United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Saddle Brook, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1495
Issued: March 30, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 3, 2020 appellant, through counsel, filed a timely appeal from a March 6, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

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

5 U.S.C. § 8101 et seq.

3
The case record contains August 13, 2019 and January 16, 2020 decisions in which OWCP denied appellant’s
request that the acceptance of her claim be expanded to include additional cervical conditions causally related to her
accepted February 24, 2015 employment injury. As more than 180 days has elapsed from the issuance of these
decisions to the filing of this appeal, the Board lacks jurisdiction over the denial of appellant’s expansion claim. See
20 C.F.R. §§ 501.2(c) and 501.3.

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective September 22, 2018, as she no longer had
disability or residuals causally related to her accepted February 24, 2015 employment injury; and
(2) whether appellant has met her burden of proof to establish continuing disability or residuals
after September 22, 2018 causally related to her accepted February 24, 2015 employment injury.
FACTUAL HISTORY
On March 2, 2015 appellant, then a 23-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on February 24, 2015 she sustained a back injury when she slipped and
fell on ice while in the performance of duty. She stopped work on February 25, 2015. In
March 2015 appellant first returned to work after her original work stoppage and, in May 2015,
she stopped work again. OWCP paid her wage-loss compensation for disability from work on the
supplemental rolls for the period May 18 through December 22, 2015.
On January 14, 2016 Dr. Marc Cohen, a Board-certified orthopedic surgeon, performed
OWCP-authorized back surgery, including open laminectomy and lateral recess decompression at
L5-S1, and posterolateral discectomy at L3-4 and L5-S1. In April 2016 appellant returned to lightduty work on a full-time basis.
OWCP accepted appellant’s claim for intervertebral disc disorders of the lumbosacral
region at L3-4 and L5-S1 with radiculopathies, and other specified dorsopathies of the cervical
region.
In a November 5, 2017 report, Dr. Michael Binder, a Board-certified anesthesiologist,
noted that appellant primarily complained of neck and lower back pain. He indicated that, upon
physical examination, appellant exhibited diminished range of motion of the cervical and lumbar
spine. Dr. Binder diagnosed left cervical post-traumatic sprain/strain; left cervical radiculopathy
at C6 versus bilateral cervical post-traumatic facet syndrome at the C4-5, C5-6, and C6-7; lumbar
post-traumatic sprain/strain; and left lumbar radiculopathy at L3-4 versus bilateral lumbar posttraumatic facet syndrome at the L3-4, L4-5, and L5-S1. He opined that these conditions were
related to the February 24, 2015 employment injury.
In March and July 2018 OWCP referred appellant for second opinion examinations and
evaluations with Dr. Melvin Vigman, a Board-certified neurologist, and Dr. Andrew Farber, a
Board-certified orthopedic surgeon. It provided each physician with a statement of accepted facts
(SOAF) and a series of questions and requested that they provide an opinion regarding whether
appellant continued to have disability or residuals causally related to her accepted February 24,
2015 employment injury.
In an April 5, 2018 report, Dr. Vigman discussed appellant’s factual and medical history,
noting that the SOAF indicated that the accepted conditions were “intervertebral discs disorders
with radiculopathy, lumbar region L3-4 and L4-5 and cervical region and dorsopathy.” He further
noted, “I presume that means dorsal spine.” Dr. Vigman advised that appellant currently
complained of back pain and shooting pain into the left lateral thigh. He reported the findings of
the physical examination he performed on April 4, 2018, noting that appellant’s upper extremity
examination showed normal strength in all muscle groups proximally and distally, normal
2

cutaneous sensation at dermatomes C5 through C8, and 1+ reflexes. On lower extremity
examination, appellant had normal strength in all muscle groups proximally and had normal
cutaneous sensation dermatomes L3 through S1 bilaterally. Dr. Vigman noted that, on flexing her
lower back to 90 degrees, appellant complained of left paraspinal discomfort. He provided a
diagnosis of no neurological disease, damage, or dysfunction.
After his review of the medical records, Dr. Vigman opined that there did not appear to
have been a true indication for the January 14, 2016 lumbar surgery. He indicated that the
magnetic resonance imaging (MRI) scans of record obtained on the date of injury demonstrated a
normal lumbar MRI scan and did not indicate that there were herniated lumbar discs and did not
confirm central spinal stenosis. Dr. Vigman maintained that these diagnoses were used to justify
the surgery, but that the surgery was not done for neurological purposes. He indicated that the
“objective aspects of the case are totally normal neurologically” and did not support the subjective
symptomatology. Dr. Vigman indicated that the lumbar spine MRI scans of record “did not
support neurological problems in this case.” He noted “the current diagnoses” from a neurological
standpoint did not exist and there was no neurological diagnosis, neurological damage, or
dysfunction. Dr. Vigman indicated, “[i]n my opinion, the question of the work-related conditions
having resolved: the work-related conditions never caused a neurological problem. Appellant has
reached maximum medical improvement [MMI] neurologically with no permanency.”
Dr. Vigman noted that, from a neurological standpoint, appellant was capable of full-time work
without any restrictions. In an April 4, 2018 work capacity evaluation (Form OWCP-5c), he
indicated that appellant was able to perform her regular job without restrictions.
In a July 2, 2018 report, Dr. Farber discussed appellant’s factual and medical evidence,
noting that she continued to complain of radicular symptoms in her left upper and left lower
extremities. He noted that, upon physical examination of the cervical spine, appellant was
nontender about the cervical spine and had a negative Spurling’s test. Upon examination of the
lumbar spine, there was no erythema or evidence of infection around the incision area from the
January 14, 2016 lumbar surgery and straight leg raising was negative bilaterally. Dr. Farber did
not find neurovascular deficits of the extremities. He indicated that appellant was not presently
suffering from disabling residuals of the accepted conditions and did not have a “current disability
based on the examination of today.” Dr. Farber concluded that appellant did not require further
medical treatment as she had reached MMI and was capable of returning to her date-of-injury work
without restrictions. In a July 2, 2018 Form OWCP-5c, he indicated that appellant was able to
perform her regular job without restrictions.
OWCP then requested that Dr. Farber clarify his July 2, 2018 report by providing a more
detailed discussion regarding appellant’s work-related residuals and disability. In a July 25, 2018
supplemental report, Dr. Farber indicated that appellant was not presently suffering from disabling
residuals of the accepted conditions based upon the July 2, 2018 physical examination. He noted
that, upon examination of the cervical spine, she was nontender about the cervical spine, range of
cervical motion was normal in all planes, and Spurling’s test was negative. Examination of the
lumbar spine revealed no erythema or evidence of infection and normal range of motion during
extension and side bending. Dr. Farber advised that flexion was decreased, a finding he believed
was normal given that appellant was status post lumbar laminectomy. Appellant had negative
straight leg raise bilaterally and there was no evidence of radiculopathy on examination.
Dr. Farber indicated that appellant had reached MMI and there was no need for further treatment.
He opined that appellant was not disabled and was capable of returning to her date-of-injury job
without restrictions.
3

In a notice dated July 26, 2018, OWCP advised appellant that it proposed to terminate her
entitlement to wage-loss compensation and medical benefits as she no longer had residuals or
disability causally related to her accepted February 24, 2015 employment injury. It informed her
that the weight of the medical opinion evidence regarding work-related residuals/disability rested
with the opinions of Dr. Vigman and Dr. Farber, OWCP’s referral physicians. OWCP provided
appellant 30 days to submit evidence and argument challenging the proposed termination action.
Appellant submitted an August 20, 2018 report in which Dr. Cohen indicated that, after the
January 14, 2016 surgery, she did have improvement with reduction in some of her leg pain , but
still had residual issues with respect to numbness and intermittent pain in the left leg. Dr. Cohen
further explained, “[u]nfortunately the patient was left with persistent back and left leg
radiculopathy…. She had pain going from the buttocks to the thigh to the calf to the foot with
associated tingling and numbness.” Dr. Cohen noted that appellant was left with a two-level
lumbar disc surgery that caused “functional and work-related permanency” with respect to her
ability to forward and laterally bend, to lift, and to sit or stand in one position for any extreme
period. Regarding appellant’s post-surgery condition, he opined that appellant’s injuries were
permanent in nature and that appellant was unable to return back to her job without restrictions.
Dr. Cohen noted that he was completely in disagreement with the opinions of Dr. Vigman and
Dr. Farber, which had been provided to him.
By decision dated September 21, 2018, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective September 22, 2018, as she no longer had disability
or residuals causally related to her accepted February 24, 2015 employment injury.
On October 2, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. During a hearing held on January 29,
2019, counsel argued that the opinions of Dr. Vigman and Dr. Farber were not well rationalized,
or in the alternative, there was a conflict in the medical opinion evidence between their reports and
those of appellant’s attending physicians, Dr. Binder and Dr. Cohen.
OWCP received a January 3, 2019 report from Dr. Joseph W. Dryer, a Board-certified
orthopedic surgeon, who indicated that appellant did not sustain any permanent lumbar injuries
due to the February 24, 2015 accident.
By decision dated April 4, 2019, OWCP’s hearing representative affirmed the
September 21, 2018 termination decision.4
By decision dated March 6, 2020, OWCP denied modification of its April 4, 2019
termination decision.

4

OWCP’s hearing representative also found that there was a conflict in the medical opinion evidence regarding
appellant’s expansion claim and remanded the case to OWCP for further development, including referral of appellant
for an impartial medical examination. Based on the July 18, 2019 report of Dr. Lydia Shajenko, a Board-certified
neurologist serving as an impartial medical examiner (IME), OWCP issued August 13, 2019 and January 16, 2020
decisions denying appellant’s request that the acceptance of her claim be expanded to include additional cervical
conditions causally related to her accepted February 24, 2015 employment injury. As noted above, the Board lacks
jurisdiction over the denial of appellant’s expansion claim. See supra note 3.

4

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.5 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.6 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 22, 2018.
In his April 5, 2018 report, Dr. Vigman determined that appellant did not have any
residuals of her accepted employment injuries and could return to her date -of-injury job without
restrictions. However, he did not provide any notable discussion of the conditions accepted in
connection with the February 24, 2015 employment injury, i.e., intervertebral disc disorders of the
lumbosacral region at L3-4 and L5-S1 with radiculopathies, and other specified dorsopathies of
the cervical region. Dr. Vigman did not provide any discussion of when and how the accepted
employment injuries had resolved.
Moreover, in portions of his report, Dr. Vigman suggested that appellant did not actually
sustain all of the accepted employment conditions. He noted, “[i]n my opinion, the question of
the work-related conditions having resolved: the work-related conditions never caused a
neurological problem.” Dr. Vigman indicated that the magnetic resonance imaging (MRI) scans
of record obtained on the date of injury demonstrated a normal lumbar MRI scan and did not
indicate that there were herniated lumbar discs and therefore did not confirm central spinal
stenosis. However, OWCP had accepted that appellant sustained a lumbar condition that could be
characterized as having caused a neurological problem, i.e., the accepted lumbar radiculopathy
stemming from the L3-4 and L5-S1 discs. In addition, Dr. Vigman provided an opinion that the
January 14, 2016 lumbar surgery, which was authorized by OWCP was not necessitated by an
accepted employment injury. The Board has held that the findings of an OWCP referral physician
or IME must be based on the factual underpinnings of the claim, as set forth in the SOAF. 8
OWCP’s procedures provide that when an OWCP referral physician, IME, or district medical
adviser (DMA) renders a medical opinion based on an SOAF, which is incomplete or inaccurate
or does not use the SOAF as the framework in forming his or her opinion, the probative value of

5

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
6

See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
7

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8

See A.D., Docket No. 20-0553 (issued April 19, 2021).

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the opinion is seriously diminished or negated altogether. 9 Given his failure to acknowledge all
the accepted employment conditions, Dr. Vigman’s opinion is of diminished probative value.
The Board further finds that Dr. Farber’s opinion also is not sufficiently well-rationalized
to justify the termination of appellant’s entitlement to wage-loss compensation and medical
benefits, effective September 22, 2018. Dr. Farber indicated, in reports dated July 2 and 25, 2018,
that appellant did not have any residuals of her accepted employment injuries and could return to
her date-of-injury job without restrictions. However, his opinion in this regard consisted of brief
conclusory statements without adequate explanation. Dr. Farber also did not provide any notable
discussion of the conditions accepted in connection with the February 24, 2015 employment injury
or explain when and how these conditions had resolved. In fact, in a portion of his July 25, 2018
report, he suggested that appellant still had residuals of the OWCP-authorized January 14, 2016
lumbar surgery. Dr. Farber advised that appellant’s lumbar flexion was decreased, a finding he
believed was related to that lumbar surgery. After Dr. Farber produced his July 2, 2018 report,
OWCP requested that he provide a supplemental report, which included a more detailed discussion
regarding appellant’s work-related residuals and disability. However, the July 25, 2018
supplemental report did not provide significant additional discussion in this regard and essentially
summarized examination findings contained in his July 2, 2018 report.
For these reasons, the Board finds that OWCP did not met its burden of proof to terminate
appellant’s wage-loss compensation and medical benefits, effective September 22, 2018.10
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 22, 2018.

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3a(10)
(October 1990).
10

In light of the Board’s finding regarding Issue 1, Issue 2 is rendered moot.

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ORDER
IT IS HEREBY ORDERED THAT the March 6, 2020 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: March 30, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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Appearances:
John Goodwin, Esq., for the appellant
No appearance, for the Director

Docket No. 06-2135
Issued: August 21, 2007

Oral Argument June 6, 2007

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 22, 2006 appellant, through his attorney, filed a timely appeal of the
August 11, 2006 merit decision of an Office of Workers’ Compensation Programs’ hearing
representative denying his recurrence of total disability claim for the period August 20 to
October 25, 2004 and rescinding payment of compensation for the period January 17 to 21, 2005.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether the Office properly adjudicated appellant’s recurrence of
disability claim for the period August 20 to October 25, 2004; and (2) whether the Office
properly rescinded appellant’s compensation for the period January 17 to 21, 2005, on the
grounds that he was not totally disabled from employment during this period due to his accepted
employment-related injuries.

FACTUAL HISTORY
On April 17, 2003 appellant, then a 42-year-old welder, filed an occupational disease
claim for bilateral epicondylitis of the elbows, bilateral wrist flexor tenosynovitis and bilateral
carpal tunnel syndrome. He constantly used his hands and arms in flexed and articulated
positions. Appellant also lifted, carried, pushed, pulled, twisted, turned, gripped and torqued.
He stated that he used many hand and power tools. By letter dated June 27, 2003, the Office
accepted his claim for bilateral carpal tunnel syndrome, bilateral wrist flexor tenosynovitis and
bilateral epicondylitis of the elbows. It paid him appropriate compensation.
By letter dated August 11, 2004, appellant’s attorney advised the Office that, during that
year appellant had been assigned to a light-duty firewatcher position until recently, when the
employing establishment withdrew the position. The employing establishment wanted him to
perform clerical work in its personnel office. Counsel stated that the employing establishment
did not provide a written job offer for this position, but promised that his duties would be in
accordance with the physical limitations set forth by his attending physician. Counsel requested
a written job offer from the employing establishment so that appellant could ask Dr. Michael
McManus, an attending physician, to review it.
On August 20, 2004 appellant filed a claim for wage-loss compensation for the period
August 20 to September 3, 2004. In an undated memorandum, Louis J. Fattrusso, director of the
employing establishment’s injured workers’ program, stated that appellant had been performing
firewatch work which should not have aggravated his employment-related carpal tunnel
syndrome. This position was the type of job employees returned to while recovering from
surgery. Mr. Fattrusso stated that it was within appellant’s limitations and that he had refused to
perform any work within his latest limitations. On August 24, 2004 appellant presented a new
work limitation of no waterfront work due to his blood pressure. He stated that a position in the
pass and identification office was available commencing August 20, 2004. It involved receiving
new hire packages which consisted of approximately 10 pieces of paper. The position allowed
standing, sitting, moving and numerous breaks as needed. No filing, use of the hands, other than
to accept the packages from new hires, lifting, bending, squatting or kneeling were required.
Mr. Fattrusso advised appellant that he would have a written description of his work duties by
the close of business on August 23, 2004 or at the start of his shift on August 24, 2004, but
appellant refused the job offer. He contended that appellant failed to provide any documentation
establishing his total disability for work. Mr. Fattrusso noted that the position in the pass and
identification office was still available.
By letter dated September 16, 2004, the Office advised appellant that there was no
medical evidence of record establishing that he sustained a recurrence of disability. The Office
characterized the issue in this case as a recurrence of disability claim because appellant returned
to light-duty work following his November 23, 2001 employment injury. It addressed the factual
and medical evidence he needed to submit to establish his recurrence of disability claim.
On September 17, 2004 appellant filed a claim for wage-loss compensation for the period
beginning September 6, 2004.

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In a letter dated September 19, 2004, counsel requested that the Office provide him a
copy of the employing establishment’s job offer for the offered light-duty position. He noted
that the employing establishment advised appellant that light-duty work was available, but
refused to provide him with a written job offer that he could take to his physician. Counsel
argued that appellant sustained a recurrence of disability because the employing establishment
withdrew his light-duty job as a firewatcher.
On September 27, 2004 the Office held a telephone conference with Mr. Fattrusso and
Sheila Connelly, a human resources specialist, regarding the issue of whether light-duty work
was withdrawn from appellant. Mr. Fattrusso provided a history of appellant’s participation in
the injured workers’ program from November 22, 2000 to August 11, 2004 and his modifiedduty work. On August 2, 2004 appellant presented medical evidence showing an increase in his
work restrictions, which included no use of a hand torch, welding no more than five minutes at a
time for a total of one hour per day, work requiring the hands and wrists in awkward positions
and lifting more than 60 pounds. He could occasionally lift up to 30 pounds, use ladders,
structures and scaffolding and seldom driving and use vibration tools. On August 11, 2004
appellant was referred to the injured workers’ program by the welding shop. He used leave for
his absence from work on August 11, 12, 17, 18 and 19, 2004. Mr. Fattrusso stated that
appellant left work on August 20, 2004 following a verbal job offer made to him on that day for
a position in the tool room that was within his restrictions. Appellant rejected the job offer and
presented another restriction dated August 13, 2004 which further limited his work capacity.
Based on these restrictions, Mr. Fattrusso stated that appellant was offered a position in the pass
and identification office on August 20, 2004. He noted that appellant would have received a
written description for this position by the end of business on August 23, 2004 or at the
beginning of August 24, 2004. Mr. Fattrusso contended that appellant could have performed the
positions in the tool room or pass and identification office because they were within his
restrictions.
By letter dated October 4, 2004, appellant’s attorney contended that the employing
establishment did not make a valid offer of light-duty work by merely stating that all tasks would
be within appellant’s work restrictions. He contended that Lanny Kelso, a resource manager,
advised appellant that no work would be available within his work limitations. Counsel stated
that Mr. Fattrusso never offered appellant, verbally or in writing, a position in the tool room. On
August 13, 2004 he was verbally offered a job directing traffic on a pier by Jeff Robinson.
Counsel contended that the job offer violated the restrictions set forth by an employing
establishment physician. After reviewing these restrictions, Mr. Robinson withdrew the job
offer. Counsel also contended that Mr. Fattrusso never offered appellant a position in the pass
and identification office. On August 20, 2004 Mr. Robinson informed appellant that he was
assigned to this position, but did not provide him with a written job offer or verbally describe the
duties and physical requirements of the position. He noted that the implementing federal
regulations provide that job offers must be put into writing. Counsel related that Mr. Kelso
advised appellant in writing on August 2, 2004, that effective August 9, 2004 no more work was
available within his restrictions. To date, appellant had not received any written job offer.
On October 26, 2004 the employing establishment offered appellant a light-duty position
in the pass and identification office in writing. He accepted the job offer on that day.

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By letter dated January 18, 2005, the Office notified appellant that it found the offered
position to be suitable. It informed him that the position was currently available; that he would
be paid compensation based on the difference, if any, between the pay of the offered position and
the pay of his position on the date of injury; and that he would be able to accept the position with
no penalty. The Office advised appellant that he had 30 days to accept the offer or provide
reasons why he believed the position was not suitable. Appellant did not respond.
On January 21, 2005 the Office issued a decision denying appellant’s recurrence of
disability claim, finding that he was not totally disabled during the period August 20 to
October 25, 2004 due to his accepted employment-related injuries. The Office found that, while
the August 20, 2004 light-duty job offer was not valid, appellant was not released by the
employing establishment from the injured workers’ program which it characterized as a modified
job because it generated a wage. Rather, he removed himself from the program. The Office
found no medical evidence which established that appellant could not attend the program or that
he was dismissed by the employing establishment from the program. Accordingly, the Office
found that appellant was not entitled to compensation benefits.
On January 22, 2005 appellant filed a claim for wage-loss compensation for the period
January 17 to 21, 2005.
The Office paid him compensation for this period as of
February 28, 2005.
In a March 16, 2005 letter, counsel contended that appellant did not receive a written job
offer for the pass and identification position until October 26, 2004 and that the position was not
deemed suitable by the Office until February 1, 2005.1 He reiterated that Mr. Fattrusso did not
personally offer appellant a position in the tool room. Appellant recalled Mr. Robinson’s verbal
offer which was withdrawn as soon as Mr. Robinson realized that it violated appellant’s work
restrictions.
On March 24, 2005 the Office received appellant’s February 4, 2005 request for an oral
hearing regarding the Office’s January 21, 2005 decision. A January 12, 2005 letter stated that
appellant was suspended by the employing establishment for five days due to his unauthorized
absence and continued failure to perform his assigned duties as directed.
By letter dated June 2, 2005, the Office requested that the employing establishment
resolve a discrepancy between its January 12, 2005 suspension letter and a notification of
personnel action (SF-50) form which stated that appellant’s suspension was due to his continued
failure to perform his assigned duties for medical reasons.
By letter dated May 4, 2005, the Office proposed to rescind appellant’s compensation in
the amount of $762.75 for the period January 17 to 21, 2005 on the grounds that it was paid in
error. The Office stated that the record established that appellant was not disabled during the
period but was not employed due to a disciplinary action. Appellant was advised to submit
evidence in support of his claimed disability within 30 days.

1

In a February 1, 2005 letter, the Office noted that, since appellant had accepted the offered modified position,
the issuance of a final suitability determination was not necessary.

4

In a May 29, 2005 letter, counsel contended that the employing establishment did not
have any light-duty work available for appellant during the period January 17 to 21, 2005. He
stated that appellant was willing to perform light-duty work established by Dr. Iverson, an Office
referral physician, and not approved by Dr. McManus.
The employing establishment submitted a June 15, 2005 SF-50, which stated that
appellant was suspended for the period no later than January 21, 2005 for
unauthorized absence and failure to perform assigned work as directed.
By decision dated July 8, 2005, the Office rescinded payment of compensation for the
period January 17 to 21, 2005 on the grounds that appellant was serving a five-day suspension
due to a personnel action. The Office found that the employing establishment accommodated
appellant’s work restrictions even during the period January 17 to 21, 2005. On July 27, 2005
appellant requested an oral hearing.
At the March 29, 2006 hearing, appellant testified that he had refused verbal job offers
from the employing establishment at the advice of counsel and requested a written job offer. He
stopped work after not receiving a written job offer and filed a claim for compensation.
Appellant testified that he accepted the employing establishment’s October 26, 2004 written job
offer and returned to work on that day.
In response, the employing establishment provided a detailed description of its injured
workers’ program. Mr. Fattrusso stated that he verbally gave appellant job assignments within
his physical limitations, which was normal procedure and appellant refused offers for suitable
work based on the advice from his attorney.
By letter dated May 9, 2006, the Office requested that Dr. McManus complete an
accompanying work capacity evaluation to determine appellant’s ability for work.
On August 11, 2006 a hearing representative affirmed the January 21 and July 8, 2005
decisions. The hearing representative also found the evidence of record insufficient to establish
that appellant sustained a recurrence of disability from August 20 through October 25, 2004.
There was no evidence that he would not have continued to receive his salary after the
employing establishment advised him on August 11, 2004 that his modified position was no
longer available, if not for his decision to stop work pending receipt of a written job offer. The
hearing representative also found that appellant’s suspension was the result of disciplinary action
taken for unauthorized absence in conjunction with his participation or lack thereof in the
employing establishment’s injured workers’ program. This action constituted an administrative
matter and appellant was not entitled to compensation for disability during the five-day
suspension period.
LEGAL PRECEDENT -- ISSUE 1
The Office’s implementing regulation define a recurrence of disability as the inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or

5

new exposure to the work environment that caused the illness.2 If the disability results from new
exposure to work factors, the legal chain of causation from the accepted injury is broken and an
appropriate new claim should be filed.3
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee 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 total
disability and to show that he or she cannot perform such light-duty. 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 job requirements.4 This 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.5 An award of
compensation may not be made on the basis of surmise, conjecture, speculation or on appellant s
unsupported belief of causal relation.6
Office regulations provide that, where an attending physician notifies the employer in
writing that the employee can return to restricted duty, the employer must advise the employee in
writing of any available positions which accommodate his restrictions.7 The offer must include a
description of the duties of the position, the physical requirements of those duties and the date by
which the employee is either to return to work or notify the employer of his decision to accept or
refuse the job offer.8 When the employer sends a copy of the offer to the employee, it must
simultaneously send a copy of the offer to the Office.9
The Office’s procedures states that, to be valid, an offer of light-duty must be in writing
and must include the following information: (1) a description of the duties to be performed;
(2) the specific physical requirements of the position and any special demands of the workload or
unusual working conditions; (3) the organizational and geographical location of the job; (4) the
date on which the job will first be available; and (5) the date by which a response to the job offer

2

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Phillip L. Barnes, 55 ECAB 426 (2004).
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3 (May 1997); Donald T.
Pippin, 54 ECAB 631 (2003).
4

Albert C. Brown, 52 ECAB 152 (2000); see also Terry R. Hedman, 38 ECAB 222 (1986).

5

Ronald A. Eldridge, 53 ECAB 218 (2001); see Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

6

Patricia J. Glenn, 53 ECAB 159 (2001).

7

20 C.F.R. § 10.507(b).

8

Id.

9

Id. at § 10.507(d).

6

is required.10 The employer must make any job offer in writing. However, the employer may
make a job offer verbally as long as it provides the job offer to the employee in writing within
two business days of the verbal job offer.11
ANALYSIS -- ISSUE 1
The Board finds that the Office improperly adjudicated appellant’s recurrence of
disability claim for the period August 20 through October 25, 2004. Appellant did not allege that
he was totally disabled from August 20 through October 25, 2004 due to his accepted
employment-related bilateral carpal tunnel syndrome, bilateral wrist flexor tenosynovitis and
bilateral epicondylitis of the elbows. Instead, he contends that the employing establishment
withdrew his light-duty position of firewatcher beginning August 20, 2004, the date he was
advised that this position was no longer available and, instead was offered a position in the pass
and identification office. Appellant asserts that the employing establishment failed to put the
new light-duty job offer in writing. The employing establishment contends that appellant refused
to accept a suitable job offer and, therefore, is not entitled to compensation for the claimed
period. However, the Office failed to comply with the implementing Federal (FECA) Procedure
Manual, which provide that several steps must be followed prior to a determination that a
position offered to an injured employee is suitable.
Once notified by appellant’s physician that he was able to return to light-duty work with
restrictions, the employing establishment was obligated to provide a written offer to him. To be
valid, the job offer must describe the duties of the position, the physical requirements of those
duties and the date by which appellant was to return to work or provide notification of his
decision to accept or refuse the job offer.12 As stated, appellant worked as a firewatcher
following his accepted employment injury based on the restrictions of Dr. McManus, his
attending physician, until his position was withdrawn by the employing establishment. The
employing establishment contends that it presented a suitable job offer to appellant on
August 20, 2004 which he refused. However, the evidence of record reflects that appellant did
not receive a written job offer as required until October 26, 2004.
There is no evidence that, as of August 20, 2004, the employing establishment submitted
a written job offer in compliance with the regulations and the Office’s procedure manual. On
August 20, 2004 the employing establishment verbally offered appellant a light-duty position in
the pass and identification office. Mr. Fattruso stated that this was normal procedure for job
offers. Although the employing establishment indicated that it was planning to provide appellant
a written job offer, the record does not establish that a job offer was provided to him until
October 26, 2004. Accordingly, neither appellant nor his physician could have determined
whether the offered job was within his medical restrictions prior to that time.

10

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

20 C.F.R. § 10.507(c).

12

Harold S. McGough, 36 ECAB 332 (1984).

7

The employing establishment should have complied with Office regulations by making a
job offer verbally, as long as it provided the job offer to appellant in writing within two business
days of the verbal job offer.13 However, the evidence of record does not show that appellant
received a written job offer within two days of any verbal offer.
For these reasons, the Board finds that a suitable job offer was not made available to
appellant prior to October 26, 2004. Accordingly, the Office improperly denied his recurrence of
disability claim for the period August 20 through October 25, 2004.
LEGAL PRECEDENT -- ISSUE 2
The Board has upheld the Office’s authority to reopen a claim at any time on its own
motion under 5 U.S.C. § 8128 and, where supported by the evidence, set aside or modify a prior
decision and issue a new decision. The Board has noted, however, that the power to annul an
award is not an arbitrary one and that an award for compensation can only be set aside in the
manner provided by the compensation statute.14 It is well established that, once the Office has
accepted a claim, it has the burden of justifying termination of modification of compensation
benefits.15 This holds true where the Office later decides that it has erroneously accepted a claim
for compensation. In establishing that its prior acceptance was erroneous, the Office is required
to provide a clear explanation of its rationale for rescission.16
The Board has held that, if the record establishes that limited-duty work within a
claimant’s work restrictions would be available for him if his behavior was acceptable and there
is no evidence that the claimant stopped work due to his physical condition, then the claimant
has no disability within the meaning of the Act.17
ANALYSIS -- ISSUE 2
In order to rescind acceptance of appellant’s claim for total disability compensation for
the period January 17 through 21, 2005, the Office must establish that his inability to earn wages
was not due to his accepted employment injury. In the instant case, appellant stopped work on
January 17, 2005. On January 12, 2005 the employing establishment suspended him for five
days due to his unauthorized absence and continued failure to perform his assigned duties as
directed. The Office paid appellant compensation for the period January 17 to 21, 2005. The
Board finds that the evidence of record does not establish that appellant was disabled for work
due to his accepted employment conditions of bilateral carpal tunnel syndrome, bilateral wrist
flexor tenosynovitis and bilateral epicondylitis of the elbows. Rather, he stopped work from
13

20 C.F.R. § 10.507(c).

14

Andrew Wolfgang-Masters, 56 ECAB ___ (Docket No. 05-1, issued March 22, 2005); see also 20 C.F.R.
§ 10.610.
15

Jorge E. Stotmayor, 52 ECAB 105 (2000).

16

Andrew Wolfgang-Masters, supra note 14.

17

Janice Green, 49 ECAB 307, 308 (1998); Lester Covington, 47 ECAB 539, 542 (1996).

8

January 17 to 21, 2005 due to his suspension for failing to perform his assigned work duties.
Since appellant’s inability to perform his limited-duty position and consequential loss of wages
was due to his suspension, he was not disabled within the meaning of the Act and is, therefore,
not entitled to compensation for his lost wages.
CONCLUSION
The Board finds that the Office improperly adjudicated appellant’s recurrence of
disability claim for the period August 20 to October 25, 2004. The Board, however, finds that
the Office properly rescinded appellant’s compensation for the period January 17 to 21, 2005.
ORDER
IT IS HEREBY ORDERED THAT the August 11, 2006 decision of the Office of
Workers’ Compensation Programs is reversed in part, with regard to the denial of appellant’s
recurrence of disability claim for the period August 20 to October 25, 2004 and affirmed in part,
with regard to the rescission of his compensation for the period January 17 to 21, 2005.
Issued: August 21, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, NEW JERSEY
INTERNATIONAL & BULK MAIL CENTER,
Newark, NJ, Employer
__________________________________________

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

Docket No. 10-2124
Issued: August 10, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 19, 2010 appellant filed a timely appeal from a May 5, 2010 merit decision of
the Office of Workers’ Compensation Programs concerning her schedule award. Pursuant to the
Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has more than nine percent impairment of her left upper
extremity, for which she received a schedule award.
FACTUAL HISTORY
On December 29, 2004 appellant, then a 43-year-old mail handler, was injured when she
struck her left hand and little finger when she grabbed hold of a hamper as she started to fall.
1

5 U.S.C. §§ 8101-8193.

OWCP initially accepted the claim for a contusion of the left wrist and later expanded it to
include left carpal tunnel syndrome. It paid appropriate benefits including left carpal tunnel
surgery which appellant underwent August 29, 2006. Appellant returned to limited-duty work.
On December 30, 2008 appellant requested a schedule award for left arm impairment due
to her December 29, 2004 work injury. In a July 16, 2008 report, Dr. Arthur F. Becan, an
orthopedic surgeon, noted the history of injury and set forth his examination findings. He
diagnosed: chronic strain/sprain of the left wrist; post-traumatic left carpal tunnel syndrome; left
ulnar nerve neuropathy; partial tear of the triangular fibrocartilage; status post left carpal tunnel
release and chronic left median nerve neuropathy. Dr. Becan opined that the diagnosed
conditions were causally related to the December 29, 2004 work injury and that appellant
reached maximum medical improvement on July 16, 2008. Under the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides),2 he opined that appellant had 39 percent left arm impairment. On October 28, 2008
appellant’s treating physician Dr. Mark A. Filippone, a Board-certified physiatrist, indicated that
he agreed with Dr. Becan’s finding that appellant had 39 percent left upper extremity
impairment.3
In a March 18, 2009 report, OWCP’s medical adviser indicated that he could not accept
Dr. Becan’s impairment finding as the record revealed appellant had a successful carpal tunnel
release. He stated that the treating surgeon’s postoperative notes indicated a normal sensory
nerve recovery and concluded that a referral to a specialist for an independent examination was
necessary. The treatment notes from the treating surgeon Dr. Teofilo A. Dauhajre, a Boardcertified orthopedic surgeon, noted status post left carpal tunnel release on August 29, 2007 and
indicated the following: on the January 31, 2007 examination, appellant had infrequent
paresthesias; on the April 4, 2007 examination, appellant exhibited no hypersensitivity and had
normal perspiration in the left hand; and on the May 2, 2007 examination, appellant denied any
further numbness.
OWCP determined a conflict of medical opinion existed between Dr. Becan and the
OWCP medical adviser and referred appellant to Dr. Sebastian O. Adibe, a Board-certified
orthopedic surgeon, for an impartial examination. In a June 4, 2009 report, Dr. Adibe noted that
the history of injury, his review of the statement of accepted facts and the medical records and
set forth his physical findings. He diagnosed left carpal tunnel syndrome and partial tear of the
left wrist triangular fibrocartilage. Under the sixth edition of the A.M.A., Guides, Dr. Adibe
opined that appellant had nine percent left arm impairment. He opined that appellant reached
maximum medical improvement on May 2, 2007 when she was discharged by her surgeon.
Under Table 15-3, page 396, Dr. Adibe assigned a class 1 or 8 percent arm impairment for the
partial tear of the triangular fibrocartilage complex of the left wrist as documented by the
2

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

3

In a September 25, 2008 report, Dr. Becan referenced an October 20, 1999 work-related injury. He opined that
appellant reached maximum medical improvement and that she had 30 percent left leg impairment and 36 percent
right arm impairment under the fifth edition of the A.M.A., Guides. On November 25, 2008 Dr. Filippone agreed
with Dr. Becan’s finding. Matters regarding the claim for the October 20, 1999 injury claim are not before the
Board on the present appeal.

2

magnetic resonance imaging (MRI) scan. Based on his minimal findings, he assigned a grade 1
modifier for Physical Examination (GMPE) adjustment under Table 15-8, page 408. Based on
MRI scan studies, Dr. Adibe assigned a grade 1 modifier for Clinical Studies (GMCS)
adjustment under Table 15-9, page 410. He did not indicate a modifier for Functional History
(GMFH) adjustment. Dr. Adibe stated that the net adjustment was zero and thus indicated that
the impairment rating remained at the default level of eight percent. Under Table 15-23, page
449, he assigned one percent impairment for carpal tunnel syndrome. Dr. Adibe noted that test
findings of mild conduction delay resulted in grade modifier 1, history was grade modifier 2 and
normal physical findings were grade modifier 1. He found the grade modifiers totaled four. As
the average of the grade modifiers was 1.33, Dr. Adibe selected the default upper extremity
impairment of two percent. He then modified this value and selected one percent upper
extremity impairment as appellant’s condition of carpal tunnel had resolved. Dr. Adibe
combined the impairment values for the two diagnoses to find a total of nine percent upper
extremity impairment.4
On January 10, 2010 a different OWCP medical adviser reviewed the medical
documentation of file, including Dr. Adibe’s June 4, 2009 report. He opined that the
documentation and physical findings indicated that carpal tunnel syndrome and partial tear of the
triangular fibrocartilage of the left wrist with a date of maximum medical improvement of
May 2, 2007, when appellant was discharged from care. Under Table 15-3, page 396, he found
class 1 with eight percent default impairment for fibrocartilaginous tear with positive MRI scan.
He found a GMPE grade modifier of 1 and GMCS grade modifier of 1 equated to a net
adjustment of zero. For the carpal tunnel syndrome, he utilized Table 15-23, page 449. He
found grade modifier 1 for clinical studies, grade modifier 2 for history, grade modifier 1 for
physical findings totaled 4. He determined the average was 1.33 and rounded down to 1 to select
a grade modifier 1 with a default value of 1 percent impairment. He advised the combined total
impairment was 8 and 1 or 9 percent arm impairment.
By decision dated January 27, 2010, OWCP awarded appellant a schedule award for nine
percent permanent impairment of the left upper extremity. The award ran from May 2 to
November 14, 2007 for a total of 28.08 weeks of compensation.
In a February 12, 2010 letter, appellant’s attorney disagreed with OWCP’s decision and
requested a review of the written record. He argued that OWCP failed to make a timely schedule
award determination under the fifth edition of the A.M.A., Guides thereby depriving appellant of
her due process rights and benefits under FECA.
By decision dated May 5, 2010, OWCP’s hearing representative affirmed the January 27,
2010 decision that appellant had not established greater than nine percent impairment to the left
upper extremity. The hearing representative noted that OWCP incorrectly found a conflict in
medical evidence existed between the first OWCP medical adviser and Dr. Becan, but found that
the weight of the medical evidence remained with Dr. Adibe as a second opinion physician. The
hearing representative indicated that there was no medical conflict as the first OWCP medical
4

On December 3, 2009 the original OWCP medical adviser rereviewed appellant’s file. There is no indication
that OWCP used this report in issuing the schedule award determination.

3

adviser did not provide an impairment rating but questioned whether Dr. Becan’s findings were
supported by reports from appellant’s surgeon.
LEGAL PRECEDENT
The schedule award provision of FECA5 provides for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA
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 mater which rests in the sound
discretion of OWCP. 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 A.M.A., Guides has been adopted by OWCP as a standard for evaluation of
schedule losses and the Board has concurred in such adoption.6 Schedule award decisions issued
between February 1, 2001 and April 30, 2009 utilize the fifth edition of the A.M.A., Guides.7
Effective May 1, 2009, OWCP adopted the sixth edition of the A.M.A., Guides,8 published in
2008, as the appropriate edition for all awards issued after that date.9
For schedule awards after May 1, 2009, the impairment is evaluated under the sixth
edition of the A.M.A., Guides, published in 2008.10 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).11 Under the sixth
edition, the evaluator identifies the impairment class for the diagnosed condition (CDX), which
is then adjusted by grade modifiers based on GMFH, GMPE and GMCS.12 The net adjustment
formula is (GMFH - CDX) + (GMPE - DCX) + (GMCS - CDX).
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.13

5

5 U.S.C. §§ 8101-8193.

6

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

7

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

8

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

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 9, 2010).
10

See supra note 8.

11

A.M.A., Guides (6th ed. 2008), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
12

A.M.A., Guides 494-531 (6th ed. 2008).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

4

ANALYSIS
The Board finds that OWCP properly applied the sixth edition of the A.M.A., Guides to
determine the extent of appellant’s impairment. Effective May 1, 2009, OWCP applied the sixth
edition of the A.M.A., Guides to calculate awards.14
Appellant asserts that he has a property right in a schedule award benefit under the fifth
edition of the A.M.A., Guides and a protected property interest cannot be deprived without due
process, citing Goldberg v. Kelly, 397 U.S. 254 (1970) and Mathews v. Eldridge, 424 U.S.
319 (1976). These cases held only that a claimant who was in receipt of benefits (in Goldberg
public assistance and in Mathews social security benefits) could not be terminated without due
process. Appellant had received no schedule award under the fifth edition.
In Harry D. Butler,15 the Board noted that Congress delegated authority to the Director
regarding the specific methods by which permanent impairment is to be rated. Pursuant to this
authority, the Director adopted the A.M.A., Guides as a uniform standard applicable to all
claimants and the Board has concurred in the adoption.16 On March 15, 2009 the Director
exercised authority to advise that as of May 1, 2009 all schedule award decisions of the Office
should reflect use of the sixth edition of the A.M.A., Guides.17 The applicable date of the sixth
edition is as of the schedule award decision reached. It is not determined by either the date of
maximum medical improvement or when the claim for such award was filed.
In this case, OWCP’s medical adviser examined Dr. Becan’s findings and found his
impairment rating was not supported by the reports from appellant’s surgeon, who had noted a
decrease or absence of objective findings following surgery. OWCP found a conflict in medical
opinion existed and referred appellant for an impartial medical examination with Dr. Adibe.
However, the Board finds no conflict in medical opinion existed between Dr. Becan and the
medical adviser as the medical adviser did not render an impairment opinion but questioned
Dr. Becan’s findings in light of an apparent successful carpal tunnel release. Thus, OWCP
hearing representative properly treated Dr. Adibe as a second opinion physician.
The Board finds that Dr. Becan’s opinion is of diminished probative value. Dr. Becan
provided an impairment rating in accordance with the fifth edition of the A.M.A., Guides. As
noted above, the sixth edition of the A.M.A., Guides is to be used in calculating impairment after
May 1, 2009.18 Since Dr. Becan’s report was not in accordance with the appropriate edition of
14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also id. at Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit
1 (January 2010).
15

43 ECAB 859 (1992).

16

Id. at 866.

17

FECA Bulletin No. 09-03 (March 15, 2009). The FECA Bulletin was incorporated in the Federal (FECA)
Procedure Manual, Part 2 -- Claims, Schedule Award & Permanent Disability Claims, Chapter 2.808.6(a)
(January 2010).
18

Supra note 8.

5

the A.M.A., Guides, it is of diminished probative value.19 Additionally, Dr. Becan provided no
medical rationale for his finding of marked impairment in view of Dr. Dauhajre postsurgical
findings from April and May 2007 that appellant had no hypersensitivity or numbness. Medical
conclusions unsupported by rationale are of diminished probative value.20
The sixth edition of the A.M.A., Guides provides that upper extremity impairments be
classified by diagnosis and then adjusted by grade modifiers according to the above-noted
formula. Dr. Adibe properly determined that appellant was a class 1 for partial tear of the
triangular fibrocartilage complex of the left wrist under Table 15-3, page 396, which was eight
percent. He properly applied the grade modifiers of 1 for physical examination physical
examination (GMPE) adjustment under Table 15-8, page 408 and grade modifier of 1 for clinical
studies (GMCS) adjustment under Table 15-9, page 410. Dr. Adibe also properly applied the
applicable formula to determine that appellant had a net adjustment of zero.21 Further, he
properly calculated appellant’s impairment for the partial tear of the triangular fibrocartilage
complex by using the next adjustment of zero to determine that appellant had an impairment of
eight percent. OWCP’s medical adviser concurred in this determination.
Both Dr. Adibe and OWCP’s medical adviser also determined consistent with the
A.M.A., Guides that appellant had one percent impairment as a result of the carpal tunnel
syndrome; however, they differed in their approach of arriving at such impairment. Utilizing
Table 15-23, page 449, Dr. Adibe indicated that test findings of mild conduction delay resulted
in grade modifier 1, history was grade modifier 2, and normal physical findings were grade
modifier 1. He found the grade modifiers totaled 4, with an average of 1.33. Dr. Adibe rounded
the average of 1.33 up to the nearest whole number of 2, while OWCP’s medical adviser rounded
the average of 1.33 down to the nearest whole number 1. In rounding to the nearest whole
number, fractions are rounded up from .50.22 Thus, OWCP’s medical adviser properly rounded
the average of 1.33 down to the nearest whole number of 1, to find grade 1 as the final rating
category.23 As Dr. Adibe found appellant’s carpal tunnel condition had resolved, the medical
adviser properly modified the default or middle value of upper extremity impairment of two
percent of the grade 1 modifier to find the one percent impairment. Table 15-23, page 449
reflects a normal or resolved carpal tunnel condition from the functional scale score is a zero,
which would be one grade lower than the two percent grade assigned to the condition. Thus, the
lower grade or one percent would be the more appropriate impairment rating.
19

See I.F., Docket No. 08-2321 (issued May 21, 2009) (an opinion which is not based upon the standards adopted
by OWCP and approved by the Board as appropriate for evaluating schedule losses is of diminished probative value
in determining the extent of permanent impairment).
20

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

21

Dr. Adibe did not identify a modifier for functional history. The A.M.A., Guides 406 indicates that functional
history grade modifier should be applied only to the single, highest diagnosed based impairment, for each diagnosed
based impairment or not considered at all as a grade modifier.
22

See J.P., Docket No. 08-832 (issued November 13, 2008).

23

The Board notes that Dr. Adibe properly selected the default impairment value of two percent for a final rating
category of grade 1. As appellant’s carpal tunnel condition had resolved, he properly modified this value and
selected the one percent final impairment rating as the appropriate rating.

6

The Board finds impairment values of eight percent for partial tear of the triangular
fibrocartilage complex and one percent for carpal tunnel syndrome, or nine percent total left
upper extremity impairment under the Combined Values Chart page 604.24
The record does not contain any medical evidence that establishes greater impairment in
accordance with the sixth edition of the A.M.A., Guides. Additionally, as previously noted,
Dr. Becan’s report is insufficiently rationalized and thus is of no probative value; accordingly; it
may not create a conflict in medical opinion with regards to appellant’s upper extremity
impairment. Thus, the Board finds that appellant has not established more than nine percent
upper extremity impairment to her left arm.
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 established that she has more than nine percent left
upper extremity impairment.

24

Section 15.4, page 419 A.M.A., Guides allows peripheral nerve impairments to be combined with diagnosed
based impairments at the upper extremity level so long as the diagnosed based impairment does not encompass the
nerve impairment.

7

ORDER
IT IS HEREBY ORDERED THAT the May 5, 2010 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 10, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8


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

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

Docket No. 11-116
Issued: August 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 October 18, 2010 appellant filed a timely appeal from the June 24, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has more than
20 percent permanent impairment of her right arm, for which she received a schedule award.
FACTUAL HISTORY
On June 12, 2003 appellant, then a 36-year-old mail handler, sustained injury to her right
wrist and shoulder when she fell at work. OWCP initially accepted her claim for a right wrist
and shoulder strain. Appellant stopped work at the time of the injury and underwent OWCP1

5 U.S.C. §§ 8101-8193.

authorized right shoulder surgery on May 4, 2004 which consisted of debridement of partial
thickness rotator cuff and glenoid labral tears, subacromial decompression including anterior
acromioplasty, coracoacromial ligament release and busectomy and partial distal clavical
excision.
On March 31, 2005 OWCP advised appellant that her claim was also accepted for right
carpal tunnel syndrome. Appellant underwent OWCP-authorized right carpal tunnel release
surgery on August 30, 2005.
On August 7, 2008 appellant filed a Form CA-7 claiming a schedule award. In support of
her claim, she submitted a May 1, 2008 report of Dr. David Weiss, an attending osteopath, who
indicated that she had 36 percent permanent impairment of her right arm under the standards of
the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001). Dr. Weiss indicated that appellant’s total right arm impairment
consisted of individual impairments based on range of motion deficit in her right shoulder, right
shoulder resection arthoplasty, right lateral pinch strength deficit and sensory deficit involving
the right median nerve.
OWCP arranged to have the case record and Dr. Weiss’ impairment rating reviewed by
Dr. Morley Slutsky, a Board-certified occupational medicine physician, who served as an Office
hearing representative. In his January 24, 2009 report, Dr. Slutsky opined that appellant had
reached maximum medical improvement, but noted that the case record contained discrepancies
over appellant’s right arm sensation as Dr. Weiss reported a loss of light touch and total loss of
two-point discrimination in the right median nerve distribution while, in a December 26, 2007
report, another attending physician stated that light and sharp touch sensation was full and
symmetrical in both upper extremities. He also indicated that pinch strength deficit was not a
ratable impairment method for carpal tunnel syndrome according to the fifth edition of the
A.M.A., Guides. Dr. Slutsky recommended that OWCP obtain a second opinion examination
given the noted discrepancies in physical examination findings contained in the case record.
However, he opined that, if Dr. Weiss’ 10 percent impairment attributable to the sensory deficit
of the median nerve was accepted, appellant would have a combined 21 percent permanent
impairment of the right upper extremity for both her right shoulder condition and the right carpal
tunnel syndrome.
In a February 12, 2009 report, Dr. Weiss stated that he disagreed with Dr. Slutsky over
whether the fifth edition of the A.M.A., Guides precluded the assignment of impairment for
pinch strength in cases involving carpal tunnel syndrome. OWCP referred the case back to
Dr. Slutsky to comment on Dr. Weiss’ February 12, 2009 report. In a February 25, 2009 report,
Dr. Slutsky stated that the fifth edition of the A.M.A., Guides indicated that pinch strength should
not be used to rate median nerve deficits in carpal tunnel syndrome cases. Therefore, he advised
that his prior opinion on appellant’s level of impairment had not been changed by Dr. Weiss’
February 12, 2009 report.
OWCP found a conflict in the medical opinion between Dr. Weiss and Dr. Slutsky
regarding appellant’s right arm impairment and referred appellant to Dr. Barry Snyder, a Boardcertified orthopedic surgeon, for an impartial medical examination and opinion on the extent of
her right arm impairment. Appellant attended the August 11, 2009 examination but Dr. Snyder

2

failed to supply OWCP with the requested medical report. Since Dr. Snyder would not supply
OWCP with a report and due to the fact that OWCP began utilizing a new edition of the A.M.A.,
Guides effective May 1, 2009, OWCP wrote to Dr. Weiss on November 19, 2009 and requested
that he provide OWCP with an impairment based on the sixth edition of the A.M.A., Guides in
order to adjudicate the claimed schedule award.
Dr. Weiss provided a revised medical report dated January 10, 2010 that included a rating
of 20 percent impairment of the right arm based on the sixth edition of the A.M.A., Guides. In
making reference to Table 15-5 (Shoulder Regional Grid) of the sixth edition of the A.M.A.,
Guides, Dr. Weiss chose a diagnostic category for the right shoulder (class 1 for right shoulder
acromioclavicular joint arthropathy with distal clavicular resection) and applied the grade
modifiers for functional history, physical examination and clinical studies. He then calculated
the net adjustment formula and found 12 percent impairment for the right shoulder. Dr. Weiss
also applied Table 15-23 (Entrapment/Compression Neuropathy Impairment) of the sixth edition
of the A.M.A., Guides and chose grade modifiers from the table for the various categories,
including test findings, history, physical findings and functional scale. He found nine percent
impairment due to right carpal tunnel syndrome.2 Dr. Weiss used the Combined Values Chart to
combine the 9 and 12 percent values and conclude that appellant had 20 percent impairment of
her right arm.
OWCP referred the case record to Dr. Andrew Merola, a Board-certified orthopedic
surgeon serving as an OWCP medical adviser, in order to review Dr. Weiss’ new impairment
rating under the sixth edition of the A.M.A., Guides. In a January 31, 2010 report, Dr. Merola
agreed with Dr. Weiss’ rating of 20 percent impairment of the right arm under the sixth edition.
He also indicated that the date of maximum medical improvement was May 1, 2008, the date of
Dr. Weiss’ original examination and impairment rating.
In a February 12, 2010 decision, OWCP granted appellant a schedule award for 20
percent permanent impairment of her right arm. The award ran for 62.4 weeks from May 1,
2008 to July 11, 2009.
Appellant, through counsel, requested a review of the written record by OWCP’s hearing
representative. Counsel contended that OWCP failed to make a timely schedule award decision
under the fifth edition of the A.M.A., Guides and thereby deprived appellant of benefits given
that the sixth edition of the A.M.A., Guides generally provided lower impairment ratings for the
same condition.
In a June 24, 2010 decision, OWCP’s hearing representative affirmed OWCP’s
February 12, 2010 decision.

2

See infra notes 8 and 9.

3

LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 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. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 For OWCP 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.6
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, one of the relevant portions of the arm for
the present case, reference is made to Table 15-5 (Shoulder Regional Grid) beginning on page
401. After the Class of Diagnosis (CDX) is determined from the Shoulder Regional Grid
(including identification of a default grade value), the Net Adjustment Formula is applied using
the grade modifier for Functional History (GMFH), grade modifier for Physical Examination
(GMPE) and grade modifier for Clinical Studies (GMCS). The Net Adjustment Formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.8 In
Table 15-23, grade modifiers levels (ranging from zero to four) are described for the categories
test findings, history and physical findings. The grade modifier levels are averaged to arrive at
the appropriate overall grade modifier level and to identify a default rating value. The default
rating value may be modified up or down by one percent based on functional scale, an
assessment of impact on daily living activities.9

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id. See W.D., Docket No. 10-274 (issued September 3, 2010).

6

See FECA Bulletin No. 9-03 (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.
7

See A.M.A., Guides 401-11 (6th ed. 2009).

8

See id. at 449, Table 15-23.

9

A survey completed by a given claimant, known by the name QuickDASH, may be used to determine the
Function Scale score. Id. at 448-49.

4

In Harry D. Butler,10 the Board noted that Congress delegated authority to the Director of
OWCP regarding the specific methods by which permanent impairment is to be rated. Pursuant
to this authority, the Director adopted the A.M.A., Guides as a uniform standard applicable to all
claimants and the Board has concurred in its adoption.11 On March 15, 2009 the Director
exercised authority to advise that as of May 1, 2009 all schedule award decisions of OWCP
should reflect use of the sixth edition of the A.M.A., Guides.12
ANALYSIS
In the present case, OWCP accepted that appellant sustained a right wrist sprain, right
shoulder strain and right carpal tunnel syndrome. On May 4, 2004 appellant underwent right
shoulder surgery which consisted of debridement of partial thickness rotator cuff and glenoid
labral tears, subacromial decompression including anterior acromioplasty, coracoacromial
ligament release and busectomy and partial distal clavical excision. On August 30, 2005 she
underwent right carpal tunnel release surgery. These procedures were authorized by OWCP.
Appellant filed a claim for schedule award in August 2008 and submitted a May 1, 2008
impairment rating from Dr. Weiss, an attending osteopath.13
Dr. Slutsky, a Board-certified occupational medicine physician serving as OWCP’s
medical adviser, reviewed Dr. Weiss’ May 1, 2008 impairment rating and found that some of his
findings were inconsistent with other medical reports contained in the case record. After further
development of the evidence, a conflict was found in the medical opinion regarding appellant’s
right arm impairment and in August 2009 appellant was referred to Dr. Snyder, a Board-certified
orthopedic surgeon, for an impartial medical examination and opinion on right arm impairment.14
However, Dr. Snyder did not provide the requested evaluation.
For decisions issued on or after May 1, 2009, OWCP began to apply the standards of the
sixth edition of the A.M.A., Guides and therefore it was appropriate for OWCP to seek further
clarification of appellant’s right arm impairment under these standards.15 It requested that
Dr. Weiss provide a right arm impairment rating based on the sixth edition of the A.M.A.,
Guides.
10

43 ECAB 859 (1992).

11

Id. at 866.

12

FECA Bulletin No. 09-03 (March 15, 2009). FECA Bulletin was incorporated in the Federal (FECA)
Procedure Manual, Part 2 -- Claims, Schedule Award & Permanent Disability Claims, Chapter 2.808.(6)(a)
(January 2010).
13

Dr. Weiss calculated 36 percent impairment of appellant’s right arm under the fifth edition of the A.M.A.,
Guides.
14

A previous attempt to schedule an impartial medical examination fell through when the selected impartial
medical specialist declined to perform the evaluation.
15

By this point, there no longer was a conflict in the medical opinion as the record did not contain conflicting
reports with impairment ratings obtained under the relevant standards, i.e., the standards of the sixth edition of the
A.M.A., Guides.

5

The Board finds that, in his January 10, 2010 report, Dr. Weiss correctly determined that
appellant had 20 percent impairment of her right arm based on the sixth edition of the A.M.A.,
Guides. Making reference to Table 15-5 (Shoulder Regional Grid) starting on page 401 of the
sixth edition of the A.M.A., Guides, Dr. Weiss chose an appropriate diagnostic category (class 1
for right shoulder acromioclavicular joint arthropathy with distal clavicular resection) and
applied the grade modifiers for functional history, physical examination and clinical studies. He
then correctly calculated the Net Adjustment Formula.16 Dr. Weiss found 12 percent impairment
for the right shoulder. He also properly applied Table 15-23 (Entrapment/ Compression
Neuropathy Impairment) on page 449 of the sixth edition of the A.M.A., Guides and chose
appropriate grade modifiers from the table for the various categories, including test findings,
history, physical findings and functional scale. Dr. Weiss found nine percent impairment due to
right carpal tunnel syndrome.17 He properly used the Combined Values Chart beginning on page
604 to combine the 9 and 12 percent values and conclude that appellant had a 20 percent
impairment of her right arm.
The Board notes that there is no medical evidence of record showing that appellant has
more than 20 percent permanent impairment of her right arm, for which she already received
schedule award compensation. Dr. Merola, a Board-certified orthopedic surgeon serving as
OWCP’s medical adviser, reviewed the relevant evidence of record and indicated that he agreed
with Dr. Weiss’ impairment rating of 20 percent.
On appeal, counsel asserts that appellant has a property right in a schedule award benefit
under the fifth edition of the A.M.A., Guides and that a protected property interest cannot be
deprived without due process, citing Goldberg v. Kelly, 397 U.S. 254 (1970) and Mathews v.
Eldridge, 424 U.S. 319 (1976). These cases held only that a claimant who was in receipt of
benefits (in Goldberg public assistance, and in Mathews Social Security benefits) could not have
those benefits terminated without procedural due process.18 In this case, appellant is simply
making a claim for a schedule award. He is not in receipt of schedule award benefits nor is
OWCP attempting to terminate any benefits. Appellant has not established a vested right to a
schedule award decision under the fifth edition of the A.M.A., Guides, nor has he identified any
procedural due process which he has been denied. The cases cited by him are not applicable to
the present case.19 For these reasons, OWCP properly declined to award appellant additional
schedule award compensation.

16

See supra note 7.

17

See supra notes 8 and 9.

18

In Mathews the court noted that the private interest that would be adversely affected by the erroneous
termination of benefits was likely to be less in a disabled worker than a welfare recipient, and due process would not
require an evidentiary hearing.
19

Counsel argued that OWCP unnecessarily delayed in developing appellant’s schedule award claim. However,
the circumstances described above show that OWCP followed the appropriate procedures in developing appellant’s
claim.

6

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 did not meet her burden of proof to establish that she has
more than 20 percent permanent impairment of her right arm, for which she received a schedule
award.
ORDER
IT IS HEREBY ORDERED THAT the June 24, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Coppell, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1548
Issued: July 14, 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 July 15, 2019 appellant, through counsel, filed a timely appeal from an April 29, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1

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

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 29, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish disability from work
for the period December 4, 2016 through August 13, 2017 causally related to her accepted
November 21, 2016 employment injury.
FACTUAL HISTORY
On March 15, 2018 appellant, then a 45-year-old former rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that on November 21, 2016 she broke her left index
finger when she fell after missing a step in front of a home on her delivery route while in the
performance of duty.4 OWCP accepted her claim for closed displaced fracture of the medial
phalanx of the left index finger.
Appellant submitted a February 7, 2018 report from Dr. Lan Hua, a Board-certified hand
surgeon, who examined appellant for complaints of left index finger pain at the proximal
interphalangeal joint (PIP), and bilateral wrist pain, numbness, and tingling. She reported to
Dr. Hua that she had fallen on her left hand at work in November 2016. Dr. Hua diagnosed
bilateral wrist pain, bilateral cubital tunnel syndrome, left finger osteoarthritis, and sequela of a
closed displaced fracture of the middle phalanx of the left index finger. She advised against
surgery due to the age of the left index finger fracture and recommended that appellant undergo
occupational therapy.
Appellant submitted a partial report dated February 26, 2018 from Dr. Victoria Knoll, a
Board-certified hand surgeon, who reviewed an x-ray of appellant’s left hand, observing old healed
fractures at the PIP and the radial base of the distal phalanx of the left index finger. Dr. Knoll
diagnosed bilateral lesions of the ulnar nerve of the upper limbs and left hand stiffness, and noted
that appellant’s healed left finger fractures did not appear to necessitate surgery.
On May 11, 2018 appellant filed a claim for wage-loss compensation (Form CA-7) due to
disability from work for the period December 4, 2016 through August 13, 2017. On the employing
establishment’s portion of the Form CA-7, a supervisor noted that appellant had been separated
from service on December 4, 2016, and advised that he was unable to certify the claim as her injury
had been reported to a physician two years after the date of injury. In an attached letter, the
supervisor recalled that appellant entered duty on October 29, 2016 and voluntarily resigned on
December 4, 2016 without giving a reason.5
By letter dated May 23, 2018, OWCP requested that appellant submit additional evidence
in support of her claim for wage-loss compensation, including a medical report explaining how
her employment-related condition worsened such that she was no longer able to perform the duties
of her position when she stopped work on December 4, 2016. It afforded her 30 days to respond.

4

Appellant voluntarily resigned from her position at the employing establishment on December 4, 2016.

5

In a time analysis form (Form CA-7a) accompanying her claim, appellant reported a total of 1,128 hours of leave
without pay due to an injured left index finger. An employing establishment official was unable to certify that the
claimed dates were accurate, as there was no medical evidence supporting temporary total disability and appellant had
been separated from service. In an attached notification of personnel action (PS Form-50), it was noted that appellant
had voluntarily resigned on December 4, 2016 and gave no reason for the resignation.

2

Appellant submitted a June 17, 2018 statement in which she explained that she separated
from the employing establishment on December 4, 2018 because she continually injured her
fractured left index finger and both her hands while working.
In a June 12, 2018 report, Dr. Knoll advised that appellant reported sustaining a finger
injury in November 2016 and noted that she first examined her on February 26, 2018 at which
time the physical examination of her left index finger revealed stiffness upon range of motion
(ROM) without instability/laxity of any joint. She related that x-ray testing demonstrated a healed
fracture at the radial base of the proximal phalanx of the index finger and a possible healed volar
plate avulsion. Dr. Knoll indicated that appellant reported difficulty performing her work duties
after the injury, but appellant noted that she was unable to make a statement of any functional
impairment in her left index finger prior to February 26, 2018. She attached a complete copy of
her February 26, 2018 report in which she noted that the examination of even date revealed
moderately decreased ROM of the left index finger. Dr. Knoll reviewed a February 26, 2018 x-ray
of the left index finger and diagnosed bilateral lesions of the ulnar nerve of the upper extremities
and left hand stiffness.6
Appellant also submitted administrative documents regarding her participation in
occupational therapy treatment and a May 22, 2018 report from Kristen Keesey, an occupational
therapist, who described a therapy session conducted on even date.
By decision dated August 22, 2018, OWCP denied appellant’s claim for wage-loss
compensation for disability from work for the period December 4, 2016 through August 13, 2017.
It found that the medical evidence of record failed to provide clinical objective findings from a
treating physician that supported her inability to work for the claimed period.
On September 14, 2018 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review.7
Appellant submitted a January 3, 2019 report from Dr. Jordan Pastorek, a Board-certified
internist, who noted that she reported a November 21, 2016 employment injury to her left index
finger. She asserted that she had resigned from the employing establishment due to her inability
to perform the duties of her position after the incident. On physical examination of the left upper
extremity, Dr. Pastorek observed positive Finkelstein’s, Phalen’s, and bracelet tests with limited
ROM and moderate pain on palpation of the left index finger. He diagnosed closed displaced
fracture of the middle phalanx of the left index finger.
In follow-up reports dated January 14, 15, 16, 21, 23, 24, 28, 29, and 31 and February 6,
2019, Dr. Pastorek reported findings for the examinations of appellant’s left upper extremity
conducted on these dates, including pain/tenderness to palpation of the left index finger. He
diagnosed closed displaced fracture of the middle phalanx of the left index finger and noted that
appellant had performed rehabilitative/therapeutic exercises on these dates.

6

Appellant had previously submitted a partial copy of Dr. Knoll’s February 26, 2018 report.

7

Appellant submitted an August 23, 2018 letter in which she discussed OWCP’s handling of her compensation
claim.

3

A hearing before OWCP’s hearing representative was held on February 12, 2019, during
which appellant discussed her left upper extremity symptoms.
After the hearing, appellant submitted reports dated February 7, 11, 14, 19, 21, 25, 26, and
28, March 5, 7, 11, 21, 25, and 28, and April 2 and 16, 2019 from Dr. Pastorek who noted
examination findings, including pain/tenderness to palpation of the left index finger, and diagnosed
closed displaced fracture of the middle phalanx of the left index finger.
Appellant also submitted reports from nurse practitioners, including February 27,
March 11 and 25, 2019 reports from Jessica Gerhart, and March 21 and April 9, 2019 reports from
Maziana Abiad.
By decision dated April 29, 2019, OWCP’s hearing representative affirmed the August 22,
2019 decision.
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 any disability or specific condition for
which compensation is claimed is causally related to the employment injury.8
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.9 Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages.10 An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.11 When, however, the medical evidence
establishes that the residuals or sequelae of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for loss of wages.12
The medical evidence required to establish causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. The opinion of
the physician must be based on a complete factual and medical background of the claimant, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the claimed disability and the accepted employment injury.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
8

S.W., Docket No. 18-1529 (issued April 19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009).

9

20 C.F.R. § 10.5(f).

10

See L.W., Docket No. 17-1685 (issued October 9, 2018).

11

See K.H., Docket No. 19-1635 (issued March 5, 2020).

12

See D.R., Docket No. 18-0323 (issued October 2, 2018).

13

Y.S., Docket No. 19-1572 (issued March 12, 2020).

4

claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period December 4, 2016 through August 13, 2017 causally related to her accepted
November 21, 2016 employment injury.
Appellant submitted a February 7, 2018 report from Dr. Hua, who noted that appellant
reported injuring her left index finger at work on November 21, 2016. Dr. Hua diagnosed several
medical conditions, including sequela of a closed displaced fracture of the middle phalanx of the
left index finger.15 In a partial report dated February 26, 2018, Dr. Knoll diagnosed bilateral
lesions of the ulnar nerve of the upper limbs and left hand stiffness. In a report dated June 12,
2018, she advised that she was unable to address any functional impairment in appellant’s left
index finger prior to February 26, 2018. In reports dated from January 3 through April 16, 2019,
Dr. Pastorek followed up with appellant for her left upper extremity problems and consistently
diagnosed closed displaced fracture of the middle phalanx of the left index finger. The Board
notes, however, that Drs. Hua, Knoll, and Pastorek did not provide an opinion as to whether
appellant was disabled from work during the claimed period, i.e., December 4, 2016 through
August 13, 2017, due to her accepted November 21, 2016 employment injury. The Board has held
that medical evidence that does not offer an opinion regarding the cause of an employee’s condition
or disability is of no probative value on the issue of causal relationship.16 Therefore, the abovenoted reports are of no probative value with regard to the issue of appellant’s disability for the
claimed period, and they are insufficient to establish her claim for wage-loss compensation.
Appellant submitted reports from nurse practitioners, including February 27, March 11,
and 25, 2019 reports from Ms. Gerhart, and March 21 and April 9, 2019 reports from Ms. Abiad.
She also submitted a May 22, 2018 report from Ms. Keesey, an occupational therapist. However,
these reports do not constitute competent medical evidence because nurse practitioners and
occupational therapists are not considered “physicians” as defined under FECA.17 Consequently,
the medical findings and/or opinions of Ms. Gerhart and Ms. Abiad will not suffice for purposes

14

A.W., Docket No. 18-0589 (issued May 14, 2019).

15

OWCP accepted that on November 21, 2016 appellant sustained a closed displaced fracture of the medial phalanx
of her left index finger.
16

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

17
5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See also 20 C.F.R. § 10.5(t); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); L.C., Docket
No. 16-1717 (issued March 2, 2017) (a nurse is not considered a physician under FECA); R.S., Docket No. 16-1303
(issued December 2, 2016) (an occupational therapist is not considered a physician under FECA).

5

of establishing entitlement to compensation benefits.18 As such, these reports are of no probative
value and are found to be insufficient to establish appellant’s claim for compensation.19
As the medical evidence of record does not include a rationalized opinion on causal
relationship between appellant’s claimed disability and her accepted November 21, 2016
employment injury, the Board finds that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period December 4, 2016 through August 13, 2017 causally related to her accepted
November 21, 2016 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the April 29, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 14, 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

18

Id.

19

See L.A., Docket No. 19-0820 (issued December 6, 2019); K.C., Docket No. 16-1181 (issued July 26, 2017).

6