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

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

Docket No. 12-1636
Issued: March 13, 2013

Case Submitted on the Record

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

JURISDICTION
On July 30, 2012 appellant, through counsel, filed a timely appeal from a July 2, 2012
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated September 21, 2011,
the Board remanded the case to OWCP for failing to properly review all of the evidence

1

5 U.S.C. § 8101 et seq.

submitted prior to its December 3, 2010 denial of appellant’s request for reconsideration.2 The
findings of fact from the prior decision and order are hereby incorporated by reference.3
By decision dated January 17, 2012, OWCP reviewed the evidence on record and found
that appellant failed to establish any compensable factors of employment.
By letter dated January 23, 2012 appellant, through her counsel, requested a telephone
hearing before the Branch of Hearings and Review.
At the April 18, 2012 hearing, appellant testified that her supervisor, Ms. Taylor, treated
her differently from the other employees and would require her to perform tasks that were
outside of her job description such as cleaning the dock and picking up trash. She stated that she
had job limitations which restricted her from lifting above her shoulders over 10 pounds and no
repetitive use of the hands as a result of a previous work-related injury. Appellant claimed that
despite her work-restrictions, her supervisor would make her lift mail trays and unload trucks.
She testified that Ms. Taylor would require her to do nonwork-related duties for one to three
hours a day, but also reported appellant for not fulfilling her regular work duties three times in
the last few months. As a result, appellant filed a grievance which she claimed was successful
and the disciplinary action was removed from her record. She further noted that the conduct of
her supervisor caused her increased stress which gave her migraine headaches, blackouts,
depression and high blood pressure. Ms. Taylor often times would not let appellant take lunch
break or drink water at her desk while other coworkers were allowed to do so. Appellant also
alleged that Ms. Taylor lied and stated that appellant pushed her which was found to be error
after a grievance was filed. Ms. Taylor would discipline appellant for missing work when she
would use sick days for physician’s appointments. The hearing representative informed
appellant to provide copies of any grievance documents or judgments and that the record would
be held open for 30 days.
In support of her claim, appellant submitted a number of documents including an official
job description for a Lead Sales and Services Associate.
In a July 16, 2010 disability certificate, Dr. William R. Frederick, Board-certified in
internal medicine, reported that appellant was totally incapacitated from July 16 to 19, 2010.
Requests for notification of absence dated July 21 through 23, 2010 were denied by
appellant’s supervisor, stating that OWCP had not authorized her claim and that she was absent
without leave (AWOL).
By letter dated July 23 and August 5, 2010, Ms. Taylor requested that appellant appear
for predisciplinary interviews and to provide documentation in support of her absences from
July 22, 2010 to the present.
2

Docket No. 11-430 (issued September 21, 2011). OWCP found that appellant did not submit sufficient evidence
to establish her allegations as factual.
3

On July 22, 2010 appellant, then a 34-year-old mail clerk, filed a traumatic injury claim alleging harassment by
her supervisor, Ethyl Taylor. The employing establishment controverted the claim stating that she was angry
because she was going to receive administrative discipline for attendance issues.

2

Appellant submitted an August 12, 2010 disability certificate from Dr. Frederick stating
that she was totally incapacitated from July 22 to August 12, 2010 due to stress from her
employer. On August 13, 2010 she submitted a request for continuation of pay for the period
July 22 to August 13, 2010, which was signed by Ms. Taylor.
In an August 16, 2010 disability certificate, Dr. Frederick stated that appellant was totally
incapacitated from August 16 to 19, 2010. An August 16, 2010 request for notification of
absence was approved for sick leave.
In an August 25, 2010 letter to Ms. Taylor, appellant stated that she was confirming her
absences of August 23 and 24, 2010 per their conversation. She informed Ms. Taylor that she
was going in for emergency surgery and did not know how long she would be out for recovery,
estimating three weeks. Appellant stated that Ms. Taylor replied in an unprofessional manner
when she informed her of the absences.
In medical reports dated September 1 to 21, 2010, appellant was hospitalized for
depression, anxiety and anger management. Her work complaints were noted as well as issues
with her supervisor. Dr. Archana G. Leon-Guerrero, a Board-certified psychiatrist, diagnosed
major depression. He discharged appellant on September 21, 2010. Dr. Leon-Guerrero stated
that, although her psychiatric condition did not preclude her from performing her job, it was
extremely likely that her conditions would recur if she was not transferred from her work unit.
In a September 17, 2010 medical note, Dr. Leon-Guerrero reported that appellant had
been under his care since September 3, 2010 for major depression and anxiety disorder. He
stated that the cause of her condition was a result of a stressful work situation and reported that
she had worked for USPS for many years with good attendance at first. At some point appellant
began to miss work frequently and built a reputation for poor attendance. As a result, appellant’s
supervisors did not take her physician’s medical recommendations for time off work seriously.
This resulted in escalating tensions between appellant and her supervisor, which caused
appellant’s depression and anxiety. Dr. Leon-Guerrero recommended that appellant be
transferred immediately so that she could resume her employment duties as efficiently as
possible.
On October 14, 2010 appellant was put on emergency off-duty status by Ms. Taylor when
appellant bumped into her without saying excuse me or going around.
In an October 20, 2010 USPS agreement to mediate, appellant was advised that she could
return to work on October 21, 2010 and request a transfer from her present work location.
In a November 16, 2010 return to work certificate, Dr. Keyteshia Guy, Board-certified in
internal medicine, reported that appellant was excused from November 15 to 19, 2010 due to an
illness which could not be disclosed.
Appellant submitted a November 19, 2010 request for notification of absence for sick
leave for the period November 15 through 18, 2010. Ms. Taylor denied appellant’s request
stating that her documentation was not acceptable and that she was AWOL.

3

By letter dated November 22, 2010, appellant stated that she wanted to file a grievance
against Ms. Taylor because she was not paid for 24 hours of leave after her medical
documentation was refused for failing to disclose her illness. She stated that her physician was
unable to disclose the nature of her illness and asked to speak with Ms. Taylor who refused.
By letter dated November 24, 2010, Ms. Taylor informed appellant that a predisciplinary
interview was scheduled for December 2, 2010.
Appellant was required to provide
documentation to support her absences from November 20, 2010 to the present.
In a November 29, 2010 letter to Timothy Haney, a union vice president, appellant
reported that she had been a USPS employee since September 30, 1995. Appellant informed him
that she had an accepted workers’ compensation claim, which was still open but that
management had refused to submit her paperwork so that she could receive continuation of pay
and time off for illness.
By letter dated December 16, 2010, Ms. Taylor provided appellant with a second request
for a predisciplinary interview, which was scheduled for December 20, 2010.
In a January 6, 2011 letter to Ms. Taylor, appellant stated that she was absent from
November 19, 2010 to January 6, 2011 due to a work-related injury, for which she provided the
necessary documentation. She stated that continuation of pay was denied by Ms. Taylor and by
Rhonda Washington despite the fact that her November 8, 2010 traumatic injury claim had been
accepted by OWCP.4 Appellant requested that Ms. Taylor process her paperwork properly and
place her on continuation of pay due to her injury.
By letter dated March 25, 2011, Linda Ackerman, a Labor Relations Specialist, and
Nancy Olumekor, a National Business Agent, reported that the emergency placement notice
issued for appellant on October 14, 2010 was rescinded and removed from her records. The
record supported that appellant was allowed to work on October 15, 2010 and would receive a
payment of $600.00 to address the other remaining issues in the grievance.
In an October 12, 2011 witness statement, Tyrone R. Nelson, appellant’s coworker,
testified that on several unspecified occasions he witnessed Ms. Taylor harass appellant even
when she was sick. He noted that Ms. Taylor always told lies about craft employees.
Mr. Nelson stated that appellant had suffered mentally and physically due to harassment.
By decision dated July 2, 2012, an OWCP hearing representative affirmed the denial of
appellant’s claim finding that the evidence did not establish a compensable work factor.
LEGAL PRECEDENT
To establish that an emotional condition was sustained in the performance of duty there
must be factual evidence identifying and corroborating employment factors or incidents alleged
to have caused or contributed to the condition, medical evidence establishing that the employee
has an emotional condition and rationalized medical opinion evidence establishing that
4

The record before the Board contains no other information regarding other OWCP claims.

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compensable employment factors are causally related to the claimed emotional condition.5
There must be evidence that implicated acts of harassment or discrimination did, in fact, occur
supported by specific, substantive, reliable and probative evidence.6
Where the disability results from an emotional reaction to regular or specially assigned
work duties or a requirement imposed by the employment, the disability comes within the
coverage of FECA.7 On the other hand, disability is not covered where it results from an
employee’s fear of a reduction-in-force, frustration from not being permitted to work in a
particular environment or to hold a particular position or to secure a promotion. Disabling
conditions resulting from an employee’s feeling of job insecurity or the desire for a different job
do not constitute a personal injury sustained while in the performance of duty within the meaning
of FECA.8
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.9 However, the Board
has held that, where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.10
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.11
The Board has held that the manner in which a supervisor exercises his or her discretion
falls outside the coverage of FECA. This principal recognizes that a supervisor or manager must
be allowed to perform their duties and that employee’s will, at times, disagree with actions taken.
Mere disagreement with or dislike of actions taken by a supervisor or manager will not be
compensable absent evidence establishing error or abuse.12 Although the handling of leave
requests and attendance matters are generally related to employment, they are administrative
matters and not a duty of the employee.13

5

See Debbie J. Hobbs, 43 ECAB 135 (1991).

6

See Ruth C. Borden, 43 ECAB 146 (1991).

7

Lillian Cutler, 28 ECAB 125 (1976).

8

Id.

9

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
10

See William H. Fortner, 49 ECAB 324 (1998).

11

Ruth S. Johnson, 46 ECAB 237 (1994).

12

S.M., Docket No. 09-2290 (issued July 12, 2010); Linda J. Edwards-Delgado, 55 ECAB 401 (2004).

13

C.T., Docket No. 08-2160 (issued May 7, 2009); Jeral R. Gray, 57 ECAB 611 (2006).

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For harassment or discrimination to give rise to a compensable disability, there must be
evidence which establishes that the acts alleged or implicated by the employee did, in fact,
occur.14 Mere perceptions of harassment or discrimination are not compensable under FECA.15
A claimant must substantiate allegations of harassment or discrimination with probative and
reliable evidence.16 Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.17 A claimant must
establish a factual basis for his or her allegations of harassment or discrimination with probative
and reliable evidence.18
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.19 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor.20 When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.21
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. OWCP denied her emotional condition claim on the
grounds that she did not establish any compensable work factors. The Board must, therefore,
initially review whether these alleged incidents and conditions of employment are covered
employment factors under the terms of FECA. The Board finds that appellant did not establish
any compensable work factors and thus, did not meet her burden of proof to establish that she
sustained an employment-related emotional condition.
Appellant’s allegations involving her supervisor pertain to administrative and personnel
actions. She did not attribute her condition to her regular or specially assigned duties under
14

K.W., 59 ECAB 271 (2007); Robert Breeden, 57 ECAB 622 (2006).

15

M.D., 59 ECAB 211 (2007); Robert G. Burns, 57 ECAB 657 (2006).

16

J.F., 59 ECAB 331 (2008); Robert Breeden, supra note 14.

17

G.S., Docket No. 09-764 (issued December 18, 2009); Ronald K. Jablanski, 56 ECAB 616 (2005); Penelope C.
Owens, 54 ECAB 684 (2003).
18

Beverly R. Jones, 55 ECAB 411 (2004).

19

D.L., 58 ECAB 217 (2006); Jeral R. Gray, supra note 13.

20

K.W., supra note 14; David C. Lindsey, Jr., 56 ECAB 263 (2005).

21

Robert Breeden, supra note 14.

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Cutler.22 In Thomas D. McEuen,23 the Board held that an employee’s emotional reaction to
administrative actions or personnel matters taken by the employing establishment are not
covered under FECA as such matters pertain to procedures or requirements of the employer and
do not bear a direct relation to the work required of the employee. The Board noted, however,
that coverage under FECA would attach if the evidence surrounding the administrative or
personnel action establishes error or abuse by managers in dealing with appellant. Absent
evidence of such error or abuse, the resulting emotional condition must be considered selfgenerated and not employment generated. In determining whether the employing establishment
erred or acted abusively, the Board has examined whether the employing establishment acted
reasonably.24
Appellant alleged that her supervisor wrongly denied leave and continuation of pay,
denied her lunch breaks, required her to work outside of her job duties, improperly took
disciplinary actions against her for using leave and made her work beyond her physical
restrictions. Although the handling of disciplinary actions, evaluations, leave requests,
assignment of work duties and the monitoring of activities at work are generally related to the
employment, they are administrative functions of the employer and not duties of the employee.25
Absent a showing of error or abuse on the part of the employing establishment, these
administrative matters are not compensable.26 While appellant argued that Ms. Taylor would not
allow her to take lunch breaks, eat or drink at her desk and perform duties outside of the scope of
her position and physical limitations, she has not submitted any evidence to support her claim.
Because she has not presented sufficient evidence that Ms. Taylor acted unreasonably or
committed error or abuse, she has failed to identify a compensable work factor.27
With respect to appellant’s allegations that Ms. Taylor improperly denied her leave and
continuation of pay, there is no evidence to establish that the employing establishment
committed error or abuse. The record before the Board contains requests for notification of
absence, some of which were denied by Ms. Taylor. While disability certificates provided by
appellant’s physicians note that appellant was excused on those dates, the evidence does not
indicate whether the medical documentation was submitted to Ms. Taylor before or after she
denied appellant’s leave. Appellant further stated that Ms. Taylor lied when she stated that
appellant bumped into her and improperly placed her in an off-duty status for which she filed a
grievance. The record does not contain a final decision on that issue. Thus, the evidence does

22

Supra note 7

23

Supra at note 9.

24

See Richard J. Dube, 42 ECAB 916, 920 (1991).

25

Cyndia R. Harrill, 55 ECAB 399 (2004).

26

Id.

27

H.C., Docket No. 12-457 (issued October 19, 2012).

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not establish that the employing establishment acted unreasonably or committed error or abuse
and appellant has failed to establish a compensable factor with respect to these allegations.28
Appellant contended that she was harassed, subjected to retaliation and discriminated
against by Ms. Taylor. Actions of a claimant’s supervisor which the claimant characterizes as
harassment may constitute a compensable factor of employment. However, for harassment to
give rise to a compensable disability under FECA, there must be evidence that harassment or
discrimination did, in fact, occur. Mere perceptions or feelings of harassment do not constitute a
compensable factor of employment.29 An employee’s charges that she was harassed or
discriminated against, is not determinative of whether or not harassment or discrimination
occurred.30 To establish entitlement to benefits, a claimant must establish a factual basis for the
claim by supporting his or her allegations with probative and reliable evidence.31 Appellant
contended that Ms. Taylor harassed her, improperly disciplined her for using sick leave and
retaliated against her for filing grievances. She submitted a witness statement dated October 12,
2011 from Mr. Nelson, a fellow coworker. While Mr. Nelson stated generally that appellant had
been harassed by Ms. Taylor, his statement did not contain any specific details supporting
appellant’s allegations of harassment and discrimination. He contended that he had witnessed
Ms. Taylor harass appellant on several different occasions when she was unable to perform her
duties because she was sick and threatened her with disciplinary action. Mr. Nelson failed,
however, to address specific dates or what occurred between the parties. Appellant’s generally
stated assertions of dissatisfaction with her supervisor at work does not establish her
allegations.32 Mere perceptions of harassment or discrimination are not compensable; and she
must establish a basis in fact for the claim by supporting her allegations with probative and
reliable evidence.33 The Board finds that appellant has failed to establish that she was subjected
to harassment by the employing establishment.
Appellant has not established any compensable work factors. The Board need not
consider the medical evidence of record absent such a finding.34 Thus, appellant failed to
provide evidence to establish a compensable factor of employment and her claim was properly
denied.

28

Administrative and personnel matters also include the handling of disciplinary actions, evaluations and leave
requests, the assignment of work duties, request for a different job and promotions or transfers where absent a
showing of error or abuse, are not considered an employment factor. See Harold B. Einarson, Docket No. 00-348
(issued September 6, 2001).
29

J.C., 58 ECAB 594 (2007); Robert G. Burns, supra note 15; Lorraine E. Schroeder, 44 ECAB 323 (1992).

30

See Ronald K. Jablanski, supra note 17; William P. George, 43 ECAB 1159 (1992).

31

See G.S., Docket No. 09-764 (issued December 18, 2009); C.S., 58 ECAB 137 (2006); Frank A. McDowell, 44
ECAB 522 (1993); Ruthie M. Evans, 41 ECAB 416 (1990).
32

Supra note 5.

33

Curtis Hall, 45 ECAB 316 (1994); Margaret S. Krzycki, 43 ECAB 496 (1992).

34

Id.

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CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition causally related to factors of her employment as a mail clerk.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated July 2, 2012 is affirmed.
Issued: March 13, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
DEPARTMENT OF JUSTICE, IMMIGRATION
& NATURALIZATION, Rio Grande City, TX,
Employer
__________________________________________

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

Docket No. 20-0553
Issued: April 19, 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 January 13, 2020 appellant, through counsel, filed a timely appeal from a November 7,
2019 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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish more than two
percent permanent impairment of his left lower extremity and two percent permanent impairment
of his right lower extremity, for which he previously received schedule award compensation.
FACTUAL HISTORY
This case has previously been before the Board.3 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 June 13, 2000 appellant, then a 30-year-old border patrol agent, filed a traumatic injury
claim (Form CA-1) alleging that on June 11, 2000 he injured his back, heels, and buttocks when
working the sky watch in the performance of duty. He explained that when he leaned back his
chair broke, causing him to fall 25 feet. OWCP accepted appellant’s claim for a closed fracture of
the lumbar vertebra without spinal cord injury and bilateral ankle sprain.
On December 11, 2000 appellant filed a claim for a schedule award (Form CA-7). By
decision dated February 8, 2001, OWCP denied appellant’s schedule award claim.
On October 21, 2011 appellant filed a notice of recurrence of the need for medical
treatment (Form CA-2a). He related that he still had pain in his left leg which had continued
through the years due to herniated disc impingement following his June 11, 2000 injury. By
decision dated January 9, 2012, OWCP denied appellant’s recurrence claim. Appellant requested
reconsideration. By decisions dated February 15 and June 18, 2012, OWCP denied modification
of its January 9, 2012 decision.
On July 6, 2012 appellant underwent lumbar laminectomies at L3-L4, L4-L5, and L5-S1
with medial facetomies, discectomies, and foraminotomies.
On October 21, 2014 appellant filed a claim for a schedule award (Form CA-7). By
decision dated April 15, 2015, OWCP denied appellant’s schedule award claim.
On April 24, 2015 appellant, through counsel, requested a hearing before a representative
of OWCP’s Branch of Hearings and Review. By decision dated February 2, 2016, the hearing
representative affirmed OWCP’s April 15, 2015 decision.
On March 17, 2016 appellant, through counsel, appealed to the Board. By decision dated
February 16, 2017, the Board set aside the February 2, 2016 decision and remanded the case for
further development.4 The Board noted that the report from appellant’s treating physician,
Dr. Thomas Martens, an osteopathic physician, was deficient as he did not rate appellant’s spinal
impairment using The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the
3

Docket No. 16-0841 (issued February 16, 2017).

4

Id.

2

Sixth Edition (July/August 2009) (The Guides Newsletter). Nevertheless, the Board found that a
conflict existed in the medical opinion evidence as there were significant discrepancies between
the physical findings of Dr. Martens, and Dr. David Poindexter, a Board-certified physiatrist and
OWCP’s second opinion examiner, which caused a conflict in medical evidence with regard to the
degree of appellant’s permanent impairment of his lower extremities from his spinal injury. The
Board directed OWCP to refer appellant for an impartial medical examination for resolution of the
conflict in the medical opinion evidence, to be followed by a de novo decision.
In a June 16, 2017 report, Dr. Maria Arizmendez, a Board-certified physiatrist, acting as
the impartial medical examiner (IME), conducted a neurological examination which revealed no
pinprick sensation in appellant’s left lateral thigh, leg, and foot, decreased pinprick sensation in
the L5-S1 distribution, decreased vibratory sensation in the bilateral feet present at the knees,
decreased temperature sensation to the mid-calf in the bilateral lower extremities, an absent left
ankle reflex, and ambulation with a normal base, stride and cadence. She related that appellant
stated that he had difficulties with heel, toe, and tandem gait secondary to balance. Dr. Arizmendez
indicated that appellant reached his maximum medical improvement (MMI) on March 6, 2015.
She used the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides),5 to calculate an impairment rating of 11 percent for a
disc herniation resulting in radiculopathy. Dr. Arizmendez concluded that appellant’s permanent
impairment was related to his employment injury.
In a July 24, 2017 letter, OWCP requested that Dr. Arizmendez recalculate appellant’s
permanent impairment percentages using the sixth edition of the A.M.A., Guides.6 No response
was received.
In an August 27, 2017 report, Dr. Taisha Williams, a Board-certified physiatrist serving as
OWCP’s DMA, indicated that Dr. Arizmendez incorrectly applied the fifth edition of the A.M.A.,
Guides. She also related that, if motor or sensory abnormalities are present, then The Guides
Newsletter should be used. Dr. Williams also stated that Dr. Arizmendez did use the correct MMI
date of March 6, 2015.
On October 19, 2017 OWCP referred appellant to Dr. Charles Kennedy, a Board certified
orthopedic surgeon, for another impartial medical examination to resolve the conflict in the
medical opinion evidence. It advised appellant by letter dated October 26, 2017 that a new
impartial medical examination was required as Dr. Arizmendez had rated appellant’s permanent
impairment using the 5th edition of the A.M.A., Guides.
OWCP prepared a statement of accepted facts (SOAF) dated September 1, 2017. The
SOAF noted appellant’s history of injury on June 11, 2000, the accepted conditions of closed
fracture of lumbar vertebra without spinal cord injury, and bilateral ankle sprain. It also noted that
appellant had undergone July 6, 2012 lumbar laminectomy at L3-S1 with medial facetomies,
discectomies, and foraminotomies.

5

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

6

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

3

In a December 5, 2017 report, Dr. Kennedy, serving as an IME, reviewed appellant’s
history of injury and medical records. He related that appellant presented with pain in his back,
left leg, and both ankles. Dr. Kennedy indicated that these symptoms originated from an injury
appellant sustained in 2011 and were unrelated to appellant’s accepted employment injury. He
conducted a physical examination which revealed poor extension of appellant’s back, the ability
to walk on heels and toes with some difficulty, an absent left Achilles reflex, and an area of
decreased sensation on the L5 distribution without weakness. Dr. Kennedy opined that appellant’s
physical findings of decreased sensation at the L5-S1 nerve root and the lack of an ankle reflex
were unrelated to appellant’s accepted work injury. He related that appellant’s medical records
showed that he was able to continue working as a border patrol agent after his accepted injury
without difficulty and then work for the U.S. Marshals Service without difficulty, and he opined
that appellant therefore reached MMI six months after his accepted employment injury.
Dr. Kennedy stated that appellant sustained an additional injury at home and at work; however, in
another part of his report he stated that appellant had no other work-related injuries. He also stated
that in 2012 appellant was working out when he experienced increased pain in his back that
radiated into his left lower extremities. Dr. Kennedy related that appellant’s symptoms
subsequently increased after these events. Utilizing The Guides Newsletter, he calculated a one
percent left lower extremity impairment. Using the sixth edition of the A.M.A., Guides,
Dr. Kennedy referred to Table 16-2, page 501 (foot and ankle regional grid -- lower extremity
impairments) and indicated that the default position for a sprain and tendinitis was grade 1. He
stated that as appellant had mild-to-moderate symptoms, grade 1 was appropriate. Dr. Kennedy
calculated one percent permanent impairment of both ankles and calculated a total of three percent
permanent impairment of the lower extremities. He indicated that he based his impairment rating
on physical findings from a November 29, 2000 medical report, which was the closest report to
appellant’s MMI.
In a January 13, 2018 report, Dr. Williams, again serving as OWCP’s DMA, reviewed the
medical record including Dr. Kennedy’s December 5, 2017 medical report. Utilizing the A.M.A.,
Guides, she referred to Table 16-2, page 501 (foot and ankle regional grid -- lower extremity
impairments) and found that appellant’s diagnosis of ankle sprain was class 0 bilaterally because
there were no objective abnormal findings of muscle or tendon injury at his MMI. Additionally,
she stated that appellant’s accepted condition of a closed fracture of the lumbar vertebra
specifically states “no spinal cord injury,” and therefore using The Guides Newsletter was
inappropriate. Dr. Williams calculated a total of 0 percent permanent impairment of the lower
extremities and indicated that appellant reached MMI on March 6, 2015, as this was the date when
no further intervention was expected to improve his symptoms.
In a January 22, 2018 letter, appellant indicated that Dr. Kennedy incorrectly determined
his date of MMI since other physicians who previously served as second opinion evaluators and
DMAs found that his MMI was reached on March 6, 2015. He noted that Dr. Kennedy, despite
indicating otherwise later in his report, did find that appellant’s sensory deficit at L5-S1 was
causally related to his accepted employment injury and was ratable. Appellant indicated that he
experienced back and left leg symptoms from his injury prior to 2011, and he referred to a
November 22, 2000 medical report by Dr. Jose M. Marina, an osteopath Board-certified in
orthopedic surgery, which stated that appellant reported that he has had back and left leg pain since
the time of his injury. He also referred to a January 5, 2012 medical report by Dr. Melanie
Kinchen, a Board-certified orthopedic surgeon, that related appellant had lumbar radiculopathy
4

from his L5-S1 disc herniation since 2000. Appellant stated that his pain has been ongoing but he
initially treated it conservatively and delayed surgery because of his young age at the time of the
injury. He related that he had significant difficulties working as a border patrol agent and left a
year after his accepted injury due to those difficulties and joined the federal air marshal service,
where his position was seated and entailed minimal walking. Appellant additionally noted that he
never stated that he sustained an injury at home or while working out in 2012.
On January 24, 2018 OWCP provided Dr. Kennedy with Dr. Williams’ January 13, 2018
DMA report and requested an addendum report clarifying issues raised in the DMA report.
In a supplemental report dated January 30, 2018, Dr. Kennedy indicated that he reviewed
DMA Dr. Williams’ January 13, 2018 report and he agreed with her impairment rating of zero
percent for appellant’s bilateral lower extremities. He related that appellant had reached MMI on
March 6, 2015 and had zero percent whole person impairment for the bilateral lower extremities
using the diagnosis-based impairment (DBI) method.
By decision dated February 2, 2018, OWCP denied appellant’s schedule award claim.
On February 12, 2018 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review, held on July 26, 2018.
In a July 25, 2018 report, Dr. Lubor Jarolimek, an orthopedic surgeon, indicated that
appellant presented with low back pain, numbness and tingling in his legs, throbbing and twitching
in his left foot, pain, instability, and weakness in both ankles, and swelling in his left ankle. He
reviewed appellant’s history of injury, his medical history, and noted appellant’s accepted
conditions as a closed fracture of the lumbar vertebrae and bilateral ankle sprains. Dr. Jarolimek
conducted a physical examination and noted findings on physical examination. He indicated that
appellant reached MMI on July 25, 2018. Utilizing The Guides Newsletter to calculate appellant’s
lumbar spinal nerve root impairment, he calculated an 11 percent S1 nerve root impairment and a
7 percent L5 nerve root impairment. Utilizing the DBI method of the sixth edition of A.M.A.,
Guides, he referred to Table 16-2, page 501 (foot and ankle regional grid -- lower extremity
impairments) and indicated that appellant’s diagnosis for his bilateral ankles was ankle strain and
calculated a total two percent permanent impairment of the right ankle. Using the ROM
impairment method of the sixth edition of the A.M.A., Guides for appellant’s left ankle,
Dr. Jarolimek calculated an impairment rating of four percent. He opined that appellant’s accepted
employment injury caused his permanent impairment.
By decision dated September 28, 2018, the hearing representative set aside OWCP’s
February 2, 2018 decision and remanded the case to OWCP for further development. The hearing
representative directed OWCP to prepare an updated SOAF to send along with appellant’s medical
records to a DMA to advise if appellant has any permanent impairment of his lower extremities as
a result of the accepted employment injury.
OWCP prepared a SOAF dated October 3, 2018 which essentially reiterated the facts noted
in the prior SOAFs of record.
In a November 14, 2018 report, Dr. Williams, again serving as OWCP’s DMA, indicated
that she reviewed OWCP’s SOAF and appellant’s medical records. She also reviewed appellant’s
5

history of injury and medical history and noted appellant’s accepted conditions as a closed fracture
of the lumbar vertebra without spinal cord injury and bilateral ankle sprains. Dr. Williams stated
that while Dr. Jaromilek used the DBI and ROM methods to calculate appellant’s ankle
impairments, the 6th edition of the A.M.A., Guides only allowed for the DBI method to calculate
his bilateral ankle impairments. Utilizing the 6th edition of the A.M.A., Guides to calculate
appellant’s impairment with the DBI method, Dr. Williams referred to Table 16-2, page 501 (foot
and ankle regional grid -- lower extremity impairments) and found that appellant’s diagnosis of
bilateral ankle sprains with mild range of motion deficits corresponded to a grade of 1. She
assigned a grade modifier for functional history (GMFH) of 1 due to appellant’s antalgic gait.
Dr. Williams assigned a grade modifier for physical examination (GMPE) of 1 due to minimal
palpatory findings and minimal range of motion deficits. She assigned a grade modifier for clinical
studies (GMCS) of 1 for the right ankle since a magnetic resonance imaging (MRI) scan from 2000
displayed a grade 1 sprain. Dr. Williams assigned a GMCS of 0 for the left ankle since an MRI
scan from 2000 displayed normal results. She calculated a total of two percent impairment of the
right ankle and a total of two percent impairment of the left ankle. Dr. Williams stated that it was
incorrect to use The Guides Newsletter to evaluate appellant’s lumbar spine impairment because
his accepted lumbar diagnosis specifically stated that there was no spinal cord injury. She opined
that appellant reached MMI on March 6, 2015, as that was the date when no further intervention
was expected to improve his symptoms.
By decision dated November 29, 2018, OWCP granted appellant a schedule award for two
percent permanent impairment of the right lower extremity and two percent permanent impairment
of the left lower extremity, based upon his bilateral ankle permanent impairments. The period of
the award ran for 11.52 weeks of compensation from March 6 through May 25, 2015. It
additionally found that appellant’s MMI date was March 6, 2015.
On December 4, 2018 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review, held on April 10, 2019. By decision
dated June 19, 2019, OWCP’s hearing representative affirmed the November 29, 2018 schedule
award decision.
On August 19, 2019 appellant, through counsel, requested reconsideration.
In an undated letter, Dr. Jarolimek disagreed with the DMA’s review of his July 25, 2018
impairment rating of appellant’s lumbar spine injury. He reviewed appellant’s history of injury
and indicated that in his medical opinion and based on reasonable medical probability, the force
of appellant’s 25-foot fall was enough trauma to fracture the anterior lip of L1 and L2 and enough
force to injure the soft tissues of the spine. Dr. Jarolimek related that disc herniation/protrusion of
appellant’s lumbar spine was present at L5-S1, L4-L5, and L3-L4 with contact on the existing
nerve roots, producing symptoms and positive physical examination findings in appellant’s lower
extremities. He stated that based upon appellant’s complaints of pain and weakness and his
inability to heel walk or toe walk, the use of The Guides Newsletter was appropriate to rate
appellant’s lower extremity impairment based on his spinal injuries.
By decision dated November 7, 2019, OWCP denied modification of the June 19, 2019
decision.

6

LEGAL PRECEDENT
The schedule award provisions of FECA7 and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, OWCP has adopted the A.M.A., Guides as
the uniform standard applicable to all claimants.9 As of May 1, 2009, the sixth edition of the
A.M.A., Guides is used to calculate schedule awards.10
The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the
World Health Organization’s International Classification of Functioning, Disability and Health
(ICF).11 Under the sixth edition, for lower extremity impairments the evaluator identifies the
impairment of the class of diagnosis (CDX), which is then adjusted by grade modifiers of GMFH,
GMPE, and GMCS.12 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS
- CDX).13 The standards for evaluation of permanent impairment of an extremity under the
A.M.A., Guides are based on all factors that prevent a limb from functioning normally, such as
pain, sensory deficit, and loss of strength.14
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole.15 However, a
schedule award is permissible where the employment-related spinal condition affects the upper
and/or lower extremities.16 The sixth edition of the A.M.A., Guides provides a specific
methodology for rating spinal nerve extremity impairment in The Guides Newsletter. It was
designed for situations where a particular jurisdiction, such as FECA, mandated ratings for
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
and Exhibit 1 (January 2010).
11

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

Id. at 493-556.

13

Id. at 521.

14

C.H., Docket No. 17-1065 (issued December 14, 2017); E.B., Docket No. 10-0670 (issued October 5, 2010);
Robert V. Disalvatore, 54 ECAB 351 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).
15

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see A.G., Docket No. 18-0815 (issued January 24, 2019);
Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).
16
See supra note 10 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5c(3)
(March 2017).

7

extremities and precluded ratings for the spine. The FECA-approved methodology is premised on
evidence of radiculopathy affecting the upper and/or lower extremities. The appropriate tables for
rating spinal nerve extremity impairment are incorporated in the Federal (FECA) Procedure
Manual.17
In addressing upper or lower extremity impairment due to peripheral or spinal nerve root
involvement, the sixth edition of the A.M.A., Guides and The Guides Newsletter require
identifying the impairment CDX, which is then adjusted by the GMFH and the GMCS. The
effective net adjustment formula is (GMFH-CDX) + (GMCS-CDX).18
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”19 In situations where
there exist opposing medical reports of virtually equal weight and rationale and the case is referred
to an IME for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well-rationalized and based upon a proper factual background, must be given special weight.20
ANALYSIS
The Board finds that this case is not in posture for decision.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of the February 2, 2016 decision because the Board
considered that evidence in its February 16, 2017 decision. Findings made in prior Board decisions
are res judicata absent any further review by OWCP under section 8128 of FECA.21
In the prior appeal, the Board noted that appellant’s peripheral nerve impairments resulting
from spinal injury should be rated utilizing The Guides Newsletter. The Board further found a
conflict in medical opinion between appellant’s treating physician, Dr. Martens, and OWCP’s
physician, Dr. Poindexter, regarding appellant’s physical examination findings, which created a
conflict as to the degree of appellant’s lower extremity permanent impairment under The Guides
Newsletter. The Board remanded the case for OWCP to resolve the conflict in the medical opinion
evidence. On remand OWCP referred appellant to Dr. Arizmendez for an impartial medical
examination, however Dr. Arizmendez used the wrong edition of the A.M.A., Guides to rate
appellant’s impairments, OWCP thereafter referred appellant to Dr. Kennedy for another impartial
medical examination.

17

Id. at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010).

18

The Guides Newsletter; A.M.A., Guides 430.

19

5 U.S.C. § 8123(a).

20

L.L., Docket No. 19-0214 (issued May 23, 2019); D.M., Docket No. 18-0476 (issued November 26, 2018); R.H.,
59 ECAB 382 (2008); Raymond A. Fondots, 53 ECAB 637, 641 (2002).
21

M.D., Docket No. 19-0510 (issued August 6, 2019).

8

The Board finds that Dr. Kennedy’s reports are insufficient to resolve the conflict as to
whether appellant had a peripheral nerve injury causally related to his accepted June 11, 2000
employment injury which resulted in permanent impairment of the lower extremities under The
Guides Newsletter.
In rating appellant’s permanent impairment arising from his spinal injury, Dr. Kennedy
referenced appellant’s sensory deficit at the L5-S1 nerve root and absent ankle jerk, but he found
that these findings were unrelated to appellant’s accepted 2000 employment injury. He related
that appellant’s back and lower extremity symptoms developed after a 2011 injury. Dr. Kennedy
vaguely referred to injuries appellant sustained while working for the U.S. Marshall and another
injury at home. Appellant has disputed that he sustained any injury following the accepted 2000
employment injury. The Board further notes that none of the SOAFs of record document any other
spinal injury. OWCP’s procedures provide that the findings of an OWCP referral physician or
IME must be based on the factual underpinnings of the claim, as set forth in the SOAF.22 OWCP’s
procedures and Board precedent dictate that when OWCP’s referral physician or IME renders a
medical opinion based on a SOAF, which is incomplete or inaccurate, or does not use the SOAF
as the framework in forming his or her opinion, the probative value of the opinion is seriously
diminished or negated altogether.23
The Board finds that Dr. Kennedy did not use the SOAF as his framework as he found that
appellant’s lower extremity deficits from his spinal injury were related to other injuries, not
documented by the SOAF.
Furthermore, by concluding in his supplemental report that appellant had zero percent
whole body impairment for his bilateral lower extremities under the DBI method, Dr. Kennedy
did not follow the Board’s prior instructions that appellant’s spinal injury was to be rated under
The Guides Newsletter. Neither FECA, nor its implementing regulations, provide for the payment
of a schedule award for the permanent loss of use of the back/spine or the body as a whole.24 The
Board therefore finds that the probative value of Dr. Kennedy’s reports was diminished. As
Dr. Kennedy did not resolve the conflict in the medical evidence regarding appellant’s lower
extremity permanent impairments resulting from his accepted employment-related June 11, 2000
spinal injury the case must be remanded to OWCP for further development.
On remand OWCP shall review the record and determine whether the current SOAF
accurately reflects appellant’s history of injury. If necessary, it shall update the SOAF. OWCP
shall thereafter refer appellant and the case record to another IME to resolve the conflict in medical
opinion regarding whether appellant had physical examination findings of an employment-related
spinal condition affecting the lower extremities. If so, the IME should rate appellant’s spinal nerve

22

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.810.11a
(September 2019).
23

Id. at Chapter 3.600.3(10) (October 1990); J.R., Docket No. 19-1321 (issued February 7, 2020); M.D., Docket
No. 18-0468 (issued September 4, 2018); Paul King, 54 ECAB 356 (2003).
24

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see C.S., Docket No. 19-0851 (issued November 18, 2019).

9

impairment utilizing The Guides Newsletter.25 Following this and other such further development
as deemed necessary, OWCP shall issue a de novo decision regarding appellant’s schedule award
claim.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 7, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: April 19, 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

25

See T.W., Docket No. 20-0119 (issued January 12, 2021).

10


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

)
)
)
)
)
)
)
)

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

Docket No. 18-0663
Issued: December 21, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 7, 2018 appellant, through counsel, filed a timely appeal from a November 16,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the
Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
Appellant, through counsel, timely requested oral argument before the Board pursuant to 20 C.F.R. § 501.5(b).
In an order dated October 11, 2018, the Board, after exercising its discretion, denied the request as his arguments on
appeal could be adequately addressed in a decision based on a review of the case as submitted on the record. Order
Denying Request for Oral Argument, Docket No. 18-0663 (issued October 11, 2018).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly reduced appellant’s wage-loss compensation
benefits, effective November 17, 2017, based on his capacity to earn wages in the selected position
of receptionist.
FACTUAL HISTORY
On May 13, 2014 appellant, then a 49-year-old mail handler, filed an occupational disease
claim (Form CA-2) alleging that he sustained an aggravation of his lumbar degenerative disc
disease and developed arthritis and pinched nerve damage as a result of years of repetitive
movements at work. He noted that he first became aware of his claimed conditions on May 15,
2013 and of their relationship to his federal employment on June 28, 2013. On the reverse side of
the claim form, appellant’s supervisor indicated that appellant was currently working and that
limited-duty assignments were provided to him based on medical documentation related to his
accepted May 13, 2013 traumatic injury.4
By decision dated July 14, 2014, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish fact of injury. It determined that a
medical report indicated that he sustained an injury on May 13, 2014. OWCP noted that there was
no mention of an injury sustained on that date. It further found that the evidence of record did not
support a finding that the alleged injury or event occurred as alleged and the medical evidence of
record did not establish a diagnosed medical condition causally related to the alleged work injury
or event.
On August 12, 2014 appellant requested a telephone hearing before an OWCP hearing
representative. By decision dated February 19, 2015, the hearing representative set aside the
July 14, 2014 decision. He found that appellant had established fact of injury as he previously
provided a clear description of his employment history and explained his daily work duties. The
hearing representative, however, remanded the case for OWCP to combine the current case record
with OWCP File No. xxxxxx260 and properly adjudicate the issue of whether appellant had
established a causal relationship between his diagnosed conditions and the accepted factors of his
federal employment.
On February 24, 2015 OWCP administratively combined the two OWCP files, with File
No. xxxxxx616 serving as the master file. In addition, on March 19, 2015 it referred appellant,
together with a statement of accepted facts, the medical record, and a set of questions, to
Dr. Richard C. Smith, a Board-certified orthopedic surgeon, for a second opinion evaluation to

4

Appellant has a prior claim, in which OWCP accepted that he sustained a lumbar sprain while working as a mail
handler on May 13, 2013. OWCP assigned that claim File No. xxxxxx260. It paid him disability compensation on
the supplemental rolls. Subsequently, by decision dated August 26, 2014, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that day, finding that he no longer had any residuals or disability causally
related to his accepted May 13, 2013 employment injury. On June 25, 2015 an OWCP hearing representative affirmed
the May 13, 2013 termination decision.

2

determine whether there was a causal relationship between his lower back condition and accepted
employment factors.
In an April 14, 2015 medical report, Dr. Smith discussed findings on physical examination
including evaluation of appellant’s cervical, thoracic, and lumbar spines. He diagnosed herniated
discs at C4-C5, C5-C6, T5-T6, T8-T9, L4-L5, and L5-S1. Dr. Smith opined that the diagnosed
conditions were directly caused by factors of appellant’s federal employment. He advised that
while appellant was unable to perform his usual job, he could work eight hours a day with
restrictions, as outlined in his attached work capacity evaluation (Form OWCP-5c).
On May 1, 2015 OWCP accepted appellant’s claim for displacement of intervertebral discs
at C4-C5, C5-C6, T5-T6, T8-T9, L4-L5, and L5-S1. It paid appellant disability compensation on
the supplemental rolls commencing September 16, 2014.
Subsequently, on February 13, 2017 OWCP again referred appellant to Dr. Smith for a
second opinion evaluation to determine his disability status. In a March 13, 2017 report, Dr. Smith
related that appellant’s accepted cervical, thoracic, and lumbar conditions had not resolved. He
advised that the conditions were unlikely to resolve or return to his predate-of-injury baseline
because they were permanent in nature. Dr. Smith opined that appellant was unable to return to
his date-of-injury mail handler position due to its lifting requirements, but he could return to work
in a sedentary capacity with restrictions outlined in an attached OWCP-5c form. In the March 13,
2017 OWCP-5c form, he indicated that appellant could work eight hours a day with restrictions of
sitting and standing up to two hours, walking up to four hours, and pushing, pulling, and lifting up
to 10 pounds. He could not bend/stoop.
OWCP referred appellant for vocational rehabilitation services on April 10, 2017. It noted
that Dr. Smith’s report and work restrictions were considered to be the weight of the medical
opinion evidence. On May 8, 2017 the rehabilitation counselor identified the positions of customer
service representative, receptionist, and service dispatcher as suitable work. She indicated that
appellant had a cell phone with computer access and a desktop computer. Appellant knew Word,
but did not know Microsoft Excel or PowerPoint. The rehabilitation counselor indicated that
appellant’s other transferable skills included communication, interpersonal, customer service,
dispatching, sales ability, time management, training, and good to excellent math and reading
skills. She related that the plan was to have him complete two free online computer software
training courses to enhance his employability. In a job classification (Form CA-66) dated May 8,
2017, the rehabilitation counselor noted that the Department of Labor, Dictionary of Occupational
Titles (DOT) indicated that the selected position of receptionist, No. 237.367.038, was sedentary
in nature5 and involved such duties as receiving visitors, answering telephone calls, and limited
typing of documents. She further indicated that the position required three to six months of
vocational preparation, which appellant could meet through his work experience as a security
guard, which involved escorting guests and as a real estate agent, which involved answering the
telephone. The rehabilitation counselor conducted a labor market survey to verify that the
identified position was reasonably available in his commuting area with wages of $409.20 per
5

Sedentary work, according to the DOT, involves occasionally exerting up to 10 pounds of force and sitting most
of the time, but may involve walking or standing for brief periods of time. Occasionally, performing an activity means
that the activity is performed up to one third of the time during the workday.

3

week. Appellant’s participation in the vocational rehabilitation program did not result in his return
to work.
On May 30, 2017 OWCP further expanded acceptance of appellant’s claim to include
cervical and lumbar radiculopathy. Effective June 15, 2017, appellant retired from the employing
establishment on disability.
By letter dated September 25, 2017, OWCP proposed to reduce appellant’s wage-loss
compensation based on his capacity to earn wages as a receptionist. It applied the principles set
forth in Albert C. Shadrick,6 as codified in section 10.403 of OWCP’s regulations,7 to determine
that appellant’s monthly wage-loss compensation benefits should be reduced by 37 percent.
Appellant was advised that, if he disagreed with the proposed decision, he had 30 days to submit
additional evidence or argument regarding his capacity to earn wages.
In response to the proposed reduction of his wage-loss compensation benefits, appellant
submitted a number of medical reports from his treating physicians, which outlined his current
conditions. Appellant also submitted his own statement in which he noted that Dr. Smith had
limited his ability to sit two hours each workday; however, he indicated that the selected position
was sedentary and required additional sitting beyond two hours each workday and reaching,
twisting, and standing intermittently.
By decision dated November 16, 2017, OWCP reduced appellant’s wage-loss
compensation, effective November 17, 2017, based on his capacity to earn wages as a receptionist
at the rate of $409.20 per week. It found that the physical requirements of the position did not
exceed the medical restrictions provided by Dr. Smith.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.8 An injured employee who is either unable to return to the
position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of wage-earning
capacity (LWEC).9
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual wages
received by an employee, if the earnings fairly and reasonably represent his or her wage-earning
capacity. If the actual earnings do not fairly and reasonably represent the employee’s wageearning capacity or if the employee has no actual wages, the wage-earning capacity is determined
with due regard to the nature of the injury, the degree of physical impairment, the employee’s usual
employment, age, qualifications for other employment, the availability of suitable employment,
6

5 ECAB 376 (1953).

7

20 C.F.R. § 10.403.

8

James M. Frasher, 53 ECAB 794 (2002); J.E., Docket No. 16-0006 (issued November 16, 2016).

9

20 C.F.R. §§ 10.402 and 10.403; John D. Jackson, 55 ECAB 465 (2004).

4

and other factors and circumstances which may affect the employee’s wage-earning capacity in
his or her disabled condition.10
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position, listed in the Department of Labor, DOT or otherwise available in the open
market, that fit the employee’s capabilities with regard to his or her physical limitations, education,
age, and prior experience. Once this selection is made, a determination of wage rate and
availability in the labor market should be made through contact with the state employment service
or other applicable service. Finally, application of the principles set forth in Albert C. Shadrick11
and codified by regulations at 20 C.F.R. § 10.40312 should be applied. Subsection(d) of the
regulations provide that the employee’s wage-earning capacity in terms of percentage is obtained
by dividing the employee’s actual earnings or the pay rate of the position selected by OWCP, by
the current pay rate for the job held at the time of the injury.13
In determining an employee’s wage-earning capacity based on a position deemed suitable,
but not actually held, OWCP must consider the degree of physical impairment, including
impairments resulting from both injury-related and preexisting conditions, but not impairments
resulting from postinjury or subsequently-acquired conditions.14 Any incapacity to perform the
duties of the selected position resulting from subsequently acquired conditions is immaterial to the
LWEC that can be attributed to the accepted employment injury and for which appellant may
receive compensation. Additionally, the job selected for determining wage-earning capacity must
be a job reasonably available in the general labor market in the commuting area in which the
employee lives.15
ANALYSIS
The Board finds that OWCP improperly reduced appellant’s wage-loss compensation
benefits, effective November 17, 2017, based on his capacity to earn wages in the selected position
of receptionist.
The selected position of receptionist involved receiving visitors, answering telephone calls,
and limited typing of documents. The issue of whether appellant has the physical ability to perform
a selected position is primarily a medical question that must be resolved by the medical evidence

10

5 U.S.C. § 8115(a); see N.J., 59 ECAB 171 (2007); T.O., 58 ECAB 377 (2007); Dorothy Lams, 47 ECAB
584 (1996).
11

See supra note 5.

12

See supra note 6.

13

Id. at § 10.403(d).

14

James Henderson, Jr., 51 ECAB 268 (2000).

15

Id.

5

of record.16 OWCP relied on the opinion of Dr. Smith, an OWCP second opinion physician, in
finding that the selected position was within appellant’s physical limitations. In a March 13, 2017
work capacity evaluation, Dr. Smith limited appellant to, among other restrictions, two hours of
sitting. The job description listed the selected position as sedentary in nature, a physical
requirement listed conflicts with one of Dr. Smith’s work restrictions. The position required sitting
most of the time, but the position description did not address or specify the length of time which
would be required for sitting, and it remains unclear whether the position would violate the
restriction that appellant could not sit more than two hours. Thus, Dr. Smith’s report calls into
question whether appellant could physically perform the duties of the receptionist position. The
Board notes that OWCP did not request that he review the job description for the selected
receptionist position and provide an opinion as to whether appellant could perform the duties of
the position. Dr. Smith’s report is, therefore, of limited probative value and insufficient to
establish that appellant has the physical capacity to perform the duties of a receptionist.17
Notwithstanding Dr. Smith’s explicit restriction, a rehabilitation counselor selected a position as a
receptionist that necessitated a level of physical exertion, which exceeded appellant’s physical
restriction as to sitting.
OWCP procedures provide that, unless the medical evidence is clear and unequivocal,
OWCP should seek the advice of a physician regarding the suitability of the position.18 The Board
finds that the medical evidence of record is not clear and unequivocal in this case, as the selected
position of receptionist requires sitting most of the time.19
CONCLUSION
The Board finds that OWCP improperly reduced appellant’s wage-loss compensation
benefits, effective November 17, 2017, based on his capacity to earn wages in the selected position
of receptionist.

16

See Dennis D. Owen, 44 ECAB 475 (1993).

17

See R.D., Docket No. 09-1237 (issued February 18, 2010).

18
Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity, Chapter 2.816.4
(June 2013). If the medical evidence is not clear and unequivocal, the claims examiner should seek clarification from
the attending physician, second opinion, or referee specialist as appropriate. F.W., Docket No. 14-1772 (issued
January 28, 2015).
19
See B.C., Docket No. 15-1861 (issued October 3, 2016); E.W., Docket No. 14-584 (issued July 29, 2014);
Arthur E. Ostergard, Docket No. 04-1118 (issued November 2, 2004).

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ORDER
IT IS HEREBY ORDERED THAT the November 16, 2017 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 21, 2018
Washington, DC

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

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

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 09-89
Issued: May 14, 2009

Case Submitted on the Record

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

JURISDICTION
On October 15, 2008 appellant filed a timely appeal of a July 14, 2008 decision of the
Office of Workers’ Compensation Programs that affirmed a March 4, 2008 decision denying his
claim for compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained a
traumatic injury on January 10, 2008 in the performance of duty.
FACTUAL HISTORY
On January 10, 2008 appellant, then a 53-year-old lead automotive technician, filed a
traumatic injury claim alleging that he developed acute neck pain on that day when his work
vehicle was struck in the rear by another vehicle while he was stopped at an intersection. He
stopped work for several hours, when he was transported to a local emergency room and returned
to work later that day. In support of his claim, appellant submitted discharge instructions dated

January 10, 2008 from Dr. David Adinaro, Board-certified in emergency medicine, who
diagnosed acute neck pain and musculoskeletal pain after appellant had been in a motor vehicle
collision.
In a January 29, 2008 letter, the Office advised appellant of the type of factual and
medical evidence necessary to establish his claim and allowed him 30 days to submit such
evidence. It requested that he submit medical evidence with a physician’s opinion and firm
diagnosis. In response to this request, appellant submitted a January 10, 2008 hospital report of
Dr. Adinaro who noted appellant’s complaint of pain on his head and neck and diagnosed acute
neck pain.
In a March 4, 2008 decision, the Office denied appellant’s claim for compensation
finding that the medical evidence did not establish that he sustained an injury in connection with
the accepted incident. Appellant requested a review of the written record on March 25, 2008.
Appellant submitted notes of Barbara Dolin, a registered nurse, dated January 10, 2008
addressing his complaint of pain in his head and neck. In medical reports of the same date,
Dr. Adinaro assessed mild diffuse neck pain and mild posterior headache in addition to
abrasions, blunt trauma, closed head injury, contusion and musculoskeletal pain. He noted that
appellant’s condition, acute neck pain, was a new problem and that the symptoms had resolved.
Appellant was discharged to home in good condition on that same day. In a January 10, 2008
diagnostic report, Dr. Vidor Bernstien, a Board-certified radiologist, interpreted views of
appellant’s cervical spine. He found the vertebrae to be average in height with good preservation
of interspaces. Dr. Bernstien also noted mild torticollis, convex right. Dr. Adinaro issued a
discharge report noting that appellant’s symptoms had resolved and he was discharged to selfcare in good condition.
On July 14, 2008 an Office hearing representative affirmed the March 4, 2008 decision
on the grounds that the medical evidence lacked sufficient diagnosis of the injury sustained on
January 10, 2008.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an “employee of the United States” within the meaning of the Act; that the claim was filed
within the applicable time limitation; that an injury was sustained while in the performance of
duty as alleged and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury. These are the essential elements of each

1

After filing this appeal, appellant clarified his position to state that he only wanted the Office to pay for his
transportation by ambulance to the emergency room on the date of the incident. This issue was not reached or
decided by the Office in the decision below and it is therefore not before the Board.
2

5 U.S.C. §§ 8101-8193.

2

and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged. Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, 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 employee.5
ANALYSIS
The record supports that appellant was driving while in the performance of duty when he
was struck in the rear by another vehicle on January 10, 2008. However, he has not submitted
sufficient medical evidence to establish that this employment incident caused a personal injury.
Appellant submitted the hospital notes of Dr. Adinaro. On January 10, 2008 Dr. Adinaro
diagnosed abrasions, blunt trauma, closed head injury, contusion and musculoskeletal pain.
However the hospital records provide no opinion as to the cause of appellant’s condition.
Medical evidence that does not offer an opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship.6 Dr. Adinaro advised that
appellant’s symptoms had resolved and he discharged appellant in good condition. He did not
address whether or how the accepted motor vehicle collision caused a diagnosed medical
condition. Dr. Adinaro’s discharge instructions and hospital report, both dated January 10, 2008,
diagnose acute neck pain. However, pain is a symptom, not recognized as a medical diagnosis,
and is therefore not compensable.7

3

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Joe D. Cameron, 41 ECAB 153 (1989).

4

Id.

5

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
6

See K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007); A.F., 59 ECAB ___ (Docket No.
08-977, issued September 12, 2008).
7

See C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008).

3

Dr. Bernstien’s radiology report is also insufficient. He interpreted x-rays of appellant’s
cervical spine but did not reference the January 10, 2008 incident or address whether that
incident caused or aggravated a diagnosed condition. As noted, medical evidence without an
opinion on causal relationship is insufficient. Moreover, the nurse’s notes are of no probative
value as nurses are not considered physicians under the Act, and therefore, they cannot provide a
medical opinion.8 Consequently, the medical evidence is insufficient to establish that appellant’s
employment incident caused a personal injury.
The Board notes that, on appeal, appellant wrote a letter dated October 6, 2008 and
asserted that he only wants to have his ambulance bill paid. However, the issue of payment of
emergency medical expenses was not decided by the Office and is therefore not before the
Board.9 Appellant must raise the issue of payment of his ambulance bill for consideration by the
Office first. He would then have the right to appeal a decision on that issue, if necessary, to the
Board.
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that he
sustained a traumatic injury on January 10, 2008 in the performance of duty.

8

Registered nurses and licensed practical nurses are not “physicians” as defined under the Act. Their opinions
are of no probative value. Roy L. Humphrey, 57 ECAB 238 (2005); see 5 U.S.C. § 8101(2) (defining the term
“physician”); see also Charley V.B. Harley, 2 ECAB 208 (1949) (the Board held that medical opinion, in general,
can only be given by a qualified physician).
9

There are provisions for payment of certain emergency expenses on a case by case basis even in doubtful claims
which are later denied. 20 C.F.R. § 10.304; Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing
Examination and Treatment, Chapter 3.300(3)(a)(1)(3), (October 1990), providing for the use of Form CA-16;
Michael L. Malone, 46 ECAB 957 (1995); Herbert J. Hazard, 40 ECAB 973 (1989); Marjorie S. Geer, 39 ECAB
1099 (1988).

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated July 14 and March 4, 2008 are affirmed.
Issued: May 14, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5