United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Morrison, IL, Employer
__________________________________________

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

Docket No. 19-0041
Issued: May 2, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 8, 2018 appellant, through counsel, filed a timely appeal from a May 14, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a left ankle condition
causally related to the accepted factors of her federal employment.

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 17, 2016 appellant, then a 32-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed a left ankle injury, which was swollen and achy,
resulting from the performance of her federal duties. OWCP assigned this claim OWCP File No.
xxxxxx849. Appellant noted that she first became aware of her claimed condition and its
relationship to her federal employment on August 10, 2016. She stopped work on August 15, 2016
and returned to work on August 16, 2016.3
OWCP subsequently received a doctor’s excuse dated August 10, 2016 from
Dr. Michael D. Williams, an attending podiatrist. Dr. Williams indicated that appellant could
return to work on August 31, 2016.
In an August 15, 2016 attending physician’s report (Part B of a Form CA-16 authorization
for examination and/or treatment), Dr. Nicole D. Eustace, an attending family practitioner,
indicated that appellant previously had a complicated sprained left foot and that she presented with
new symptoms. She provided examination findings of the ankle and diagnosed tendinitis.
Dr. Eustace checked a box marked “yes” indicating that the diagnosed condition was caused or
aggravated by the employment activity described. She noted that appellant was disabled from
August 15 through 16, 2016 and that she could resume her regular work on August 17, 2016.
In a development letter dated August 31, 2016, OWCP notified appellant of the factual and
medical deficiencies of her claim. It advised her of the type of factual and medical evidence needed
to establish her claim and provided a questionnaire for her completion. OWCP afforded appellant
30 days to respond.
OWCP subsequently received a duty status report (Form CA-17) dated August 19, 2016
by Dr. Eustace who provided a history that, on August 10, 2016, appellant had a swollen and very
painful left ankle. She reiterated her diagnosis of tendinitis and noted that appellant was unable to
work for two weeks.
X-ray reports dated August 16, 2016 from Dr. Reid M. Schroeder, a Board-certified
diagnostic radiologist, were also received. In an August 16, 2016 left foot x-ray report,
Dr. Schroeder provided an impression of a normal study. In an August 16, 2016 left ankle x-ray
report, he provided an impression of no fracture deformity pain. In both reports, Dr. Schroeder
noted that the reason for the tests was for a work-related injury.
Appellant submitted a duplicate copy of OWCP’s August 31, 2016 development letter,
which contained handwritten notes indicating that she was scheduled to undergo surgery on
September 13, 2016 by Dr. Williams and that she would submit the results of a magnetic resonance
imaging (MRI) scan.
Appellant also submitted additional medical evidence. In a chart note dated August 15,
2016, Dr. Eustace noted appellant’s complaint of pain in her right ankle and heel and left ankle.
She also noted that appellant had a history of a prior right ankle injury. Dr. Eustace examined her
3
On August 15, 2016 the employing establishment offered appellant a full-time, light-duty position. Appellant
accepted the position on that date.

2

right and left lower extremities and diagnosed left foot acute tendinitis. She placed appellant off
work for the remainder of the day of her examination to rest and elevate the lower extremity.
In a progress note dated August 16, 2016, Dr. Williams reported that appellant related a
history that approximately one year prior she twisted her left ankle and immediately experienced
swelling in the ankle while on her mail route. He noted that she continued to have pain.
Dr. Williams discussed findings on physical examination and reviewed radiographs of the left foot
and ankle. He assessed appellant as having left foot pain and posterior tibial tendinitis and left
ankle lateral sprain/instability. Dr. Williams ordered a left foot and ankle MRI scan to evaluate
lateral ligament structures and medial tenderness structures of the left foot and ankle. He placed
appellant off work for two weeks in anticipation that she would not be able to immediately undergo
the MRI scan. Dr. Williams discussed left ankle MRI scan results in a progress note dated
August 30, 2016. He reexamined appellant’s left foot and ankle and reported his findings.
Dr. Williams reiterated his assessment of chronic left ankle sprain and lateral instability. He
further assessed appellant as having mild peroneus brevis tendinitis. Dr. Williams addressed her
treatment plan, including surgical intervention for the left ankle.
An unsigned report dated August 16, 2016 noted appellant’s medical and social history.
A chart note dated August 19, 2016 by Kimberly Feary4 indicated that Dr. Williams had
ordered a left ankle MRI scan. She noted that appellant claimed that this was a workers’
compensation claim against the employing establishment.
On August 22, 2016 Dr. Keith I. Pham, a Board-certified diagnostic radiologist, performed
an MRI examination of appellant’s left ankle. He provided an impression of posterior tibialis
tendinosis and likely longitudinal split of the peroneus brevis tendon. Dr. Pham found that the
peroneus brevis tendon remained attached to the fifth metatarsal base. He also provided an
impression of likely partial-thickness ligamentous sprain involving the posterior talofibular
ligament component of the deltoid ligament. Dr. Pham related that the thickening of the anterior
talofibular ligament was most likely a previous partial thickness injury with resulting scar/fibrosis.
He further provided an impression of no fracture and unremarkable ankle and subtalar joints.
In a chart note dated September 2, 2016, Dr. Eustace indicated that appellant presented for
preoperative history and physical examination for her left ankle surgery to be performed on
September 13, 2016 by Dr. Williams. She related appellant’s history and reported examination
findings. Dr. Eustace provided preoperative clearance for the planned podiatric procedure.
Dr. David Yeager, a podiatrist, completed a duty status report (Form CA-17) on
October 3, 2016. He noted the date of injury as August 10, 2016. Dr. Yeager also noted that
appellant had recurring left ankle pain. He described clinical findings of positive pain in the medial
and lateral aspects of the right ankle. Dr. Yeager indicated that a diagnosis due to injury was not
applicable. He related that appellant had been advised to resume work with restrictions on the date
of his examination.

4

The Board notes that Ms. Feary’s professional qualifications are not contained in the case record.

3

By decision dated November 2, 2016, OWCP denied appellant’s occupational disease
claim finding that the evidence of record was insufficient to establish that her claimed employment
factors occurred as alleged.
OWCP subsequently received an additional duty status report (Form CA-17) dated
December 28, 2016, wherein Dr. Yeager reiterated the date of injury as August 10, 2016.
Dr. Yeager noted a history of left ankle stabilization. He described clinical findings of past left
ankle lateral stabilization. Dr. Yeager related that on January 23, 2017 appellant had been advised
to resume work with restrictions. He indicated that she was transitioning from a controlled ankle
motion (CAM) boot. In discharge instructions dated January 18, 2017, Dr. Yeager restated
appellant’s work capacity and need to wear a CAM boot.
On January 30, 2017 appellant, through counsel, requested reconsideration of OWCP’s
November 2, 2016 decision. She submitted a December 6, 2016 office note by Dr. Yeager in
which he noted that he concurred with appellant who maintained that her surgery was due to a
November incident where she twisted her left ankle and sustained ligamentous damage when a
friendly dog jumped on her and there was a crack in a driveway while she was delivering mail.5
Dr. Yeager also noted that she received conservative medical treatment and obviously opted for
surgical intervention. He discussed findings on examination and assessed appellant as doing fine
status post lateral ankle stabilization with medial ankle stabilization of the peroneous brevis tendon
and delayed primary repair of a ruptured anterior talofibular ligament, and ankle athrotomy.
Dr. Yeager advised that appellant would remain off work. In a February 13, 2017 duty status
report (Form CA-17), he restated the findings and statements set forth in his December 28, 2016
report.
By decision dated March 9, 2017, OWCP denied modification of its November 2, 2016
decision, finding that Dr. Yeager’s reports failed to address causal relationship between appellant’s
left ankle condition and her work duties.
OWCP received additional duty status reports (Form CA-17) dated April 18, May 24,
June 27, and September 25, 2017 by Dr. Yeager who continued to reiterate the findings and
statements set forth in his December 28, 2016 report with the exception that in his June 27 and
September 25, 2017 reports he advised that appellant could perform her regular work with
restrictions. In the September 25, 2017 report, Dr. Yeager indicated that she could work four hours
a day. He listed appellant’s work restrictions in discharge instructions dated April 20, 2017.
On March 9, 2018 appellant, through counsel, requested reconsideration of OWCP’s
March 9, 2017 decision. She submitted a July 25, 2017 letter from Dr. Yeager. Dr. Yeager related
a history that appellant sustained a left ankle injury due to the dog jumping incident that occurred
on November 13, 2015. He noted that she was diagnosed as having a severe sprained ankle.
Appellant was off work for about 12 to 16 weeks and returned to light-duty work wearing an ankle
brace at all times. Dr. Yeager noted that she struggled to perform her work duties due to worsening
left ankle problems. He further noted that Dr. Williams referred appellant to him for surgical
consultation and evaluation. Dr. Yeager maintained that she was progressing nicely. He related,
5
Appellant filed a traumatic injury claim (Form CA-1) under OWCP File No. xxxxxx205 for an injury sustained
on November 5, 2015. OWCP accepted the claim for sprain of unspecified ligament of the left ankle and sprain of
unspecified part of the left wrist and hand.

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however, that appellant had not yet reached maximum medical improvement.
indicated that she believed that she would be ready in one month.

Dr. Yeager

In a left foot x-ray report dated September 23, 2016, Dr. Cheryl A. Schwalm, a diagnostic
radiologist, provided an impression of no acute traumatic abnormalities shown.
In an October 19, 2016 left ankle x-ray report, Dr. Donald Pierantozzi, a Board-certified
diagnostic radiologist, found an overlying cast that obscured bony detail. He also found that
alignment was satisfactory. In addition, Dr. Pierantozzi found no acute fracture or dislocation and
postsurgical hardware that overlaid the anterior calcaneus.
In an October 19, 2016 operative report, Dr. Yeager provided a preoperative and postoperative diagnosis of chronic left ankle lateral ankle instability. He performed Lee lateral ankle
stabilization using screw fixation, ankle arthrotomy, delayed primary repair of anterior talofibular
ligament, primary deltoid repair, and peroneus brevis tubularization and repair of the left ankle.
Dr. Yeager, in an office note dated October 28, 2016, continued to examine appellant. He
reviewed diagnostic test results and provided an assessment that appellant was doing fine status
post one week her October 19, 2016 surgery. In prescriptions dated December 6 and 27, 2016,
Dr. Yeager ordered crutches, a CAM boot, rehabilitation services, and physical therapy for
appellant.
Treatment notes dated December 23 and 29, 2016 from appellant’s physical therapist
addressed the treatment of appellant’s left ankle and foot.
On March 27, 2017 Dr. Stephen D. Palmer, a podiatrist, reported that appellant was
examined for follow-up of her left ankle lateral stabilization. He discussed findings on physical
examination and assessed her as having an unstable left ankle that was improving based on clinical
status details.
On April 3, 2018 appellant responded to OWCP’s August 31, 2016 development
questionnaire. She described the employment duties that she believed contributed to her
condition/injury. Appellant alleged that her job duties involved walking/delivering mail to each
box along a designated route on different surfaces and under different hazards on a daily basis.
She maintained that the surfaces had uneven grass/dirt and unexpected drops or holes, especially
when a surface met with landscaping such as, sidewalks, wooden timbers, and/or edging used on
different property markers, decorations, and/or entrances/exits. Appellant related that daily
hazards and factors included animals which may be unexpectedly outside or natural hazards such
as, rocks, sticks and holes. She worked 8 to 10 hours a day. Appellant stood for two hours a day
while sorting mail and loading her truck. The remaining five to seven hours involved returning
empty equipment and bringing mail back to the office. Appellant contended that she sustained an
ankle injury when a resident’s dog jumped on her while she was walking across a driveway to
deliver mail. She maintained that her foot hit a large crack in the resident’s driveway and it became
swollen and she was unable to walk. Appellant claimed that her ankle was not an issue prior to
her injury. She never had any injuries, aches, pain, and did not need any treatment. Appellant also
claimed that she had no activities outside her federal employment other than raising her daughter,
did not participate in any sports, and was on her computer for a maximum of two hours a week.

5

By decision dated May 14, 2018, OWCP affirmed its March 9, 2017 decision, as modified.
It found that appellant had established the factual portion of her claim. However, the claim
remained denied as appellant had not provided a rationalized medical opinion explaining how her
diagnosed left ankle condition and October 19, 2016 surgery were causally related to the accepted
employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,6 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
To establish that an injury was sustained in the performance of duty in an occupational disease
claim, a claimant must submit the following: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed;9 (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or occurrence
of the disease or condition;10 and (3) medical evidence establishing that the employment factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed or, stated differently, medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant.11
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable 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 employee.12

6

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

Michael R. Shaffer, 55 ECAB 386 (2004).

10

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

11

Beverly A. Spencer, 55 ECAB 501 (2004).

12

See J.R., Docket No. 17-1781 (issued January 16, 2018); I.J., 59 ECAB 408 (2008).

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left ankle
condition causally related to the accepted factors of her federal employment.
In support of her claim, appellant submitted a series of reports from Dr. Eustace, an
attending physician. In an attending physician’s report (Part B for a Form CA-16) dated
August 15, 2016, Dr. Eustace indicated that she examined appellant on that date. She discussed
appellant’s history of a prior complicated sprained left foot and noted that appellant presented with
new symptoms. Dr. Eustace noted findings on examination of the left ankle and diagnosed
tendinitis. She checked a box marked “yes” indicating that the diagnosed condition was caused or
aggravated by the employment activity described. Dr. Eustace advised that appellant was disabled
from August 15 through 16, 2016 and that she could resume her regular work on August 17, 2016.
The Board has held that a medical report that addresses causal relationship with a checkmark,
without rationale explaining how the employment incident caused or aggravated the diagnosed
condition, is of diminished probative value and insufficient to establish causal relationship.13
Dr. Eustace failed to offer medical rationale explaining how appellant’s diagnosed left ankle
condition was caused or aggravated by the accepted employment factors. The need for rationale
is particularly important as the record indicates that she had a prior history of left ankle
conditions.14 Dr. Eustace’s remaining reports and chart notes are of no probative value because
they did not relate appellant’s diagnosis of left ankle and foot tendinitis, September 13, 2016
surgery, and disability from work to the accepted employment factors.15 For the reasons stated,
the Board finds that Dr. Eustace’s reports and chart notes are insufficient to establish appellant’s
burden of proof.
Appellant also submitted a series of reports from Dr. Yeager. In a December 6, 2016 office
note and July 25, 2017 report, Dr. Yeager discussed appellant’s previously accepted employmentrelated left ankle condition and resultant surgery. In the December 6, 2016 office note, he reported
examination findings and provided an assessment that appellant was doing fine status postsurgery.
Dr. Yeager did not attribute appellant’s left ankle surgery to the established employment factors.
He agreed with her belief that her surgery was due to the previously accepted November 5, 2015
employment-related injury. In the July 25, 2017 report, Dr. Yeager noted that appellant’s left
ankle condition worsened after she returned to light-duty work, but such a generalized statement
is insufficient to establish causal relationship. He did not provide sufficient medical rationale
explaining how appellant’s new or preexisting left ankle conditions were caused or aggravated by
the accepted employment factors. As noted above, the need for rationale is particularly important
as the record indicates that appellant had a prior history of left ankle conditions.16 Dr. Yeager’s
October 19, 2016 operative report did not contain an opinion on the cause of appellant’s diagnosed

13

See S.C., Docket No. 18-1242 (issued March 13, 2019).

14

See M.B., Docket No. 17-0688 (issued March 15, 2018).

15

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018)
(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).
16

M.B., supra note 14.

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conditions.17 His remaining reports did not provide a history of injury, a firm diagnosis of a
particular medical condition, nor a rationalized opinion regarding causal relationship.18 For the
reasons set forth above, the Board finds that Dr. Yeager’s office note and reports are insufficient
to establish appellant’s burden of proof.
Dr. Williams’ medical notes diagnosed left foot pain and posterior tibial tendinitis and left
ankle lateral sprain/instability and addressed appellant’s disability from work. Dr. Palmer’s report
diagnosed unstable left ankle that was improving based on clinical status details following
appellant’s left ankle lateral stabilization. Neither physician provided an opinion that the
diagnosed conditions and appellant’s surgical treatment and disability were caused or contributed
to by the accepted employment factors.19 The Board finds, therefore, that the reports of
Dr. Williams and Dr. Palmer are insufficient to establish appellant’s burden of proof.
The diagnostic studies of record from Drs. Schroeder, Pham, Schwalm, and Pierantozzi
failed to provide firm left foot and ankle diagnoses resulting from the accepted employment
factors. The Board has held that reports of diagnostic tests lack probative value as they do not
provide an opinion on causal relationship between the accepted employment factors and a
diagnosed condition.20
The treatment notes from appellant’s physical therapist have no probative medical value in
establishing appellant’s claim as a physical therapist is not considered a “physician” as defined
under FECA.21 As such, this evidence is also insufficient to meet appellant’s burden of proof.
Appellant also submitted an unsigned report dated August 16, 2016 and a chart note dated
August 19, 2016 from Ms. Feary. However, such evidence has no probative medical value on the
issue of causal relationship as these reports were not signed by a physician.22

17

Supra note 15.

18

See L.M., Docket No. 18-0473 (issued October 22, 2018).

19

Supra note 15.

20

See E.V., Docket No. 18-1617 (issued February 26, 2019); R.G., Docket No. 18-1045 (issued February 1, 2019).

21

5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See 5 U.S.C. § 8102(2); S.A., Docket No. 16-1128 (issued November 24, 2017); M.M., Docket No. 16-1617 (issued
January 24, 2017); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as nurses, physician
assistants and physical therapists are not competent to render a medical opinion under FECA). See also Gloria J.
McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal
relationship can only be resolved through the submission of probative medical evidence from a physician).
22
See 5 U.S.C. § 8101(2); J.R., Docket No. 17-1781 (issued January 16, 2018); Merton J. Sills, 39 ECAB 572,
575 (1988).

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As appellant has not submitted rationalized medical evidence sufficient to establish an
injury causally related to the accepted employment factors she has not met her burden of proof.23
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left ankle
condition causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the May 14, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 2, 2019
Washington, DC

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

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

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

23

The Board notes that the case record contains a portion of a Form CA-16 Authorization for Examination and/or
Treatment. However, a Form CA-16, when fully completed and properly executed would relieve appellant of financial
responsibility for the medical service(s) received. See N.B., Docket No. 17-0927 (issued April 18, 2018); Tracy P.
Spillane, 54 ECAB 608 (2003). The period for which treatment is authorized by a Form CA-16 is limited to 60 days
from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c).

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

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

Docket No. 21-1278
Issued: March 29, 2022

Case Submitted on the Record

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

JURISDICTION
On August 23, 2021 appellant filed a timely appeal from a February 23, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 As more than 180 days
elapsed from the last merit decision dated January 7, 2020 to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case. 3

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from OWCP’s February 23, 2021 decision was August 22, 2021. As
this fell on a Sunday, the appeal was due the next business day, which was Monday, August 23, 2021, rendering the
appeal timely filed. See 20 C.F.R. § 501.3(f)(3).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the February 23, 2021 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedures 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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On September 24, 2018 appellant, then a 34-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that on September 12, 2018 she sustained an injury
to her left shoulder when she was carrying packages upstairs and an entire step collapsed, causing
her to fall to the left and hit her shoulder, while in the performance of duty. She did not stop work.
A September 12, 2018 urgent care report from Dr. Brian Hagler, a Board-certified family
practitioner, related appellant’s history of injury. Dr. Hagler’s examination revealed pain with
movement of the left shoulder and tenderness over the acromioclavicular (AC) joint. He reviewed
x-ray scans of appellant’s left shoulder taken on the same date, which revealed no acute
abnormality, and diagnosed a left shoulder injury.
A medical report dated October 3, 2018 from Dr. Thomas E. Kingsley, Board-certified in
family medicine and an occupational medicine specialist, related appellant’s history of carrying
packages up cement steps when a step gave way, causing her to fall to her left and hit her trapezius
muscles between her shoulder and neck on the handrail. Dr. Kingsley reviewed appellant’s
medical records from the date of injury, noting that her left shoulder x -ray was negative. His
examination revealed discomfort and tenderness to palpation in the trapezius muscles of the upper
back just behind the left clavicle, pain in left trapezius muscles with reaching the left hand over
head and with movement of the head. Dr. Kingsley diagnosed myalgia, referred appellant to
physical therapy, and advised her to use ibuprofen. An accompanying duty status report (Form
CA-17) of even date diagnosed shoulder pain and advised that appellant would need help when
lifting objects above her head at work.
In November 1 and December 26, 2018 medical reports, Dr. Kingsley related appellant’s
history of injury, diagnosed myalgia, and advised that appellant should not lift, push, or pull more
than 10 pounds with her left arm or lift above her head. In a work restriction note, patient discharge
summary, and Form CA-17, all dated December 26, 2018, he related that appellant could lift, push,
and pull up to 10 pounds with her left arm with no lifting above her head.
Appellant also submitted medical reports from Dr. Dominic McKinley, Board-certified in
family practice and sports medicine, dated February 1 and 12, 2019. In his February 1, 2019
report, Dr. McKinley related appellant’s history of injury. He indicated that, though appellant was
in physical therapy, she continued to experience left shoulder and neck pain that was aggravated
with activity. Dr. McKinley’s examination revealed tenderness along the left side of appellant’s
neck, acromion region, and trapezius region, painful arc of motion with lightly limited flexion,
positive empty can test, and positive impingement signs. He reviewed x-ray scans of the left
shoulder taken that day, which revealed a partially fused os acromiale, and noted that there was
some indication that the region had partially healed, as compared to the Sep tember 12, 2018 x-rays.
Additionally, cervical spine x-rays revealed no abnormalities. Dr. McKinley diagnosed cervical
strain with possible left-side radiculopathy and left shoulder pain, which he believed had
multifactorial etiology, including possible referred pain from her neck, symptomatic healing os
acromiale avulsion fracture, and possible rotator cuff injury. He recommended appellant undergo
2

magnetic resonance imaging (MRI) scans and advised that appellant should not lift more than 10
pounds with her left arm, lift overhead, or reach behind herself. In his February 12 report,
Dr. McKinley noted that appellant’s shoulder pain had increased, she was having difficulty lifting
objects at work, and she had missed work in previous days due to the aggravated pain. He injected
a mixture of betamethasone and lidocaine into the left subacromial space , which improved
appellant’s range of motion in her neck and left shoulder. Dr. McKinley advised that appellant
should not work pending the recommended MRI scan.
In a development letter dated March 5, 2019, OWCP informed appellant of the deficiencies
of her claim. It advised her as to the type of factual and medical evidence needed and provided a
questionnaire for completion. OWCP afforded appellant 30 days to respond.
Appellant submitted a Form CA-17 dated February 12, 2019 from Dr. McKinley, who
diagnosed cervical radiculitis and left shoulder pain. Dr. McKinley recommended that appellant
undergo an MRI scan of her left shoulder before returning to work.
On March 11, 2019 appellant responded to OWCP’s development questionnaire, relating
that she was delivering packages at an apartment complex on September 12, 2018 and, as she
climbed the steps, a step collapsed and she “went left,” trying to hold herself up while carrying
packages, and hit her shoulder. She reported that she notified R.W., the employing establishment
supervisor on September 12, 2018, the day she fell. Appellant also noted that she had no prior
injuries.
In a March 19, 2019 medical report, Dr. McKinley noted appellant’s continuing left
shoulder and neck pain, as well as a sensation of “lack of blood flow” radiating from her shoulder
down to her hand for the previous 4 to 6 weeks. Appellant had not returned to work and was no
longer undergoing physical therapy. Dr. McKinley reviewed the March 9, 2019 left shoulder MRI
and the March 16, 2019 cervical spine MRI.4 He diagnosed neck pain secondary to cervical strain
due to compensating for left shoulder discomfort, noting that the MRI did not reveal findings
consistent with a work-related injury, as well as persisting left shoulder pain with multifactorial
etiology including symptomatic biceps tendinitis and aggravation of pre -existing left AC joint
arthritis.5 Dr. McKinley advised that appellant should not lift more than five pounds or use her
left upper extremity.
By decision dated April 11, 2019, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the incident occurred, as alleged. It noted that
the evidence of record contained factual inconsistencies and that appellant had not adequately

4

The March 16, 2019 cervical spine MRI scan revealed suspected congenital incomplete segmentation of the C5C6 cervical level, minor superimposed cervical spine degeneration, and borderline to mild left side neural foraminal
stenosis at the left C7 and C8 nerve levels.
5

Dr. McKinley also diagnosed swelling and fullness in the left supraclavicular region associated with an enlarged
axillary lymph gland unrelated to her injury.

3

described the mechanism of injury. It concluded, therefore, that the requirements had not been
met to establish an injury as defined by FECA. 6
On April 29, 2019 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. The hearing was held on July 25, 2019. OWCP did not receive
any further evidence.
By decision dated September 3, 2019, OWCP’s hearing representative affirmed the
April 11, 2019 decision, as modified, finding that the evidence of record established that the
incident occurred as alleged. The claim remained denied, however, as the medical evidence of
record was insufficient to establish causal relationship between appellant’s diagnosed conditions
and the accepted September 12, 2018 employment incident.7
OWCP subsequently received a September 13, 2019 narrative medical report from
Dr. Dawn Quashie, a Board-certified family practitioner, who described appellant’s employment
duties and history of injury and examined appellant. Dr. Quashie diagnosed a sprain of the AC
joint, a sprain of the left shoulder joint, and adhesive capsulitis of the left shoulder. She advised
that appellant was temporarily disabled and should be on light-duty work. In her discussion of the
September 12, 2018 employment incident, Dr. Quashie described the anatomy of the shoulder and
stated that appellant “tried to stop her fall by stretching out her left arm . . . [and] she jammed her
humerus into the shoulder joint leading to her shoulder sprain.” She further explained what occurs
when a person falls forward onto an outstretched hand,
“[T]he impact force travels up the arm and exits in the cervical spine (neck) and thoracic
spine (upper back) similar to a whiplash type injury. Residual delayed symptoms may
appear, which include headaches, neck pain, muscle spasm, tingling or numbness in the
arm, and pain between the shoulder blades. [Appellant’s] fall caused mechanical and
functional damage to the left shoulder leading to inefficient movement and compensations.
These neurological compensations are part of your nervous system[‘]s hardwired survival
mechanism to avoid pain at all cost by taking the path of least resistance.”
Dr. Quashie opined that appellant’s shoulder sprain was directly and causally attributed to
the September 12, 2018 employment incident.
On October 10, 2019 appellant requested reconsideration.
By decision dated January 7, 2020, OWCP denied modification of its September 3, 2019
decision.
OWCP subsequently received an October 7, 2020 narrative medical report from
Dr. Quashie relating that appellant’s neck and left shoulder pain had progressively worsened and
6

Appellant subsequently submitted the March 9, 2019 left shoulder MRI scan, which revealed mild supraspinatus
and infraspinatus tendinosis, mild biceps tenosynovitis, mild AC osteoarthritis, and a single enlarged left axillary
lymph node.
7

The hearing representative noted that appellant’s 2016 injury had been assigned OWCP File No. xxxxxx987 and
accepted for limited medical expenses without formal adjudication. The representative ordered the case files to be
administratively combined. On January 9, 2020 it administratively combined OWCP File Nos. xxxxxx987 and
xxxxxx854, with the current file designated as the master file.

4

that she continued to have reduced range of motion with pain for the left shoulder. She diagnosed
arthropathy and primary osteoarthritis of the left shoulder and advised that appellant should remain
on light duty. Dr. Quashie noted that “[w]hile most people experience wear and tear in their joints
as they age, the development of [appellant’s] acromioclavicular joint arthrosis caused
degeneration, disabling the shoulder joint, sometimes making it appear la rger. Spurs, or spiny
projections from the bones, may develop around the joint. With this condition, there is usually
pain and swelling that limits the motion of the arm.” Dr. Quashie explained that appellant’s
employment duties, including sorting mail and lifting and delivering packages, placed a great deal
of stress on her shoulder joint, leading to “cartilage deterioration in her right [sic] shoulder ... and
allowing arthritis to develop into the joint.” She opined that appellant’s September 12, 2018 fall
through the apartment steps exacerbated her arthritic shoulder, leading to her AC joint arthropathy.
On January 29, 2021 appellant requested reconsideration. OWCP did not receive any
further evidence.
By decision dated February 23, 2021, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.8 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 9 Timeliness is determined by the document receipt date, i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS). 10
Imposition of this one-year filing limitation does not constitute an abuse of discretion. 11
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 12 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of

8

5 U.S.C. § 8128(a); see T.J., Docket No. 21-0586 (issued September 30, 2021); L.W., Docket No. 18-1475 (issued
February 7, 2019); Y.S., Docket No. 08-0440 (issued March 16, 2009).
9

20 C.F.R. § 10.607(a).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4b (September 2020).

11

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
12

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499 (1990).

5

OWCP.13 In this regard, OWCP will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record. 14
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. 15 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.16
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face demonstrates that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued, would
have created a conflict in medical opinion requiring further development, is not clear evidence of
error.17 The Board makes an independent determination of whether a claimant has demo nstrated
clear evidence of error on the part of OWCP. 18
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed.
The last merit decision was dated January 7, 2020. As appellant’s request for
reconsideration was not received by OWCP until January 21, 2021, more than one year after
January 7, 2020, pursuant to 20 C.F.R. § 10.607(a), the request for reconsideration was untimely
filed. Consequently, appellant must demonstrate clear evidence of error by OWCP in denying the
claim.19
The Board further finds that OWCP summarily denied appellant’s request for
reconsideration without complying with the review requirement of FECA and its implementing
13

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 10 at Chapter 2.1602.5 (September 2020).
14

J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

15

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 10 at Chapter 2.1602.5a (September 2020).

16

C.M., Docket No. 19-1211 (issued August 5, 2020).

17

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 10 at Chapter 2.1602.5(a) (September 2020).

18

D.S., Docket No. 17-0407 (issued May 24, 2017).

19

20 C.F.R. § 10.607(b); S.C., Docket No. 20-1537 (issued April 14, 2021); R.T., Docket No. 19-0604 (issued
September 13, 2019); see Debra McDavid, 57 ECAB 149 (2005).

6

regulations.20 As noted, section 8124(a) of FECA provides that OWCP shall determine and make
a finding of fact and make an award for or against payment of compensation.21 Its regulations at
20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings and
facts and a statement of reasons. 22 As well, OWCP’s procedures provide that the reasoning behind
OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence which would overcome it.23
In the February 23, 2021 decision, OWCP did not address Dr. Quashie’s October 7, 2020
medical report, which was received after the January 7, 2020 merit decision. It failed to analyze
this evidence as to whether it was sufficient to demonstrate clear evidence of error. The Board
finds that OWCP failed to properly explain the findings with respect to the issue presented so that
appellant could understand the basis for the decision, i.e., whether she had demonstrated clear
evidence that OWCP’s last merit decision was incorrect.
The case must, therefore, be remanded for findings of fact and a statement of reasons, to
be followed by an appropriate decision on appellant’s untimely reconsideration request.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed. The Board
further finds that the case is not in posture for decision regarding whether appellant has
demonstrated clear evidence of error.

20

See Order Remanding Case, W.D., Docket No. 20-0859 (issued November 20, 2020); Order Remanding Case,
C.G., Docket No. 20-0051 (issued June 29, 2020); Order Remanding Case, T.P., Docket No. 19-1533 (issued April 30,
2020); see also 20 C.F.R. § 10.607(b).
21

5 U.S.C. § 8124(a).

22

20 C.F.R. § 10.126.

23

Federal (FECA) Procedure Manual Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013) (all
decisions should contain findings of fact sufficient to identify the benefit being denied and the reason for the
disallowance).

7

ORDER
IT IS HEREBY ORDERED THAT the February 23, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: March 29, 2022
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlotte, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-2311
Issued: June 9, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 19, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated April 8, 2008 denying intermittent periods of
compensation. His appeal is also timely filed from a June 30, 2008 nonmerit decision denying
his request for review of the written record. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the
Board has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether appellant was disabled for intermittent periods; and
(2) whether the Office properly denied appellant’s request for review of the written record as
untimely filed.
FACTUAL HISTORY
On June 13, 2007 appellant, then a 54-year-old letter carrier, filed an occupational disease
claim alleging that he sustained a right shoulder condition as a result of the duties of his federal
employment. He noted that he cased about 400 flats and letters a day, repetitively lifted mail

trays and delivered mail. Appellant attributed his right shoulder condition to repetitive motions,
weight of equipment, setting and releasing the hand brake while delivering mail and repetitive
opening and closing the vehicle door. On August 24, 2007 the Office accepted appellant’s claim
for complete rotator cuff rupture and right bicipital tenosynovitis. On September 25, 2007
Dr. David A. Esposito, a Board-certified orthopedic surgeon, performed arthroscopic extensive
debridement; arthroscopic synovectomy complete, (therapeutic) anterior-posterior; arthroscopic
subacromial decompression; open rotator cuff repair; and insertion of a Marcaine pump.
Appropriate compensation and medical benefits were paid. On December 27, 2007 appellant
returned to limited-duty work.
On January 2003 appellant claimed compensation for 1.58 hours on January 18, 2008 for
a doctor’s visit and therapy. On February 5, 2008 he claimed compensation for 1.60 hours on
January 22, 2008 for therapy visit and 1.0 hours on February 1, 2008 for therapy visit. On
February 20, 2008 appellant claimed compensation for 1.27 hours on February 4, 2008 for
“therapy visit justification.” By letter dated February 13, 2008, appellant noted that physical
therapy authorization ceased on January 28 2008. On January 18, 2008 he went to get a new
physical therapy prescription from his physician but had not received any word of further
authorizations. Appellant submitted a note from Dr. Esposito, indicating that on January 18,
2008 appellant came in to pick up a physical therapy prescription. The February 12, 2008 note
from appellant’s physical therapy office noted that he discussed authorization for treatment on
January 18 and February 4, 2008.
By letter dated March 3, 2008, the Office informed appellant that further medical
evidence was needed to support his claim for compensation. It further noted that he could not
claim leave without pay for anything other than examination, testing or treatment. The Office
gave appellant 30 days to submit additional documentation.
By decision dated April 8, 2008, the Office denied appellant’s claims for compensation
for the following times: January 18, 2008 for 1.58 hours; January 22, 2008 for 1.6 hours;
February 1, 2008 for 1 hour; and February 4, 2008 for 1.27 hours. It noted that there was no
evidence of medical treatment on these dates.
By letter dated April 24, 2008, appellant stated that, before he made a decision on which
type of appeal to pursue, he was making no claim for January 22 or February 1, 2008. He
indicated that he had previously sent evidence regarding his visits on January 18 and
February 4, 2008.
By appeal request form dated May 28, 2008, postmarked May 29, 2008 and received by
the Office on June 3, 2008, appellant requested review of the written record by an Office hearing
representative.
By decision dated June 30, 2008, the Office’s Branch of Hearings and Review denied
appellant’s request for review of the written record as it was untimely filed. The Branch of
Hearings and Review reviewed the request under its discretionary authority and denied
appellant’s request for the reason that the issue could be equally well addressed by requesting
reconsideration and submitting new evidence.

2

LEGAL PRECEDENT -- ISSUE 1
A claimant has the burden of proving by a preponderance of the evidence that he or she is
disabled for work as a result of an accepted employment injury and must submit medical
evidence for each period of disability claimed.1 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. The Board will
not require the Office to pay compensation for disability in the absence of medical evidence
directly addressing the particular period of disability for which compensation is claimed. To do
so, would essentially allow an employee to self-certify their disability and entitlement to
compensation.2
The Office’s procedure manual provides that wages lost for compensable medical
examination may be reimbursed.3 It notes that a claimant who has returned to work following an
accepted injury or illness may need to undergo examination, testing or treatment. An employee
may be paid compensation for wage loss while obtaining medical services and for reasonable
time spent traveling to and from the medical provider’s location.4
ANALYSIS -- ISSUE 1
The Board finds that the Office properly denied appellant’s request for compensation for
January 18 and 22 and February 1 and 4, 2008. There was no supporting medical documentation
submitted establishing that appellant received any treatment on January 22 or February 1, 2008.
Appellant does not appear to contest the denial of compensation for these dates. However, he
appealed from the Office’s denial of 1.58 hours on January 18, 2008 and 1.27 hours on
February 4, 2008. As the Office properly noted, the procedure manual provides for the payment
of compensation for wages lost while undergoing examination, testing or treatment for a workrelated injury.5 The evidence submitted by appellant indicates that on January 18, 2008 he went
to Dr. Esposito’s office to pick up a physical therapy prescription. A note from his physical
therapist indicates that on January 18 and February 4, 2008 appellant came in to discuss his
authorization. There is no evidence that appellant received any examination, testing or treatment
on those dates due to the effects of the employment-related injury. Accordingly, the Board finds
that the Office properly denied compensation for these dates.

1

See Fereidon Kharabi, 52 ECAB 291 (2001).

2

Sandra D. Pruitt, 57 ECAB 126 (2005); Amelia S. Jefferson, 57 ECAB 183 (2005).

3

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16
(December 1995).
4

See Daniel Hollars, 51 ECAB 355 (2000); Jeffrey R. Davis, 35 ECAB 950 (1984).

5

See supra note 3.

3

LEGAL PRECEDENT -- ISSUE 2
A claimant dissatisfied with a decision of the Office shall be afforded an opportunity for
an oral hearing or, in lieu thereof, a review of the written record.6 A request for either an oral
hearing or review of the written record must be submitted, in writing, within 30 days of the date
of the decision for which a hearing is sought.7 If the request is not made within 30 days, a
claimant is not entitled to a hearing or review of the written record as a matter of right.
Furthermore, Office regulations provide that the claimant must not have previously submitted a
reconsideration request (whether or not it was granted) on the same decision.8
Although a claimant may not be entitled to a hearing as a matter of right, the Office has
discretionary authority with respect to granting a hearing and it must exercise such discretion.9
ANALYSIS -- ISSUE 2
Appellant’s request for review of the written record was dated May 28, 2008 and
postmarked May 29, 2008, which was more than 30 days after the April 8, 2008 decision. The
implementing regulations provide that a request must be sent within 30 days (as determined by
postmark or other carrier’s date marking) of the date of the decision for which a hearing or
review of the written record is sought.10 Appellant’s request was therefore untimely and he was
not entitled to a review of the written record as a matter of right. On appeal, he asserts that his
April 24, 2008 letter qualified as a request for review of the written record. However, this letter
did not request review of the written record. Rather, appellant advised that he had not decided
which avenue of appeal to pursue at that time and that he was not contesting the Office’s denial
of January 18 or February 4, 2008.
The June 30, 2008 decision also denied appellant’s request on the grounds that the
pertinent issue could be addressed by requesting reconsideration and submitting additional
evidence to the district Office. This was a proper exercise of the Office’s discretionary
authority.11 There is no evidence to establish that the Branch of Hearings and Review abused its
discretion in denying appellant’s request. Accordingly, the Board finds that the Branch of
Hearings and Review properly denied appellant’s request for a review of the written record.

6

20 C.F.R. § 10.615 (2008).

7

Id. at § 10.616(a).

8

Id.

9

See Samuel R. Johnson, 51 ECAB 612 (2000); Eileen A. Nelson, 46 ECAB 377 (1994); Herbert C. Holley, 35
ECAB 140 (1981).
10

20 C.F.R. § 10.616(a).

11

Mary B. Moss, 40 ECAB 640, 647 (1989).

4

CONCLUSION
The Board finds that appellant did not establish his claim for intermittent periods of
disability. The Board further finds that the Office properly denied appellant’s request for review
of the written record as untimely filed.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 30 and April 8, 2008 are affirmed.
Issued: June 9, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Jamaica, NY, Employer
)
___________________________________________ )
R.L., Appellant

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

Docket No. 10-1288
Issued: April 22, 2011

Case submitted on the record

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

JURISDICTION
On April 6, 2010 appellant filed a timely appeal of a January 15, 2010 nonmerit decision
of the Office of Workers’ Compensation Programs, which denied his request for reconsideration
pursuant to 5 U.S.C. § 8128(a). He also timely appealed the Office’s November 25, 2009
decision, denying his claim for a recurrence of disability. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over these
issues.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a recurrence of
disability beginning August 8, 2008 causally related to his June 15, 1988 employment injury; and
(2) whether the Office properly refused to reopen appellant’s case for further review of the
merits of his claim under 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
The Office accepted that on June 15, 1988 appellant, then a 33-year-old casual employee,
sustained a left inguinal hernia while lifting a heavy mailbag at work. It authorized a surgical
repair of the tear. Appellant returned to full duty on October 17, 1988. He did not work for the
employing establishment after 1988 but worked in nonfederal employment.2
The claim was dormant until February 2006 when appellant telephoned the Office and
asked that it be reopened. The Office informed him that the case had been closed and
recommended that he file a recurrence claim.
On August 21, 2008 appellant filed a notice of recurrence.3 He stated that he stopped
working on July 18, 2004 as a result of the recurrence. Appellant noted that he could not lift
over 10 pounds and had pain and a weakened groin wall on his left side. He explained that his
recurrence happened when he injured his right shoulder, fractured his pelvis, herniated discs,
strained his back and developed a bone chip in his neck. In a recurrence form filed on
January 14, 2009, appellant alleged that his recurrence began on August 8, 2008 and indicated
that his injury was due to putting pressure on his right hip. He also attributed it to an automobile
accident where he fractured his hip, injuring his pelvis and groin area.
In a September 23, 2008 report, Dr. Charles A. DeMarco, an attending Board-certified
orthopedic surgeon, stated that appellant was being evaluated for a work-related case from
June 15, 1988. He noted that appellant was working for the employer lifting heavy packages and
had an injury to his left groin and a left inguinal hernia. Dr. DeMarco advised that “[b]ecause of
the pain, [appellant] was putting increased pressure on the right hip and now, he has right
inguinal hernia.” He noted appellant’s right hip was exacerbated since the accident.
Dr. DeMarco listed a 2006 motor vehicle accident with a pelvic fracture. He stated that appellant
had a childhood history of bilateral inguinal hernias. In an October 14, 2008 progress note,
Dr. DeMarco documented a June 15, 1988 injury due to moving heavy packages and diagnosed a
left inguinal hernia and repair. The note was annotated that appellant had multiple injuries to the
neck and shoulder and lower back, along with a fractured pelvis. On October 28, 2008
Dr. DeMarco diagnosed a possible torn labrum of the right hip and recommended therapy. He
continued to treat appellant.
In an October 7, 2008 report, Dr. Dwiref Mehta, a Board-certified surgeon, diagnosed a
right inguinal hernia. He noted a history of appellant working for the employer and lifting boxes
in July 1987, when he sustained a right inguinal hernia that was repaired. Dr. Mehta opined that
the right inguinal hernia was related to the July 1987 work injury.

2

The record reflects that appellant has numerous injuries after he left federal employment from incidents that
included falls, an automobile accident and a 2006 encounter with a psychiatric patient. These resulted in injuries
that included a fractured pelvis, injuries to his neck, shoulder and back and post-traumatic stress disorder.
3

The record contains a continuing disability claim form from a private employer in which appellant alleged that
he was disabled commencing July 5, 2008.

2

In a December 9, 2008 progress note, Dr. DeMarco reiterated that appellant was being
evaluated for a work-related injury on June 15, 2008.4 Appellant worked for the employer and
had a left inguinal hernia. Dr. DeMarco stated that “[b]ecause of the pain, [appellant] was
putting increased pressure on the right hip and now, he has right inguinal hernia.” He also
related that appellant’s right hip was exacerbated since the accident in 2006, where he had pelvic
fracture. Appellant complained of pain and dysfunction in the right hip. Dr. DeMarco noted
appellant’s childhood history of bilateral inguinal hernias and stated that he now had complaints
of more pain and dysfunction in the right groin, which worsened with prolonged activity. He
advised that appellant’s pain was persistent and debilitating. Dr. DeMarco diagnosed a possible
torn labrum in the right hip that might require surgery.
In a February 6, 2009 letter, the Office noted that it accepted the claim for a left inguinal
hernia and appellant returned to full duty on October 17, 1988. It noted appellant’s 2006 motor
vehicle accident and requested that he submit additional evidence in support of his claim.
In a February 23, 2009 response, appellant stated that he was advised that his claim
would be reopened once his medical evidence was provided. He confirmed that he was in a car
accident on March 17, 2006 that injured his right hip, causing a pelvic fracture. In a March 4,
2009 statement, appellant stated that he was incapacitated and confined to his home since
August 2008, due to hip pain and bilateral groin and leg pain.
In a letter dated March 16, 2009, Barbara E. Brewster, a human resources manager,
controverted the claim. She advised that appellant was diagnosed with a left inguinal hernia and
cleared for full duty on October 17, 2008. Ms. Brewster advised that his claim was closed on
October 25, 2008. She noted appellant’s motor vehicle accident in 2006 and Dr. DeMarco
records indicating that appellant had a history of bilateral inguinal hernias as a child.
By decision dated April 7, 2009, the Office denied appellant’s claim for a recurrence of
disability on August 8, 2008. It found that the evidence failed to demonstrate that recurrence of
August 8, 2008, was causally related to the accepted June 15, 1988 injury.
Appellant requested a hearing that was held on August 10, 2009. The Office received
additional evidence, including that previously submitted. In reports dated April 1 and 28, 2009,
Dr. DeMarco repeated his findings and noted that further right hip evaluation was warranted. He
referred to appellant’s accepted injury of June 15, 1988. Due to pain, appellant put increased
pressure on the right hip and now had a right inguinal hernia. Dr. DeMarco stated that the motor
vehicle accident of 2006, which included a pelvic fracture, exacerbated the initial injury. He
advised that appellant was totally disabled due to the multiple injuries to the cervical spine,
lumbar spine, left knee, left hip and right shoulder. Dr. DeMarco added that appellant had an
acute exacerbation of the right inguinal hernia and might require further intervention. In a
May 26, 2009 report, he noted that appellant fell off a stool while filing reports and sustained
injuries to the cervical spine, lumbar spine and right shoulder.
By decision dated November 25, 2009, the Office hearing representative affirmed the
Office’s August 8, 2008 decision.
4

This appears to be a typographical error, as it should read June 15, 1988.

3

On December 4, 2009 appellant requested reconsideration. He advised the Office that
additional evidence would be forthcoming. On December 10, 2009 appellant contacted the
Office to inquire if the request was received and to determine whether the Office received
additional evidence. The Office advised him that no additional evidence was received.
In a January 15, 2010 decision, the Office denied appellant’s request for reconsideration
finding that the request was insufficient to warrant a merit review.
LEGAL PRECEDENT -- ISSUE 1
Section 10.5(x) of the Office’s regulations provide that a recurrence of disability means
an inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness.5
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and who supports that conclusion with sound medical
reasoning.6 Where no such rationale is present, the medical evidence is of limited probative
value.7 To establish that a claimant’s alleged recurrence of the condition was caused by the
accepted injury, medical evidence of bridging symptoms between his present condition and the
accepted injury must support the physician’s conclusion of a causal relationship.8
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a left inguinal hernia in the performance of
duty on June 15, 1988. Appellant returned to full duty on October 17, 1988. He did not work for
the employing establishment after 1988 but continued to work in the private sector. On
August 21, 2008 appellant claimed a recurrence of disability beginning August 8, 2008. He has
not submitted sufficient reasoned medical evidence to establish a spontaneous change in his
accepted left inguinal hernia condition, without an intervening injury, that caused the claimed
disability.
Appellant submitted several reports from Dr. DeMarco dated September 23, 2008 to
April 2009. Dr. DeMarco noted the history of appellant’s June 15, 1988 work injury. He opined
that, due to pain, appellant put increased pressure on the right hip, which caused a right inguinal
hernia. Dr. DeMarco also asserted that appellant’s 2006 motor vehicle accident, which included
a pelvic fracture, exacerbated the initial injury. He advised that appellant was totally disabled
5

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

6

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956); 20 C.F.R. § 10.104.

7

Mary A. Ceglia, 55 ECAB 626 (2004); Albert C. Brown, 52 ECAB 152 (2000).

8

Mary A. Ceglia, id; see Ricky S. Storms, 52 ECAB 349 (2001).

4

due to the multiple injuries to the cervical spine, lumbar spine, left knee, left hip and right
shoulder. The Board notes that the accepted condition was for a left inguinal hernia.
Dr. DeMarco failed to support his opinion with medical reasoning and objective findings to
explain how the right inguinal hernia resulted from the June 15, 1988 employment injury.9 This
is especially important in light of the pelvic fracture from the 2006 motor vehicle accident, other
nonwork injuries and appellant’s childhood history of hernias. There also is no medical evidence
of bridging symptoms between appellant’s present condition and the accepted injury.
Dr. DeMarco did not reference any other medical evidence documenting any continuing
symptomology after the original 1988 work injury. This is significant in view of the length of
time between appellant’s return to regular duty in 1988 and the filing of his recurrence of
disability claim on August 21, 2008.
Other reports from Dr. DeMarco also do not provide a reasoned discussion explaining
how the right inguinal hernia or any nonaccepted conditions could be attributed to his June 15,
1988 employment injury and why any such conditions would not be due to intervening causes
such as the 2006 motor vehicle accident, the 2006 encounter with a psychiatric patient or the
May 26, 2009 fall from a stool. Consequently, the reports of Dr. DeMarco are insufficient to
establish appellant’s claim.
In an October 7, 2008 report, Dr. Mehta diagnosed a right inguinal hernia. He provided
an incorrect history in which he noted that appellant was working for the employer in July 1987,
when he sustained a right inguinal hernia. The Board notes that the accepted work injury
occurred on June 15, 1988 and it was for a left inguinal hernia. Dr. Mehta does not have a clear
history of injury. He does not appear to be aware of the subsequent injuries, including the motor
vehicles accident in 2006. It is well established that medical reports must be based on a
complete and accurate factual and medical background and medical opinions based on an
incomplete or inaccurate history are of little probative value.10
The remaining evidence submitted by appellant’s physicians did not address whether
appellant’s claimed recurrence of disability beginning August 8, 2008 was causally related to his
accepted employment injury. Consequently, appellant has not met his burden of proof to
establish his claim.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,11 the Office may reopen a case for review on the merits
in accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provide that a claimant may obtain review of the merits if the written

9

See G.A., Docket No. 09-2153 (issued June 10, 2010) (for conditions not accepted by the Office as being
employment related, it is the employee’s burden to provide rationalized medical evidence sufficient to establish
causal relation).
10

Douglas M. McQuaid, 52 ECAB 382 (2001).

11

5 U.S.C. § 8128(a).

5

application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(1) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(2) Advances a relevant legal argument not previously considered by [the
Office]; or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
the [the Office].”12
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.13
ANALYSIS -- ISSUE 2
Appellant disagreed with the denial of his claim for a recurrence of disability on
August 8, 2008 and requested reconsideration on December 4, 2009. The underlying issue on
reconsideration was whether he sustained a recurrence of disability on August 8, 2008.
Appellant did not provide any relevant or pertinent new evidence to the issue of whether he
sustained a recurrence of disability on August 8, 2008.
In the December 4, 2009 request for reconsideration, appellant noted that he would
submit additional medical evidence from his physician. But despite contacting the Office on
December 10, 2009 to inquire if evidence was of record, no additional medical evidence was
received. Appellant did not make any argument in support of his request. He did not show that
the Office erroneously applied or interpreted a specific point of law. Appellant did not identify a
specific point of law or show that it was erroneously applied or interpreted. He did not advance
a new and relevant legal argument.
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(2). Appellant did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office or submit relevant and pertinent evidence not previously considered. Pursuant to
20 C.F.R. § 10.608, the Office properly denied merit review.
On appeal, appellant indicated that he disagreed with the Office’s decision. He submitted
additional evidence. For the reasons noted in this decision, the Office’s decisions were proper.
The Board also has no jurisdiction to review new evidence for the first time on appeal.14

12

20 C.F.R. § 10.606(b).

13

Id. at § 10.608(b).

14

Id. at § 501.2(c); James C. Campbell, 5 ECAB 35 (1952).

6

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of disability beginning August 8, 2008. The Board also finds that the Office properly refused to
reopen his case for further review of the merits of his claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the January 15, 2010 and November 25, 2009
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 22, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 10-1663
Issued: April 19, 2011

Case Submitted on the Record

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

JURISDICTION
On June 2, 2010 appellant filed a timely appeal from a December 7, 2009 decision of the
Office of Workers’ Compensation Programs which granted appellant a schedule award.
Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has more than five percent permanent impairment of the
right upper extremity for which he received a schedule award.
FACTUAL HISTORY
On December 10, 2005 appellant, then a 48-year-old rural carrier, filed a (Form CA-2),
occupational disease claim, alleging that he sustained a partially torn rotator cuff and
impingement syndrome from performing repetitive duties with his right arm. The Office

1

5 U.S.C. § 8101 et seq.

accepted disorder of the bursae and tendons of the right shoulder, complete rupture of the right
rotator cuff and sprain of the right shoulder and upper arm.
The Office authorized surgery. On November 30, 2005 Dr. Christopher J. Lang, a Boardcertified orthopedic surgeon, performed a right shoulder arthroscopic subacromial
decompression and right shoulder intra-articular arthroscopic debridement of the torn labrum and
rotator cuff. He diagnosed right shoulder chronic impingement syndrome, right shoulder
superior labral tear and right shoulder partial thickness articular surface rotator cuff tear.
Appellant returned to full-time regular duty on November 20, 2006.
On March 8, 2009 appellant filed a claim for a schedule award. On March 12, 2009 the
Office requested that he submit a report from a treating physician addressing the extent of
permanent partial impairment in accordance with the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).2
In a June 2, 2009 report, Dr. William M. Shanks, a Board-certified orthopedic surgeon,
diagnosed rotator cuff tendinitis and impingement syndrome of the right shoulder. Appellant
was status postoperative subacromial decompression and debridement of the right shoulder with
a finding of degenerative labral tear. Dr. Shanks noted findings on examination that included
tenderness over the anterior aspect of the right shoulder, flexion to 160 degrees on the right and
180 degrees on the left, extension to 40 degrees on the right and 70 degrees on the left, abduction
was 120 degrees on the right and 180 degrees on the left, adduction was 30 degrees on the right
compared to 45 degrees on the left, abduction was 90 degrees, internal rotation was 40 degrees
on the right and 90 degrees on the left and external rotation was 80 degrees on the right and 110
on the left. He further noted mild weakness of external rotation of the right shoulder and
sensation was intact in the upper extremities. In a pain disability questionnaire, appellant noted
difficulty with pain control and with overhead activity involving the right arm that interfered
with recreational activity. Dr. Shanks noted that appellant fell within Class 1 or 2 concerning
activities of daily living. Using the diagnosis-based impairment rating for impingement
syndrome or partial thickness tear of the rotator cuff, appellant was a category 1 using the
modifier, according the activities of daily living, pursuant to Table 15-5, page 402 of the A.M.A.,
Guides. Dr. Shanks noted that, under Table 15-8, appellant qualified for a grade 1 modifier due
to the limitations of active range of motion with no acute trauma. He rated him as Class 2 with
14 percent impairment of the right arm.
In a July 9, 2009 report, an Office medical adviser noted that it was unclear how
Dr. Shanks determined that appellant had Class 2 right shoulder impairment pursuant to the
A.M.A., Guides. Dr. Shanks noted that with diagnosed-based impairment, key factors are used
to calculate impairment and class is determined by the key factor. He failed to provide a detailed
narrative describing his evaluation to support his determination that appellant had 14 percent
impairment of the right arm. The Office medical adviser requested that Dr. Shanks provide a
supplemental report.
The Office requested that Dr. Shanks clarify his rating. In a September 22, 2009
statement, Dr. Shanks noted that the Office disputed every schedule award rating he had
2

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

2

provided. He advised that he stood by his original report, would provide no further clarification
and would not perform schedule award evaluations for the Office.
The Office referred appellant, together with the case record and a statement of accepted
facts, to Dr. Clarence Fossier, a Board-certified orthopedic surgeon, for a second opinion. In a
November 4, 2009 report, Dr. Fossier reviewed appellant’s history and described his findings on
examination. Range of motion for forward flexion was measured at 150 degrees on the right and
160 degrees on the left, abduction was measured at 90 degrees bilaterally, internal rotation was
measured at 80 degrees on the right and 90 degrees on the left and external rotation was 90
degrees bilaterally. Dr. Fossier diagnosed impingement syndrome with partial tear of the right
rotator cuff and labrum treated surgically. He advised that appellant reached maximum medical
improvement in December 2006. Dr. Fossier noted appellant lost 10 degrees of flexion,
abduction, external and internal rotation on the right side and complained of difficulty sleeping
on his right side and with overhead motions. He opined that appellant had five percent
impairment of the right arm in accordance with the A.M.A., Guides. The impairment rating was
based on a diagnosis of rotator cuff injury, partial tear thickness with residual loss, but functional
within normal motion, which represented a Class 1 impairment based on a history of painful
injury. The default grade C, for the class of diagnosis (CDX) was three percent impairment of
the upper extremity. Dr. Fossier advised that appellant scored 27 on the QuickDash
questionnaire functional assessment tool, which represented a grade 2 modifier (Grade Modifier
for Functional History - GMFH).3 He also found a grade 1 modifier based on appellant’s
physical examination, which was essentially normal (Grade Modifier for Physical Examination GMPE). Dr. Fossier opined that using the net adjustment formula appellant had five percent
impairment of the upper extremity.
The Office referred Dr. Fossier’s report to an Office medical adviser. In a December 2,
2009 report, the Office medical adviser concurred with Dr. Fossier’s rating but noted a
mathematic error. He explained that appellant’s impairment rating was based on a diagnosis of
partial-thickness tear of the rotator cuff, which represented Class 1 impairment with a default
grade of C. The default grade C, for the class of diagnosis (CDX) was three percent impairment
based on the shoulder grid, Table 15-5, page 402 of the A.M.A., Guides. The Office medical
adviser noted that appellant scored 27 on the QuickDash functional assessment tool, which
represented a grade 3 modifier (GMFH). In calculating the modifier, he noted the raw score of
27 divided by 11 (the number of questions answered) for an average of 2.45. This figure was
multiplied by 25 to obtain the final score of 61.25, not 49.25 as noted by Dr. Fossier. The Office
medical adviser found a grade 1 modifier based on appellant’s physical examination findings
which were essentially normal (GMPE). In order to determine the final impairment under the
sixth edition, he applied the Net Adjustment Formula (NAF): GMFH (3) minus CDX (1) plus
GMPE (1) minus CDX (1). Based on the formula, the net adjustment modifier was two. The
Office medical adviser explained that the plus two net adjustment modifier allowed for
adjustment from grade C, the default, to grade E, which represented five percent impairment of
the upper extremity and which was consistent with Dr. Fossier’s rating. He opined that appellant

3

Dr. Fossier noted that using the QuickDash formula, the raw score was 27 divided by 11 (the number of
questions answered) for an average of 2.45. This number is multiplied by 25 to obtain a final score of 49.25.
Pursuant to Table 15-7, page 406 of the A.M.A., Guides the GMFH was a grade 2.

3

had five percent impairment to the right arm and that maximum medical improvement was
reached on November 4, 2009.
In a decision dated December 7, 2009, the Office granted appellant a schedule award for
five percent permanent impairment to the right upper extremity. The period of the award was
from November 4, 2009 to February 21, 2010.
LEGAL PRECEDENT
The schedule award provision of the Act4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 Effective May 1, 2009, schedule awards
are determined in accordance with the A.M.A., Guides (6th ed. 2008).7
ANALYSIS
Appellant’s claim was accepted by the Office for a disorder of the bursae and tendons of
the right shoulder, complete rupture of the right rotator cuff and sprain of the right shoulder and
upper arm and rotator cuff. The Office authorized arthroscopic surgery on the right shoulder
which was performed on November 30, 2005 for repair of a partial-thickness rotator cuff tear.
The Board finds that the medical evidence of record establishes five percent impairment to
appellant’s right upper extremity.
Under the sixth edition of the A.M.A., Guides, impairments of the upper extremities are
covered by Chapter 15 section 15-2, entitled Diagnosis-Based Impairment, provides that
diagnosis-based impairment is the primary method of evaluation of the upper limb.8 The initial
step in the evaluation process is to identify the impairment class by using the corresponding
diagnosis-based regional grid. Dr. Fossier utilized the Shoulder Regional Grid, Table 15-5,
A.M.A., Guides, page 402, and identified a Class 1 impairment based on rotator cuff injury,
partial-thickness tear, with residual loss that was functional with normal motion. He noted that
appellant had a history of painful injury warranting a Class 1 designation. Under Table 15-5, the
default grade C, for such a Class 1 partial-thickness tear is three percent upper extremity
impairment.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Example 1
(January 2010).
8

A.M.A., Guides 387, section 15.2.

4

After determining the impairment class and default grade, Dr. Fossier addressed whether
there were any applicable grade adjustments for so-called nonkey factors or modifiers. These
include adjustments for functional history (GMFH), physical examination (GMPE) and clinical
studies (GMCS). The grade modifiers are used in the Net Adjustment Formula to calculate a net
adjustment.9 The final impairment grade is determined by adjusting the grade up or down from
the default value C by the calculated net adjustment. Dr. Fossier identified two modifiers; one
based on the functional history (GMFH) and the other based on physical examination (GMPE).
For the functional history, he assigned a grade modifier 2 based on appellant QuickDash score of
27.10 However, the Board notes that, in calculating the modifier, Dr. Fossier incorrectly found
that the raw score of 27 divided by 11 (the number of questions answered) for an average of 2.45
multiplied by 25 was 49.25. Rather, the final score was 61.25. This would equate to a functional
modifier of grade 3 instead of 2 as made by Dr. Fossier, who also found a grade 1 modifier based
on appellant’s physical examination findings which were essentially normal.11 Applying the net
adjustment formula resulted in a net modifier of plus two, which resulted in a grade adjustment
from the default grade of C to E. The corresponding upper extremity impairment for a Class 1,
grade E rotator cuff partial-thickness tear is five percent.12 The medical adviser noted that his
calculation was consistent with Dr. Fossier’s rating.
The Board finds that the Office medical adviser properly applied the A.M.A., Guides to
the findings presented by Dr. Fossier in rating impairment to appellant’s right arm. Both,
Dr. Fossier and the Office medical adviser, agreed that appellant had five percent impairment
under the A.M.A., Guides. The weight of medical evidence establishes that appellant has no
more than five percent right arm impairment.
Appellant submitted a June 2, 2009 report from Dr. Shanks, who noted that appellant
sustained a 14 percent impairment of the right upper extremity pursuant to the A.M.A., Guides.
Dr. Shanks opined that appellant was a Class 2 with 14 percent impairment of the right upper
extremity pursuant to the A.M.A., Guides. However, the Board notes that it was unclear how he
determined that appellant had a Class 2 right shoulder impairment pursuant to the A.M.A.,
Guides. Table 15-5, page 402, of the A.M.A., Guides provides that impingement syndrome and
rotator cuff tear are a Class 1 impairment. Similarly, final impairment grade within a class is
calculated using the grade modifiers; however, a grade modifier will allow movement within a
class but does not permit movement into a different class.13 The Office requested that
Dr. Shanks provide a supplemental report explaining his rating but, he stood by his initial report
and provided no further clarification. The Board finds that he did not properly follow the

9

Net Adjustment = (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX). Section 15.3d, A.M.A., Guides 411.

10

Id. at 406, Table 15-7.

11

Id. at 408, Table 15-8.

12

Id. at 402, Table 15-5.

13

See id. at 387.

5

A.M.A., Guides. An attending physician’s report is of diminished probative value where the
A.M.A., Guides were not properly followed.14
On appeal, appellant asserts that he is entitled to 14 percent impairment of the right arm
as set forth by Dr. Shanks. He contended that Dr. Shanks was the only physician to examine him
and that Dr. Fossier’s report contained a mathematical error. As noted, it was unclear how
Dr. Shanks determined appellant’s impairment under the A.M.A., Guides and he refused to
clarify his opinion. The mathematical error in Dr. Fossier’s report was harmless as it did not
result in the impairment rating being lowered. There is no medical evidence of record, in
conformance with the A.M.A., Guides, supporting greater impairment than five percent.
CONCLUSION
The Board finds that appellant has five percent impairment of the right upper extremity,
for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the December 7, 2009 decision of the Office of
Workers Compensation Programs is affirmed.
Issued: April 19, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees' Compensation Appeals Board

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

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

14

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

6