United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
Y.A., Appellant
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Houston, TX, Employer
)
___________________________________________ )
Appearances:
Stephen V. Hunt, Sr., for the appellant
Office of Solicitor, for the Director

Docket No. 08-254
Issued: September 9, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 7, 2007 appellant filed a timely appeal from an October 16, 2007 decision
of an Office of Workers’ Compensation Programs’ hearing representative who affirmed the
termination of her compensation after she refused an offer of suitable work. 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 the Office properly terminated appellant’s compensation effective
May 21, 2007 on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
On November 30, 2005 appellant, then a 49-year-old letter carrier, sustained injury to her
right shoulder when she lifted tubs of mail in the performance of duty. She stopped work on

December 1, 2005.1 Appellant was treated by Dr. Charles Speller, an orthopedic surgeon, who
diagnosed a capsular sprain and impingement syndrome of the right shoulder. The Office
accepted the claim for a sprain/strain of the right shoulder and arm, right shoulder joint pain and
right shoulder impingement syndrome. She was placed on the periodic rolls and received
appropriate compensation benefits.
On April 3, 2006 Dr. Charles Covert, a Board-certified psychiatrist, noted that appellant
was seen for progressively severe symptoms of anxiety, depression and pain subsequent to her
November 30, 2005 injury. He reviewed her history of injury and medical treatment and
diagnosed dysthymic disorder due to chronic moderate to severe pain involving the right
shoulder following the accepted injury, which followed a prior surgery in 2001. Dr. Covert
opined that there was a direct relationship between appellant’s mental status and her
November 30, 2005 employment injury and that she was totally disabled. In follow-up notes,
Dr. Speller reiterated that appellant was totally disabled.
On July 12, 2006 the Office referred appellant to Dr. Michael LeCompte, a Boardcertified orthopedic surgeon, for a second opinion medical evaluation. In a July 28, 2006 report,
Dr. LeCompte set forth appellant’s history of injury and treatment. He advised that appellant
continued to have impingement syndrome of the right shoulder but that she was able to perform
light duty with restrictions that precluded any overhead work. Appellant was unable to lift, push
or pull greater than 10 pounds with the right upper extremity and was a candidate for a repeat
decompression surgery to include a bursectomy, acromioplasty and excision of the distal
clavicle. Dr. LeCompte noted that she had undergone physical therapy, injections and
medication, which had not been effective. He also noted that there was an element of
depression; however, it would not prevent her from returning to work.
The Office found a conflict in medical opinion arose between Dr. Speller, the treating
physician, and Dr. LeCompte, the second opinion physician, on the issue of appellant’s capacity
for work. On October 5, 2006 the Office referred appellant, together with a statement of
accepted facts and the medical record, to Dr. John Steele, a Board-certified orthopedic surgeon,
selected as the impartial medical specialist.
Appellant underwent a functional capacity evaluation on November 10, 2006. She was
found capable of performing work with a sedentary to light physical demand level and weight
limitations on lifting of no more than 15 pounds infrequently and 10 pounds or less frequently.
A work hardening program was also recommended and appellant underwent work hardening on
November 17, 2006 for four weeks.
In a November 27, 2006 report, Dr. Steele reviewed appellant’s history of injury and
treatment. He conducted a physical examination and diagnosed postoperative arthroscopic
1

The Office accepted an August 6, 2001 claim for right shoulder impingement syndrome. Appellant underwent
arthroscopic surgery on December 3, 2001 with debridement, bursectomy and acromioplasty. She returned to
modified part-time work on February 11, 2002 and to full-time modified duty on April 15, 2002. On April 8, 2003
the Office found that appellant’s actual earnings as a modified city carrier fairly and reasonably represented her
wage-earning capacity. Appellant received a schedule award for five percent impairment to her right arm. On
June 12, 2006 the Office combined the claims.

2

debridement of the subacromial space with bursectomy and acromioplasty and residual
significant impingement syndrome of the right shoulder aggravated by the November 20, 2005
injury. Dr. Steele agreed with the recommendation of repeat arthroscopic surgery of the right
shoulder. He advised that appellant could work in a sedentary position provided she did not have
to lift more than 10 pounds occasionally. Dr. Steele noted that the “depression of not being able
to do her job” certainly contributed to her current condition but did not disable her from
returning to work.
Dr. Speller submitted additional duty status reports advising that appellant remained
totally disabled for work. On November 30, 2006 he discussed appellant’s work hardening and
noted progressive improvement in her right shoulder; however, he advised that appellant needed
treatment for her emotional condition.
On January 24, 2007 the employing establishment offered appellant a modified duty as a
mail handler. The position description included cutting bands and wrapping flat bundles, picking
up flats and placing them in equipment. The physical requirements were listed as reaching,
bending and stooping with the right shoulder for 30 minutes per hour, repetitive motion and
pushing and pulling with the right shoulder for 4 hours. The position included a lifting
requirement of no more than 10 pounds with the right shoulder. The position also included
stretch breaks of 5 to 10 minutes per hour for the shoulder.
By letter dated February 28, 2007, the Office advised appellant and her representative
that it found the modified-duty job offer suitable to her physical restrictions. Appellant was
advised that she should accept the position or provide an explanation for refusing it within 30
days. The Office noted that, if she failed to accept the offered position and failed to demonstrate
that such failure was justified, her compensation would be terminated.2
In treatment notes dated February 1 and March 1, 2007, Dr. Speller advised that appellant
still had an emotional condition which had not been treated and was related to her right shoulder
pain. He reiterated that she was unable to resume gainful employment. He continued to submit
reports and advise that appellant was unable to work.
By letter dated March 1, 2007, the Office advised appellant that it had not accepted an
emotional condition. However, it would refer her to a psychiatrist for a second opinion
examination to determine whether she had an emotional condition related to her accepted injury.
On March 8, 2007 the Office referred appellant to Dr. Jorge Raichman, a Board-certified
psychiatrist.
By letter dated April 20, 2007, the Office informed appellant that her reasons for refusing
the position were not acceptable and allowed an additional 15 days for her to accept the position.
Appellant was advised that Dr. Steele, the impartial medical specialist, represented the weight of
the medical evidence. She was advised that no further reason for refusing the position would be
considered.

2

This was the second 30-day letter. An earlier letter dated January 31, 2007 was reissued as appellant’s
representative was not provided with a copy.

3

In an April 29, 2007 report, Dr. Raichman addressed appellant’s history of injury and
medical treatment following the November 30, 2005 employment injury. He diagnosed major
depression recurrent, avoidant personality disorder and moderate right shoulder impingement
syndrome. Dr. Raichman indicated that her depression was not disabling and that she could
work full time within the physical restrictions as outlined by the orthopedic surgeon. He advised
that appellant would benefit from medications to improve her mood and that antidepressants
would be very helpful for her and improve her demeanor, attitude and facilitate her return to
work. Dr. Raichman noted that appellant was functioning well and her return to work would
enhance her ability to function independently. He also noted that retuning to work would help to
increase her self-worth, her financial situation and improve her isolated social situation.
Dr. Raichman opined that appellant’s emotional condition most likely preexisted the
employment injury, but was “related in part” to persistent pain and the lack of improvement
following her right shoulder injury. Appellant was able to perform her job within the physical
restrictions outlined.
In a May 21, 2007 decision, the Office terminated appellant’s monetary compensation
benefits on the basis that she had refused suitable work. It noted that Dr. Raichman opined that
she could work an eight-hour day with restrictions not to include overhead work or repetitive
lifting. The Office determined that the report of Dr. Steele, the impartial medical examiner,
represented the weight of the evidence as to her physical capacity for work.
Appellant subsequently submitted a May 1, 2007 report from Dr. David Suchowiecky, a
psychiatrist. He addressed her medical history and diagnosed pain associated with psychological
factors and a general medical disorder; anxiety state, unspecified; reactive anxiety; reactive
depression; pain in the joint; sprain of the right shoulder and upper arm; and severe sacroiliitis.
He recommended a psycho-educational and physical conditioning program. Dr. Suchowiecky
opined that appellant was totally disabled both physically and psychologically due to the
November 30, 2005 employment injury. Dr. Speller submitted additional notes finding that
appellant remained totally disabled. On August 17, 2006 he disagreed with Dr. LeCompte’s
assessment of appellant’s ability to resume work. Dr. Speller found that appellant was
emotionally unstable with crying spells and depression and did not have the endurance or
stamina to maintain gainful employment for an eight-hour shift. He recommended additional
physical therapy and strengthening.
On June 2, 2007 the Office received the June 2, 2006 report of Glenn Bricken, Ph.D., a
clinical psychologist. He addressed the medical history, noting that appellant had opted for
conservative treatment rather than additional right shoulder surgery. Dr. Bricken advised that
appellant was becoming increasingly deconditioned due to her injury, pain and apprehension of
pain. He opined that she had a chronic pain disorder associated with both psychological factors
and a general medical condition, with depression which developed from her work-related injury.
Dr. Bricken advised that appellant was unable to work. In a June 12, 2007 report, he repeated his
diagnoses. Dr. Bricken stated that appellant had severe chronic right shoulder pain and became
increasingly deconditioned due to her injury and resulting sedentary behavior. He found that she
was totally disabled.
On June 13, 2007 appellant’s representative requested a review of the written record. He
contended that the Office did not meet its burden of proof and acted prematurely in terminating

4

her benefits. Appellant’s representative also alleged that a conflict arose as to whether appellant
had a consequential emotional condition.
In a July 12, 2007 report, Dr. Suchowiecky stated that appellant had been a previously
healthy individual, mentally and physically, who was now experiencing a full blown depressive
disorder directly related to her injury of November 30, 2005. Her depressive symptoms included
depressed mood, crying spells, anxiety, disruptive sleep patterns and a deflated sense of selfesteem. Dr. Suchowiecky advised that appellant could not return to any type of gainful
employment, including the job assignment of January 24, 2007. Due to her physical and
emotional symptoms, appellant remained totally disabled due to her November 30, 2005 injury.
In a September 10, 2007 statement, appellant contended that her emotional condition
arose as a result of her August 6, 2001 employment injury and was aggravated by the
November 30, 2006 employment injury. She alleged that she was unable to work as a result of
her emotional condition.
By decision dated October 16, 2007, an Office hearing representative affirmed the
May 21, 2007 termination decision.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation, including cases in which the Office terminates compensation
under section 8106(c) for refusal to accept suitable work.3
Section 8106(c)(2) of the Federal Employees’ Compensation Act provides that a partially
disabled employee who refuses or neglects to work after suitable work is offered to, procured by,
or secured for the employee is not entitled to compensation.4 Section 10.517(a) of the
implementing federal regulations provide that an employee who refuses or neglects to work after
suitable work has been offered or secured for her has the burden to show that the refusal or
failure to work was reasonable or justified.5 After providing the notices described in section
10.516, the Office will terminate the employee’s entitlement to further compensation.6 However,
the employee remains entitled to medical benefits as provided by section 8103 or as justified. To

3

Sandra K. Cummings, 54 ECAB 493 (2003).

4

5 U.S.C. § 8106(c)(2).

5

20 C.F.R. § 10.517(a).

6

20 C.F.R. § 10.516. This section provides that the Office shall advise the employee that it has found the offered
work to be suitable and afford the employee 30 days to accept the job or present any reasons to counter the Office’s
finding of suitability. If the employee presents such reasons, and the Office determines that the reasons are
unacceptable, it will notify the employee of that determination and that he or she has 15 days in which to accept the
offered work without penalty. At that point in time, the Office’s notification need not state the reasons for finding
that the employee’s reasons are not acceptable.

5

support termination, the Office must show that the work offered was suitable,7 and must inform
appellant of the consequences of refusal to accept such employment.8
The determination of whether an employee is capable of performing modified duty is a
medical question that must be resolved by probative medical opinion.9 It is well established
under Office procedures that, if the medical evidence documents a condition which has arisen
since the compensable injury and the condition disables the employee, the job will be considered
unsuitable.10
ANALYSIS
The Office accepted that appellant sustained injury to her right shoulder on November 30,
2005, accepted for sprain/strain of the right shoulder and arm with right shoulder impingement
syndrome and pain. The medical evidence reflects that appellant had a prior employment injury
to her right shoulder in August 2001 for which she underwent surgery on December 3, 2001.
A conflict in medical opinion arose between Dr. Speller and Dr. LeCompte as to
appellant’s capacity to return to full-time modified duty. She was referred for an impartial
medical evaluation by Dr. Steele, a Board-certified orthopedic surgeon. Section 8123(a) of the
Act provides: “If there is a disagreement between the physician making the examination for the
United States and the physician of the employee, the Secretary shall appoint a third physician
who shall make an examination.”11 Dr. Steele conducted a thorough evaluation of appellant. He
found that residuals of her accepted right shoulder condition did not preclude her from working
modified duty for eight hours a day, in a limited capacity with specified restrictions on lifting.
Dr. Steele provided restrictions for sedentary duty. He advised that appellant could work in a
sedentary position provided she did not have to lift more than 10 pounds, occasionally.
Dr. Steele noted that she had depression which may have contributed to her condition but which
did not disable appellant from returning to work.
When a case is referred to an impartial medical specialist for the purpose of resolving a
conflict in medical opinion, the opinion of such specialist, if sufficiently well rationalized and
based on a proper background, must be given special weight.12 Dr. Steele’s opinion is entitled to
special weight and establishes that appellant is physically capable of working eight hours per day
in a sedentary position. Subsequently, the employing establishment offered appellant a sedentary
7

See Carl W. Putzier, 37 ECAB 691 (1986); Herbert R. Oldham, 35 ECAB 339 (1983).

8

See Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992). See Federal (FECA)
Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.5(d)(1)
(July 1997).
9

See Gloria J. Godfrey, 52 ECAB 486 (2001); Robert Dickerson, 46 ECAB 1002 (1995).

10

Id. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning
Capacity, Chapter 2.814.4(b)(4) (December 1993).
11

5 U.S.C. § 8123(a).

12

Kathryn Haggerty, 45 ECAB 383, 389 (1994); Jane B. Roanhaus, 42 ECAB 288 (1990).

6

position that conformed to the work restrictions provided by Dr. Steele. By letter dated
February 28, 2007, the Office advised appellant that the position was suitable and provided her
30 days to accept the position or provide reasons for her refusal. It further notified her that a
partially disabled employee who refused suitable work was not entitled to compensation.
The Board notes, however, that the medical evidence clearly reflects that appellant was
receiving medical treatment for an emotional condition which was attributed by her physicians to
be a consequence of the accepted employment injury and which disabled her for work. The
treatment records from Dr. Speller advised that she had an emotional condition which had not
been treated properly and was due to chronic right shoulder pain. He advised that appellant was
unable to resume gainful employment. Therefore, as of the Office’s March 8, 2007 referral of
appellant to Dr. Raichman, the Office had not established that the modified-duty job offer was
medically suitable to appellant. Moreover, prior to the receipt of Dr. Raichman’s April 29, 2007
report, the Office had notified appellant on April 20, 2007 that her reasons for refusing the
offered position were not acceptable. Appellant was then given 15 days in which to accept the
offered position or her monetary compensation would be terminated. The Office advised that no
further reasons for refusing the position would be considered. After receiving Dr. Raichman’s
report, the Office terminated appellant’s monetary benefits as of the May 21, 2007 decision. It
listed the reports of Dr. Raichman and Dr. Steele as the weight of medical opinion.
In Adrienne L. Curry,13 the Office terminated the employee’s compensation based on her
refusal of suitable work. The Board reversed this determination, noting that when the Office first
made its suitability finding it relied on the medical opinion obtained from an impartial medical
specialist. However, the Office subsequently determined that additional development of the
medical evidence was required and that the impartial medical specialist had not reviewed the
modified-duty position. The Board found that, as the report of the impartial specialist required
clarification, the conflict in medical opinion had not been resolved as of the date the Office made
its finding of suitability. The Board stated: “The Office obtained clarification when it received
[the impartial specialist’s] supplemental report of October 1, 1999, but this report does not
retroactively validate the Office’s June 30, 1999 suitability finding. The Board has held that the
Office may not find a position suitable and then obtain the medical evidence to show it.”14 The
Board found that, after obtaining the supplemental report of the impartial specialist, the
employee was entitled to a new suitability determination and 30-day notification to accept the
job offer.
This case is factually similar. On February 28, 2007 the Office advised appellant of its
finding of suitability and provided her 30 days to accept the modified-duty position or provide
reasons for refusing the job offer. This was based solely on the medical evidence addressing the
physical residuals arising from the accepted injury to her right shoulder. However, the medical
evidence documented a question as to a consequential emotional condition which the Office
developed after the suitability determination. On March 1, 2007 she was advised that referral to
a psychiatrist would be made to address this issue. As of April 20, 2007, when the Office issued
its 15-day notice to appellant, it had not yet received any report from Dr. Raichman. In short, the
13

53 ECAB 750 (2002).

14

Id. at 754.

7

Office did not establish the suitability of the offered position prior to the development of the
emotional condition aspect of this claim.15
To properly terminate compensation under section 8106, the Office must provide
appellant notice of its finding that an offered position is suitable and give her an opportunity to
accept or provide reasons for declining the position.16 The Office did not provide proper notice
to appellant concerning the termination of her wage-loss benefits. By notifying her that she had
15 days to accept the position and that no further reasons for refusal would be considered, the
Office deprived appellant of the due process protections addressed in Maggie L. Moore.17 By
not making a new suitability determination and allowing appellant a 30-day period after the
Office’s receipt of Dr. Raichman’s report, as contemplated under its procedures, the Office
effectively precluded appellant from offering a meaningful response to his medical opinion.18
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation effective May 21, 2007 on the grounds that she refused an offer of suitable work.

15

The Office procedure manual notes that, if it is not possible to determine whether an employee’s reason for
refusing a job offer is valid without further investigation, the claims examiner should contact the employee for
additional information and set another 30-day deadline. Chapter 2.814.5(d) (July 1997).
16

See Maggie L. Moore, supra note 8.

17

Id. at note 8.

18

The Board need not address whether there is a conflict in medical opinion as to whether appellant sustained a
consequential emotional condition.

8

ORDER
IT IS HEREBY ORDERED THAT the October 16 and May 21, 2007 decisions of the
Office of Workers’ Compensation Programs are reversed.
Issued: September 9, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
K.O., Appellant
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Dallastown, PA, Employer
)
___________________________________________ )
Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1885
Issued: March 6, 2008

Case Submitted on the Record

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

JURISDICTION
On July 10, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ schedule award decision dated June 25, 2007. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award determination.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained
more than seven percent permanent impairment of her right upper extremity for which she
received a schedule award.
FACTUAL HISTORY
This case has previously been on appeal before the Board.1 In a November 3, 2006
decision, the Board found that appellant’s case was not in posture for decision as to whether she
1

Docket Nos. 06-984 & 06-1820 (issued November 3, 2006). The record reflects that the Office authorized an
anterior cervical discectomy and allograft fusion with anterior cervical plating for a right-sided C5-6 herniated
nucleus pulposus and left-sided C6-7 herniated nucleus pulposus, which she underwent on March 7, 2003.

had more than seven percent impairment of her right arm. The Board also found that she had no
more than 14 percent impairment of the larynx. The Board remanded the case for further
development. The facts and the history are set forth in the prior decision and are incorporated by
reference.
On November 27, 2006 the Office referred appellant to Dr. Perry Eagle, a Board-certified
orthopedic surgeon, along with a statement of accepted facts, a set of questions and the medical
record.
In a report dated December 18, 2006, Dr. Eagle utilized the American Medical
Association, Guides to the Evaluation of Permanent Impairment, 166 (5th ed. 2001) (A.M.A.,
Guides) and described appellant’s history of injury and treatment. He rated appellant as having
25 percent whole person impairment. On physical examination, Dr. Eagle noted that appellant
had limitation of motion in her neck and could rotate 70 degrees in either direction; flex to 30
degrees, extend to 50 degrees, and could laterally tilt to 25 degrees in either direction.
Additionally, he noted that appellant had no complaints of pain with range of motion. Dr. Eagle
determined that deep tendon reflexes in the upper extremities were symmetrical, and there was
no deltoid, biceps, triceps, and wrist dorsiflexor or hand muscle weakness, with the distal
sensation intact except for hypoesthesia over the dorsal aspects of the right little and ring fingers,
and excellent grip strength. Regarding the right shoulder, he noted that appellant had full range
of motion and no tenderness over the acromioclavicular (AC) joint, rotator cuff or biceps groove.
Dr. Eagle noted that appellant had a normal electromyography (EMG) scan, and advised that
magnetic resonance imaging (MRI) scans of the cervical spine revealed a disc protrusion at
C3-4, spondylosis at C4-5, and posterior spondylosis at C5-6 and C6-7. He advised that
appellant had reached maximum medical improvement. Dr. Eagle referred to Table 15-5,2
stating that appellant would fall into the DRE Cervical Category IV, with loss of motion
segments due to surgical arthrodesis and radiculopathy which would correlate to 25 percent
impairment of the whole person.
In an addendum dated January 2, 2007, Dr. Eagle noted that appellant’s impairment
involved the C3 dermatome and referred to Figure 15-2.3 He referred to Table 15-15,4 finding
that appellant had a Grade 4 deficit. Dr. Eagle indicated that under Table 16-145 the maximum
percentage of upper extremity impairment due to sensory deficit to C8 was 20 percent. He
multiplied this by the Grade 4 sensory deficit to find four percent impairment to the right arm. In
a January 30, 2007 addendum, Dr. Eagle opined that the four percent award was the total award
and it was not in addition to the prior award.
By decision dated February 2, 2007, the Office denied appellant’s claim for an additional
schedule award to the right arm. Based on the evaluation of Dr. Eagle, appellant had no increase
in the impairment to the right upper extremity.
2

A.M.A., Guides 392.

3

Id. at 377.

4

Id. at 424.

5

Id. at 490.

2

By letter dated February 8, 2007, appellant’s representative requested reconsideration.
He alleged that he was not given notice of the second opinion examination and that the Office’s
failure to notify him effectively denied appellant the right to have a physician present to
participate in the examination. Counsel requested that the Office vacate the decision and arrange
for a new second opinion examination and a notice of the examination.
On February 16, 2007 the Office vacated the February 2, 2007 decision, as appellant and
her representative were not properly notified of her right to have a physician of her choice (and
paid for by her) present at the second opinion examination performed on December 18, 2006.
On February 28, 2007 the Office referred appellant for a second opinion, together with a
statement of accepted facts, a set of questions and the medical record to Dr. Robert Draper, a
Board-certified orthopedic surgeon.
In a March 27, 2007 report, Dr. Draper noted appellant’s history of injury and treatment
and utilized the A.M.A., Guides. For the right shoulder he noted that appellant had 180 degrees
of abduction and 180 degrees of forward flexion. Dr. Draper indicated that, with the right
shoulder abducted to 90 degrees, appellant had 90 degrees of internal rotation and 90 degrees of
external rotation. He also advised that appellant had 170 degrees of forward flexion and 170
degrees of abduction. Dr. Draper referred to Table 16-406 and determined that abduction of 170
degrees for the right shoulder was equal to one percent of the right upper extremity. He referred
to Figure 16-437 and determined that abduction of 170 degrees equated to zero percent.
Dr. Draper referred to Table 16-468 and determined that 90 degrees of external rotation was
equivalent to zero percent of the shoulder and opined that the total impairment of the right arm
associated with the shoulder was equal to one percent. He noted that appellant did not have a
sensory or motor deficit involving the cervical nerve roots at C5, C6 and C7. Dr. Draper also
determined that there was no C8 sensory or motor deficit and no physical examination findings
consistent with cervical radiculopathy involving the right upper extremity.
In a June 18, 2007 report, the Office medical adviser noted appellant’s history of injury
and treatment and reviewed the medical reports submitted by Drs. Eagle and Draper. He
indicated that appellant reached maximum medical improvement on May 9, 2005. The Office
medical adviser determined that Dr. Eagle’s impairment rating of four percent only included
impairment for one level nerve root, whereas appellant’s operation included two different nerve
roots and explained that the calculation of C8 was correct at four percent. The Office medical
adviser explained that, because appellant’s postoperative radiculopathy would involve both the
C5-6 and C6-7 anterior disc excision and fusion, the impairment would equate to seven percent
for both nerve roots. The Office medical adviser also explained that Dr. Draper indicated that
appellant had limitation of range of motion of the right upper extremity which was comprised of
limited flexion and extension which resulted in one percent impairment to the right arm. He also
explained that Dr. Draper’s report did not recognize that radiculopathy would be present and
6

Id. at 476.

7

Id. at 477.

8

Id. at 479.

3

anticipated after such a clinical situation. The Office medical adviser also indicated that
Dr. Eagle, who examined appellant three and a half months prior to Dr. Draper, noted that the
right shoulder had full range of motion, but Dr. Eagle found decreased sensation over the dorsal
aspect of the ring and little fingers. He opined that appellant should receive a schedule award of
seven percent to the right upper extremity.9
By decision dated June 25, 2007, the Office denied appellant’s claim for an increased
schedule award. The Office found that appellant had no more than a seven percent permanent
impairment of the right upper extremity.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act10 and its
implementing regulations11 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all appellants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all appellants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.12
ANALYSIS
This Board finds that this case is not in posture for a decision. The case requires further
development of the medical evidence.
In the instant case, the Office referred appellant for a second opinion with Dr. Eagle, but
failed to notify appellant’s representative of the examination. The Board has held that, under
20 C.F.R. § 10.144, the Office’s failure to notify the representative of the referral of appellant for
a second opinion examination denied a claimant the statutory right to have a physician
designated and paid by the claimant present to participate in the examination.13 As a result of
failing to notify appellant’s representative of the examination, the Office vacated its February 2,
2007 decision and scheduled a new examination with Dr. Draper, a Board-certified orthopedic
surgeon, in order to allow appellant and his representative the opportunity to have a physician
present or participate in the examination.

9

Dr. Eagle also provided an impairment rating of 14 percent to the larynx and advised that the accepted condition
should be expanded to include paralysis of right recurrent laryngeal nerve.
10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

12

A.M.A., Guides (5th ed. 2001); 20 C.F.R. § 10.404; see Jacqueline S. Harris, 54 ECAB 139 (2002).

13

Donald J. Knight, 47 ECAB 706 (1996).

4

In a March 27, 2007 report, Dr. Draper utilized the A.M.A., Guides and provided range
of motion measurements for the right shoulder. He referred to Table 16-4014 and determined that
abduction of 170 degrees for the right shoulder was equal to one percent impairment of the right
upper extremity. Dr. Draper noted that appellant had abduction of 170 degrees and referred to
Figure 16-4315 which indicated that this would warrant an impairment of zero percent. He
referred to Table 16-4616 and determined that 90 degrees of external rotation was equivalent to
zero percent of the shoulder. Dr. Draper concluded that appellant had one percent impairment of
the right arm. He did not opine that appellant was entitled to any additional impairment.
In a June 18, 2007 report, the Office medical adviser reviewed the medical record and the
report submitted by Dr. Draper. The Office medical adviser noted that, while Dr. Draper opined
that appellant only had one percent impairment to the right arm, he did not recognize that
radiculopathy would be present and anticipated after such a clinical situation. Therefore, the
Office medical adviser referred to the findings contained in Dr. Eagle’s impairment rating of four
percent. He explained that Dr. Eagle only included impairment for one level nerve root, whereas
appellant’s operation17 included two different nerve roots and explained that the calculation of
C8 was correct at four percent based on impairment for one level nerve root. However, the
Office medical adviser explained that the levels of C5-6 and C6-7 involved nerve roots C6 and
C7, and not C8. He therefore opined that this would equate to seven percent for both nerve roots
and that appellant was therefore entitled to seven percent to the right upper extremity. The
Office medical adviser did not adequately explain how he arrived at his conclusion. He did not
refer to any sections or pages in the A.M.A., Guides to support his findings. The Office’s
procedures indicate that the opinion of the Office medical adviser can constitute the weight of
the medical opinion evidence only if it is rationalized, considers each reported finding of
impairment and comports with the A.M.A., Guides.18 As the Office referred appellant for an
evaluation of the permanent impairment of her right arm, it has an obligation to obtain a report
on which a proper evaluation and assignment of permanent impairment can be done.19
On remand, the Office should refer appellant, together with the case record and a
statement of accepted facts, to an appropriate Board-certified specialist for an evaluation and
calculation of her work-related impairment of her right upper extremity based upon a proper
application of the fifth edition of the A.M.A., Guides. Following such further development as
the Office deems necessary, it should issue a de novo decision.

14

A.M.A., Guides 476.

15

Id. at 477.

16

Id. at 479.

17

See supra note 1.

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.7(h) (April 1993).
19

See Robert Kirby, 51 ECAB 474 (2000); Mae Z. Hackett, 34 ECAB 1421 (1983).

5

CONCLUSION
The Board finds that this case is not in posture for decision regarding the extent of
appellant’s upper extremity impairment, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 25, 2007 is set aside and the case remanded for further
development consistent with this decision.
Issued: March 6, 2008
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.B., Appellant
and
DEPARTMENT OF THE ARMY, CORPUS
CHRISTI ARMY DEPOT, Corpus Christi, TX,
Employer
__________________________________________

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

Docket No. 09-108
Issued: February 24, 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 15, 2008 appellant filed a timely appeal of a September 29, 2008 merit
decision wherein the Office of Workers’ Compensation Programs issued a schedule award for a
10 percent binaural loss of hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this schedule award.
ISSUE
The issue is whether appellant has more than a 10 percent binaural hearing loss for which
he received a schedule award.
FACTUAL HISTORY
On January 25, 2008 appellant, then a 61-year-old electroplater leader, filed an
occupational disease claim alleging that he suffered from continuous ringing in his left ear and
partial damage to his right ear as a result of exposure to noise while cleaning and restoring
engine parts on the UH-1 Huey helicopter, turbine engines and transmissions parts.

On May 23, 2008 the Office referred appellant to Dr. Paul W. Loeffler, a Board-certified
otolaryngologist, for a second opinion. In a medical report dated June 12, 2008, Dr. Loeffler
assessed appellant with tinnitus and bilateral sensorineural hearing loss due to noise exposure
during his federal employment. He recommended hearing aids. An audiogram was conducted
on behalf of Dr. Loeffler and he interpreted the test as reflecting testing at frequency levels
including those of 500, 1,000, 2,000 and 3,000 cycles per second (cps) that revealed decibel
losses on the right (air) as 15, 15, 30 and 50, respectively. He then added the losses at each
frequency and averaged the losses to determine that appellant had an average hearing loss of 27.5
decibels in his right ear. Dr. Loeffler then subtracted the fence of 25 decibels and multiplied the
remaining amount by a factor of 1.5 to arrive at a 3.75 percent monaural impairment in the right
ear. With regard to the left ear, he found that testing at 500, 1,000, 2,000 and 3,000 cps revealed
a hearing loss on the left (air) as 15, 10, 45 and 55, respectively. Dr. Loeffler determined that the
average hearing loss was 31.25 decibels, subtracted the fence of 25 decibels to equal 6.25 and
multiplied this figure by 1.5 to determine that appellant had a 9.375 decibel hearing loss to his
left ear. He calculated appellant’s binaural hearing impairment by multiplying 9.375 by 5 and
adding 3.75 (hearing loss in the right ear) and dividing the sum by 6 to determine that appellant
had an 8.437 binaural hearing loss. Dr. Loeffler then added 5 percent for the impact of tinnitus
and determined that appellant had a 13.44 percent binaural hearing impairment.
By letter dated June 17, 2008, the Office asked the Office medical adviser to determine
the percentage of impairment. The Office medical adviser determined that, based on the report
of Dr. Loeffler, appellant had 4.7 percent impairment due to binaural hearing loss and 5 percent
impairment for tinnitus which yielded a total of 9.7 percent for hearing loss and tinnitus.
On September 5, 2008 the Office accepted appellant’s claim for binaural hearing loss and
binaural tinnitus. It further authorized hearing aids.
On September 10, 2008 appellant filed a claim for a schedule award.
By decision dated September 29, 2008, the Office issued a schedule award for 10 percent
binaural hearing loss.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.1 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate

1

The Act provides that, for complete, or 100 percent loss of hearing in one ear, an employee shall receive 52
weeks compensation. For complete loss of hearing of both ears, an employee shall receive 200 weeks
compensation. 5 U.S.C. § 8107(c)(13).

2

standard for evaluating schedule losses.2 Effective February 1, 2001, schedule awards are
determined in accordance with the A.M.A., Guides (5th ed. 2001).3
Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at each frequency are
added up and averaged.4 Then, the fence of 25 decibels is deducted because, as the A.M.A.,
Guides points out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions.5 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.6 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, and then added to the greater loss and the total is divided by six to arrive at the amount
of the binaural hearing loss.7
ANALYSIS
Based on the report of the second opinion specialist, Dr. Loeffler, the Office medical
examiner determined that appellant had a 9.7 percent hearing impairment. The Office rounded
this figure up and issued a schedule award based on a 10 percent binaural hearing impairment.
In reviewing Dr. Loeffler’s June 12, 2008 audiogram, the frequency levels recorded at 500,
1,000, 2,000 and 3,000 cps for the right ear revealed decibel losses of 15, 15, 30 and 50,
respectively, for a total of 110 decibels. The average loss of 27.5 is reduced by 25 decibels to
2.5, which is multiplied by 1.5 and represents a 3.75 percent ratable monaural hearing loss in the
right ear. Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps
revealed decibel losses of 15, 10, 45 and 55, respectively, for a total of 125 decibels. Utilizing
the above-noted formula, results in a 9.375 decibel hearing loss to appellant’s left ear. When the
hearing loss in the better ear of 3.25 percent decibel loss is multiplied by 5 and added to the
hearing loss in appellant’s most impaired ear of 9.375, this yields a sum of 25.625, which divided
by 6, indicates that appellant has 4.27 impairment due to hearing loss. When added to the five
percent for tinnitus,8 this results in a total binaural impairment of 9.27 percent. The Board notes
that the Office medical adviser based his conclusion on the audiogram conducted on behalf of
Dr. Loeffler. However, Dr. Loeffler did not properly calculate appellant’s binaural hearing loss
in performing his calculations for binaural hearing loss based upon his correct calculations for
impairment in each ear, he mistakenly switched the ear with the greatest impairment with the ear
with the lesser impairment in the formula calculating binaural hearing loss. When the
2

20 C.F.R. § 10.404 (2006).

3

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 2.0808.7(b)(2) (April 1995).

4

A.M.A., Guides 246 (5th ed. 2001).

5

Id.

6

Id.

7

Id.

8

Tinnitus in the presence of unilateral or bilateral hearing impairment may impair speech discrimination.
Therefore, the A.M.A., Guides allow up to five percent additional for tinnitus in the presence of measurable hearing
loss if the tinnitus impacts the ability to perform activities of daily living. A.M.A., Guides 246.

3

appropriate figures are inserted into the formula, appellant has 4.27 percent impairment due to
hearing loss, not 8.437 impairment, as found by Dr. Loeffler. Accordingly, as the Office
determined that appellant had a 10 percent binaural hearing impairment, and the record contains
no opinion that correctly applies the A.M.A., Guides and finds that appellant is entitled to a
greater amount, the Office properly found that appellant had no more than a 10 percent binaural
hearing impairment.9
CONCLUSION
The Board finds that appellant has not established that he has more than a 10 percent
binaural hearing loss for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 29, 2008 is affirmed.
Issued: February 24, 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

9

With respect to appellant’s contention that he should be compensated for pain and suffering, the Board notes
that the Act makes no provision for payment for disability of compensation for pain or suffering, as such. See
Joseph D. Cecil, 32 ECAB 1918 (1981).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION, MEDICAL
CENTER, Memphis, TN, Employer
__________________________________________

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

Docket No. 13-1332
Issued: June 16, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Acting Chief Judge1
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 16, 2013 appellant filed a timely appeal from the December 31, 2012 decision of
the Office of Workers’ Compensation Programs (OWCP) concerning her pay rate. Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP properly determined appellant’s pay rate for compensation
purposes.

1

Effective May 20, 2014, Patricia Howard Fitzgerald was appointed Acting Chief Judge.

2

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that she did not work a full year prior to her injury and her
rate of pay should have included premium pay as shown through a comparable employee.3
FACTUAL HISTORY
On January 31, 2011 appellant, then a 42-year-old nurse, sustained injury to her right jaw
during an attempt to calm and secure a patient who kicked her. On March 10, 2011 OWCP
accepted her claim for contusion of the right temporomandibular joint (TMJ), other specified
right TMJ disorders, contusion and aggravation of right TMJ, anxiety disorder, right cranial
nerve palsy, mild pharyngeal dysphagia, ptosis of right eyelid, right eye dryness, temporary
exacerbation of diabetes and post-traumatic stress disorder. Appellant stopped work on
January 31, 2011 and did not return.
In a Form CA-7 completed by appellant on March 30, 2011, the employing establishment
noted that as of the date of injury on January 31, 2011 she earned $75,115.00 annually as a nurse
at grade VN12-1. There was no additional pay listed. The employing establishment noted that
appellant worked a fixed 40-hour week schedule. In an April 18, 2011 telephone memorandum,
the employing establishment clarified that appellant worked a compressed schedule as a nurse,
which equaled an 80-hour pay period. Appellant rotated six 12-hour shifts and one 8-hour shift.
OWCP advised that total pay was reported and there were no additional pay elements. On
June 6, 2011 it advised appellant that she was in receipt of wage-loss compensation based on a
weekly pay rate of $1,444.52 or $3,422.37 every 28 days.
By letter dated December 28, 2011, OWCP inquired as to appellant’s pay rate at the time
of injury, including any premium pay. On January 11, 2012 the employing establishment
responded that she began her employment on January 2, 2011 and was injured on
January 31, 2011. At the time of injury appellant’s base salary was $75,115.00 per annum with
varied work schedules that included premium pay for night differential, Saturday and Sunday
pay. On the date of injury appellant was entitled to night differential at 10 percent of the hourly
rate or $3.61 per hour. Her actual wages for January 30 through February 12, 2011, for 80 hours
base was $2,888.80, night differential for 80 hours was $288.80 and 4 hours for Saturday was
$36.12. Wages, but for the injury, would have been base of $2,888.80, night differential for 80
hours at $288.80, Saturday 16 hours $144.48 and 12 hours Sunday for $108.36. The employing
establishment noted that appellant was not employed for one year prior to her injury and it was
unable to provide a full year’s earnings. However, appellant’s wages earned for the two pay
periods prior to the injury totaled $5,777.60, all of which was base pay with no additional night
differential or other premium pay earned. In an attached CA-7 form, the employing
establishment portion listed her base pay as of the date of her injury as $1,444.52 per week, night
differential of $3.61 per hour and Saturday/Sunday differential of $9.03 per hour. It was noted
that appellant’s work schedule varied.
3

Appellant also contended on appeal that, in a letter from OWCP to her congressman, he was informed that she
would be paid based on the hours of a similar employee. The Board notes that there is a letter to her congressman,
dated February 6, 2012, in the record wherein OWCP informed him that as she had not worked the whole year prior
to her injury, premium pay will be adjusted once DOL received information with regard to income from a similarly
situated employee. However, contrary to appellant’s assertion, this was not a formal decision but informational in
nature. See 20 C.F.R. § 10.126.

2

In a pay rate memorandum dated January 31, 2012, OWCP noted that appellant worked a
compressed/rotating schedule and had not worked the full year prior to the injury. As appellant
worked from January 2 to 31, 2011 or 30 days inclusive, it prorated the premium pay and
differentials provided by the employing establishment. The memorandum listed appellant’s base
weekly rate as $1,444.52, with an additional night differential total of $288.80 (which averaged
$67.39 a week or $9.627 a day) and Saturday premium that totaled 36.12 (which averaged $8.43
a week or $1.204 a day). This amounted to an additional pay of $75.82 a week.
By letter dated February 3, 2012, OWCP requested that the employing establishment
submit additional information to determine the correct pay rate. It requested that it confirm the
pay rate as of January 31, 2011, include any premium pay and specify the type and amount and
provide the total wages earned by a similar employee for one year prior to January 31, 2011.
The information sought was for a similar employee with the same work schedule as appellant,
with any amounts of premium pay, night differential and Saturday pay to which the employee
may be entitled for this period listed separately.
On February 23, 2012 the employing establishment forwarded pay information for a
similarly scheduled employee for one year prior to January 31, 2011. The employee worked
2,080 hours at $75,115.00 annual pay rate, equal to $36.11 per hour; received night differential
for 2,020 hours at 10 percent of the hourly rate, equaled to $3.61 an hour or $7,294.82 for the
year; received Saturday premium pay at 25 percent of the hourly rate, equal to $9.03 an hour and
$2,471.48 for 273.75 hours worked; and received Sunday premium pay at 25 percent of the
hourly rate, equal to $9.03 an hour and $4,245.53 for 470.25 hours worked. The similar
employee also had 96 hours of holiday work at an hourly rate of $36.11 or $3,466.85 for the
year.
By decision dated April 23, 2012, OWCP denied appellant’s claim for retroactive pay
based on loss of additional pay elements commencing March 31, 2011. It noted that her pay rate
was calculated under section 8114(d)(1)(a) based on her fixed base salary as a nurse and
additional actual earnings in the form of irregular premium pay prior to her injury and prorated
over the time she worked. OWCP stated that it did not calculate or compensate employees for
loss of future potential earnings based on promotions or wage grade increases as there was no
such provision in FECA.
On May 21, 2012 appellant requested an oral hearing before an OWCP hearing
representative. At the hearing held on October 16, 2012 appellant’s counsel contended that
OWCP should have used the wages of a similarly situated employee, as was provided by the
employing establishment and not the average of her earnings, as she only worked 30 days prior
to the injury. At the time appellant was injured, she had a base salary plus shift premiums and
shift differentials. She was an hourly employee, so the amount she made every week depended
upon the hours and times she worked. Appellant stated that she was entitled to premium pay for
weeknights and weekends. She noted that everyone doing work as a nurse was required to work
a certain amount of nights, holidays and weekends.
In a decision dated December 31, 2012, an OWCP hearing representative affirmed the
April 23, 2012 decision.

3

LEGAL PRECEDENT
Under section 8101(2) of FECA, “monthly pay means the monthly pay at the time of
injury or the monthly pay at the time disability begins or the monthly pay at the time
compensable disability recurs, if the recurrence begins more than six months after the injured
employee resumes regular full-time employment with the United States, whichever is greater.”
Further, with respect to the calculation of pay rate for compensation purposes, FECA provides at
section 8114(d) that average annual earnings are determined as follows:
“(1) If the employee worked in the employment in which he [or she] was
employed at the time of injury during substantially the whole year immediately
preceding the injury and the employment was in a position for which an annual
rate of pay -(A) Was fixed, the average annual earnings are the rate of pay; or
(B) Was not fixed, the average annual earnings are the product obtained
by multiplying his [or her] daily wage for the particular employment or the
average thereof if the daily wage has fluctuated, by 300 if he [or she] was
employed on the basis of a 6-day workweek, 280 if employed on the basis
of a 5½ day week and 260 if employed on the basis of a 5-day week.
“(2) If the employee did not work in employment in which he was employed at
the time of the injury during substantially the whole year immediately preceding
the injury, but the position was one which would have afforded employment for
substantially a whole year, the average annual earnings are a sum equal to the
average annual earning of an employee of the same class working substantially
the whole immediately preceding year in the same or similar employment by the
United States in the same or neighboring place, as determined under paragraph
(1) of this subsection.
“(3) If either of the foregoing methods of determining the average annual earnings
cannot be applied reasonably and fairly, the average annual earnings are a sum
that reasonably represents the annual earning capacity of the injured employee in
the employment in which he was working at the time of the injury having regard
to the previous earnings of the employee in [f]ederal employment and of other
employees of the United States in the same or most similar class working in the
same or most similar employment in the same or neighboring location, other
previous employment of the employee or other relevant factors. However, the
average annual earnings may not be less than 150 times the average daily wage
the employee earned in the employment during the days employed within one
year immediately preceding his injury.”

4

When a job held at the time of injury includes elements of pay such as night or shift
differential, extra compensation for work on Sundays and holiday or pay for administratively
uncontrollable overtime, OWCP must include the additional pay in the base pay.4
ANALYSIS
The Board finds that OWCP did not properly determine appellant’s pay rate for
compensation purposes by applying section 8114(d)(1)(A) of FECA. The record establishes that
appellant started work at the employing establishment on January 2, 2011 and was injured on
January 31, 2011. She did not work in her regular employment for substantially the whole year
prior to injury; therefore, section 8114(d)(1)(A) is not applicable to the determination of her pay
rate. Rather, appellant’s pay rate should be determined under section 8114(d)(2), as she had not
worked in the employing establishment in which she was employed at the time of injury during
substantially the whole year immediately preceding injury, but her position was one which would
have afforded employment for substantially a whole year.
This section requires OWCP to base appellant’s rate of pay on the average annual
earnings of an employee of the same class working substantially the whole year immediately
preceding her employment. The employing establishment provided such information to OWCP
for a nurse with the same type of appointment who worked in similar employment for one year
prior to January 31, 2011. The employing establishment noted that the base pay for 2,080 hours
was $75,115.00 or an hourly rate of $36.11. The employing establishment provided night
differential, Saturday and Sunday premium pay and holiday work information relative to the
similar employee. OWCP should have utilized this information to determine appellant’s pay rate
for compensation purposes as they are elements which should be included in such
determination.5 For this reason, the case will be remanded to OWCP for further development
and an appropriate decision on her pay rate.
CONCLUSION
The Board finds that OWCP did not properly calculate appellant’s pay rate for
compensation purposes.

4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.8(b)
(December 1995).
5

See D.D., Docket No. 09-220 (issued August 14, 2009). The record does not reveal whether appellant had any
concurrent similar employment in the private sector. See L.C., Docket No. 08-224 (December 23, 2008).

5

ORDER
IT IS HEREBY ORDERED THAT the December 31, 2012 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further consideration
consistent with this opinion.6
Issued: June 16, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

6

Richard J. Daschbach participated in the preparation of the decision but was no longer a member of the Board
after May 16, 2014.

6


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
H.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HUNTER HOLMES MCGUIRE VETERANS
AFFAIRS MEDICAL CENTER, Richmond, VA,
Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1238
Issued: July 12, 2021

Case Submitted on the Record

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

JURISDICTION
On June 3, 2020 appellant, through counsel, filed a timely appeal from an April 27, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 27, 2020 decision, OWCP received additional evidence. 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 her burden of proof to establish that the acceptance
of her claim should be expanded to include complex regional pain syndrome (CRPS).
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On January 20, 2010 appellant, then a 51-year-old laundry worker, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral upper extremity symptoms while
in the performance of duty. She explained that she transported heavy carts throughout the entire
hospital several times a day. Appellant noted that she first became aware of her condition on
June 1, 2009 and realized its relation to her federal employment on January 19, 2010. OWCP
accepted the claim for bilateral carpal tunnel syndrome. Appellant underwent OWCP-authorized
right carpal tunnel release on September 9, 2013 and left carpal tunnel release on October 7, 2013.
She returned to work for approximately three weeks in November 2013. OWCP paid
compensation for temporary total disability on the supplemental rolls as of November 12, 2013
and on the periodic rolls as of February 9, 2014.
In a May 28, 2014 report, Dr. Jawad Bhatti, a Board-certified physiatrist, first diagnosed
appellant with CRPS. He also started prescribing medication for her chronic pain. In attending
physician’s reports (Form CA-20) dated May 28, 2014 through December 21, 2017, Dr. Bhatti
diagnosed CRPS Type 2, which he opined by checking a box marked “Yes” was caused or
aggravated by the employment activity. Corresponding progress notes were provided which
diagnosed reflex sympathetic dystrophy of the upper limb. Dr. Bhatti also continued to prescribe
narcotic medications.
In a July 7, 2015 electromyography (EMG) report, Dr. Karen Steidle, a Board-certified
physiatrist, compared appellant’s current EMG against her previous EMG of August 8, 2013. She
found evidence of mild right sensory median neuropathy at the wrist without associated
denervation, appeared approved since prior study, evidence of mild left sensory median
neuropathy at the wrist without associated denervation, unchanged since prior study, and new
evidence of borderline to very mild bilateral ulnar demyelinative slowing at the elbows without
any sign of axonal loss.
In a March 19, 2016 report, Dr. James Schwartz, an orthopedic surgeon and second opinion
physician, reviewed a statement of accepted facts (SOAF) and noted examination findings. In
relevant part, he opined that appellant’s “physical examination is far too bizarre to relate to carpal
tunnel syndrome or to [CRPS] II” and opined that her marked nonphysiologic pain behavior was
not “CRPS II.” Dr. Schwartz indicated that she had nonphysiologic behavior and her examination
was not explicable by any known pathologic condition.
In reports dated September 7, 2017 and February 15, 2018, Dr. Bhatti upgraded appellant’s
diagnosis to CRPS I of the bilateral upper limb and possible CRPS Type 2 secondary to carpal
4

Order Dismissing Appeal, Docket No. 19-0944 (issued December 18, 2019); Docket No. 18-0979 (issued
February 4, 2019).

2

tunnel surgery. He indicated that she experienced constant, excessive, severe pain with little or no
stimuli, and her bilateral surgical release did not resolve her symptoms, noting that the July 7, 2015
EMG study and October 21, 2016 nerve conduction velocity (NCV) studies showed severe
neuropathy in bilateral median nerves in both wrists and arms after surgery. Dr. Bhatti indicated
that the above diagnostic tests, blood tests, and Sudomotor Axon Reflex Tests confirmed the
diagnosis. He indicated that the criteria to determine CRPS was based on appellant’s history,
physical examination, and nerve conduction blocks. Dr. Bhatti also noted that she had objective
positive findings for pain on palpation, a withdrawal response and abnormal NCV testing, which
revealed severe C8 nerve injury.
On March 29, 2019 OWCP referred appellant, along with a March 14, 2019 SOAF, the
medical record, and a series of questions to Dr. Norman Marcus, a Board-certified orthopedic
surgeon, for a second opinion evaluation. The SOAF indicated that the case was accepted for
bilateral carpal tunnel syndrome. The questions, in pertinent part, included the causal relation of
the CRPS.
In an April 25, 2019 report, Dr. Marcus noted his review of the case record and physical
examination findings. He opined that appellant’s pain did not meet the criteria of carpal tunnel
syndrome and never did. Dr. Marcus further opined that he was unable to ascertain whether she
has a regional pain syndrome or was “acting out” those complaints.
In May 23, June 21, and July 23, 2019 CA-20 forms, Rebecca Beecroft, a nurse
practitioner, opined by checking a box marked “Yes” that appellant’s CRPS Type 2 was caused or
aggravated by the employment activity.
In an August 23, 2019 Form CA-20, Dr. Bhatti continued to opine with a check box marked
“Yes” that appellant’s CRPS Type 2 was caused or aggravated by the employment activity.
On September 18, 2019 OWCP referred appellant to Dr. Chester DiLallo, a Board-certified
orthopedic surgeon, for a second opinion examination. A copy of the March 14, 2019 SOAF and
a list of questions were provided.
Ms. Beecroft continued to opine, in a September 23, 2019 Form CA-20, that appellant’s
CRPS Type 2 was caused or aggravated by the employment activity.
In a September 24, 2019 report, Dr. DiLallo noted his review of the medical records and
the SOAF. He noted appellant’s complaints and presented examination findings of the bilateral
upper extremities, noting questionable effort or little resistance in response to testing. Dr. DiLallo
noted that she had worked just one day since the carpal tunnel surgeries and reported little
improvement in symptoms. He opined that the subjective complaints did not correspond with the
objective examination findings. Dr. DiLallo noted that most of the objective examination findings
were tempered by the fact that appellant’s interpretation of sensations was subjective. Subjective
findings included principally tingling in both hands, and pain radiating from the hands to the
shoulders, left worse than right. Objective findings were restricted to the presence of intact
reflexes. Appellant failed to identify two-point discrimination in any area of either hand, but had
good capillary refill. The absence of sweating and sudomotor changes was significant.
Dr. DiLallo opined that the accepted diagnosis of bilateral carpal tunnel syndrome had not
resolved, noting that the objective findings were limited to the EMG and NCV studies as all other
findings on physical examination were nonphysiologic. He opined that appellant’s condition had
reached maximum medical improvement and restrictions/limitations were medically warranted.
Dr. DiLallo further opined that there was a need for further medical treatment, including intense
3

psychological evaluation and testing and referral to a neurologist and/or rheumatologist, because
of the duration of symptoms, the character of the symptoms, and her dependence on opioids.
Additionally, he opined that there was no evidence of CRPS on evaluation or on history and thus
the question as to whether or not it was due to the work injury was moot. Dr. DiLallo indicated
that the appellation of CRPS supplied by appellant’s treating physicians had no basis in fact.
By decision dated October 8, 2019, OWCP denied the expansion of appellant’s claim to
include the additional condition of CRPS. It found that the weight of the medical evidence rested
with Dr. DiLallo’s September 24, 2019 opinion.
On October 28, 2019 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review, held March 5, 2020.
OWCP continued to receive additional evidence. In CA-20 forms dated October 23 and
November 22, 2019, Ms. Beecroft continued to opine that appellant’s CRPS Type 2 was caused or
aggravated by the employment activity.
In a November 27, 2019 prescription note, Dr. Bhatti diagnosed CRPS Type 2 and referred
appellant for a functional capacity evaluation.
Ms. Beecroft, in January 23, February 21, and March 23, 2020 Forms CA-20, and
Dr. Bhatti, in an April 20, 2020 Form CA-20, continued to opine that appellant’s CRPS Type 2
was caused or aggravated by her employment activity.
By decision dated April 27, 2020, the hearing representative affirmed OWCP’s October 8,
2019 decision.
LEGAL PRECEDENT
Where an employee claims that, a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.5
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.6 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.7
The weight of medical evidence is determined by its reliability, its probative value, its convincing

5
See L.C., Docket No. 20-0866 (issued February 26, 2021); T.F., Docket No. 17-0645 (issued August 15, 2018);
Jaja K. Asaramo, 55 ECAB 200 (2004).
6

See S.L., Docket No. 19-0603 (issued January 28, 2020); S.A., Docket No. 18-0399 (issued October 16, 2018);
Kenneth R. Love, 50 ECAB 276 (1999).
7

See J.T., Docket No. 19-1723 (issued August 24, 2020); P.M., Docket No. 18-0287 (issued October 11, 2018);
John W. Montoya, 54 ECAB 306 (2003).

4

quality, the care of analysis manifested and the medical rationale expressed in support of the
physician’s opinion.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include CRPS.
On May 28, 2014 Dr. Bhatti diagnosed CRPS, but offered no opinion on causal
relationship. The Board has held that medical evidence that does not offer an opinion regarding
the cause of an employee’s condition is of no probative value on the issue of causal relationship.9
This report is therefore insufficient to establish expansion of the claim.
In Form CA-20 reports dated May 28, 2014 through April 21, 2020, Dr. Bhatti opined, by
checking a box marked “Yes” that appellant’s CRPS Type 2 was caused or aggravated by the
employment activity, but offered no medial rationale to support his opinion. The Board has held
that a report is of limited probative value regarding causal relationship if it does not contain
medical rationale explaining how a given medical condition/disability was related to employment
factors.10 These reports are therefore of limited probative value and insufficient to establish
expansion of the claim.11
While Dr. Bhatti offered some objective findings to support a diagnosis of CRPS 1 and
possible CRPS Type 2 secondary to carpal tunnel surgery in his reports dated September 7, 2017
and February 15, 2018, no medical rationale was provided to support his causation opinion. The
Board has held that medical opinion evidence should offer a medically-sound explanation of how
the specific employment factors physiologically caused the injury.12 Thus, these reports are also
insufficient to establish expansion of the claim.
OWCP also received a number of reports wherein Ms. Beecroft, a nurse practitioner,
opined that appellant’s CRPS Type 2 was caused or aggravated by the employment activity. The
Board has held that medical reports signed solely by nurse practitioners are of no probative value
as nurse practitioners are not considered physicians as defined under FECA.13 These reports are
therefore insufficient to establish expansion of appellant’s claim.

8

See H.H., Docket No. 16-0897 (issued September 21, 2016); James Mack, 43 ECAB 321 (1991).

9

See D.W., Docket No. 18-1139 (issued May 21, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
10

See D.W., id.; Y.D., Docket No. 16-1896 (issued February 10, 2017).

11

Id.

12

See H.A., Docket No. 18-1466 (issued August 23, 2019); L.R., Docket No. 16-0736 (issued September 2, 2016).

13
Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA). See M.C., Docket No. 19-1074 (issued June 12, 2020); S.L., Docket No. 19-0607 (issued January 28, 2020)
(nurse practitioners are not considered physicians under FECA).

5

In a September 24, 2019 report, Dr. DiLallo, a second opinion physician, affirmed the
diagnosis of bilateral carpal tunnel syndrome and unequivocally rejected the diagnosis of CRPS.
He noted that there was no evidence of CRPS on evaluation or on history and explained the absence
of CRPS in arriving at his conclusion. The Board finds that Dr. DiLallo’s opinion, which is well
rationalized and based upon a proper factual and medical history, constitutes the weight of the
medical evidence on the issue of whether appellant’s CRPS is causally related to the accepted
June 1, 2009 employment injury.14
As the medical evidence of record is insufficient to establish that appellant’s CRPS is
causally related to her accepted June 1, 2009 employment injury, the Board finds that she has not
met her burden of proof to establish expansion of the acceptance of her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include CRPS.

14

See L.C., Docket No. 18-1759 (issued June 26, 2019); D.M., Docket No. 17-1052 (issued January 24, 2019).

6

ORDER
IT IS HEREBY ORDERED THAT the April 27, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 12, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SOUTH TEXAS HEALTH CARE SYSTEM,
San Antonio, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Dr. Anthony Rogers, for the appellant
Office of Solicitor, for the Director

Docket No. 13-1581
Issued: January 23, 2014

Case Submitted on the Record

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

JURISDICTION
On June 23, 2013 appellant, through her representative, filed a timely appeal from a
June 18, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying wage-loss compensation. 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 established that she is entitled to wage-loss compensation
for the period July 23, 2011 through November 10, 2012.
On appeal, appellant’s representative argued that OWCP erred in denying her claim for
wage-loss compensation as the employing establishment improperly terminated her for refusing
a job offer which was outside her medical restrictions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In an October 18, 2012 decision, the
Board reversed an October 27, 2011 OWCP decision terminating appellant’s compensation
benefits on the grounds that she had refused an offer of suitable work.2 The Board found that
OWCP erred in terminating her compensation benefits pursuant to 5 U.S.C. § 8106(c) as she had
been performing the duties of the offered position. OWCP failed to consider whether appellant’s
actual earnings in the position fairly and reasonably represented her wage-earning capacity. The
facts of the case as set forth in the Board’s prior decision are incorporated herein by reference.3
In an April 21, 2011 return to work note Dr. Sanjay Misra, an attending Board-certified
orthopedic surgeon, released appellant to full-duty work that day with no restrictions. The record
also contains duty status reports (Form CA-17) from him dated January 4 through July 18, 2011.
Dr. Misra released appellant to work for an eight-hour day with restrictions under claim number
xxxxxx103 and claim number xxxxxx341.
OWCP received reports from Dr. Misra providing physical findings, diagnoses of
complete rotator cuff rupture, upper arm and shoulder sprains and unspecificient site of shoulder
and upper arms and the treatment provided appellant over the period June 6, 2011 through
September 14, 2012.
On July 11, 2011 the employing establishment notified appellant that she was being
removed from federal employment effective July 22, 2011 due to her failure to accept a position.
A July 22, 2011 notification of personnel action (Form SF50) stated that she was removed from
her position that day.
On November 10, 2012 appellant submitted a claim for wage-loss compensation (Form
CA-7) for the period July 23, 2011 to November 10, 2012.
By letter dated November 26, 2012, OWCP informed appellant that the evidence of
record was insufficient to support her claim for wage-loss compensation. It instructed her to
submit a medical report detailing how her condition had worsened such that she could no longer
perform her job duties as of July 23, 2011. OWCP noted that appellant’s treating physician
2

Docket No. 12-200 (issued October 18, 2012).

3

On February 12, 2008 appellant, then a 49-year-old diagnostic radiological technician, filed a traumatic injury
claim alleging that on that day she sustained a right arm and shoulder blade injury as a result of lifting water to the
sink from the portable air conditioner. OWCP accepted the claim for right arm and upper shoulder strain, which was
subsequently expanded to include complete right rotator cuff rupture.
On May 28, 2009 appellant filed an occupational disease claim alleging that on March 31, 2009 she first became
aware of her left arm sprain due to overuse and its connection to her employment duties. OWCP assigned claim
number xxxxxx341 and accepted the claim for left shoulder and upper arm sprain, left rotator cuff tear and other
affections of the left shoulder region not classified elsewhere.
On March 24, 2011 appellant filed a traumatic injury claim alleging that on March 16, 2011 she sustained pain
and swelling in her forearm when she hit it on the doorway going to her space. OWCP assigned claim number
xxxxxx103 and accepted the claim for right forearm and elbow sprain. On April 5, 2012 it combined claim number
xxxxxx103, claim number xxxxxx341 and claim number xxxxxx798 with claim number xxxxxx798 as listed as the
master file number.

2

found that she had reached maximum medical improvement as of June 2, 2011 and released her
to full-duty work with no restrictions as of April 21, 2011.
By decision dated January 25, 2013, OWCP denied appellant’s claim for wage-loss
compensation from July 23, 2011 to November 10, 2012. The medical evidence was not
sufficient to establish that she was totally disabled from work due to her accepted employment
injury.
On March 2, 2013 OWCP received appellant’s undated request for reconsideration
together with medical evidence. In a March 2, 2013 report, Dr. Helo Chen, a treating osteopath,
stated that appellant was currently being treated for a right shoulder employment injury. The
injury occurred at work on February 12, 2008 while working as an x-ray technician and she hit
her arm on the sink while emptying a pan. Dr. Chen related that the employment injury caused a
rotator cuff rupture and right rotator cuff surgery. He opined that appellant was totally disabled
from July 23, 2011 through November 10, 2012 due to her accepted employment injury.
Dr. Chen related that the residuals of her accepted employment injury has resulted in a period of
disability for which she is entitled to receive wage-loss compensation.
On March 7 and 11, 2013 OWCP received personnel forms documenting appellant’s
removal from the employing establishment effective July 22, 2011 for failing to accept a directed
assignment.
In an April 4, 2013 report, Dr. Misra diagnosed partial right shoulder rotator cuff tear
with labral tear and right shoulder and arm strain/sprain. He provided physical examination
findings, but offered no opinion on appellant’s work capability.
On April 18, 2013 Dr. Misra reported that appellant sustained a left shoulder injury at
work. He reported that she had limited movement of her left shoulder. A physical examination
revealed infraspinatus tenderness, positive Hawkin’s test, positive Neer’s test and positive
Speed’s test. Dr. Misra offered no opinion regarding any work disability.
By decision dated June 18, 2013, OWCP denied appellant’s request for wage-loss
compensation for the period July 23, 2011 to November 10, 2012.4
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.6 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for

4

The Board notes that, following the June 18, 2013 decision, appellant submitted additional evidence. However,
the Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20
C.F.R. §§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58
ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
5

5 U.S.C. §§ 8101-8193.

6

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).

3

work as a result of the accepted employment injury.7 Whether a particular injury causes an
employee to become disabled for work and the duration of that disability, are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.8
Under FECA the term “disability” means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.9 Disability is, thus, not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages.10 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages he or she was receiving at
the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.11 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his or her employment, he or she is entitled to compensation for any loss of wages.
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.12
ANALYSIS
OWCP accepted appellant’s claim for right arm strain, upper shoulder strain, right rotator
cuff rupture under the current claim number xxxxx798. On April 5, 2012 it combined her claims
under the master file number xxxxx798. Conditions accepted by OWCP under appellant’s claim
number xxxxxx341 and claim number xxxxxx103 included left shoulder strain and upper arm
sprain, left rotator cuff tear, other affections of the left shoulder region not classified elsewhere
and right forearm and elbow sprain. Appellant filed a claim for wage-loss compensation
concurring July 23, 2011, the day after she was removed from federal employment by the
employing establishment based on her failure to accept a directed position. By decisions dated
January 25 and June 18, 2013, OWCP denied her claim for wage-loss compensation on the
grounds that the medical evidence of record failed to establish that she was totally disabled due
to her accepted employment injuries. When determining whether a claimant has met his or her
burden of proof, the Board considers factors such as whether there are objective findings, a
thorough understanding of the job duties by the physician, a firm diagnosis and a rationalized,

7

See Amelia S. Jefferson, id.; see also David H. Goss, 32 ECAB 24 (1980).

8

See Edward H. Horton, 41 ECAB 301 (1989).

9

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
10

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

11

Merle J. Marceau, 53 ECAB 197 (2001).

12

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

4

unequivocal opinion that he or she was disabled due to the employment injury for the period
claimed.13 Appellant has not met her burden of proof in this case.
For each period of disability claimed, the employee has the burden of establishing that he
or she was disabled for work as a result of the accepted employment injury. Appellant did not
submit sufficient medical evidence explaining why she was totally disabled during the relevant
time period and how her disability related to her accepted conditions of bilateral arm strain,
bilateral upper shoulder strain, right rotator cuff rupture, left rotator cuff tear, other affections of
the left shoulder region not classified elsewhere and right forearm and elbow sprain.
The medical evidence of record does not claim that appellant was totally disabled from
working for the period July 23, 2011 through November 10, 2012 particularly as the date her
disability began was the day following the termination of her employment. The only medical
report which addresses her disability for the period in question is the March 2, 2013 report of
Dr. Chen, who noted the history of the injury and diagnosed a right rotator cuff rupture and right
rotator cuff surgery. Dr. Chen stated generally that appellant was totally disabled for work for
the period July 23, 2011 through November 10, 2012 as a result of her medical condition. He
did not address the medical findings to support his conclusion. Dr. Chen failed to sufficiently
address why appellant was unable to work for the period July 23, 2011 through November 10,
2012 due to the accepted conditions. His opinion is conclusory and provides no medical
reasoning addressing the causal relationship of appellant’s accepted employment conditions to
her disability. The Board has held that a medical opinion not fortified by medical rationale is of
diminished probative value.14 Thus, Dr. Chen’s report is insufficient to support appellant’s claim
that her disability for the period July 23, 2011 through November 10, 2012 was employment
related.
The record also contains duty status reports and medical reports from Dr. Misra, who
released appellant to work for an eight-hour day with restrictions under claim number
xxxxxx103 and claim number xxxxxx341 and to an eight-hour workday with no restrictions
under claim number xxxxx798. The reports from Dr. Misra provided physical findings and
addressed the treatment provided. He did not support total disability. The Board finds that
Dr. Misra’s reports are insufficient to support appellant’s claim as he did not find that she was
disabled for work.15
On appeal, appellant’s representative contends that appellant is entitled to wage-loss
compensation as her employment was terminated for refusing to accept a directed offer of
employment. Her representative contends the offered job was unsuitable based on the Board’s
prior decision. Contrary to the representative’s contention, the Board did not find that the job
13

V.M., Docket No. 10-1056 (issued December 16, 2010); see L.D., Docket No. 09-1503 (issued April 15, 2010);
Sandra D. Pruitt, 57 ECAB 126 (2005).
14

F.T., Docket No. 09-919, (issued December 7, 2009); Elizabeth H. Kramm, 57 ECAB 117, 124 (2005);
Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
15

See A.D., 58 ECAB 149 (2006); Ellen L. Noble, 55 ECAB 530 (2004) (the Board has long held that medical
evidence which does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship).

5

offer was unsuitable. The Board found that appellant had not refused an offer of suitable work as
she was actually performing the duties of the offered position. As appellant was performing the
duties, the Board found that OWCP erred in invoking section 8106(c) and reversed the
termination of her benefits based upon OWCP’s error in invoking this section. Furthermore, as
discussed above OWCP is only required to pay wage-loss compensation when the medical
evidence of record establishes that any disability from working is due to the accepted
employment injury. As discussed above, appellant failed to meet her burden to establish that her
inability to work was due to her accepted employment injuries and not the employing
establishment’s terminating her employment for failure to accept a directed position.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish that her disability from June 23, 2011 to
November 10, 2012 was due to her accepted employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 18, 2013 is affirmed.
Issued: January 23, 2014
Washington, DC

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

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

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

6