United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
JOHN F. KENNEDY INTERNATIONAL
AIRPORT, Jamaica, NY, Employer
__________________________________________

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

Docket No. 06-1751
Issued: February 2, 2007

Case Submitted on the Record

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

JURISDICTION
On January 5, 2005 appellant filed a timely appeal from a September 21, 2004 decision
of the Office of Workers’ Compensation Programs denying his schedule award claim. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established that he sustained a ratable impairment of
the upper extremities.

FACTUAL HISTORY
This is appellant’s second appeal before the Board in this case. By decision and order
dated September 13, 2001,1 the Board affirmed the Office’s February 5, 2001 decision
terminating his compensation benefits effective March 13, 2000, as he no longer had workrelated residuals of an accepted August 19, 1997 head contusion and shoulder abrasions. The
Board found that the weight of the medical evidence rested with Dr. Easwaran Balasubramanian,
a Board-certified orthopedic surgeon and impartial medical examiner. The Office appointed
Dr. Balasubramanian on January 10, 2000 to resolve a conflict between Dr. Enrico Marcelli, an
attending osteopath, and Dr. Steven Valentino, an osteopath and second opinion physician,
regarding the presence of continued injury-related residuals. Dr. Balasubramanian opined that
appellant’s cervical pathologies and rotator cuff tears were unrelated to the August 19, 1997
injuries. The law and the facts of the case as set forth in the Board’s prior decision and order are
hereby incorporated by reference.
On June 20, 2001 appellant claimed a schedule award.
In a March 17, 2000 report, Dr. David Weiss, an attending osteopath, provided a history
of injury and treatment. On examination, Dr. Weiss noted paraspinal tenderness from C3 to C7
with restricted range of motion, diminished supraspinatus, biceps and triceps strength bilaterally,
diminished grip strength bilaterally, a sensory deficit in the left upper extremity in the C6 and C7
dermatomes and tenderness in the right rotator cuff. He opined that appellant reached maximum
medical improvement on February 24, 2000. Dr. Weiss diagnosed post-traumatic subacromial
bursitis of the left shoulder, chronic right shoulder impingement and post-traumatic
acromioclavicular arthropathy, a rotator cuff tear of the right shoulder, a post-traumatic cervical
sprain and strain, cervical radiculopathy and spinal stenosis. He opined that all diagnoses were
related to the August 19, 1997 injuries.
Dr. Weiss performed a schedule award assessment. For the right shoulder, Dr. Weiss
observed forward elevation of 130/180 degrees abduction of 90/180 degrees and adduction of
65/75 degrees. For the left shoulder, Dr. Weiss observed forward elevation of 140/180 degrees,
abduction of 100/180 degrees, adduction of 55/75 degrees and external rotation of 75/90 degrees.
He stated that internal rotation was “abnormal” bilaterally. Dr. Weiss opined that, according to
the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment, appellant had a 32 percent permanent impairment of the right upper extremity as
follows: 3 percent for limited shoulder flexion according to Figure 38, page 43; 3 percent for
limited shoulder abduction according to Figure 41, page 44; 12 percent for C6 sensory nerve root
impairment according to Table 13, page 51 and Table 11, page 48; 10 percent for supraspinatus
1

Docket No. 01-1492. Appellant also filed an appeal with the Board, docketed as No. 05-552, pertaining to a
July 1, 1987 left elbow fracture accepted under File No. 03-124962. On January 18, 2006 the Board issued an order
remanding case under Docket No. 05-552, pertaining to a September 21, 2004 decision affirming a July 17, 2003
schedule award pertaining to the July 1, 1987 injury. The Board notes that, on September 21, 2004, the Office’s
Branch of Hearings and Review issued decisions in File No. 03-124962 and in the present claim, File No. 030229270. Both decisions involved a schedule award issue but for different injuries. The appeal now before the
Board pertains only to File No. 03-0229270, the August 19, 1997 head contusion and shoulder abrasions. The
July 1, 1987 injury claim is not before the Board on the present appeal.

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weakness according to Table 15, page 54 and Table 12, page 49; and 10 percent for diminished
grip strength according to Table 34, page 65. Dr. Weiss calculated a 50 percent permanent
impairment of the left upper extremity, as follows: 3 percent for limited shoulder flexion
according to Figure 38, page 43; 3 percent for limited shoulder abduction according to Figure 41,
page 44; 30 percent for left ulnar nerve entrapment at the elbow according to Table 16, page 57;
6 percent for sensory impairment of the left C6 nerve root according to Tables 11 and 13; 6
percent for impairment of the left C7 nerve root according to Tables 11 and 13; and 4 percent for
4/5 motor strength deficit of the supraspinatus and 4 percent for 4/5 motor strength deficit of the
triceps according to Table 156, page 54 and Table 12, page 49.2
By decision dated March 6, 2002, the Office denied appellant’s schedule award claim on
the grounds that Dr. Balasubramanian found no work-related disability as of February 8, 2000.
The Office found that Dr. Balasubramanian’s opinion was entitled to the weight of the medical
evidence as he was an impartial medical examiner.
In a March 8, 2002 letter, appellant requested an oral hearing, held June 22, 2004. At the
hearing, appellant asserted that the Office could not accord Dr. Balasubramanian the weight of
the medical evidence on the schedule award issue, as he was not appointed to resolve a conflict
on that issue.
By decision dated and finalized September 21, 2004, the Office hearing representative
affirmed the March 6, 2002 decision. The Office found that the weight of the medical evidence
on the schedule award issue rested with Dr. Balasubramanian as he was an impartial medical
examiner.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 provides
for compensation to employees sustaining permanent loss, or loss of use, of specified members
of the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2001), has been adopted by the Office for evaluating schedule
losses and the Board has concurred in such adoption.4
ANALYSIS
The Office accepted that appellant sustained a head contusion and shoulder abrasions on
August 19, 1997. Appellant claimed a schedule award on June 20, 2001. The Office denied the
2

In an undated note, Dr. Marcelli concurred with Dr. Weiss’ schedule award evaluation.

3

5 U.S.C. §§ 8101-8193.

4

See 20 C.F.R. § 10.404; Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

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schedule award based on the opinion of Dr. Balasubramanian, a Board-certified orthopedic
surgeon and impartial medical examiner. The Office appointed Dr. Balasubramanian on
January 10, 2000. He was asked to resolve a conflict between an attending physician and a
second opinion physician regarding the presence of injury-related residuals. There was no
schedule award claim pending or any conflict regarding a schedule award issue at the time of the
Office’s January 10, 2000 referral to Dr. Balasubramanian. Therefore, Dr. Balasubramanian is
not an impartial medical specialist on the schedule award issue.5
The Board finds that the case is not in posture for a decision as there is a conflict of
medical opinion between Dr. Weiss, for appellant, and Dr. Balasubramanian, for the government,
regarding the presence of ratable upper extremity impairments. Dr. Balasubramanian found
various pathologies of the shoulders and cervical spine. He opined that these conditions were not
related to the accepted August 17, 1997 injuries. As Dr. Balasubramanian found no work-related
impairments, his opinion noted that there were no ratable impairments for schedule award
purposes. In contrast, Dr. Weiss found that appellant had work-related ratable impairments of
both upper extremities. The Act, at 5 U.S.C. § 8123, states that, 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. In accordance with
5 U.S.C. § 8123, the case will be remanded for appointment of an impartial medical examiner to
resolve the conflict of opinion regarding the schedule award issue. The Office shall provide the
appointed specialist with a copy of the medical record and a statement of accepted facts.
Following this and other development deemed necessary, the Office shall issue an appropriate
decision in the case.
CONCLUSION
The Board finds that the case is not in posture for a decision due to a conflict in the
medical evidence. The case will be remanded to the Office for further development, to be
followed by issuance of an appropriate decision.

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Joseph Roman, 55 ECAB 233 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 21, 2004 is set aside, and the case remanded for
further development consistent with this decision and order.
Issued: February 2, 2007
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
ELECTRONIC SYSTEMS COMMAND,
North Charleston, SC, Employer
__________________________________________

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

Docket No. 08-1466
Issued: December 1, 2008

Case Submitted on the Record

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

JURISDICTION
On April 23, 2008 appellant filed a timely appeal from a January 18, 2008 decision of the
Office of Workers’ Compensation Programs, granting a schedule award, and a March 25, 2008
decision that denied his request for a hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has more than four percent impairment of his right
upper extremity and five percent impairment of his left upper extremity causally related to his
accepted bilateral carpal tunnel syndrome and left cubital tunnel syndrome; and (2) whether the
Office properly denied his request for a hearing.
FACTUAL HISTORY
On February 3, 2004 appellant, then a 52-year-old electronics technician, filed an
occupational disease claim alleging that he developed bilateral carpal tunnel syndrome due to his

work activities. His claim was accepted for bilateral carpal tunnel syndrome and left cubital
tunnel syndrome. Appellant subsequently filed a claim for a schedule award.
In a November 30, 2004 report, Dr. Gerald J. Shealy, a Board-certified orthopedic
surgeon specializing in hand surgery, stated that appellant had reached maximum medical
improvement following left carpal tunnel decompression on October 2, 2002, right carpal tunnel
decompression on May 19, 2004 and left ulnar nerve transposition on July 22, 2004. He found
that appellant had 10 percent impairment of his left upper extremity due to residual ulnar
neuropathy and five percent impairment due to residual median neuropathy, according to the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).
In a November 15, 2006 report, Dr. James L. Bumgartner, a Board-certified neurologist
and psychiatrist, stated that nerve conduction studies of appellant’s upper extremities revealed
normal median motor values bilaterally, bilateral median sensory neuropathy and left ulnar
sensory and motor neuropathy.1
In a December 13, 2006 clinical note, Dr. Shealy stated that appellant had 13 percent
impairment of his left upper extremity, including five percent for ulnar nerve sensory loss, three
percent for ulnar nerve motor loss and five percent impairment for median nerve sensory loss.
On May 1, 2007 an Office medical adviser stated that appellant had five percent
impairment of his left upper extremity.2 He rated four percent for sensory loss of the median
nerve based on Table 16-10 at page 482 and Table 16-15 at page 492 of the A.M.A., Guides.
The Office medical adviser allowed 10 percent sensory deficit (Grade 4) from Table 16-10
multiplied by 39 percent maximum for the median nerve from Table 16-15, to equal 3.9, rounded
to 4 percent. He found 1 percent for ulnar nerve sensory loss, 10 percent (Grade 4) multiplied by
7 percent maximum for the ulnar nerve. The Office medical adviser based these ratings on the
November 15, 2006 electrodiagnostic studies. He also found that appellant had four percent
impairment of his right upper extremity for median nerve sensory loss based on Tables 16-10
and 16-15.

1

Regarding motor deficit of the left ulnar nerve, Dr. Bumgartner stated that left ulnar motor response
demonstrated borderline slowing across the elbow without significant drop in amplitude. A nerve conduction study
of appellant’s left upper extremity performed on March 19, 2007 revealed no significant change since the
November 15, 2006 study.
2

See Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002) (these procedures contemplate that, after obtaining all necessary medical
evidence, the file should be routed to an Office medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale for the
percentage of impairment specified, especially when there is more than one evaluation of the impairment present).

2

By decision dated January 18, 2008, the Office granted appellant schedule awards for
five percent impairment of his left upper extremity and four percent of his right upper extremity,
a total of 28.08 weeks from October 30, 2004 to May 15, 2005.3
By letter dated February 19, 2008 and postmarked February 21, 2008, appellant requested
an oral hearing.
By decision dated March 25, 2008, the Office denied appellant’s January 21, 2008
request for an oral hearing, postmarked January 21, 2008, on the grounds that it was not timely
filed within 30 days of the January 18, 2008 decision and the issue could be addressed equally
well through a request for reconsideration and additional evidence.4
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Act5 authorizes the payment of schedule awards for the loss or loss of
use of specified members, organs or functions of the body. Such loss or loss of use is known as
permanent impairment. The Office evaluates the degree of permanent impairment according to
the standards set forth in the specified edition of the A.M.A., Guides.6
Chapter 16 of the fifth edition of the A.M.A., Guides provides the framework for
assessing upper extremity impairments.7 Office procedures8 provide that upper extremity
impairment secondary to carpal tunnel syndrome and other entrapment neuropathies, such as
cubital tunnel syndrome, should be calculated using section 16.5d and Tables 16-10, 16-11 and
16-15.9

3

The Federal Employees’ Compensation Act provides for 312 weeks of compensation for 100 percent loss or loss
of use of the upper extremity. 5 U.S.C. § 8107(c)(10). Multiplying 312 weeks by nine percent equals 28.08 weeks
of compensation.
4

Subsequent to the March 25, 2008 Office decision, additional evidence was associated with the file. The
Board’s jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See
20 C.F.R. § 501.2(c). The Board may not consider this evidence for the first time on appeal.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).
(5 ed. 2001).

Effective February 1, 2001, the Office began using the A.M.A., Guides

th

7

A.M.A., Guides 433-521.

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(June 2003).
9

A.M.A., Guides 491, 482, 484, 494, respectively.

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Additionally, the fifth edition of the A.M.A., Guides, regarding impairment due to carpal
tunnel syndrome, provides:
“If, after an optimal recovery time following surgical decompression, an
individual continues to complain of pain, paresthesias and/or difficulties in
performing certain activities, three possible scenarios can be present:
1. Positive clinical findings of median nerve dysfunction and electrical
conduction delay(s): the impairment due to residual [carpal tunnel
syndrome] is rated according to the sensory and/or motor deficits as
described [in Tables 16-10a and 16-11a].
2. Normal sensibility and opposition strength with abnormal sensory
and/or motor latencies or abnormal [electromyogram] testing of the thenar
muscles: a residual [carpal tunnel syndrome] is still present and an
impairment rating not to exceed [five percent] of the upper extremity may
be justified.
3. Normal sensibility (two-point discrimination and Semmes-Weinstein
monofilament testing), opposition strength and nerve conduction studies:
there is no objective basis for an impairment rating.”10
The Board has found that the fifth edition of the A.M.A., Guides provides that
impairment for carpal tunnel syndrome be rated on motor and sensory deficits only.11
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for a decision.
On November 30, 2004 Dr. Shealy found that appellant had 10 percent impairment of his
left upper extremity due to residual ulnar neuropathy and five percent impairment due to residual
median neuropathy causally related to his accepted bilateral carpal tunnel syndrome and left
cubital tunnel syndrome. However, he did not explain how he determined appellant’s
impairment with reference to specific sections and tables of the A.M.A., Guides. On
December 13, 2006 Dr. Shealy stated that appellant had 13 percent impairment of his left upper
extremity, including five percent for ulnar nerve sensory loss, three percent for ulnar nerve motor
loss and five percent impairment for median nerve sensory loss. Again he did not reference any
specific sections or tables of the A.M.A, Guides. Because Dr. Shealy did not explain his
impairment rating with reference to applicable sections of the A.M.A., Guides, his rating is not
sufficient to establish appellant’s schedule award for his left upper extremity. Additionally, he
did not provide an impairment rating for appellant’s right upper extremity. The nerve
conduction studies performed on November 15, 2006 revealed bilateral median sensory
neuropathy as well as left ulnar sensory and motor neuropathy. Therefore, Dr. Shealy should
10

Id. at 495.

11

Kimberly M. Held, 56 ECAB 670, 674 (2005).

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have provided an impairment rating for appellant’s right upper extremity caused by median
nerve sensory loss.
The Office medical adviser found that, based on the medical evidence, appellant had five
percent impairment of his left upper extremity, including four percent for sensory loss of the
median nerve according to Table 16-10 at page 482 and Table 16-15 at page 492 of the A.M.A.,
Guides. He apparently found that appellant had a Grade 4 sensory loss based on Table 16-10 as
Grade 4 provides for a range of 1 to 25 percent impairment. The Office medical adviser
multiplied 10 percent by the 39 percent maximum for median nerve sensory loss from Table 1615 which constitutes 3.9 percent, rounded to 4 percent. He apparently also found a Grade 4
sensory loss for the left ulnar nerve and multiplied 10 percent from Table 16-10 by the 7 percent
maximum for ulnar nerve sensory loss from Table 16-15 which constituted 1 percent sensory
loss for the ulnar nerve. The Office medical adviser found that appellant had four percent
impairment of his right upper extremity for median nerve sensory loss based on Tables 16-10
and 16-15, using the same calculations he made in determining appellant’s left upper extremity
sensory loss. However, he did not provide medical rationale explaining how he determined that
appellant had a Grade 4 impairment of his left and right upper extremities based on the
descriptions of sensory deficit in Table 16-10.12 Additionally, the Office medical adviser did not
explain how he determined 10 percent sensory loss from Grade 4 when, as noted, Grade 4
provides for a range of 1 to 25 percent. Further, he did not explain why he did not find any
impairment due to left ulnar nerve motor deficit when Dr. Shealy found such motor deficit and
the nerve conduction study noted left ulnar nerve motor deficit. Due to these deficiencies, the
impairment rating by the Office medical adviser is not sufficient to establish appellant’s right and
left upper extremity impairment due to his accepted bilateral carpal tunnel syndrome and left
cubital tunnel syndrome. On remand, the Office should further develop the medical evidence
regarding the nature and extent of his right and left upper extremity impairment.
CONCLUSION
The Board finds that this case is not in posture for a decision on the issue of appellant’s
entitlement to a schedule award for his left and right upper extremities. On remand, the Office
should further develop the medical evidence as to the nature and extent of his impairment
causally related to his accepted bilateral carpal tunnel syndrome and left cubital tunnel
syndrome. After such further development as the Office deems necessary, it should issue an
appropriate decision. Due to the posture of the first issue, the second issue in this case is moot.

12

Table 16-10 provides for a range of Grade 5 (0 percent sensory deficit) to Grade 0 (100 percent sensory deficit).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 25 and January 18, 2008 are set aside and the case
remanded for further action consistent with this decision of the Board.
Issued: December 1, 2008
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.O., Appellant
and
DEFENSE, FINANCE & ACCOUNTING
SERVICE, Limestone, ME, Employer
__________________________________________

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

Docket No. 09-332
Issued: October 9, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 17, 2008 appellant filed a timely appeal from an April 24, 2008 merit
decision of the Office of Workers’ Compensation Programs and an August 18, 2008 merit
decision of an Office hearing representative denying his emotional condition claim. Pursuant to
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 established that he sustained an emotional condition in the
performance of duty. On appeal, he reiterated the facts surrounding a February 1, 2008 dispute.
Appellant also submitted new medical evidence.
FACTUAL HISTORY
On February 14, 2008 appellant filed a traumatic injury claim (Form CA-1) alleging that
a negative encounter with a coworker on February 1, 2008 caused him prolonged physical and
mental stress requiring medical attention and time off from work. He claimed that he
experienced chest pains and high levels of stress. Appellant’s supervisor, Robert Whitehead,

stated that he investigated the situation and that the alleged confrontation negatively impacted
appellant’s physical and emotional health, causing him to miss work and seek medical care.
In a February 19, 2008 letter, the Office notified appellant of the deficiencies in his claim
and requested additional information.
In an e-mail dated February 20, 2008, Brenda M. Gangnon, appellant’s coworker, stated
that she witnessed the incident between Diane Nadeau and appellant. She stated that
Ms. Nadeau approached appellant’s cubicle and stated that she needed to speak with him.
Ms. Gangnon returned to her adjoining cubicle. She overheard Ms. Nadeau tell appellant that he
should not have informed anyone that she was working at the employing establishment.
Appellant responded that her information was posted on an electronic portal home page.
Ms. Nadeau mentioned something about her previous employment, to which appellant replied
that the issue was between her and his wife and refused to discuss the matter. After she
continued to bring up the same issues, appellant requested that she leave and advised that he
would call security. Ms. Nadeau stated that he need not bother because she was going to security
and walked away visibly annoyed. Ms. Gangnon noted that appellant was clearly shaken by the
incident.
Further, in a February 20, 2008 e-mail, Lois A. Barnes, another coworker, stated that she
also witnessed the February 1, 2008 incident between appellant and Ms. Nadeau. According to
Ms. Barnes, Ms. Nadeau approached appellant and began talking about things that happened at
her prior job. Appellant responded that he did not want to hear about the problem. Ms. Nadeau
stated that appellant informed people that she was working at the employing establishment.
Appellant denied this and stated that her employment was public knowledge because her name
was on the electronic portal. She asked her to leave and threatened that he would go to security.
Ms. Nadeau stated that she was going to security and walked away.
In February 1, 2008 chart notes from the employing establishment’s medical clinic, a
nurse stated that appellant presented at the clinic with his supervisor and was visibly shaken.
Appellant stated that his new coworker came to his work section and threatened him. He did not
expect the confrontation and started shaking uncontrollably. On February 4, 2008 appellant
returned to the clinic and stated that he needed someone to accompany him to get his coffee that
morning because he was afraid he would be confronted again by his coworker. He continued to
shake over the incident and was teary-eyed. The nurse noted that appellant previously obtained
counseling from the Department of Veterans Affairs (VA) for post-traumatic stress disorder
(PTSD) and that he made need to see a counselor due to an aggravation of this condition.
On February 6, 2008 appellant was admitted to an emergency room for medical treatment
related to chest pain. Dr. Guy Raymond, Board-certified in family medicine, stated that
appellant had a history of chest pain beginning the day prior. He reported appellant’s belief that
the pain was likely related to anxiety and that he had a history of increased stress over the last
few weeks. Dr. Raymond referred appellant to Dr. Sunila Jo, a Board-certified internist.
In a February 6, 2008 medical report, Dr. Jo stated that appellant was admitted for
complaints of intermittent retrosternal chest pain beginning the day prior. She relayed
appellant’s belief that his condition was related to the severe stress he was experiencing at work.

2

Dr. Jo reported a history of coronary artery disease, dyslipidemia, hypertension, depression,
PTSD, gastroesophageal reflux disease and chronic obstructive pulmonary disease. On
February 7, 2008 she performed a stress test with negative results. Dr. Jo provided discharge
diagnoses of chest pain, with acute coronary syndrome ruled out, coronary artery disease,
depression, PTSD, dyslipidemia, hypertension, chronic obstructive pulmonary disease,
gastroesophageal reflux disease and severe degenerative cervical disc disease.
By decision dated April 24, 2008, the Office denied the claim. It found that, although
witness statements supported an encounter between appellant and his coworker, appellant did not
provide a sufficiently detailed explanation of the incident to establish that it occurred in the
performance of duty.
On April 28, 2008 appellant filed a request for a review of the written record by an Office
hearing representative.
In an April 26, 2008 statement, appellant stated that his wife was a former supervisor of
Ms. Nadeau, at a different employing establishment. Ms. Nadeau did not want anyone to know
of her new position with the employing establishment, however, appellant’s wife knew about her
new employment due to paperwork. Appellant asked security personnel if he was in the wrong
by knowing that Ms. Nadeau was starting employment with the employing establishment.
Security responded that he was not in violation of her rights because Ms. Nadeau had not
requested that her name be excluded from the electronic portal, which was available to all of the
employing establishment’s sites and supporting air force bases. Appellant claimed that, on
February 1, 2008, Ms. Nadeau approached his workstation and asked if she could speak with
him. Ms. Nadeau proceeded to accuse him of violating her rights by disclosing that she was
starting in a position with the employing establishment. Appellant requested that Ms. Nadeau
leave his work area and advised that he was going to call security. Ms. Nadeau continued to
verbally accuse him and after two more warnings, appellant called security. No one at security
answered the telephone. Ms. Nadeau stated that she was going to the security office and left.
Appellant described the incident to his supervisor, Mr. Whitehead, who informed appellant that
he, in turn, would have to report the incident to his supervisor. In the meantime, appellant went
to the on-site nurse and laid down. Mr. Whitehead retrieved appellant from the clinic and
requested that he meet with Ms. Barnes who asked him if he would accept an apology from
Ms. Nadeau, which he refused. He returned to his desk but was unable to concentrate and went
home early. Appellant stated that he was a Vietnam combat veteran with a 50 percent rating for
PTSD from the VA. He contended that the February 1, 2008 confrontation aggravated his PTSD
to the point where he could no longer rest at night and did not feel comfortable moving around
the building at work due to fear of another confrontation. When appellant did leave his area, he
tried to have another person with him to prevent a confrontation. He stated that, due to the
incident, he regularly sees a psychologist and had applied for disability retirement. Appellant
has not worked a full week since he was hospitalized. Further, he alleged that during his
hospitalization on February 6, 2008 he contracted a virus from the gentleman with whom he was
sharing a room. Finally, appellant argued that the February 1, 2008 confrontation was work
related because it occurred while he was performing his work duties and was caused by a
coworker.

3

By decision dated August 18, 2008, the Office hearing representative affirmed the
April 24, 2008 decision, finding that, although appellant established that the incident occurred as
alleged, he did not establish any compensable factors of employment. She found that the
incident did not rise to the level of harassment and did not relate to appellant’s work duties. The
conflict arose out of a personal situation based on appellant’s knowledge from his wife regarding
Ms. Nadeau’s position with the employing establishment rather than from an employment factor.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act1 provides for the payment of compensation
benefits for injuries sustained in the performance of duty. To establish his claim that he
sustained an emotional condition in the performance of duty, appellant must submit the
following: (1) factual evidence identifying compensable employment factors or incidents
alleged to have caused or contributed to his condition; (2) medical evidence establishing that he
has an emotional condition or psychiatric disorder; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to his
emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions in the type of employment situations giving rise to a
compensable emotional condition under the Act. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
coverage under the Act.4 When an employee experiences emotional distress in carrying out his
employment duties and the medical evidence establishes that the disability resulted from his
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from an emotional reaction to a special assignment or other requirement imposed by the
employing establishment or by the nature of his work.5 On the other hand, the disability is not
covered where it results from such factors as an employee’s fear of a reduction-in-force or his
frustration from not being permitted to work in a particular environment or to hold a particular
position.6 Generally, actions of the employing establishment in administrative matters, unrelated
to the employee’s regular or specially assigned work duties, do not fall within the coverage of

1

5 U.S.C. §§ 8101-8193.

2

George C. Clark, 56 ECAB 162 (2004).

3

28 ECAB 125 (1976).

4

George C. Clark, supra note 2.

5

Lillian Cutler, supra note 3.

6

Id.

4

the Act.7 However, an administrative or personal matter will be considered to be an employment
factor where the evidence discloses error or abuse on the part of the employing establishment.8
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, 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 may not be
considered.9 If a claimant does indicate a factor of employment, the Office should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, the Office must base its decision on an analysis of the medical evidence.10
ANALYSIS
The issue is whether appellant established that he sustained an emotional condition in the
performance of duty. The Office denied appellant’s claim on the grounds that the February 1,
2008 verbal altercation between him and Ms. Nadeau was not a compensable factor of
employment. The Board finds that the altercation constitutes a compensable work factor;
however, appellant did not establish that he sustained an injury causally related to this dispute.
Appellant alleged that a new coworker, Ms. Nadeau, approached his office space on
February 1, 2008 and verbally harassed him regarding his notifying coworkers of her position
with the employing establishment. He repeatedly requested her to leave and eventually called
security. Appellant alleged that the altercation aggravated his PTSD. After the incident, he was
unable to concentrate on his work and left work early. Appellant was admitted to the hospital on
February 6 and 7, 2008. On his return to work, he alleged that he was afraid to move around the
employing establishment by himself for fear of another altercation and when he did have to leave
his desk he tried to find a coworker to accompany him. Further, appellant did not work a full
week after the incident and applied for disability retirement. Both Ms. Gangnon and Ms. Barnes,
appellant’s coworkers, witnessed the February 1, 2008 incident and provided a similar account of
the events. They both contended that appellant was visibly shaken after Ms. Nadeau confronted
him.
The Board finds that the February 1, 2008 altercation constitutes a compensable
employment factor. It is well established that verbal altercations in the workplace may constitute
a compensable factor of employment.11 In the instant case, appellant and Ms. Nadeau had an
altercation about a work-related matter, i.e., her status as an employee at the employing
7

Michael L. Malone, 46 ECAB 957 (1995).

8

Charles D. Edwards, 55 ECAB 258 (2004).

9

See Norma L. Blank, 42 ECAB 384, 389-90 (1992).

10

Id.

11

A.K., 58 ECAB ___ (Docket No. 06-626, issued October 17, 2006).

5

establishment, while he was reasonably fulfilling the duties of his employment.12 He was
emotionally distraught after the altercation, which affected the performance of his essential work
duties and ability to function normally in the workplace.13 The incident and emotional impact on
appellant was independently verified by two coworkers, who witnessed the altercation and the
resulting emotional effect on appellant.14 Further, there is no evidence that appellant and
Ms. Nadeau had a personal relationship outside of work or that the dispute was imported into the
workplace.15 The only connection between the two, external to the employment, was that
appellant’s wife was Ms. Nadeau’s former supervisor. However, the altercation did not arise out
of this attenuated relationship; but rather, regarded appellant’s discussion with other coworkers
about Ms. Nadeau’s current position at the employing establishment. There was no private, prior
relationship between appellant and Ms. Nadeau that was imported into the workplace. The
employment brought Ms. Nadeau and appellant together and created the relations and conditions
resulting in the altercation, thereby facilitating and contributing to the dispute.16 Thus, the Board
finds that the February 1, 2008 altercation arose out of appellant’s employment and constitutes a
compensable work factor.
However, appellant’s burden of proof is not discharged by the fact that he has identified
an employment factor which may give rise to a compensable disability under the Act. He also
has the burden of submitting sufficiently rationalized, probative medical evidence to support his
allegation that he sustained a specific injury due to the February 1, 2008 altercation.17
The medical evidence of record includes medical reports dated February 6 and 7, 2008
from Drs. Jo and Raymond relating to appellant’s hospitalization and chart notes from a nurse at
the employing establishment’s onsite clinic. The Board finds this medical evidence is
insufficient to establish that appellant sustained an injury causally related to the February 1, 2008
altercation.

12

See Leslie C. Moore, 54 ECAB 132 (2000).

13

See Bobbie D. Daly, 53 ECAB 691 (2002).

14

A claimant must establish a factual basis for his allegations of harassment with probative and reliable evidence.
See Charles D. Edwards, supra note 8.
15

When a dispute is imported into the workplace from a claimant’s domestic or private life the dispute does not
arise out of the employment. Agnes V. Blackwell, 44 ECAB 200 (1992).
16

Even if harassment or an altercation arose from a nonwork-related topic, the Board has held that such matters
are compensable if the employment brought an appellant and his coworker together and created conditions that
resulted in the altercation or harassment. See Joseph A. Pietro, 46 ECAB 831 (1995) (where the Board held that
appellant’s reaction to a discriminatory sign was a compensable factor of employment). See also Josie P. Waters,
45 ECAB 513 (1994) (where an altercation occurring after a coworker bumped appellant in the arm at work was
found to be a compensable work factor. The Board held that there was no private, prior relationship that was
imported in the workplace and thus the incident arose in the performance of duty); Janet D. Yates, 49 ECAB 240
(1997) (where the Board found that an altercation arising out of the performance of a work duty was a compensable
factor of employment. There was no prior relationship between appellant and the coworker and the work
contributed and facilitated the dispute).
17

See Elaine Pendleton, 40 ECAB 1143 (1989).

6

In a February 6, 2008 medical report, Dr. Raymond stated that appellant had a history of
chest pain beginning the day prior and reported appellant’s belief that his condition was related
to anxiety due to increased stress over the last few weeks. Dr. Jo, in February 6 and 7, 2008
reports, diagnosed, inter alia, chest pain, depression and PTSD. He also relayed appellant’s
belief that his condition was related to severe stress at work. These reports are insufficient to
establish that the February 1, 2008 altercation resulted in an emotional condition. The only
mention of causation in any of the reports was limited to a recitation of appellant’s belief that his
condition was caused by stress at work.18 The doctors did not provide a medical opinion as to
the cause of appellant’s conditions or even mention the February 1, 2008 altercation as a possible
catalyst for the current medical complaints. Thus, these reports of are of diminished probative
value.19 Finally, the chart notes from the nurse are also of no probative value as a nurse does not
meet the definition of a physician as required by the Act.20
The Board notes that appellant submitted additional medical evidence with his appeal.
The Board is precluded from reviewing evidence for the first time on appeal and, thus, cannot
consider these medical records.21
CONCLUSION
The Board finds that the February 1, 2008 verbal altercation constitutes a compensable
factor of employment. However, the Board also finds that appellant did not establish with
sufficient medical evidence that he sustained a causally related employment condition.

18

Claimants may not self-certify their disability. See Fereidoon Kharabi, 52 ECAB 291 (2001).

19

See Robert Broome, 55 ECAB 339 (2004).

20

Under section 8101(2), the definition of a physician includes surgeons, podiatrist, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by state law. 5 U.S.C. § 8101(2).
21

Appellant may submit the additional medical evidence along with a formal, written request for reconsideration
pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606.

7

ORDER
IT IS HEREBY ORDERED THAT the August 18 and April 24, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed, as modified.
Issued: October 9, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Reno, NV, Employer
__________________________________________

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

Docket No. 14-1085
Issued: August 27, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 9, 2014 appellant filed a timely appeal of a February 10, 2014 decision of the
Office of Workers’ Compensation Programs (OWCP) concerning a schedule award. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established more than three percent permanent
impairment of the right leg for which he received a schedule award.
FACTUAL HISTORY
On October 1, 2010 appellant, then a 34-year-old transportation security manager, injured
his right knee when he struck it against the corner of a desk while getting out of his chair.
1

5 U.S.C. § 8101 et seq.

OWCP accepted the claim for internal derangement of the right knee and right knee
enthesopathy. It authorized right knee arthroscopy with arthroscopic chondroplasty, lateral
retinacular release, limited synovectomy and excision of prepatella bursa and loose bodies,
which was performed on June 24, 2013.
On August 7, 2013 appellant filed a claim for a schedule award.
In an October 11, 2013 report, Dr. Mark Witt, a treating osteopath, listed a history of the
October 1, 2010 injury and medical treatment. He determined that appellant had a four percent
whole person permanent impairment using the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). Dr. Witt
noted diagnoses of right knee patellar and trochlea chondromalacia, right knee synovitis with
plica and right knee prepatella bursa with loose bodies and that the right knee surgery occurred
on June 24, 2013. The range of motion for the right knee included 120 degrees flexion and 0
degrees extension. The physical examination of the right knee revealed no significant
abnormalities, no varus of valgus deformity, negative Drawer’s sign, no joint line pain and no
varus laxity or valgus stress testing. Using Table 17-10, page 537 Dr. Witt found no ratable
impairment for loss of range of motion. He found a ratable impairment of the quadriceps due to
two centimeters atrophy of the right thigh using Table 17-6, page 530. Dr. Witt noted that there
might be additional impairment for arthritic degenerative changes under Table 17-31, page 544;
but, there were no x-rays to review. Therefore, he was unable to determine any impairment
rating for arthritic degenerative changes under Table 17-31, page 544.
In a December 2, 2013 report, Dr. Arthur S. Harris, an OWCP medical adviser,
concluded that appellant had a three percent right lower extremity impairment using Table 16-3,
page 511 of the sixth edition of the A.M.A., Guides. He noted documented osteochondral
damage to the patella undersurface at the time of surgery and noted “{CDX 1 C} (Table 163/Page 511).”
By decision dated February 10, 2014, OWCP granted appellant a schedule award for
three percent right leg impairment. The period of the award was for 8.64 weeks and ran from
October 11 to December 10, 2013.
LEGAL PRECEDENT
Under section 8107 of FECA2 and section 10.404 of the implementing federal
regulations,3 schedule awards are payable for permanent impairment of specified body members,
functions or organs. FECA, however, does not specify the manner in which the percentage of
impairment shall be determined. For consistent results and to ensure equal justice under the law
for 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

2

Id. at § 8107.

3

20 C.F.R. § 10.404

2

adopted by the implementing regulations as the appropriate standard for evaluating schedule
losses.4
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).5 Under the sixth edition, the evaluator identifies the impairment class for the
Diagnosed Condition (CDX), which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).6 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical
adviser providing rationale for the percentage of impairment specified.8
ANALYSIS
The Board finds that this case is not in posture for decision because the opinions of
Drs. Harris and Witt are insufficient to establish the degree of permanent impairment.
On October 11, 2013 Dr. Witt provided a history of the injury, brief medical history and
physical findings. Using the fifth edition of the A.M.A., Guides, he noted that appellant had no
ratable impairment for right knee range of motion under Table 17-6, page 537. Dr. Witt found a
four percent whole person impairment based on atrophy to the right thigh. It is well established
that a schedule award is not payable under section 8107 of FECA for an impairment of the whole
person. Further, Dr. Witt applied the standards of the fifth edition of the A.M.A., Guides that
was not in effect at the time of his rating.9 His rating is of diminished probative value.
The Board has held that, in schedule award cases where an examining physician has
provided a description of physical findings but failed to properly apply the A.M.A., Guides, an
OWCP medical adviser may provide an impairment rating based on the reported physical

4

D.J., 59 ECAB 620 (2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

5

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

A.M.A., Guides 383-419 (6th ed., 2009).

7

Id. at page 411.

8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (January 2010). See C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57
ECAB 349 (2006).
9

See Gordon G. McNeill, 42 ECAB 140 (1990); FECA Bulletin No. 09-03 (issued March 15, 2009). For OWCP
decisions issued before May 1, 2009, the fifth edition of the A.M.A., Guides (5th ed. 2001) is used. After May 1,
2009, the sixth edition of the A.M.A., Guides is used to calculate an impairment rating for schedule award purposes.
C.K., Docket No. 09-2371 (issued August 18, 2010).

3

findings and the A.M.A., Guides.10 OWCP’s procedures state that when an OWCP medical
adviser explains his or her opinion, shows values and computation of impairment based on the
A.M.A., Guides and considers each of the reported findings of impairment, his or her opinion
may constitute the weight of the medical opinion evidence.11
The Board finds that the impairment rating provided by Dr. Harris does not constitute the
weight of the medical opinion evidence because he did not provide sufficient explanation for his
rating.12 When determining appellant’s right lower extremity rating, Dr. Harris concluded that
appellant had three percent impairment using Table 16-3, page 511. There is no explanation or
calculation other than noting osteochondral damage at the time of surgery with the notation
“{CDX 1 C} (Table 16-3/Page 511).”13 It is unclear how the impairment rating was derived as
Dr. Harris did not address the impairment class for the CDX or how the grade modifiers were
utilized. It is also unclear from Table 16-3, page 511 which diagnostic criteria or key factor he
used as the tables do not correspond to his description of osteochondral damage. The Board is
unable to confirm that Dr. Harris properly followed the A.M.A., Guides or OWCP’s procedures.
The Board therefore finds that the impairment rating provided by the medical adviser is an
insufficient basis for the schedule award.
On remand, OWCP should further develop the medical evidence to determine appellant’s
impairment in accordance with the A.M.A., Guides. Following this and any necessary further
development, OWCP should issue a de novo decision regarding any employment-related
permanent impairment.
CONCLUSION
The Board finds that this case is not in posture for a decision on the extent of permanent
impairment to appellant’s right leg

10

Linda Beale, 57 ECAB 429 (2006); James Massenburg, 29 ECAB 850 (1978).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.8(j) (September 2010).
12

Id.

13

See A.M.A., Guides 497-500 (Diagnosis-Based Impairment for lower extremities).

4

ORDER
IT IS HEREBY ORDERED THAT the February 10, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this decision.
Issued: August 27, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.K., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Milwaukee, WI, Employer
__________________________________________

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

Docket No. 17-1853
Issued: August 27, 2018

Case Submitted on the Record

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

JURISDICTION
On August 31, 2017 appellant, through counsel, filed a timely appeal from an August 4,
2017 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 the claim.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its August 4, 2017 decision. The
Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the
Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant has met her burden of proof to establish intermittent periods
of disability from January 20 to June 5, 2016 causally related to her accepted September 23, 2015
left knee strain.
FACTUAL HISTORY
On September 23, 2015 appellant, then a 50-year-old transportation security officer, filed
a traumatic injury claim (Form CA-1) alleging that, on that date, she twisted her right knee after
patting down a passenger.4 She stopped work on the date of injury.
On September 24, 2015 Dr. Jeanmarie Duester, a family practitioner and occupational
medicine specialist, evaluated appellant and released her to work with restrictions.5 On October 8,
2015 she released appellant to full-duty work, with no restrictions.
By decision dated May 23, 2016, OWCP accepted left knee sprain of unspecified site.6
On June 3, 2016 appellant filed a recurrence of disability claim (Form CA-2a) alleging lost
time from work and a worsening of her September 23, 2015 left knee injury commencing
January 20, 2016. She returned to work on February 16, 2016. The employing establishment
indicated that appellant worked approximately four months restriction-free from October 8, 2015.
Appellant was then placed on light-duty status from February 16 through May 16, 2016.
On June 3, 2016 appellant filed claims for compensation (Form CA-7) from May 17, 2016
and continuing. She indicated that the employing establishment disapproved a light-duty
assignment. The employing establishment indicated that it provided appellant multiple
light/limited-duty assignments except when the evidence was insufficient to determine light-duty
capabilities.7 On June 6, 2016 it offered, and she accepted, a limited-duty assignment.
The record reflects that, on January 28, 2016, appellant sought treatment from Jason Szpak,
a certified physician assistant. Mr. Szpak noted that she had a previous left knee arthroscopy in
2004 and did well until September 23, 2015, when she twisted the left knee during a pat-down at
4

In a May 17, 2016 statement, appellant explained that her left knee was injured, not the right knee as reported by
the employing establishment.
5
Dr. Duester provided an assessment of left knee strain. She reported that appellant had previous surgery to her
knee and that September 23, 2015 x-rays were negative for an acute fracture, but positive for mild degenerative
changes to the medial compartment and small suprapatellar joint effusion was noted.
6

The present claim was assigned OWCP File No. xxxxxx698. Under OWCP File No. xxxxxx491, appellant
claimed an injury to her left leg on April 15, 2016. OWCP accepted other and unspecified complications of medical
care. Under OWCP File No. xxxxx515, appellant claimed that her right knee was aggravated by her left knee torn
meniscus on June 2, 2016. OWCP accepted other and unspecified complications of medical care.
7

The dates appellant used personal leave and leave without pay (LWOP) as a result of insufficient evidence to
determine light-duty capabilities were 67.5 hours from February 3 through 15, 2016 and 112 hours from May 17
through June 5, 2016.

2

work. He provided an assessment of left knee pain following twisting injury at work with effusion;
right knee pain with effusion, possibly compensatory; and right peroneal tendon pain,
compensatory, work related. Appellant was placed on work restrictions of primarily seated work.8
A January 28, 2016 return to work note, by an unknown provider, indicated that appellant
could return to work with restrictions on January 29, 2016. Diagnoses of left knee sprain, flare of
right knee degenerative joint disease/possible retear of meniscus were provided.
In a February 15, 2016 report, Dr. Pifel, a Board-certified orthopedic surgeon, related
examination and magnetic resonance imaging (MRI) scan findings of both knees. The left knee
MRI scan showed moderate-to-severe degenerative changes, with suggestion of previous
meniscectomy and questionable previous partial injury, mild, to the anterior cruciate ligament
(ACL). An assessment of bilateral knee pain, left greater than right, with moderate degenerative
changes in a patient with previous arthroscopies on both knees with new work-related injury on
the left was provided. Dr. Pifel indicated that appellant had an exacerbation of her underlying
condition.
Mr. Szpak continued to treat appellant and provide work restrictions. In March 15 and
April 5, 2016 reports, he indicated that she had a new work-related injury on the left and likely
compensatory pain on the right, which he opined was an exacerbation of her underlying condition.
In an April 18, 2016 report, Dr. Pifel noted that appellant was seen for a left knee injury
which occurred at work on April 15, 2016, when she slid off her chair and twisted her left knee.
An assessment of repeat left knee injury, work related, was provided. A repeat left knee MRI scan
was ordered.
In an April 21, 2016 report, Dr. Pifel indicated that the left knee MRI scan showed changes
consistent with full-thickness chondral defect, medial femoral condyle, and a tear in the medial
meniscus. An assessment of left work-related aggravation of underlying arthritis, tear in the
medial meniscus with a patient with fairly significant chondral disease was provided. In an
April 21, 2016 duty status report (Form CA-17), Dr. Pifel indicated that appellant had work-related
left knee aggravation of underlying arthritis, medial meniscus tear, and chondral disease due to
injury. He indicated that she could return to work with restrictions.
In an April 29, 2016 attending physician’s report (Form CA-20), Dr. Pifel indicated that
on September 23, 2015 appellant twisted her left knee while patting down a passenger. He
indicated that she had aggravation of underlying arthritis, medial meniscus tear, and chondral
disease and compensatory pain on right knee and flare of osteoarthritis, which he opined was
caused or aggravated by the September 23, 2015 employment activity. Dr. Pifel indicated that
appellant could work with restrictions from April 20 to May 12, 2016.
In a May 12, 2016 report, Dr. Pifel provided an assessment of left knee work-related injury
with underlying secondary osteoarthritis and medial meniscus tear, aggravated by work-related

8
It was reported that Dr. Eric Pifel, a Board-certified orthopedic surgeon, reviewed the chart. However, there is no
indication that he signed the report.

3

incident. He indicated that appellant would continue on work restrictions. May 12, 2016 work
restrictions from Mr. Szpak, PA-C were received.
In a June 15, 2016 development letter, OWCP noted that appellant stopped work on
May 17, 2016 and was claiming compensation effective May 17, 2016 and continuing. Appellant
was advised that the documentation received was insufficient to support her claim for
compensation and that additional medical evidence was needed to establish disability from work
during the entire period claimed. OWCP afforded her 30 days to submit the requested information.
In a June 2, 2016 letter, Dr. Pifel indicated that the original mechanism was the
September 23, 2015 work injury when appellant twisted her left knee during a pat-down on a
passenger. He indicated that her right knee flared up in the recovery of this and began to bother
her significantly more than prior to her last surgery in 2010. Dr. Pifel noted that appellant had
difficulty with combined medial meniscus tear with flare of underlying arthritic wear.
In a June 2, 2016 report, which Dr. Pifel signed on June 7, 2016, related that appellant had
a left knee arthroscopy in 2004 and that she did well until a work injury on September 25, 2015,
when she twisted her left knee during a pat-down of a passenger. Appellant did not progress
despite conservative treatment. Dr. Pifel noted that the MRI scan revealed retear of the medial
meniscus along with underlying degenerative changes. He further noted that appellant had
reaggravated the knee several times, first on January 28, 2016 and then on April 15, 2016.
Dr. Pifel opined that her right knee underlying degenerative change had been exacerbated
secondary to her compensation on the left. He provided an assessment of left knee medial
meniscus tear/flare of osteoarthritis, work related; injuries on September 23, 2015 and
January 28 and April 15, 2016; and flare of right knee osteoarthritis from compensation of the left
knee, work related. Appellant was to remain on the same work restrictions. Dr. Pifel noted that
she wanted to proceed with left knee arthroscopy for partial medial meniscectomy and
chondroplasty.
By decision dated August 26, 2016, OWCP denied appellant’s recurrence claim and claim
for compensation from May 29, 2016 and continuing.9 It found that there was no medical opinion
from a physician regarding causal relationship between the accepted injury and the diagnosed
conditions without an intervening injury or due to a preexisting condition. Thus, OWCP concluded
that appellant had not established that she was disabled due to a material change/worsening of her
accepted work-related condition.
On June 12, 2017 appellant, through counsel, requested reconsideration.
In a May 30, 2017 report, Dr. Neil Allen, a Board-certified internist and neurologist,
reviewed appellant’s medical records. He indicated that she suffered a left knee sprain/strain injury
while on duty on September 23, 2016,10 when she twisted to the right after performing a pat-down.
Appellant returned to work on October 8, 2015, but her condition continued to worsen and on
9

The Board notes that the period of wage-loss compensation claimed is for 112 hours from May 17 through
June 5, 2016.
10

The year of the injury appears to be a typographical error.

4

June 3, 2016 she felt unable to return to work. Dr. Allen noted that Dr. Pifel, her treating
physician, had documented a progression of arthritis and the effect on her loss of function. He
opined that appellant’s case should include exacerbation of unilateral primary osteoarthritis, left
knee. Dr. Allen noted that she denied functional loss related the aforementioned condition(s) prior
to the work-related trauma sustained on September 23, 2016 and that during the course of
treatment of previous work-related injury it was discovered that she suffered from osteoarthritis of
the left knee.
Dr. Allen indicated that the osteoarthritis developed overtime and became symptomatic on
September 23, 2016 due to the maneuvering required to perform a pat-down. He quoted portions
of The Merck Manual 14th Edition and an article published by Dr. David Felson to support his
opinion that appellant had symptoms of osteoarthritis and possessed two of the three risk factors
associated with osteoarthritis of the knee, two being occupationally related. Dr. Allen explained
that the repetitive wear, more than what would be normally expected environmentally, combined
with a maximal axial load with torsion occurring on September 23, 2016 resulted in the
exacerbation of her underlying arthritic condition. He also opined that appellant should be
compensated for her total disability from May 17, 2016 to the present. Dr. Allen concluded that
her left knee osteoarthritis was directly caused and/or exacerbated by repetitive occupational
trauma combined with acute trauma sustained on September 23, 2016 as described above and
supported by scientific evidence in the literature, as cited above.
In a September 6, 2016 report, Dr. Pifel indicated that he had seen appellant since the
beginning of 2016, after she sustained the September 2015 work injury when she twisted her left
knee while doing a pat-down of a passenger. He noted that, during her recovery, the right side
began to bother her more. Dr. Pifel noted that appellant had previous surgeries on both knees and
that she had new symptoms, first on the left, and then on the right side as she began to compensate
for the left. He noted that she was seen for consistent pain with her underlying arthritic condition
of both knees. Dr. Pifel indicated that appellant had a repeat injury to the right knee in April 2016
which occurred at work. He opined that she had a work-related injury to both knees, which
included aggravation of underlying arthritis and meniscus tear.
By decision dated August 4, 2017, OWCP denied modification of its prior decision. It
found that the medical evidence from Dr. Pifel and Dr. Allen was of diminished probative value
as they had not provided sufficient medical rationale explaining how the September 23, 2015
injury aggravated appellant’s arthritis or meniscus tear supported by objective medical evidence
and demonstrated with clinical findings that the accepted condition materially worsened/changed
without intervening cause or due to her preexisting condition.
LEGAL PRECEDENT
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 resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused
the illness.11
11

20 C.F.R. § 10.5(x).

5

Appellant has the burden of proof to establish by the weight of the substantial, reliable, and
probative evidence a causal relationship between his or her recurrence of disability and the
employment injury.12 This burden includes the necessity of 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 employment factors and supports that conclusion with
sound medical reasoning.13
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
intermittent disability from January 20 to June 5, 2016 causally related to her accepted
September 23, 2015 employment injury.
The initial evidence surrounding appellant’s alleged recurrence of January 20, 2016
indicates that she was being treated by Mr. Szpak, a certified physician assistant. However, the
Board has previously explained that reports signed solely by a physician assistant are of no
probative value as a physician assistant is not considered a physician as defined under FECA and
therefore is not competent to provide a medical opinion.15
In a February 15, 2016 report, Dr. Pifel noted that appellant had a work-related injury of
the left knee. He opined that she had an exacerbation of her underlying condition, and noted
findings from a left knee MRI scan which showed moderate-to-severe degenerative changes, with
suggestion of previous meniscectomy and questionable previous partial injury to the ACL.
Dr. Pifel however offered no opinion that appellant’s accepted left knee strain had spontaneously
worsened, and that she was disabled due to a worsening of her accepted condition as of
January 20, 2016.16 His general opinion that she had an exacerbation of her underlying condition
is insufficient to meet her burden of proof to establish total disability from work.17

12

Carmen Gould, 50 ECAB 504 (1999).

13

Mary A. Ceglia, 55 ECAB 626 (2004).

14

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

15

See V.J., Docket No. 17-0358 (issued July 24, 2018); see also David P. Sawchuk, 57 ECAB 316 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion
under FECA); Charley V.B. Harley, 2 ECAB 208 (1949) (the Board held that medical opinion, in general, can only
be given by a qualified physician). See also 5 U.S.C. § 8101(2).
16

Supra note 11.

17

Deborah L. Beatty, 54 ECAB 340 (2003).

6

In his April 18, 2016 report, Dr. Pifel related that appellant had a left knee injury at work
on April 15, 2016 when she slipped off a chair. An assessment of repeat left knee work-related
injury was provided. The April 15, 2016 injury represents an intervening injury. As previously
noted, a recurrence of disability is a spontaneous change in an accepted condition, without
intervening injury.18
In his report of April 21, 2016, Dr. Pifel provided an assessment of left-sided work-related
aggravation of underlying arthritis and medial meniscus tear in a patient with significant chondral
disease, but did he not address causation. Medical evidence which does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.19 Dr. Pifel did not provide a medical explanation of how the accepted September 23,
2015 work injury caused or aggravated appellant’s conditions or the effect, if any, the intervening
injury of April 15, 2016 had on the diagnosed conditions, which now included a medial meniscus
tear.20 Similarly, in his April 29 and May 12, 2016 reports, he opined, without additional
explanation or rationale, that her aggravation of underlying arthritis, medial meniscus tear and
chondral disease and compensatory pain of the right knee and was caused or aggravated by the
September 23, 2015 employment incident.21 The need for rationale is particularly important where
the record indicates that appellant had preexisting bilateral knee conditions and an intervening
injury.22
In his June 2, 2016 report, Dr. Pifel reported that appellant had injuries of September 23,
2015, January 28, and April 15, 2016 and noted MRI scan findings. He provided an assessment
of left knee medial meniscus tear/flare of osteoarthritis and work-related flare of right knee
osteoarthritis from compensation of left knee and indicated that she could work with restrictions.
However, Dr. Pifel’s reports fail to establish a basis for the claimed recurrence or the wage-loss
claim as he did not provide adequate medical rationale in support of his opinion on causal
relationship. The Board has held that a medical report is of limited probative value on the issue of
causal relationship if it contains a conclusion unsupported by medical rationale.23 Dr. Pifel only
briefly described the September 23, 2015 work injury. He did not explain the medical process
through which it could have been competent to cause aggravation of the underlying arthritis and
meniscus tear or to establish that appellant had work-related disability on or after May 17, 2016
due to the accepted condition. There is no review or discussion of the medical records prior to the
September 23, 2015 work injury to substantiate that appellant’s underlying condition changed due
to the September 23, 2015 work injury. Dr. Pifel merely reported that she had new symptoms,
first on the left, and then on the right side as she began to compensate for the left. While he also
noted that appellant had intervening injuries to the left and right knees, he failed to discuss what
18

Supra note 11.

19

See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1998).

20

See supra note 17.

21

T.M., Docket No. 08-0975 (issued February 6, 2009).

22

See J.D., Docket No. 16-0887 (issued November 4, 2016); L.M., Docket No. 16-0143 (issued February 19, 2016).

23

C.M., Docket No. 14-0088 (issued April 18, 2014).

7

impact, if any, those injuries had on the diagnosed conditions. The Board has held that the fact
that a condition manifests itself or worsens during a period of employment does not raise an
inference of causal relationship between a claimed condition and employment factors.24 Dr. Pifel
did not adequately consider whether appellant’s continuing complaints were due to the natural
progression of her underlying arthritic condition or intervening injuries to the left knee.25 His
reports are, therefore, of limited probative value.
Dr. Allen described the September 23, 2015 work injury and noted that appellant’s
condition continued to worsen after she returned to work in October 2015. He noted that the
medical records revealed an exacerbation of her underlying arthritic condition. Dr. Allen opined
that the repetitive wear combined with the maximal axial load with torsion occurring on
September 23, 2015 caused and/or resulted in the exacerbation of appellant’s underlying arthritic
condition. He also opined that she should be compensated for her total disability from
May 17, 2016. However, Dr. Allen has not provided sufficient medical rationale to support that
appellant was disabled or further disabled due to a material change or worsening of her accepted
work-related condition without intervening cause or due to her preexisting arthritic condition.
Medical opinion evidence should reflect a correct history and offer a medically-sound explanation
of how the specific employment incident physiologically caused injury.26 Dr. Allen indicated that
the osteoarthritis became symptomatic on September 23, 2015 due to the maneuvering required to
perform a pat-down. However, he did not explain the medical process through which the
September 23, 2015 injury could have been competent to cause aggravation of the underlying
arthritis or to establish that appellant had work-related disability on or after May 17, 2016 due to
the accepted condition. As such, Dr. Allen’s report is of limited probative value as it contains a
conclusion unsupported by medical rationale.27
On appeal counsel contends that OWCP’s decision is contrary to fact and law. As
explained above, however, appellant has not submitted sufficient medical evidence to establish her
recurrence claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established intermittent recurrence of disability from
January 20 to June 5, 2016 causally related to her accepted September 23, 2015 left knee strain.

24

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

25

Michael Stockert, 39 ECAB 1186-88 (1988).

26

M.A., Docket No. 17-0122 (issued May 2, 2017).

27

Supra note 23.

8

ORDER
IT IS HEREBY ORDERED THAT the August 4, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 27, 2018
Washington, DC

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

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

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

9


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

)
)
)
)
)
)
)
)

Docket No. 13-1116
Issued: September 18, 2014

Oral Argument May 21, 2014

Appearances:
Daniel B. Shapiro, Esq., for the appellant
Miriam D. Ozur, Esq., for the Director

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

JURISDICTION
On April 9, 2013 appellant, through his attorney, timely appealed the October 12, 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.2
ISSUE
The issue is whether OWCP properly utilized appellant’s August 5, 1997 date-of-injury
pay rate in calculating a schedule award.

1
2

5 U.S.C. §§ 8101-8193.

The record on appeal contains evidence received after OWCP issued its October 12, 2012 decision. The Board
is precluded from considering evidence that was not in the case record at the time OWCP rendered its final decision.
20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On August 5, 1997 appellant, then a 45-year-old letter carrier, injured his right knee when
he stepped in a hole while delivering mail.3 OWCP accepted his traumatic injury claim for right
knee derangement with a torn medial meniscus.4 As of the date of injury, appellant was earning
a base pay rate of $708.80 a week.
On September 2, 1997 appellant underwent surgery of the right knee with a partial
arthroscopic meniscectomy for repair of tears to the medial and lateral menisci and debridement
of the medial joint space. He received wage-loss compensation while recuperating from surgery.
Appellant resumed his regular letter carrier duties in January 1998.
On January 20, 1999 OWCP granted a schedule award for 10 percent impairment of the
right lower extremity (RLE) under the fourth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (1993).5 The award covered the period
August 7, 1998 through February 24, 1999 or 28.8 weeks of compensation. OWCP calculated
appellant’s schedule award based on his August 5, 1997 date-of-injury weekly pay rate of
$708.80.
As of December 2004 appellant was diagnosed with degenerative joint disease to both
knees.
On February 7, 2009 appellant sustained a second traumatic injury to his right lower
extremity when he fell from his delivery vehicle, landing on his right side. This claim was filed
under OWCP File No. xxxxxx292. The record on appeal does not include information regarding
appellant’s February 7, 2009 right hip employment injury.6 Appellant’s pay rate at the time of
this traumatic injury is not of record. He retired effective February 9, 2009.

3

As a teenager, appellant had surgery on his right knee as a result of a high school football injury. An
August 16, 1997 right knee magnetic resonance imaging (MRI) scan revealed evidence of a prior medial
meniscectomy, as well as focal degenerative disease.
4

Appellant also has an accepted claim for a work-related left knee injury sustained on March 19, 1982
(File No. xxxxxx832). OWCP initially accepted the claim for left knee sprain and torn medial meniscus. After
undergoing a left medial meniscectomy in May 1982, appellant was released to resume full-time, regular duty
effective November 24, 1982. OWCP subsequently expanded his March 1982 left knee traumatic injury claim to
include localized secondary arthritis, left lower leg. Appellant’s left and right lower extremity claims have been
doubled and the March 1982 injury was designated as the master File No. xxxxxx832.
5

The 10 percent right leg schedule award was based on appellant having undergone partial medial and lateral
meniscectomy. See Table 64, A.M.A., Guides 85 (4th ed. 1993).
6

The record on appeal includes a July 22, 2009, OWCP-directed examination by Dr. Stanley Hom, a
Board-certified orthopedic surgeon, under claim File No. xxxxxx292. Dr. Hom noted that appellant was injured at
work on February 7, 2009 when he exited the back of a half-ton mail truck and fell approximately four feet onto the
right side of his body. The diagnoses included right hip trochanteric bursitis, which was attributed to the
February 7, 2009 employment injury.

2

In a report dated August 31, 2009, Dr. Mark M. Berenson, an attending Board-certified
orthopedic surgeon, noted treating appellant since 1997. He noted that diagnostic testing
revealed severe degenerative joint arthritis of the knees. Dr. Berenson stated:
“Based on a reasonable degree of medical certainty, [appellant’s] severe primary
knee joint arthritis is work related as a result of accepted work injury of
August 5, 1997 and also has been aggravated, accelerated and exacerbated by
[his] continuing to go to work as a letter carrier on the arthritic knee.”
On January 8, 2010 Dr. Barry W. Levine, a district medical adviser, recommended that
OWCP accept appellant’s claim for permanent aggravation of osteoarthritis arthritis in the right
knee due to his work-related injury. He found that the injuries to both knees were sufficient to
result in the development of bilateral osteoarthritis.
On March 16, 2010 OWCP accepted that appellant’s August 5, 1997 traumatic injury
resulted in primary arthritis to the right knee.
On May 10, 2011 appellant filed a claim for an additional schedule award with respect to
his August 5, 1997 right knee injury. He submitted the April 27, 2011 report from Dr. Byron V.
Hartunian, a Board-certified orthopedic surgeon, who rated 52 percent right lower extremity
impairment. Dr. Hartunian’s rating of impairment to the right knee included a combination of
primary knee joint arthritis (20 percent), patellofemoral arthritis (18 percent) and medial
collateral ligament laxity (8 percent). He stated that his impairment rating included all three
knee joint conditions; even though they pertained to the same anatomical region, because one
diagnosis did not adequately characterize the impact of the impairments on appellant’s activities
of daily living. Dr. Hartunian stated that the primary knee joint arthritis impacted activities
involving standing while the patella-femoral arthritis impacted sitting and kneeling. In turn, the
medial collateral ligament laxity manifested itself in unstable twisting, turning, pivoting, walking
on uneven surfaces the incline ambulation. Dr. Hartunian also rated impairment due to right hip
arthritis of 20 percent. He noted that appellant injured his right hip on February 7, 2009 when he
fell off a truck at work. Dr. Hartunian stated that her right knee x-ray showed narrowing of the
femorotibial space medially with two millimeter (mm) cartilage interval. An x-ray of the right
hip showed moderate degenerative changes with bone spurs. Dr. Hartunian stated that appellant
reached maximum medical improvement with regards to his right knee in December 1997 after
recovering from arthroscopic surgery.
In a report dated December 19, 2011, Christopher R. Brigham, a Board-certified
orthopedic surgeon and OWCP medical adviser, rated 16 percent impairment for class 2 primary
knee joint arthritis (2 mm cartilage interval) under Table 16-3, Knee Regional Grid, A.M.A.,
Guides 511 (6th ed. 2008).7 He based the 16 percent rating on assigning a grade 1 modifier for
functional history rather than the grade 3 modifier as found by Dr. Hartunian. Dr. Brigham
noted that for class 3, the individual would require routine use of gait aids, such as crutches or
canes; while the record did not support that appellant used such assistive devices. Further, he did
7

See Section 16.2a, A.M.A., Guides 499 (6th ed. 2008). Dr. Brigham identified primary knee joint arthritis as the
most impairing condition/diagnosis under Table 16-3, Knee Regional Grid, A.M.A., Guides 511 (6th ed. 2008) and
excluded Dr. Hartunian’s additional ratings for patellofemoral arthritis and medial collateral ligament laxity.

3

not rate impairment for patella-femoral arthritis or medial ligament laxity. Dr. Brigham stated
that, while Dr. Hartunian provided rationale for including all impairments for appellant’s right
knee, this was not consistent with page 499 of the A.M.A., Guides, which provides that in
selection of the optimal diagnosis, when more than one diagnosis can be used, the highest
causally related impairment rating should be used.
Dr. Brigham agreed with the 20 percent impairment provided by Dr. Hartunian for class 2
hip arthritis under Table 16-4, Hip Regional Grid (LEI), A.M.A., Guides 514 (6th ed. 2008). The
20 percent right hip and 16 percent right knee impairments combined represented 33 percent
total right leg impairment. As appellant previously received a schedule awarded for 10 percent
impairment based on his right knee condition, it was subtracted from the current 33 percent
rating to total 23 percent impairment.
On January 11, 2012 OWCP granted appellant a schedule award for an additional 23
percent right leg impairment. The award covered a period of 66.24 weeks beginning
February 25, 1999. OWCP relied on an August 5, 1997 date-of-injury weekly pay rate of
$708.80.8
By decision dated October 12, 2012, the Branch of Hearings and Review affirmed the
January 11, 2012 schedule award for 23 percent right leg impairment. OWCP’s hearing
representative found that the August 5, 1997 date-of-injury pay rate was proper in calculating
schedule award benefits.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.9 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.10 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).11
When determining entitlement to a schedule award, preexisting impairment to the
scheduled member should be included.12 Impairment ratings for schedule awards include those
8

Benefits were initially paid based on the 66⅔ percent compensation rate. However, OWCP subsequently
adjusted appellant’s compensation payments to reflect his entitlement to the augmented rate of 75 percent. See 20
C.F.R. § 10.404(b).
9

For a total loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C. § 8107(c)(2).

10

20 C.F.R. § 10.404.

11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.6a (February 2013).
12

Carol A. Smart, 57 ECAB 340, 343 (2006); Michael C. Milner, 53 ECAB 446, 450 (2002).

4

conditions accepted by OWCP as job related, and any preexisting permanent impairment of the
same member or function.13 If the work-related injury has affected any residual usefulness in
whole or in part, a schedule award may be appropriate.14 There are no provisions for
apportionment under FECA.15 When the prior impairment is due to a previous work-related
injury and a schedule award has been granted for such prior impairment, the percentage already
paid is subtracted from the total percentage of impairment.16
The amount of compensation paid is a function of the injured employee’s pay rate.17
Monthly pay for compensation purposes means the “monthly pay at the time of injury or the
monthly pay at the time disability begins or the monthly pay at the time compensable disability
recurs …, whichever is greater.”18 When a schedule award involves a traumatic injury claim
with prior disability, the applicable pay rate is the greatest of the established pay rates.19 Where
there was no prior injury-related disability from work, the date-of-injury pay rate should be
used.20
ANALYSIS
The Board finds that the case is not in posture for decision as it is premature to address
the applicable pay rate.
On appeal, appellant has not contested the 33 percent impairment rating to his right lower
extremity. The schedule award issued on January 11, 2012 was based on Dr. Brigham’s
December 10, 2011 report which rating impairment to the right knee of 16 percent was based on
primary knee joint arthritis (2 mm cartilage interval) combined with 20 percent impairment to the
right hip. Appellant previously received a schedule award for 10 percent right leg impairment
due to his August 5, 1997 knee injury which resulted in torn medial and lateral menisci, for
which surgery was performed.
The January 11, 2012 schedule award was issued for an additional 23 percent right leg
impairment. In awarding compensation, OWCP relied on appellant’s August 5, 1997 right knee
date-of-injury weekly pay rate of $708.80. On appeal, counsel argued that the award should
have been based on the pay rate in effect as of February 9, 2009, the date appellant retired from
13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5d.
14
15

Id.
Id.

16

Id. at Chapter 2.808.7a(1); 20 C.F.R. § 10.404(c).

17

Id. at § 10.404(b).

18

5 U.S.C. § 8101(4); see 20 C.F.R. § 10.5(s); see Samuel C. Miller, 55 ECAB 119, 120 (2003).

19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900, Exhibit 1 -Determining Effective Pay Rate Date for Schedule Awards (September 2011).
20

Id.

5

his employment and which he contended should be considered appellant’s date of last exposure.
The question as to the applicable pay rate in this case is complicated by the fact that the
January 11, 2012 schedule award included an impairment rating for appellant’s right hip
condition which is the subject of his claim under File No. xxxxxx292, based on his
February 7, 2009 fall from a delivery vehicle. As noted, the record currently on appeal does not
contain appellant’s pay rate information at the time of this traumatic injury. The situation in this
case is similar to that in D.G.,21 in which the employee sustained an injury to her low back on
March 24, 2003 and a second traumatic injury to her back on October 9, 2003. As in the current
appeal, the record before the Board in D.G., did not include the employee’s pay rate at the time
of the second injury. For this reason, the case was remanded to OWCP for a determination of the
greater pay rate between her March 24 and October 9, 2003 employment injuries for purposes of
her schedule award.22 In the present appeal, the Board finds that the January 11, 2012 schedule
award should be set aside and the case remanded to OWCP for further development on the issue
of the proper pay rate.
In this regard, the Board notes that OWCP has combined several of appellant’s lower
extremity claims; but the record associated with his February 7, 2009 right hip injury (File
No. xxxxxx292) has not been consolidated with the file presently on appeal. The right hip claim,
accepted by OWCP, is relevant to rating impairment to the same region, the right leg. The
present record does not include sufficient information for the Board to make a fully informed
decision. Accordingly, the case shall be remanded for further development to be followed by a
de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision as to the applicable pay rate.

21

Docket No. 08-626 (issued July 16, 2008).

22

The October 12, 2012 decision of OWCP’s hearing representative did not address this aspect of the case in
consideration of the applicable pay rate.

6

ORDER
IT IS HEREBY ORDERED THAT the October 12, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further consideration
consistent with this decision.
Issued: September 18, 2014
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

7