United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-701
Issued: November 12, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 11, 2010 appellant filed a timely appeal from the January 4, 2010 merit
decision of the Office of Workers’ Compensation Programs granting him a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has more than an eight percent permanent impairment of
his right arm for which he received a schedule award.
FACTUAL HISTORY
The Office accepted that on February 6, 2004 appellant sustained sprains of his neck,
right shoulder and right upper arm and disorder of the bursae and tendons of his right shoulder
due to throwing parcels into containers at work. On September 9, 2004 appellant underwent
surgical repair for right rotator cuff and labral tears. The surgery was authorized by the Office.
Appellant stopped work from September 9 to 23, 2004 and then returned to limited-duty work on
a full-time basis.

In an October 20, 2009 report, Dr. Nicholas Diamond, an attending osteopath, provided a
discussion of appellant’s factual and medical history. He indicated that examination of
appellant’s cervical spine revealed right sternocleidomastoid tenderness and paravertebral
muscle spasm and tenderness over the posterior midline, but noted that there was no facet joint
tenderness or foraminal compression. Examination of the right shoulder revealed no
acromioclavicular or anterior cuff tenderness, but there was some posterior cuff and rhomboid
tenderness. Dr. Diamond stated that range of motion testing revealed flexion of 170/180
degrees, abduction of 160/180 degrees, adduction of 65/75 degrees, external rotation of 90/90
degrees and internal rotation of 70/90 degrees. There is pain with forward elevation, abduction
and internal rotation.1
Dr. Diamond found that appellant reached maximum medical improvement on
October 20, 2009, the date of examination, and indicated that the February 6, 2004 work injury
was responsible for appellant’s observed subjective and objective factors. He posited that, under
the standards of the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment for evaluating shoulder motion deficits (Table 15-34 on page 475),
appellant’s 170 degrees of right shoulder flexion equals a three percent impairment, his 160
degrees of right shoulder abduction equals a three percent impairment and his 70 degrees of right
shoulder internal rotation equals a two percent impairment. Dr. Diamond stated that appellant
had a QuickDASH form score of 86 which meant that he fell within Grade Modifier 4 on Table
15-7 (Function History Adjustment) on page 406.2 Therefore, under Table 15-36 on page 477,
appellant’s impairment rating could be increased by 15 percent from 8 percent to 9 percent.3
On December 18, 2009 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon
serving as an Office medical adviser, evaluated the medical evidence of record, including the
October 20, 2009 report of Dr. Diamond, and provided an impairment rating. He indicated that,
under the sixth edition of the A.M.A., Guides, the appropriate diagnostic category under Table
15-5 was impingement syndrome, Class 1, with a default value of Grade C (i.e., residual loss,
functional with normal motion). Dr. Berman indicated that the date of maximum medical
improvement was October 20, 2009 and concluded that appellant had an eight percent permanent
impairment of his right arm. He stated:
“However, in this case there was not normal motion and, therefore, the asterisk
should apply with reference to Table 15-5, asterisk, stating, ‘If motion loss is
present, this impairment may alternatively be assessed using [s]ection 15.7, Range
Of Motion Impairment,’ page 475, Table 15-34: Shoulder Range of Motion.
Applying Dr. Diamond’s examination this equals three percent impairment for
loss of flexion. Abduction 160 degrees, three percent impairment and internal
rotation two percent for a total of eight percent impairment.
1

Sensory examination failed to reveal any perceived dermatomal abnormalities in either the right or left upper
extremity. Manual muscle strength testing of the upper extremities revealed the supraspinatus and deltoids were
graded at 4/5 to 4+/5 on the right versus 5/5 on the left and that the triceps and biceps were graded at 5/5 bilaterally.
2

The DASH in QuickDASH stands for disabilities of the arm, shoulder and hand. The QuickDASH form
contains survey questions asking a given claimant to specify his or her ability to carry out various activities and the
symptoms that he or she experiences while performing them.
3

After rounding down, adding 15 percent of 8 percent (0.12) to 8 percent equals 9 percent.

2

“Dr. Diamond then adds an additional one percent based on the DASH value,
page 406. However, this value does not apply because the asterisk value was
substituted with range of motion and, therefore, the functional history adjustment
would not apply. Therefore, the additional one percent as recommended by
Dr. Diamond is not recommended.”
In a January 4, 2010 decision, the Office granted appellant a schedule award for an eight
percent permanent impairment of his right arm. The award ran for 24.96 weeks from October 10
to December 19, 2009. The award was based on the December 18, 2009 impairment rating of
Dr. Berman.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.6 For Office
decisions issued on or after May 1, 2009, the sixth edition of the A.M.A., Guides (6th ed. 2009) is
used for evaluating permanent impairment.7
In determining impairment for the upper extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper
extremity to be rated. With respect to the shoulder, the relevant portion of the upper extremity
for the present case, reference is initially made to Table 15-5 (shoulder regional grid) beginning
on page 401.
ANALYSIS
The Office accepted that on February 6, 2004 appellant sustained sprains of his neck,
right shoulder and right upper arm and disorder of the bursae and tendons of his right shoulder.8
On January 4, 2010 it granted appellant a schedule award for an eight percent permanent
impairment of his right arm. The award was based on the December 18, 2009 opinion of
Dr. Berman, a Board-certified orthopedic surgeon serving as an Office medical adviser, who had

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

Id.

7

See FECA Bulletin No. 9-03 (issued March 15, 2009). For Office decisions issued before May 1, 2009, the fifth
edition of the A.M.A., Guides (5th ed. 2001) is used.
8

On September 9, 2004 appellant underwent authorized surgical repair for right rotator cuff and labral tears.

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evaluated the October 20, 2009 findings and impairment calculation of Dr. Diamond, an
attending osteopath.9
On appeal counsel argued that Dr. Diamond’s rating showed that appellant has a nine
percent permanent impairment of his right arm. The Board finds that the medical evidence of
record shows that appellant has a nine percent permanent impairment of his right arm. As
appellant already has received a schedule award for an eight percent permanent impairment of
his right arm, he would be entitled to receive an additional award for a one percent permanent
impairment of his right arm.
In his December 18, 2009 report, Dr. Berman indicated that, under the sixth edition of the
A.M.A., Guides, the appropriate diagnostic category for appellant’s right arm under Table 15-5
was impingement syndrome, Class 1.10 He stated that appellant’s right shoulder motion was
abnormal and therefore the portion of Table 15-5 marked by an asterisk would apply, i.e., the
portion stating, “If motion loss present, this impairment may alternatively be assessed using
[s]ection 15.7, [r]ange [o]f [m]otion [i]mpairment.” The portion of section 15.7 referenced by
this text is Table 15-34 (shoulder range of motion) on page 475.11 Dr. Berman then properly
found that, under Table 15-34, appellant’s 170 degrees of right shoulder flexion equals a three
percent impairment, his 160 degrees of right shoulder abduction equals a three percent
impairment and his 70 degrees of right shoulder internal rotation equals a two percent
impairment.12 He indicated that addition of these values rendered an eight percent impairment of
appellant’s right arm.
Dr. Berman indicated that Dr. Diamond incorrectly found that appellant has an additional
one percent impairment rating for the score on his QuickDASH form and concluded that the total
permanent impairment of his right arm is eight percent.13 However, the Board finds that
Dr. Diamond properly determined that appellant has an additional one percent impairment rating
for his QuickDASH score and therefore the total permanent impairment of his right arm is nine
percent.
Dr. Diamond stated that appellant’s QuickDASH score of 86 falls within Grade Modifier
4 under Table 15-7 (function history adjustment).14 Under Table 15-35 (range of motion grade
modifiers) appellant’s eight percent range of motion impairment falls within Grade Modifier 1.15
9

Dr. Berman indicated that Dr. Diamond’s rating of a nine percent impairment of the right arm was not
warranted.
10

It should be noted that Class 1, default value C (residual loss, functional with normal motion), for shoulder
impingement syndrome under Table 15-5 is three percent. In cases where modifiers raise this default value, the
highest possible value for shoulder impingement under Table 15-5 is five percent. A.M.A., Guides 402, Table 15-5
(shoulder regional grid).
11

Id. at 475, Table 15-34 (shoulder range of motion).

12

Id.

13

Dr. Berman stated that the QuickDASH score should not have been applied because Table 15-34 was used.

14

A.M.A., Guides 406, Table 15-7 (function history adjustment).

15

Id. at 477, Table 15-35 (range of motion grade modifiers).

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Dr. Diamond then properly found that, under Table 15-36 (functional history grade adjustment),
this difference in modifier grades means that appellant falls within Net Modifier 3 and his
impairment rating could be increased by 15 percent from 8 percent to 9 percent.16
CONCLUSION
The Board finds that appellant has a nine percent permanent impairment of his right arm
and that he is entitled to receive a schedule award for an additional one percent permanent
impairment of his right arm.
ORDER
IT IS HEREBY ORDERED THAT the January 4, 2010 merit decision of the Office of
Workers’ Compensation Programs is affirmed as modified to reflect that appellant has a nine
percent permanent impairment of his right arm.
Issued: November 12, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

16

Id. at 477, Table 15-36 (functional history grade adjustment). After rounding down, adding 15 percent of 8
percent (0.12) to 8 percent equals 9 percent.

5


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

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Appearances:
Robert D. Campbell, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1265
Issued: March 18, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 2, 2010 appellant, through counsel, filed a timely appeal of an October 6, 2009
merit decision of the Office of Workers’ Compensation Programs. 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 established that he sustained a recurrence of
disability beginning December 22, 2007 causally related to his accepted January 26, 2004
employment injury; and (2) whether appellant has established a causal relationship between his
sciatica and the accepted employment injury.
On appeal counsel contends that the Office erred in failing to expand his claim to include
sciatica as a consequential injury and to accept his recurrence claim.
FACTUAL HISTORY
On January 27, 2004 appellant, then a 58-year-old carrier, filed a traumatic injury claim
alleging that on January 26, 2004 he injured his left knee when he slipped on ice going up stairs

to deliver mail. The Office accepted the claim for left knee medial meniscus tear and authorized
arthroscopic left knee partial medial meniscectomy surgery, which was performed on July 30,
2004, and left bicompartmental knee arthroplasty, which occurred on June 18, 2007.1 It accepted
appellant’s claims for recurrences of disability beginning April 3, 2006 and June 18, 2007.
Appellant returned to light-duty work on December 17, 2007, stopped on December 22, 2007
and returned to work on May 1, 2008.
On December 17, 2007 appellant accepted a light-duty position which required no
standing more than 30 minutes, no lifting or carrying more than 20 pounds and no walking over
an hour.
On January 28 and February 21, 2008 appellant filed a claim for a recurrence of disability
beginning December 22, 2007. He stated that compensating for walking with his bad knee due
to surgery aggravated his sciatic nerve.
The Office referred appellant for a second opinion. In a November 8, 2008 report,
Dr. Andrew M. Hutter, a second opinion Board-certified orthopedic surgeon, diagnosed status
post left knee replacement and concluded that appellant was capable of returning to work with
restrictions. In concluding, he opined that appellant had reached maximum medical
improvement. In an attached work capacity evaluation form, Dr. Hutter provided restrictions
which included up to four hours of walking, standing and operating a motor vehicle and no
squatting, kneeling or climbing.
Appellant included a December 27, 2007 report from Dr. Alfred J. Tria, Jr., a treating
Board-certified orthopedic surgeon, reported seeing appellant that day for increasing sacroiliac
joint pain. A physical examination revealed tenderness over the sacroiliac joint, but that range of
motion was the same. Dr. Tria concluded that appellant was unable to work due to his sciatica
for three to four weeks. In a January 3, 2008 report, he stated that the development of sciatica
following bicompartmental knee replacement was not uncommon with prolonged periods of
physical therapy and that it was part of the surgery.
On January 29, 2008 Dr. Tria reported a mild antalgia component to appellant’s gait
which he attributed more to sciatica than the knee. A physical examination of the left knee
revealed no effusion or tenderness and good range of motion and that appellant could return to
light-duty work in another six weeks.
On March 3, 2008 the Office referred appellant to Dr. Thomas Nordstrom, a Boardcertified orthopedic surgeon, to resolve the conflict in the medical opinion evidence between
Dr. Tria and Dr. Hutter on the issue of whether appellant required physical therapy and the extent
and degree of any employment-related disability.
Dr. Tria, in a March 11, 2008 report, stated that appellant was doing well and would be
released to light-duty work in a month. He related that appellant had to stop working due to his
sciatica.
1

On January 9, 2006 the Office granted appellant a schedule award for 30 percent impairment of his left lower
extremity.

2

By decision dated April 1, 2008, the Office denied appellant’s recurrence claim. It found
no evidence of a material worsening of his condition or a change in his light-duty requirements.
The Office also found the evidence insufficient to establish that appellant’s sciatica was causally
related to the accepted employment injury.
Subsequent to the denial of an April 1, 2008 decision, the Office received Dr. Nordstom’s
March 18, 2008 report. A physical examination revealed tenderness over the sacroiliac joint in
the sciatic area. Dr. Nordstom reported that appellant stopped work in December 2007 due to
sciatica, that there is a causal relationship between his current condition and the employment
injury and that he has residual left knee pain as a result of the two knee surgeries.
On May 1, 2008 Dr. Tria again related that the development of low back sciatica is very
common following knee surgery. He noted that it was identified through the knee range of
motion, knee extension and a straight leg raising tests. In concluding, Dr. Tria stated that
patients with any element of lumbar spine arthritis who have physical therapy “may illustrate
sciatica during the course of the treatment protocol.”
On August 7, 2008 appellant accepted a light-duty job offer from the employing
establishment which required up to four hours of standing and no lifting more than 20 pounds.
On September 2, 2008 appellant requested reconsideration and filed an addendum on
November 6, 2008. In support of his request, he submitted a July 16, 2008 report from
Dr. Nicholas Diamond, an examining osteopath, diagnosing post-traumatic left knee medial
meniscus tear, partial left knee medial meniscectomy, chronic left knee tenosynovitis, status post
left knee replacement and post-traumatic left knee varus degenerative joint disease.
By decision dated December 1, 2008, the Office denied modification.
On June 16, 2009 Dr. Tria noted that appellant recently retired and that it took him a long
time to recover. He reported a normal gait and stance, no effusion or tenderness and improved
range of motion.
On July 2, 2009 appellant’s counsel requested reconsideration.
By decision dated October 6, 2009, the Office denied modification.2
LEGAL PRECEDENT -- ISSUES 1 & 2
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he can perform the light-duty position, the employee has the burden to establish,
by the weight of the reliable, probative and substantial evidence, a recurrence of disability and to
2

The Board notes that, following the October 6, 2009 decision, the Office received additional evidence. The
Board may not consider new evidence on appeal. See 20 C.F.R. § 501.2(c); M.B., Docket No. 09-176 (issued
September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281
(2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

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show that he cannot perform such light duty.3 As part of this burden, the employee must show a
change in the nature and extent of the injury-related condition or a change in the nature and
extent of the light-duty requirements.4
A recurrence of disability is defined as the inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition which had resulted
from a previous injury or illness without an intervening injury or new exposure to the work
environment that caused the illness.5 The Board has held that whether a particular injury causes
an employee to be disabled for work is a medical question that must be resolved by competent
and probative medical evidence.6 The weight of medical opinion is determined on the report of a
physician, who provides a complete and accurate factual and medical history, explains how the
claimed disability is related to the employee’s work and supports that conclusion with sound
medical reasoning.7
For conditions not accepted by the Office as being employment related, it is the
employee’s burden to provide rationalized medical evidence sufficient to establish causal
relation, not the Office’s burden to disprove such relationship.8
ANALYSIS -- ISSUES 1 & 2
The Board finds that the case is not in posture for a decision as to whether appellant
sustained a recurrence of disability. The case must be remanded to the Office for further
development.
Appellant returned to a light-duty position on December 17, 2007. On February 21, 2008
he claimed that his condition had worsened on December 22, 2007 such that he was no longer
able to perform the light-duty position. Appellant did not allege a change in his light-duty job
requirements. Therefore, he has the burden to establish that he cannot perform such light duty.
As part of this burden, appellant must show a change in the nature and extent of the injuryrelated condition.9

3

K.C., Docket No. 08-2222 (issued July 23, 2009); Richard A. Neidert, 57 ECAB 474 (2006).

4

C.S., Docket No. 08-2218 (issued August 7, 2009); Joseph D. Duncan, 54 ECAB 471 (2003); Roberta L.
Kaaumoana, 54 ECAB 150 (2002); Terry R. Hedman, 38 ECAB 222 (1986).
5

20 C.F.R. § 10.5(x). See S.F., 59 ECAB 525 (2008); Albert C. Brown, 52 ECAB 152 (2000); Terry R. Hedman,
supra note 4.
6

See R.C., 59 ECAB 546 (2008); Carol A. Lyles, 57 ECAB 265 (2005); Donald E. Ewals, 51 ECAB 428 (2000).

7

See C.S., supra note 4; Sandra D. Pruitt, 57 ECAB 126 (2005).

8

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51
ECAB 638 (2000).
9

Joseph D. Duncan, supra note 4; Jackie D. West, 54 ECAB 158 (2002); Roberta L. Kaaumoana, supra note 4;
Terry R. Hedman, supra note 4.

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Initially, the Board notes that the Office incorrectly determined that a conflict existed
between Drs. Tria and Hutter at the time of the referral to Dr. Nordstrom as there was no conflict
in the medical opinion evidence regarding appellant’s December 22, 2007 recurrence of
disability claim. While Dr. Tria attributed appellant’s disability beginning December 22, 2007 to
his sciatica, Dr. Hutter did not address this issue as his report predated appellant’s recurrence
claim. As Dr. Hutter did not address whether appellant’s December 22, 2007 recurrence was
employment related, there was no conflict at the time of the referral to Dr. Nordstrom.10 As there
was no conflict in the medical opinion evidence, the Board finds that Dr. Nordstrom served as a
second opinion referral physician rather than an impartial medical specialist.
Dr. Nordstrom reported that appellant stopped working in December 2007 due to his
sciatica and reported physical examination findings of sciatica without opining as to the cause of
either. Although he concluded that appellant’s current condition was causally related to the
accepted employment injury, he provided no opinion as to whether appellant’s work stoppage,
i.e., disability, on December 22, 2007 was causally related to his accepted employment injury.
Proceedings under the Federal Employees’ Compensation Act are not adversarial in
nature, nor are the Office a disinterested arbiter.11 While the claimant has the burden to establish
entitlement to compensation, the Office shares responsibility in the development of the
evidence.12 This holds true in recurrence claims as well as in initial traumatic and occupational
claims. When the Office obtains an opinion from an Office referral physician, it has the
responsibility to obtain an evaluation from the referral physician that resolves the issue involved
in the case.13 It undertook development of the medical evidence by referring appellant to
Dr. Nordstrom. The Office has an obligation to secure a report adequately addressing the
relevant issue of whether appellant’s December 22, 2007 recurrence of disability was causally
related to his accepted employment injury. The case will be remanded for the Office to obtain
clarification of Dr. Nordstom’s opinion on whether appellant’s December 22, 2007 recurrence of
disability was causally related to his accepted employment injury. Dr. Nordstrom should explain
whether the sciatica, to which he attributes appellant’s work stoppage, is a residual of the
accepted employment injury and attendant surgeries. If the Office is unable to obtain such
clarification, then appellant should be referred to another Board-certified specialist for an
10

Section 8123(a) provides 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. 5 U.S.C. § 8123(a). See also Joseph Roman, 55 ECAB 233 (2004) (A physician was properly an
impartial medical specialist with respect to the issue in conflict, the need for surgery, at the time appellant was
referred to him. However, there was no medical conflict regarding appellant’s disability for work at the time of the
referral; therefore, the specialist was not an impartial medical specialist on other issues and his report was not
entitled to special weight on these other issues).
11

R.B., Docket No. 08-1662 (issued December 18, 2008); Rebecca O. Bolte, 57 ECAB 687 (2006); Peter C.
Belkind, 56 ECAB 580 (2005).
12

Donald R. Gervasi, 57 ECAB 281 (2005); Betty J. Smith, 54 ECAB 174 (2002).

13

See Peter C. Belkind, 56 ECAB 580 (2005) (where the opinion of the Office’s second opinion physician was
unclear on whether the claimant had any permanent impairment due to his accepted employment injury, the Board
found that the Office should secure a report adequately addressing the relevant issue). See also Melvin James, 55
ECAB 406 (2004).

5

examination and an opinion on the issue of whether the December 22, 2007 recurrence of
disability was causally related to his accepted employment injury and whether his sciatica was
causally related to the January 26, 2004 injury and, if so, the period of disability. Following such
further development of the case record as it deems necessary, the Office should issue a de novo
decision.
CONCLUSION
The Board finds that the case is not in posture for a decision as to whether appellant has
established that he sustained a recurrence of disability on December 22, 2007 and whether his
sciatica is causally related to his January 26, 2004 employment injury.14
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 6, 2009 is set aside and the case remanded for further
proceedings consistent with the above opinion.
Issued: March 18, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

The Board notes that in view of the disposition of this case, it is harmless error that the Office denied
appellant’s claim prior to the receipt of Dr. Nordstom’s report.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Morton Grove, IL, Employer
__________________________________________

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

Docket No. 08-259
Issued: May 7, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 7, 2007 appellant filed a timely appeal from the October 23, 2007 merit
decision of the Office of Workers’ Compensation Programs, which denied her claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review
the merits of the case.
ISSUE
The issue is whether appellant’s May 9, 2006 work incident caused an injury.
FACTUAL HISTORY
On the prior appeal,1 the Board noted that appellant, a 58-year-old automation clerk, filed
a claim alleging that she sustained an injury in the performance of duty on May 9, 2006, when
she tripped in the atrium of her building and fell face down on the floor, badly bruising her left
1

Docket No. 07-697 (issued June 26, 2007).

ribs and hand. The Office denied her claim on the grounds that injury did not occur in the
performance of duty because it occurred 15 minutes after her tour of duty had ended and she had
already left the building and was reentering the building when she fell. The Board found that the
case was not in posture for decision. The Board noted that an injury is considered to have arisen
in the course of employment if it occurred: (1) on the premises; (2) a reasonable interval after
official working hours; and (3) while the employee was leaving work or engaged in preparatory
or incidental acts. As leaving the building did not necessarily mean appellant left the premises,
the Board remanded the case for a diagram of the building and surrounding property and a
statement from appellant clarifying exactly where she traveled from the time she left the building
to the time she reentered and how long this took. The facts of this case as set forth in the Board’s
prior decision are hereby incorporated by reference.
The Office obtained a diagram of the floor plan from the employing establishment.
Appellant submitted a description of her route outside the building.
Appellant’s record also contains medical evidence. On May 10, 2006 Dr. Paul Helman, a
specialist in internal medicine, stated: “Due to trauma from fall yesterday I advise [appellant] to
not return to work until May 12, 2006.” A May 19, 2006 progress note described appellant’s
complaints and showed diagnoses of multiple contusions and joint pain, left leg. A May 15,
2006 hospital bill for therapeutic exercises showed an admission date of August 15, 2005. A
December 5, 2006 attending physician’s form report from Dr. Howard Freedberg, an orthopedic
surgeon, indicated that on November 8, 2006 appellant was at work walking early in the morning
when she stumbled and felt pain in her left ankle. He noted a prior left foot injury on
February 25, 2005. Dr. Freedberg diagnosed left leg radiculopathy and indicated that this was
caused or aggravated by the employment activity on November 8, 2006 and a December 5, 2006
authorization request for durable medical equipment indicated that appellant had a diagnosis of
left foot, ankle, leg and low back pain and needed a wheelchair for mobility assistance.
In a decision dated October 23, 2007, the Office denied appellant’s claim for
compensation. The Office found that appellant was on the premises of the employing
establishment, within a reasonable interval after work and was leaving for the day. She was
therefore considered to be in the performance of duty. The Office observed, however, that
appellant submitted no medical opinion to support that the claimed medical condition was
causally related to the accepted work incident:
“The file is devoid of the ER [emergency room] records and diagnostic tests from
your initial visit of May 10, 2006. Your physician has failed to provide a
discussion of the complete history of injury along with objective findings upon
examination to support the diagnosed condition, failed to provide diagnostic test
results, failed to provide a rationalized opinion explaining whether and how the
diagnosed condition is related to the fall of May 9, 2006 and not your preexisting
condition, or previous work-related injuries, or any injuries after the incident of
May 9, 2006.”
On appeal, appellant argues that the diagram of the building and a statement from her
describing her location when she fell were the only issues needed to settle the matter.

2

LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.2 An
employee seeking compensation under the Act has the burden of proof to establish the essential
elements of her claim. When an employee claims that she sustained an injury in the performance
of duty, she must submit sufficient evidence to establish that she experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. She must also
establish that such event, incident or exposure caused an injury.3
Causal relationship is a medical issue4 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,5 must be one of reasonable medical certainty6
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.7
ANALYSIS
After the Board’s June 26, 2007 decision, the Office obtained additional factual evidence
and accepted that appellant had met her burden of proof to establish that she experienced a
specific incident occurring at the time, place and in the manner alleged. The Office determined
that she was in the performance of duty when this incident occurred. The only question that
remains before the Office can accept appellant’s claim is whether the May 9, 2006 work incident
caused an injury.
Appellant’s record contains medical evidence, but none of this evidence is sufficient to
establish that the May 9, 2006 work incident caused an injury. Dr. Freedberg’s December 5,
2006 form report and his request for durable medical equipment relates to an injury on
November 8, 2006. The May 15, 2006 bill for therapeutic exercises appears to relate to a
hospital admission in August 2005 and makes no mention of the May 9, 2006 work incident.
The May 19, 2006 progress note is the only medical evidence that offers a diagnosis reasonably
contemporaneous to the incident, but it offers no medical opinion on whether the May 9, 2006
2

5 U.S.C. § 8102(a).

3

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
4

Mary J. Briggs, 37 ECAB 578 (1986).

5

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

6

See Morris Scanlon, 11 ECAB 384, 385 (1960).

7

See William E. Enright, 31 ECAB 426, 430 (1980).

3

incident caused contusions or an injury to one of the joints in appellant’s left leg. Dr. Helman’s
May 10, 2006 note acknowledges trauma from a fall on May 9, 2006 but does not identify the
trauma or explain how the incident caused a specific diagnosis.
As the Board noted earlier, appellant must submit a narrative medical report from a
physician who provides a complete factual and medical history and who soundly explains how
the May 9, 2006 work incident caused a firmly diagnosed medical condition. The physician’s
medical rationale explaining causal relationship is critical to appellant’s claim. Without this
evidence, appellant has not met her burden of proof to establish that the May 9, 2006 work
incident caused an injury. The Board will affirm the Office’s October 23, 2007 decision denying
compensation.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
May 9, 2006 work incident caused an injury.
ORDER
IT IS HEREBY ORDERED THAT the October 23, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 7, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF AGRICULTURE, APHIS
PLANT PROTECTION & QUARANTINE,
Tampa, FL, Employer
__________________________________________

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

Docket No. 18-0917
Issued: March 9, 2020

Case Submitted on the Record

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

JURISDICTION
On March 26, 2018 appellant, through counsel, filed a timely appeal from a February 14,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a lumbar condition
causally related to his accepted November 12, 2015 employment incident.
FACTUAL HISTORY
On November 23, 2015 appellant, then a 34-year-old plant protection quarantine officer,
filed a traumatic injury claim (Form CA-1) alleging that, on November 12, 2015, he experienced
a sharp pain in his low back as he climbed into his vehicle following a nursery inspection while in
the performance of duty. He stopped work on November 18, 2015. Appellant’s supervisor noted
that based upon an attending physician’s report, Part B of an authorization for examination and/or
treatment (Form CA-16), the first date of treatment was “10/10.”
OWCP received a (Form CA-16) dated November 18, 2018 issued to the Wellness Center.
An attending physician report (Part B of Form CA-16) was received from Dr. Alexandra EllisonCherny, a chiropractor, on November 23, 2015, with supplemental handwritten notes which related
that appellant was initially examined on November 19, 2018. The notes summarized that x-ray of
appellant’s spine revealed: loss of lumbar lordosis and decreased disc height from L4-S1 and
appellant’s diagnoses were presented as paresthesia of skin; sprain of ligaments of the lumbar
spine, initial encounter; other intervertebral disc degeneration, lumbosacral region; other
abnormalities of gait and mobility; abnormal posture; lumbago with sciatica, left side; muscle
weakness (generalized); muscle spasm of the back; pain in the thoracic spine and cervicalgia.
In a December 2, 2015 development letter, OWCP advised that additional factual and
medical evidence was necessary to establish appellant’s traumatic injury claim. It requested that
appellant complete a factual questionnaire and that he obtain a comprehensive medical report
which explained how a diagnosed medical condition was caused or aggravated by the alleged
employment incident. OWCP informed appellant that a chiropractor must diagnose a spinal
subluxation based on x-ray evidence to be considered a physician under FECA. It afforded
appellant 30 days to respond.
OWCP subsequently received physical therapy notes dating from November 23 to
December 28, 2015.
Also received was a November 25, 2015 magnetic resonance imaging (MRI) scan report
by Dr. Timothy Richter, a Board-certified diagnostic radiologist, which revealed findings to
include an L4-5 central disc extrusion projecting inferiorly under the posterior longitudinal
ligament and an L5-S1 foraminal annual tear.
In a December 7, 2015 narrative statement, appellant explained that from September 3 to
October 12, 2015, he performed a considerable amount of heavy lifting at work. Appellant noted
that his back pain first began on September 26, 2015, but he continued to work and, while getting
into his truck after performing an inspection on November 12, 2015, he felt a sharp pain in his
lower back. His condition thereafter continued to worsen to the point that he was unable to move
without tremendous pain, and he notified his supervisor of his injury. In response to whether his
claim was one for an occupational disease or a traumatic injury, appellant explained that he had

2

filed a Form CA-1 because he was unable to work on November 12, 2015. He noted that his pain
started in September; however, the activity that caused the flare-up of pain on November 12, 2015
was different from the lifting that contributed to his September pain.
OWCP also received treatment notes from November 18 to December 30, 2015, from
Dr. Ellison-Cherny who provided treatment for appellant’s low back pain, as well as hamstring,
calf and cervical pain. In her November 18, 2015 report, she repeated her diagnoses of paresthesia
of skin; sprain of ligaments of the lumbar spine, initial encounter; other intervertebral disc
degeneration, lumbosacral region; other abnormalities of gait and mobility; abnormal posture;
lumbago with sciatica, left side; muscle weakness (generalized); muscle spasm of the back; pain
in the thoracic spine and cervicalgia. Dr. Ellison-Cherny requested that appellant be excused from
work beginning November 16, 2015 and until he was reevaluated in four weeks. In her
November 25, 2015 report, she reviewed findings from a magnetic imaging (MRI) scan of
appellant’s lumbar spine. Dr. Ellison-Cherny thereafter diagnosed intervertebral lumbar disc
disorder with myelopathy, lumbar spinal stenosis, lumbar intervertebral disc degeneration,
lumbago with sciatica, and lumbar ligament sprain. He continued to note these diagnoses in her
subsequent progress reports.
By decision dated January 7, 2016, OWCP denied appellant’s claim finding that the
medical evidence of record was insufficient to establish a medical condition causally related to the
accepted employment incident. It noted that the evidence submitted from the chiropractor,
Dr. Ellison-Cherny, was insufficient because she did not diagnose a subluxation demonstrated by
x-ray and therefore was not a qualified physician under FECA. OWCP concluded, therefore, that
the requirements had not been met to establish an injury as defined by FECA.
On January 19, 2016 counsel for appellant requested a telephonic hearing before an OWCP
hearing representative. The telephonic hearing was held on September 12, 2016.
OWCP received physical therapy notes dated December 11 and 30, 2015. Additional
chiropractic treatment notes dated December 11, 30, 2015 and January 6, 2016 from Dr. EllisonCherny were also received wherein she repeated her prior diagnoses.
By decision dated November 28, 2016, OWCP’s hearing representative affirmed the
January 7, 2016 decision.
On November 20, 2017 appellant, through counsel, requested reconsideration and
submitted new evidence.
In a November 8, 2017 report, Dr. Neil Allen, a Board-certified neurologist and internist,
noted that appellant’s medical records were evaluated in order to establish whether a causal
relationship existed between appellant’s lumbar spine condition and work-related trauma sustained
on November 12, 2015. He indicated that appellant’s diagnoses included lumbar spine strain and
aggravation of degenerative disc disease, lumbar region. Dr. Allen advised that appellant denied
symptoms prior to the incident on November 12, 2015.
Dr. Allen referred to a medical reference manual, Functional Anatomy of the Spine, 2nd
Edition, which explained that even though “a patient might describe an isolated flexion movement
causing injury to the lumbar spine, in many cases, the offending movement was probably the last
3

in a succession of repeated flexion movement.” He opined that the traumatic event on
November 12, 2015, compounded by the repetitive flexion required by appellant’s position to
inspect plants and climb into and out of his vehicle was the direct cause of the manifestation of
symptomatic lumbar disc herniation(s). Dr. Allen added that muscle fibers are subjected to the
same stress and damage as the fibers of the disc and these injuries were referred to as muscle
strains. He explained that typical symptoms in a case of symptomatic disc pathology and or/
muscle strain included low back pain. Dr. Allen advised that an examination would reveal lumbar
tenderness, pain with motion, aberrant reflexes, and a positive straight leg raise (indicative of
radiculitis). He noted that appellant’s records indicated that he had findings of tenderness, painful
and reduced range of motion and muscle weakness. Dr. Allen opined that the aggravation of
appellant’s underlying disc condition and lumbar muscle strain resulted from the alleged
November 12, 2015 employment incident. He indicated that these findings were both reasonable
and expected based upon the mechanism described by appellant and documented within his
medical records.
By decision dated February 14, 2018, OWCP modified the November 28, 2017 decision,
finding that Dr. Allen provided a diagnosis; however, the claim remained denied as he did not
provide a well-rationalized medical opinion supporting causal relationship between the diagnosed
conditions and the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).

4

time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.6
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment event
identified by the claimant.7
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a lumbar
condition causally related to the accepted November 12, 2015 employment incident.
In a November 8, 2017 report, Dr. Allen reviewed appellant’s medical records to determine
whether a causal relationship existed between appellant’s lumbar spine condition and the accepted
employment-related incident of November 12, 2015. He diagnosed lumbar spine strain and
aggravation of degenerative disc disease, lumbar region, following his review of an MRI scan. Dr.
Allen related that appellant denied symptoms prior to the November 12, 2015 employment
incident, but appellant indicated that he began to experience back pain on September 26, 2015.
His opinion is therefore not based on a complete factual and medical background.9 Additionally,
Dr. Allen referred to a medical reference manual and opined that the traumatic event on
November 12, 2015, was the direct cause of the manifestation of symptomatic lumbar disc
herniation and muscle strain. However, the Board has explained that medical publications are of
general application and not determinative regarding whether specific conditions are causally
related to particular employment factors in a claim.10 While Dr. Allen attempted to explain that
muscle fibers and discs were subjected to stress from flexion movements, he did not explain how
the accepted employment incident of November 12, 2015 actually physiologically caused any

6

See P.A., id.; John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§§ 10.5(ee) and 10.5(q) (traumatic injury and occupational disease defined, respectively).
7
A.W., Docket No. 19-0327 (issued July 19, 2019); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 45 ECAB
345 (1989).
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).
9

Supra note 7.

10

K.U., Docket No. 15-1771 (issued August 26, 2016).

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diagnosed condition.11 Given these deficiencies, Dr. Allen’s report lacks probative value and is
insufficient to establish appellant’s claim.12
The record also contains treatment notes dating from November 18 to January 6, 2016 from
a chiropractor. The Board notes that section 8101(2) of FECA13 provides that the term physician,
as used therein, includes chiropractors only to the extent that their reimbursable services are limited
to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist and subject to regulation by the Secretary.14 OWCP’s implementing
federal regulation at 20 C.F.R. § 10.5(bb) defines subluxation as an incomplete dislocation, offcentering, misalignment, fixation or abnormal spacing of the vertebrae which must be
demonstrated on x-ray. While chiropractor Dr. Ellison-Cherny’s handwritten notes of her
November 19, 2018 examination summarized that x-ray of appellant’s spine revealed loss of
lumbar lordosis and decreased disc height from L4-S1, she never explained that she offered
appellant manual manipulation of the spine to correct a spinal subluxation, based upon this x-ray.
Her treatment notes instead related numerous other diagnoses for which treatment was offered.
Consequently, she is not considered a physician under FECA and her opinion on causal
relationship does not constitute probative medical evidence.15
OWCP also received physical therapy notes. The Board finds that these reports have no
probative value because physical therapists are not considered physicians as defined under
FECA.16 Consequently, their medical findings and/or opinions will not suffice for purposes of
establishing entitlement to FECA benefits.17
A November 25, 2015 MRI scan from Dr. Richter was also submitted to the record. The
Board has held that diagnostic studies lack probative value as they do not provide an opinion on
causal relationship between accepted employment factors and a claimant’s diagnosed conditions.18

11

A.H., Docket No. 19-0270 (issued June 25, 2019); M.W., Docket No. 18-1624 (issued April 3, 2019).

12

See P.A., Docket No. 18-0559 (issued January 29, 2020).

13

5 U.S.C. § 8101(2).

14

Id.; 20 C.F.R. § 10.311.

15

R.D., Docket No. 19-1528 (issued January 17, 2020); see Jay K. Tomokiyo, 51 ECAB 361 (2000).

16

5 U.S.C. § 8101(2). B.K., Docket No. 19-0829 (issued September 25, 2019); T.C., Docket No. 19-0227 (issued
July 11, 2019); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (under FECA
the term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by the applicable state law). Federal (FECA)
Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013); J.F. Docket No. 180492 (issued January 16, 2020) (physical therapists are not considered physicians under FECA).
17

See K.N., id.; see also Y.H., Docket No. 18-1618 (issued January 21, 2020).

18

See I.C., Docket No. 19-0804 (issued August 23, 2019).

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Because the medical evidence of record is insufficient to establish causal relationship
between his November 12, 2015 employment incident and his low back condition, the Board finds
that appellant has not met his burden of proof.19
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.20
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a lumbar
condition causally related to the accepted November 12, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the February 14, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 9, 2020
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees' Compensation Appeals Board
19

Supra note 7.

20

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No. 171062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Frisco, TX, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-0437
Issued: May 7, 2021

Case Submitted on the Record

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

On February 1, 2021 appellant, through counsel, filed a timely appeal from a January 20,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of
the Appellate Boards assigned Docket No. 21-0437.
In a letter dated and received March 22, 2021, counsel requested that the appeal be
dismissed.
The Board has duly considered the matter and concludes that counsel’s request for the
dismissal of the appeal should be granted. Accordingly,

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.

IT IS HEREBY ORDERED THAT appellant’s request for the dismissal of the appeal is
granted. The appeal docketed as No. 21-0437 is dismissed.
Issued: May 7, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
DEPARTMENT OF THE AIR FORCE,
RANDOLPH AIR FORCE BASE,
Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 15-0627
Issued: June 23, 2015

Case Submitted on the Record

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

JURISDICTION
On January 27, 2015 appellant filed a timely appeal from a January 5, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant received a $388.98 overpayment of compensation for the
period September 7 through 20, 2014, based upon an incorrect pay rate.
On appeal appellant asserts that OWCP calculated an incorrect pay rate as he did not
work the 24-hour shifts OWCP used to calculate his pay rate.
1

Appellant initially requested an oral argument with the Board; however, in a February 18, 2015 letter, the oral
argument request was withdrawn.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 11, 2014 appellant, then a 55-year-old GS-8, step 9 fire protection inspector,
filed a traumatic injury claim alleging that on June 3, 2014 he injured his left knee when he
slipped/tripped over a garden hose that was lying over an exit landing. He stopped work on
June 4, 2014. OWCP accepted the claim for left knee sprain, cruciate ligament and tear of left
knee medial meniscus and paid appropriate benefits.3 Appellant was medically released to return
to modified work on July 23, 2014. On September 4, 2014 he underwent a partial medial
menisectomy. Appellant returned to work on September 22, 2014.
On September 25, 2014 appellant filed a Form CA-7 claim for compensation for the
period September 7 through 20, 2014. The employing establishment noted that appellant worked
60 hours a week as a firefighter, 120 hours per pay period, with $468.59 per week authorized
overtime.
Appellant received compensation in the amount of $2,288.27 for the period September 7
through 20, 2014.
On November 5, 2014 OWCP issued a preliminary determination that an overpayment of
compensation in the amount of $388.98 had been created for the period September 7 through 20,
2014, for which appellant was not at fault. It noted that a weekly pay rate of $1,525.51 had been
used instead of the correct weekly pay rate of $1,266.19, which created an overpayment of
$388.98. OWCP calculated the weekly pay rate of $1,266.19 based on Firefighter FLSA-144
hours (six 24-hour shifts) with annual salary $54,960.00. It was also noted that appellant had
120 biweekly tour hours.
On November 17, 2014 appellant requested a telephonic hearing with OWCP and argued
that he disagreed that an overpayment occurred. He indicated that as a federal fire inspector, he
was required to work 60 hours at an annual salary and the original calculations were correct.
Appellant also completed an overpayment recovery questionnaire.
In an effort to show that an overpayment had not occurred, appellant submitted a copy of
his leave and earnings statement for the pay period ending September 6, 2014. The statement
indicated that his adjusted basic pay was $54,960.00. Appellant’s earnings for the period ending
September 6, 2014 was 80 hours of regular base pay in the amount of $2,106.40, 26 hours
overtime in tour in the amount of $518.44, and 14 hours in overtime pay of $418.74. A copy of
the 2014 Federal Firefighter Pay Chart was also submitted.
By decision dated January 5, 2015, OWCP finalized the preliminary overpayment
decision. It advised appellant to forward payment for the full amount of $388.98 within 30 days.

3

OWCP subsequently accepted the conditions of old bucket handle tear of left medial meniscus and aggravation
of traumatic arthropathy left lower leg.

2

LEGAL PRECEDENT
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.4 Section 8129 further provides, in pertinent part: “When an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”5
OWCP procedures set forth two formulas for determining a firefighter’s pay rate, one for
firefighters who generally work 24-hour shifts and the other for firefighters with an extended
tour built on top of a 40-hour basic workweek.6
The pay rate computation rules are delineated as follows in the FECA Procedure Manual:
“Under the Federal Firefighters Overtime Pay Reform Act of 1998, there are two
categories of firefighters based on the type of work schedule. Different pay
computation rules apply to each category.
(1) Firefighters with regular tours of duty generally consisting of 24-hour
shifts (which is the most common situation).
(a) Annual salary / 2756 (53 hours of regular pay per week X 52
weeks) = firefighter hourly rate.
(b) Firefighter hourly rate X 106 hours = biweekly base pay.
(c) Firefighter hourly rate X 1.5 = ‘firefighter overtime’ rate
(subject to GS-10, step 1 cap as described in PM 2-0900.6.b(13).
(d) ‘Firefighter overtime’ rate X number of hours in regular tour in
excess of 106 hours = biweekly ‘firefighter overtime.’
(e) (Biweekly base pay + biweekly ‘firefighter overtime’) / 2 =
weekly pay rate.
(Note: most 24-hour shift firefighters have a regular biweekly tour
of 144 hours (six 24-hour shifts), consisting of 106 regular hours
and 38 ‘firefighter overtime’ hours; thus, 38 hours (144-106)
would be used in step (d) above.)

4

5 U.S.C. § 8102(a).

5

Id. at § 8129(a).

6

See William D. Schilling, Docket No. 03-1525 (issued September 26, 2003).
Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.8(d) (August 2012).

3

Federal (FECA) Procedure

(2) Firefighters with an extended regular tour built on top of a 40-hour
basic workweek.
(a) (Annual salary / 2087) X 80 hours = biweekly base pay.
(b) Annual salary/ 2756 = firefighter hourly rate.
(c) Firefighter hourly rate X 26 hours = additional biweekly base
pay.
(d) Firefighter hourly rate X 1.5 = ‘firefighter overtime’ rate
(subject to GS-10, step 1 cap as described in PM 2-0900.6.b(13).
(e) ‘Firefighter overtime’ rate X hours in regular tour in excess of
106 hours = biweekly ‘firefighter overtime’.
(f) (Biweekly base pay + additional biweekly base pay + biweekly
‘firefighter overtime’) / 2 = weekly pay rate.
(Note: a common schedule would be a 40+16 weekly tour, which
translates into a biweekly tour of 112 hours, including 6
‘firefighter overtime’ hours to be used in step (e) above.)”7
ANALYSIS -- ISSUE 1
The Board has reviewed the case record and concludes that OWCP determined an
overpayment of compensation based on an incorrect pay rate during the period September 7
through 20, 2014. In determining an overpayment of $388.98 was created for the period
September 7 through 20, 2014, OWCP determined that the weekly rate should be calculated
based on a firefighter with regular tours of duty generally consisting of 24-hour shifts.
On appeal and before OWCP appellant argued that he was a firefighter with an extended
regular tour built on top of a 40-hour basic workweek. His supervisor concurred with this
statement in the September 25, 2014 CA-7 and appellant also provided an earnings and leave
statement to support his assertion. The Board finds that the record does not establish that
appellant worked 24-hour shifts, but rather that he worked a 40-hour basic workweek, with
extended overtime hours to 60 hours a week. OWCP therefore used an incorrect pay
computation to find that the overpayment occurred.
OWCP procedures indicate that for firefighters with an extended regular tour built on top
of a 40-hour basic workweek, the following pay computation applies: Appellant’s annual salary
divided by 2087 ($54,960/2087) times 80 hours equals $2,106.76 biweekly base pay. His annual
salary divided by 2756 ($54,960/2756) equals $19.94 firefighter hourly rate. The firefighter
hourly rate times 26 hours ($19.94 times 26) equals $518.44 additional biweekly base pay. The
firefighter hourly rate times 1.5 ($19.94 times 1.5) equals $29.91 for “firefighter overtime” rate
7

Id. at Chapter 2.900.8(d).

4

subject to GS-10, step 1 cap, not applicable. The “firefighter overtime” rate times hours in
regular tour in excess of 106 hours ($29.91 times 14) equals $418.74. The weekly pay rate
amounts to (biweekly base pay + additional biweekly base pay + biweekly “firefighter
overtime”) divided by 2 ($2,106.76 + 518.44 + 418.74 = 3043.94/2 = $1,521.99.8
For the period September 7 through 20, 2014, OWCP paid appellant at a weekly rate of
$1,525.51; however, the correct weekly rate should have been $1,521.99 as calculated above.
Thus the amount of overpayment is not in posture for decision. The case will be remanded to
OWCP for further development and a proper decision on the overpayment issue.
CONCLUSION
The Board finds that the case must be remanded to OWCP for proper findings with
respect to an overpayment of compensation based on an incorrect pay rate for compensation
purposes.
ORDER
IT IS HEREBY ORDERED THAT the January 5, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: June 23, 2015
Washington, DC

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

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

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

8

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
C.M., Appellant
and
DEPARTMENT OF DEFENSE,
DLA-DISTRIBUTION REGION WEST,
Tracy, CA, Employer
_________________________________________

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

Docket No. 11-1240
Issued: January 3, 2012

Case Submitted on the Record

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

JURISDICTION
On April 26, 2011 appellant, through his representative, filed a timely appeal from the
March 30, 2011 Office of Workers’ Compensation Programs’ (OWCP) merit decision which
affirmed 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 schedule award decision.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained more
than a five percent permanent impairment of his left arm, for which he received a schedule
award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 22, 2008 appellant, then a 52-year-old distribution process worker, filed a
traumatic injury claim alleging that on October 1, 2008 he was placing boxes on the line and
noticed pain in the left forearm after two hours in the performance of duty. He did not stop
work. On March 11, 2009 OWCP accepted the claim for left elbow strain. It also accepted left
medial epicondylitis and cubital tunnel syndrome. Appellant received compensation benefits.
On January 26, 2010 appellant filed a Form CA-7 claim for a schedule award.
By letter dated April 21, 2010, OWCP referred appellant for a second opinion, with a
statement of accepted facts, a set of questions and the medical record, to Dr. Aubrey A. Swartz, a
Board-certified orthopedic surgeon.2
In a May 5, 2010 report, Dr. Swartz noted appellant’s history of injury and medical
treatment. On examination appellant had slightly decreased perception to pinwheel testing in the
four fingers of the left hand compared to the right hand, a positive Froment sign in the left hand,
decreased interosseous strength in the left hand, both in the adductor and abductor interossei
which would be reflective of ulnar neuropathy. Dr. Swartz also found a negative Tinel’s in the
left elbow, a positive Phalen’s test bilaterally, left more pronounced than the right, 5/5 thumb
abduction strength in both hands, and a negative reverse Cozen’s test. He determined that
appellant had medial epicondylitis in addition to a cubital tunnel syndrome with a left upper
extremity ulnar neuropathy. Dr. Swartz referred to Table 15-233 for entrapment/compression
neuropathy impairment and noted that test findings which revealed the conduction delays over
the ulnar nerve distribution would correlate to a grade modifier of 1. Regarding a functional
history adjustment, he noted that appellant had aching and numbness in the left upper extremity
which would rate a grade modifier of 1. Dr. Swartz noted that the physical examination
adjustment corresponded to a grade modifier of 3, based on decreased sensation and atrophy in
the left upper extremity. He averaged the modifiers and arrived at a grade modifier of 2.
Dr. Swartz explained that he did not have a QuickDash score on appellant, but he completed a
functional capacities checklist, which revealed: pain with bathing; showering; washing his hair;
shaving; difficulty lifting grocery bags; preparing meals and washing dishes; carrying garbage
and difficulty using a manual shift while driving. He explained that this would place appellant
into grade 2, which would qualify appellant for an impairment rating of five percent of his left
upper extremity.
In an April 21, 2010 report, Dr. Donald Rossman, specializing in occupational medicine
and a treating physician, utilized the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2001) to determine that appellant had a four percent impairment
of the left arm.

2

Dr. Swartz previously examined appellant on July 22, 2009, at the request of OWCP, to determine the nature
and the extent of appellant’s employment-related condition.
3

A.M.A., Guides 449.

2

In a June 10, 2010 report, an OWCP medical adviser reviewed appellant’s history of
injury and treatment. He referred to Table 15-23 of the A.M.A., Guides, (6th ed. 2009) and
selected a grade modifier of 1, as the electrodiagnostic studies revealed conduction delays over
the ulnar nerve distribution. The medical adviser advised that the functional history adjustment
with aching and numbness of the left upper extremity would be a grade modifier of 1. Regarding
a physical examination adjustment, he noted that appellant had decreased sensation and left
upper extremity atrophy with a grade modifier of 3. The medical adviser advised that these
values would average out to 1.7 or rounded off to 2 and the impairment would fit into a default
rating of five percent noting Table 15-23, entrapment compression neuropathy impairment. He
explained that activities of daily living would indicate a grade 2 and this would support the
default rating of five percent, which would be the upper extremity impairment.
By decision dated June 22, 2010, OWCP issued appellant a schedule award for five
percent permanent impairment of the left arm.
On July 19, 2010 appellant’s representative requested a telephonic hearing, which was
held on January 18, 2011. At the hearing, appellant testified regarding his symptoms and
employment capabilities since his injury. His representative indicated that additional medical
evidence would be submitted; however, no additional evidence was received.
By decision dated March 30, 2010, an OWCP hearing representative affirmed the
June 22, 2010 decision.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. For decisions issued after May 1, 2009, the A.M.A., Guides has been adopted by
the implementing regulations as the appropriate standard for evaluating schedule losses.6
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).7 The sixth edition requires identifying the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on Functional History

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

FECA Bulletin No. 09-03 (issued March 15, 2009). A.M.A., Guides (6th ed. 2008).

7

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

3

(GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).8 The net adjustment
formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).9
ANALYSIS
Appellant’s claim was accepted by OWCP for left elbow strain, left medial epicondylitis
and cubital tunnel syndrome. On January 26, 2010 he filed a Form CA-7 claim for a schedule
award. The Board finds that the medical evidence of record establishes five percent of the left
upper extremity.
In an April 21, 2010 report, Dr. Rossman utilized the fifth edition of the A.M.A., Guides.
For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is to be used in
rating permanent impairment.10 A medical opinion not based on the appropriate edition of the
A.M.A., Guides has diminished probative value in determining the extent of a claimant’s
permanent impairment.11 Thus, Dr. Rossman’s April 21, 2010 report is of limited probative
value. The Board also notes that Dr. Rossman found a lesser degree of impairment than did
Dr. Swartz, OWCP’s referral physician or the medical adviser.
Dr. Swartz and the medical adviser agreed as to the extent of appellant’s impairment.
They found that Table 15-23 (Entrapment/Compression Neuropathy Impairment)12 was
appropriate to rate appellant’s cubital tunnel syndrome. Dr. Swartz and the medical adviser
identified a grade modifier of 1 for test findings based upon conduction delays (sensory and/or
motor).13 For functional history, appellant had aching and numbness in the left upper extremity
which corresponded to a grade modifier of 1. For physical findings, Dr Swartz found a grade
modifier of 3 for decreased sensation and the medical adviser concurred in this. The Board notes
that, when grade modifier values were added, they resulted in a total of five. Dividing this value
of five by the three modifier categories provided an average of 1.7 which was rounded to two
which represented a default impairment rating of five percent.14 In determining whether to
modify the default value of five percent, the physicians considered the impact of appellant’s
condition on his activities of daily living, and found it was reasonable to select a grade 2, which
resulted in the default five percent rating for grade modifier 2 in Table 15-23.
The Board finds that OWCP’s medical adviser and second opinion physician properly
applied the A.M.A., Guides to rate impairment to appellant’s left upper extremity. They
reviewed the medical evidence and determined that appellant had five percent impairment under
8

A.M.A., Guides 494-531.

9

Id. at 521.

10

FECA Bulletin No. 09-03 (issued March 15, 2009).

11

See Fritz A. Klein, 53 ECAB 642 (2002).

12

See A.M.A., Guides 449, Table 15-23.

13

Id.

14

See id. at 448-49.

4

the sixth edition of the A.M.A., Guides. There is no other medical evidence in conformance with
the sixth edition of the A.M.A., Guides that supports any greater impairment.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he has
more than a five percent impairment of the left upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the March 30, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 3, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5