
proof, when the case is referred to a referee physician, the referee must resolve the issues
presented.12
ANALYSIS
In the present case, the history above indicates there are both factual and medical issues
that have not been properly addressed by OWCP. The Board notes that appellant’s work history
was not clearly stated in the May 19, 2014 SOAF. Appellant apparently had begun working in a
modified position on November 19, 2013. It is not clear what those specific job duties were, or
the specific physical requirements. It is also not clear how long appellant worked in the position
or whether the position remained available. The SOAF refers to a work stoppage on January 30,
2014, but the CA-7 forms claim compensation commencing May 22, 2014.

8

Supra note 1.

9

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

10

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
11

See Fereidoon Kharabi, 52 ECAB 291 (2001).

12

See L.J., Docket No. 13-1920 (issued February 18, 2014); Thomas J. Fragale, 55 ECAB 619 (2004).

5

Moreover, OWCP undertook development of the medical evidence that was not properly
addressed in the decisions on appeal. On May 19, 2014 it had declared a conflict in the medical
evidence under 5 U.S.C. § 8123(a).13 The underlying medical issue was whether appellant
continued to have an employment-related condition or disability. The attending physicians,
Drs. Mangat and Najafi, had continued to indicate that appellant had work restrictions and
periods of total disability due to an employment-related condition. The second opinion
physician, Dr. Nijjar, opined in his January 31, 2013 report that appellant could return to full
duty.
To resolve the conflict, OWCP selected Dr. Bhatia as a referee physician. Dr. Bhatia,
however, did not provide an opinion as to the specific, claimed periods of employment-related
disability. The issue presented in this case regarding the claimed periods of disability was within
the scope of the conflict in the medical evidence that Dr. Bhatia was selected to resolve.
Therefore, the case will be remanded to OWCP for further development of the factual and
medical evidence. OWCP should clarify the factual issues including the physical requirements
of appellant’s modified-duty job, when it was performed, and whether it remained available
during the claimed periods of disability. The SOAF should properly reflect OWCP’s findings.
OWCP should then secure a supplemental report from Dr. Bhatia on the medical issues presented
regarding employment-related disability prior to the cervical surgery on November 5, 2014.
After such further development as is necessary, OWCP should issue an appropriate decision.
CONCLUSION
The Board finds the case is not in posture for decision and is remanded for further
development.

13

FECA provides that, if there is a disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall make the
examination. 5 U.S.C. § 8123(a). The implementing regulations state that if a conflict exists between the medical
opinion of the employee’s physician and the medical opinion of either a second opinion physician or OWCP medical
adviser, OWCP shall appoint a third physician to make an examination. This is called a referee or impartial
examination and OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case. 20 C.F.R. § 10.321.

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 29, 2015 and November 5, 2014 are set aside and the
case remanded for further action consistent with this decision of the Board.14
Issued: August 5, 2016
Washington, DC

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

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

14

James A. Haynes, Alternate Judge participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Denver, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-1211
Issued: February 27, 2019

Case Submitted on the Record

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

JURISDICTION
On May 29, 2018 appellant filed for review of a May 8, 2018 merit decision of the Office
of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that 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 appellant has met his burden of proof to establish more than nine
percent permanent impairment of his left lower extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
On February 15, 2000 appellant, then a 45-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on that day he broke a bone in his left foot when a coworker ran
an over the road (OTR) container over his foot. On April 12, 2001 OWCP accepted appellant’s
claim for left foot strain.3
On August 15, 2017 appellant filed a claim for a schedule award (Form CA-7).
By development letter dated September 14, 2017, OWCP requested that appellant submit
an impairment evaluation from his attending physician in accordance with the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).4 It afforded him 30 days to submit the necessary evidence.
In an August 7, 2017 medical note, Dr. James M. Falko, Board-certified in internal
medicine, reported that appellant’s February 15, 2000 left foot injury had reached maximum
medical improvement (MMI).
In support of his claim, appellant submitted a November 30, 2017 impairment rating from
Dr. Jack L. Rook, Board-certified in physical medicine and rehabilitation. Dr. Rook discussed
appellant’s medical history, reviewed diagnostic testing, and provided findings on physical
examination. He explained that on February 15, 2000 appellant’s left foot was injured when it was
run over by an OTR container that was filled with mail weighing over 2,000 pounds. Dr. Rook
noted review of a February 15, 2000 x-ray that revealed suspicion for an avulsion-type fracture of
the cuboid bone of the left foot which correlated clinically with examination findings. He noted
that, while the claim had been accepted for left foot sprain, the medical records indicated that at
the time of the left foot injury, appellant sustained a fracture of his left cuboid bone. As such,
Dr. Rook prepared impairment ratings for both noted diagnoses. Using Table 16-2, Foot and
Ankle Regional Grid, of the sixth edition of the A.M.A., Guides,5 he calculated two percent
permanent impairment of the left lower extremity based on the diagnosis of left foot sprain.
Dr. Rook calculated seven percent permanent impairment of the left lower extremity based on the
diagnosis of class 1 cuboid fracture with mild motion deficits.6 He assigned a grade modifier of 1
3
The record reflects that appellant stopped working for the employing establishment effective August 3, 2000. By
decision dated January 11, 2013, OWCP denied appellant’s claim for compensation for the period December 19, 1999
to July 6, 2000.
4

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

5

Id. at 501, Table 16-2.

6

Id. at 503.

2

for physical examination (GMPE),7 a grade modifier of 1 for functional history (GMFH),8 and no
grade modifier for clinical studies (GMCS) because the diagnostic study had been used to assign
the class. Dr. Rook reported that, following assignment of grade modifiers, application of the net
adjustment formula resulted in no net change, amounting to seven percent permanent impairment
of the left lower extremity. He then calculated two percent lower extremity permanent impairment
rating “utilizing the accepted diagnosis of left foot sprain,” and seven percent permanent
impairment rating “for the diagnosis of left cuboid fracture with residuals.” Dr. Rook reported
that while either of these impairment ratings could be used, the greater seven percent permanent
impairment seemed more appropriate based on review of the medical records and physical
examination findings.
On February 1, 2018 OWCP routed Dr. Rook’s report, a statement of accepted facts
(SOAF), and the case file to Dr. Jovito Estaris, Board-certified in occupational medicine serving
as an OWCP district medical adviser (DMA), for review and determination regarding whether
appellant sustained permanent impairment of the left foot and date of MMI in accordance with the
sixth edition of the A.M.A., Guides.
In a February 7, 2018 report, Dr. Estaris reviewed the case file and Dr. Rook’s
November 30, 2017 report, finding that appellant had reached MMI on the date of his examination.
He agreed with Dr. Rook’s diagnosis of left foot cuboid fracture resulting in a class 1 diagnosis
for mild motion deficit. Dr. Estaris also assigned a GMPE of 1 and no GMCS, but determined that
Dr. Rook should have assigned a GMFH of 2 due to appellant’s antalgic gait with use of a cane.9
Application of the net adjustment formula amounted to one, resulting in grade D warranting
movement one place to the right of the default value for eight percent permanent impairment of
the left lower extremity.
Dr. Estaris noted that while Dr. Rook had not submitted an impairment rating based on the
range of motion (ROM) method, his examination findings provided three sets of ROM
measurements such that impairment could be calculated. He noted that appellant’s range of motion
was an appropriate alternative method for rating appellant’s permanent impairment, given
appellant’s multiple diagnoses of left foot sprain and fracture. Utilizing Table 16-25, ROM ICF
Classification, Dr. Estaris calculated nine percent permanent impairment of the left lower
extremity based on measurements revealing decreased range of motion.10 He noted the range of
motion measurements and determined that for the left foot, 10 degrees dorsiflexion yielded seven
percent impairment, 40 degrees plantar flexion yielded zero percent impairment, 15 degrees
inversion yielded two percent impairment, and 20 degrees eversion yielded zero percent
impairment for a combined nine percent permanent impairment. Thus, Dr. Estaris concluded that
appellant was entitled to the nine percent permanent impairment rating as permitted by the ROM
method over the lesser rated diagnosis-based impairment (DBI) method.

7

Id. at 517, Table 16-7.

8

Id. at 516, Table 16-6.

9

Id.

10

Id. at 550, Table 16-25.

3

On March 1, 2018 OWCP expanded acceptance of the claim to include left tarsometatarsal
ligament sprain.
By decision dated May 8, 2018, OWCP granted appellant a schedule award for nine percent
permanent impairment of the left lower extremity. The date of MMI was found to be
November 30, 2017 and the award covered a period of 25.92 weeks from November 30, 2017 to
May 30, 2018. The schedule award was paid at the 75 percent augmented rate for a qualifying
dependent.
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.11 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the American Medical Association, Guides
to the Evaluation of Permanent Impairment as the appropriate standard for evaluating schedule
losses.12 For schedule awards after May 1, 2009, the impairment is evaluated under the sixth
edition of the A.M.A., Guides, published in 2009.13
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).14 Under the sixth edition, the evaluator identifies the impairment class of
diagnosis (CDX) condition, which is then adjusted by grade modifiers including GMFH, GMPE,
and GMCS.15 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
Evaluators are directed to provide reasons for their impairment rating choices, including the
choices of diagnoses from regional grids and calculations of modifier scores.16
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of permanent

11

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

12

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

13

See D.T., Docket No. 12-0503 (issued August 21, 2012); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.6.6a (March 2017); see also Part 3 -- Medical,
Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
14

A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
15

Id. at 494-531.

16

C.M., Docket No. 17-1692 (issued December 14, 2018).

4

impairment in accordance with the A.M.A., Guides with a DMA providing rationale for the
percentage of impairment specified.17
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than nine
percent permanent impairment of the left lower extremity, for which he previously received a
schedule award.18
In support of his schedule award claim, appellant submitted a November 30, 2017 report
from Dr. Rook who determined that review of the medical record and physical examination
findings established a work-related fracture of appellant’s left cuboid bone as a result of his
February 15, 2000 employment injury. Dr. Rook calculated seven percent permanent impairment
of the left lower extremity using the DBI methodology based on a class 1 diagnosis of left cuboid
fracture with mild motion deficits.
The case file and Dr. Rook’s report was routed to Dr. Estaris, serving as an OWCP DMA,
who determined that appellant had reached MMI on November 30, 2017. Dr. Estaris noted
appellant’s diagnosis of left foot strain and agreed with Dr. Rook’s diagnosis of left foot cuboid
fracture resulting in class 1 for mild motion deficit. He also assigned a GMPE of 1 and no GMCS,
but determined that Dr. Rook should have assigned a GMFH of 2 due to appellant’s antalgic gait
with use of a cane.19 Dr. Estaris properly explained that application of the net adjustment formula
for a class 1 cuboid fracture with mild motion deficits resulted in eight percent permanent
impairment of the left lower extremity.20
The A.M.A., Guides explain that if there are multiple diagnoses of a lower extremity
impairment at the time of MMI, the evaluating physician must determine which method best
describes the impairment of a specific individual based on patient history and physical
examination.21 When uncertain about which method to use (e.g., DBI or ROM), the evaluator
should calculate the impairment using both alternatives and choose the method or combination of
methods that gives the most clinically accurate permanent impairment rating.22 The evaluating
physician must explain, in writing, the rationale for the rating methodology used.23

17

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (March 2017).
18

W.R., Docket No. 13-0492 (issued June 26, 2013).

19

Supra note 7.

20

R.V., Docket No. 17-0731 (issued June 7, 2017).

21

A.M.A., Guides 529.

22

Id.; see also T.T., Docket No. 09-1379 (issued March 10, 2010).

23

Id.

5

The Board notes that Dr. Estaris explained that the ROM methodology provided the most
accurate impairment evaluation, given appellant’s left foot diagnosis.24 Dr. Estaris also correctly
noted that appellant’s impairment rating could be calculated using the ROM method as Dr. Rook’s
examination findings provided three sets of range of motion measurements.25 The DMA identified
the range of motion measurements determining that for the left foot, 10 degrees dorsiflexion
yielded seven percent impairment, 40 degrees plantar flexion yielded zero percent impairment, 15
degrees inversion yielded two percent impairment, and 20 degrees eversion yielded zero percent
impairment for a combined nine percent permanent impairment of the left lower extremity.26
Appellant has not established that he has more than nine percent permanent impairment of
the left lower extremity as the record does not contain a medical report in which a greater rating
of permanent impairment has been provided. Accordingly, he has failed to meet his burden of
proof.
On appeal appellant argues that he was entitled to continuing compensation for his accepted
disability as he had been unable to return to any type of work since his left foot was crushed on
February 15, 2000. The Board notes that its jurisdiction is limited to reviewing the issue before it
from OWCP’s May 8, 2018 schedule award decision. Appellant further argues that he had a child
who was in college and he had filed the requisite forms establishing dependency. The Board notes
OWCP’s May 8, 2018 decision reflected that his award was paid at the 75 percent augmented
compensation rate for qualifying dependents.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than nine
percent permanent impairment of the left lower extremity, for which he previously received a
schedule award.

24

Supra note 22.

25

D.W., Docket No. 17-1092 (issued October 22, 2018).

26

Supra note 3 at 549.

6

ORDER
IT IS HEREBY ORDERED THAT the May 8, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 27, 2019
Washington, DC

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

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

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

7