United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
U.S. POSTAL SERVICE, LOGISTICS &
DISTRIBUTION CENTER, Kearny, NJ,
Employer
__________________________________________

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

Docket Nos. 19-1420 &
19-1422
Issued: August 12, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On June 10, 2019 appellant, filed a timely appeal from January 11 and April 16, 2019 merit
decisions and a February 27, 2019 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish more than
11 percent permanent impairment of her right upper extremity, for which she previously received
a schedule award; (2) whether OWCP properly denied appellant’s February5, 2019 request for
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the April 16, 2019 OWCP decision and on appeal, appellant submitted 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.

reconsideration of the merits of her schedule award claim pursuant to 5 U.S.C. § 8128(a); and
(3) whether OWCP abused its discretion in approving a fee in the amount of $2,500.00 for 16.7
hours of services rendered by her former counsel from March 9, 2007 through November 20, 2009.
FACTUAL HISTORY
This case had previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On or before July 6, 20074 appellant, then a 37-year-old temporary employee, filed an
occupational disease claim (Form CA-2) alleging that, due to factors of her federal employment,
including repetitive lifting and upper extremity motions handling mail, caused a cervical spine
condition. She stopped work at the employing establishment on January 2, 2006 and did not return.
On March 9, 2007 appellant authorized James D. Muirhead, Esq. to represent her in all
matters arising out of her federal workers’ compensation claim.
On August 20, 2007 OWCP accepted the claim for cervical spondylosis with myelopathy.5
Appellant claimed wage-loss compensation commencing January 2, 2006.
On June 12, 2008 appellant filed a notice of recurrence (Form CA-2a) claiming disability
commencing January 15, 2008, asserting that she had temporarily aggravated the accepted
condition when she reached for an item on a high shelf while performing private sector job duties.
In support of the recurrence claim, counsel submitted a November 6, 2009 letter and medical
evidence in support of the renewed disability.
By decision dated February 3, 2010, OWCP denied appellant’s claim for wage-loss
compensation commencing January 2, 2006, denied a recurrence of disability commencing
January 15, 2008, and found that the January 15, 2008 incident constituted an intervening injury,
breaking the legal chain of causation from the accepted condition.
Appellant, through counsel, requested reconsideration on March 1, 2010. OWCP denied
reconsideration by decision dated April 22, 2010.
Appellant, through counsel, appealed the February 3 and April 22, 2010 decisions to Board.

3

Docket No. 10-1780 (issued May 11, 2011).

4

The date of appellant’s signature on the Form CA-2 is illegible. Appellant’s supervisor signed the reverse side of
the form on July 6, 2007.
5
On October 26, 2007 appellant filed a claim for a schedule award (Form CA-7). By decision dated January 29,
2008, OWCP denied his schedule award claim as she had not submitted medical evidence indicating that the accepted
condition had attained maximum medical improvement (MMI).

2

By decision issued May 11, 2011,6 the Board set aside OWCP’s February 3, 2010 with
regard to whether there had been an intervening cause of disability, but otherwise affirmed the
February 3, 2010 decision. The Board also affirmed OWCP’s April 22, 2010 nonmerit decision.
On July 11, 2014 appellant filed a claim for a schedule award (Form CA-7). In support of
her request, counsel submitted a March 19, 2014 impairment rating by Dr. Nicholas Diamond, an
osteopath Board-certified in physical medicine and rehabilitation.7 Appellant completed a Pain
Disability Questionnaire (PDQ) questionnaire, scored at 107. Dr. Diamond performed a physical
examination and referenced the sixth edition of the A.M.A., Guides and The Guides Newsletter,
Rating Spinal Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The
Guides Newsletter) as the method for determining impairment. He indicated that MMI had been
reached as of March 19, 2014. Referring to Table 1 of The Guides Newsletter, Dr. Diamond found
a class of diagnosis (CDX) of 1 for moderate sensory deficit in the right C6 nerve root, with a
default value of three percent. He noted a grade modifier for functional history (GMFH) of 3 for
the PDQ score of 107, and a grade modifier for clinical studies (GMCS) of 3 for the March 20,
2006 magnetic resonance imaging result.8 Applying the net adjustment formula of (GMFH - CDX)
+ (GMCS - CDX), or (3-1) + (3-1), resulted in a net adjustment of 4, raising the default 3 percent
CDX value upward to 5 percent. Regarding the right C7 and C8 nerve roots, Dr. Diamond found
a CDX of two percent for moderate sensory deficit. He applied the identical grade modifiers as
for the C6 nerve root, resulting in a net adjustment of 4, adjusting the default two percent
impairment upward to three percent. Dr. Diamond combined the 5, 3, and 3 percent impairments
to find 11 percent permanent impairment of the right upper extremity.
OWCP routed Dr. Diamond’s March 19, 2014 report, a statement of accepted facts
(SOAF), and the case file to Dr. Henry J. Magliato, a Board-certified orthopedic surgeon serving
as a district medical adviser (DMA), for review as to the appropriate percentage of permanent
impairment.
In an August 12, 2014 report, Dr. Magliato concurred with Dr. Diamond’s impairment
rating and method of calculation. He agreed that appellant had attained MMI as of
March 19, 2014.
By decision dated January 11, 2019, OWCP granted appellant a schedule award for 11
percent permanent impairment of the right upper extremity, or 34.32 weeks of compensation which
ran from March 19 to November 14, 2014.
In a January 26, 2019 letter, appellant contended that then-counsel had not been helpful to
her and failed to keep her apprised of developments in her schedule award claim.
On February 4, 2019 OWCP received then-counsel’s fee application in the discounted
amount of $2,500.00 for 16.7 hours of services rendered from March 9, 2007 through
November 20, 2009. Counsel advised appellant on January 20, 2019 that he had not billed for
6

Supra note 3.

7

The record reflects that counsel provided information regarding appellant’s pay rate and filed ten letters pertaining
to the status of the schedule award claim prior to its issuance.
8

No grade modifier for physical examination (GMPE) was noted.

3

services rendered from 2010 to 2019, as the total amount charged would have greatly exceeded
$2,500.00 and her schedule award was only $10,810.80. An itemized statement listing the services
and time spent on each date was provided.
On February 5, 2019 appellant requested reconsideration of the January 11, 2019 schedule
award decision contending that the award was too low considering the severity of her ongoing
symptoms. In a February 6, 2019 letter, he contended that she had developed arthritis in her right
upper extremity and remained under medical care.
In a February 11, 2019 letter, OWCP forwarded to appellant a copy of the fee application.
It afforded her 30 days to comment on the fee application and to denote whether the fee charged
was reasonable and appropriate.
In response, appellant submitted letters dated February 6 and March 1, 2019, contending
that her member of Congress had assisted her in obtaining her schedule award as her former
counsel had not been helpful.
By decision dated February 27, 2019, OWCP denied appellant’s request for reconsideration
of the January 11, 2019 schedule award as she had not clearly identified the reasons for her request
or provided relevant and pertinent new evidence.
By decision dated March 11, 2019, OWCP approved her former counsel’s fee petition in
the amount of $2,500.00 for services rendered from March 9, 2007 through 2019.
On March 27, 2019 appellant requested reconsideration of OWCP’s March 11, 2019
decision. She provided a March 21, 2019 statement noting that her former counsel’s billing
statement had included charges for reviewing correspondence she had sent to him regarding her
claim and for telephone conversations with her. Appellant reiterated that she had sought help from
her member of Congress in obtaining her schedule award.
By decision dated April 16, 2019, OWCP denied appellant’s request for reconsideration of
the merits the March 11, 2019 fee decision.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA,9 and its implementing federal regulations,10 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 loss of a member shall be determined.
The method used in making such a determination is a matter which rests in the 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. OWCP
evaluates the degree of permanent impairment according to the standards set forth in the specified

9

Supra note 2.

10

20 C.F.R. § 10.404.

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edition of the A.M.A., Guides, published in 2009.11 The Board has approved the use by OWCP
of the A.M.A., Guides for the purpose of determining the percentage loss of use of a member of
the body for schedule award purposes.12
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury.13 OWCP’s procedures
provide that, to support a schedule award, the file must contain competent medical evidence which
shows that the impairment has reached a permanent and fixed state and indicates the date on which
this occurred, describes the impairment in sufficient detail so that it can be visualized on review,
and computes the percentage of impairment in accordance with the A.M.A., Guides.14
Neither FECA nor its implementing regulations provide for a schedule award for
impairment to the back or to the body as a whole.15 Furthermore, the back is specifically excluded
from the definition of organ under FECA.16 The sixth edition of the A.M.A., Guides does not
provide a separate mechanism for rating spinal nerve injuries as impairments of the extremities.
Recognizing that FECA allows ratings for extremities and precludes ratings for the spine, The
Guides Newsletter offers an approach to rating spinal nerve impairments consistent with sixth
edition methodology. For peripheral nerve impairments to the upper or lower extremities resulting
from spinal injuries, OWCP’s procedures indicate that The Guides Newsletter is to be applied.17
The Board has recognized the adoption of this methodology for rating extremity impairment,
including the use of The Guides Newsletter, as proper in order to provide a uniform standard
applicable to each claimant for a schedule award for extremity impairment originating in the
spine.18

11

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
12

See K.J., Docket No. 19-1492 (issued February 26, 2020); P.R., Docket No. 19-0022 (issued April 9, 2018);
Isidoro Rivera, 12 ECAB 348 (1961).
13

See T.H., Docket No. 19-1066 (issued January 29, 2020); D.F., Docket No. 18-1337 (issued February 11, 2019);
Tammy L. Meehan, 53 ECAB 229 (2001).
14

Supra note 7; see also B.J., Docket No. 19-0960 (issued October 7, 2019).

15
K.Y., Docket No. 18-0730 (issued August 21, 2019); L.L., Docket No. 19-0214 (issued May 23, 2019); N.D., 59
ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).
16

See 5 U.S.C. § 8101(19); see also G.S., Docket No. 18-0827 (issued May 1, 2019); Francesco C. Veneziani, 48
ECAB 572 (1997).
17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.
18
D.D., Docket No. 19-1676 (issued July 29, 2020); E.D., Docket No. 13-2024 (issued April 24, 2014); D.S.,
Docket No. 13-2011 (issued February 18, 2014).

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The claimant has the burden of proof to establish that the condition for which a schedule
award is sought, is causally related to his or her federal employment.19
The standards for evaluation of permanent impairment of an extremity under the A.M.A.,
Guides are based on all factors that prevent a limb from functioning normally, such as pain, sensory
deficit, and loss of strength.20 Also, it is axiomatic that in determining entitlement to a schedule
award, preexisting impairment to the scheduled member is to be included.21
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish more than 11
percent permanent impairment of her right upper extremity, for which she previously received a
schedule award.
Appellant submitted a March 19, 2014 report from Dr. Diamond to support her schedule
award claim. Dr. Diamond opined that appellant had sustained 11 percent permanent impairment
of the right upper extremity due to moderate sensory deficit of the right C4, C5, and C6 nerve
roots.
OWCP properly referred the evidence of record to a DMA, Dr. Magliato. In his August 12,
2014 report, the DMA concurred with Dr. Diamond’s impairment rating and application of the
A.M.A., Guides and The Guides Newsletter.
The Board finds that the DMA applied the appropriate tables and grading schemes of The
Guides Newsletter to Dr. Diamond’s clinical findings. The DMA concluded that appellant had 11
percent permanent impairment of the right upper extremity due to moderate sensory deficits of the
right C4, C5, and C6 nerve roots. His calculations were mathematically accurate and in accord
with the impairment findings of Dr. Diamond. There is no medical evidence of record utilizing
the appropriate tables of The Guides Newsletter demonstrating a greater percentage of permanent
impairment. Therefore, OWCP properly found 11 percent permanent impairment of appellant’s
right upper extremity.
There is no probative medical evidence of record, in conformance with the sixth edition of
the A.M.A., Guides, establishing that appellant has greater permanent impairment of her right
upper extremity than that previously awarded. Accordingly, appellant has not established that she
is entitled to additional schedule award compensation.

19

G.S., supra note 16; Veronica Williams, 56 ECAB 367 (2005).

20

C.H., 17-1065 (issued December 14, 2017); E.B., Docket No. 10-0670 (issued October 5, 2010); Robert V.
Disalvatore, 54 ECAB 351 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).
21
C.H., id.; C.K., Docket No. 16-1294 (issued January 13, 2017); P.W., Docket No. 16-0684 (issued October 3,
2016); J.C., Docket No. 15-1780 (issued March 17, 2016); Peter C. Belkind, 56 ECAB 580 (2005).

6

On appeal appellant contends that the severity of her continuing condition entitles her to
an increased schedule award. As noted above, her lay opinion is insufficient to overcome the wellrationalized medical opinions of Dr. Diamond and the DMA on issue of permanent impairment.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.22
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.23
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.24 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.25 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.26
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

22

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
23

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
24

20 C.F.R. § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
25

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

26
Id. at § 10.608(b); D.L., Docket No. 18-0449 (issued October 23, 2019); E.R., Docket No. 09-1655 (issued
March 18, 2010).

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Appellant, on reconsideration, neither alleged nor demonstrated that OWCP erroneously
applied or interpreted a specific point of law. Additionally, she did not advance any relevant legal
arguments not previously considered by OWCP. The Board thus finds that appellant is not entitled
to a review of the merits based on the first or second requirements under 20 C.F.R.
§ 10.606(b)(3).27
Appellant also failed to submit relevant and pertinent new evidence with the February 5,
2019 request for reconsideration. Her letters dated February 5 and 6, 2019 contended that the
severity of her ongoing condition warranted an additional schedule award. A lay opinion,
however, is not relevant medical evidence sufficient to warrant a higher rating of permanent
impairment. It is appellant’s burden to submit sufficient medical evidence to establish the extent
of permanent impairment.28 As her February 5 and 6, 2019 letters are irrelevant to the underlying
issue of permanent impairment, appellant is not entitled to a review of the merits based on the third
requirement under 20 C.F.R. § 10.606(b)(3).
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.29
LEGAL PRECEDENT -- ISSUE 3
It is not the function of the Board to determine the fee for services performed by a
representative of a claimant before OWCP. That function is within the discretion of OWCP based
on the criteria set forth in Title 20 of the Code of Federal Regulations and mandated by Board
decisions. The sole function of the Board on appeal is to determine whether the action of OWCP
constituted an abuse of discretion.30 Generally, an abuse of discretion is shown through proof of
manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to
both logic and probable deductions from established facts.31
Section 10.703(a)(2) of the Code of Federal Regulations provides in pertinent part that a
representative must submit a fee application, which includes a statement of agreement or
disagreement with the amount charged, signed by the claimant.32

27

Id. at § 10.606(b)(3)(i) and (ii).

28

See Annette M. Dent, 44 ECAB 403 (1993).

29

D.L., supra note 26; A.F., Docket No. 18-1154 (issued January 17, 2019); see A.R., Docket No. 16-1416 (issued
April 10, 2017); A.M., Docket No. 16-0499 (issued June 28, 2016); A.K., Docket No. 09-2032 (issued August 3, 2010);
M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet
at least one of the three requirements enumerated under 20 C.F.R. § 10.606(b), OWCP will deny the request without
reopening the case for a review on the merits).
30

See T.S., Docket No. 17-1706 (issued July 10, 2018); Alvin T. Groner, Jr., 47 ECAB 588 (1996); Edward Snider,
39 ECAB 1268 (1988).
31
See R.P., Docket No. 18-0681 (issued November 1, 2018); Claudio Vazquez, 52 ECAB 496 (2001); Daniel J.
Perea, 42 ECAB 214, 221 (1990).
32

20 C.F.R. § 10.703(a)(2).

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When a fee application has been disputed, OWCP is required to provide the claimant with
a copy of the fee application and request the submission of further information in support of any
objection.33 After the claimant has been afforded a reasonable time to respond to the request,
OWCP will then proceed to review the fee application.
Pursuant to section 10.703(c), when a fee is in dispute, OWCP will determine whether the
amount of the fee is substantially in excess of the value of services received by looking at the
following factors: (i) usefulness of the representative’s services; (ii) the nature and complexity of
the claim; (iii) the actual time spent on development and presentation of the claim; and (iv)
customary local charges for similar services.34
ANALYSIS -- ISSUE 3
The Board finds that OWCP has not abused its discretion in approving the fee in the amount
of $2,500.00 for 16.7 hours of services rendered by appellant’s former counsel from March 9, 2007
through November 20, 2009.
OWCP approved the former counsel’s fee request of $2,500.00 for services rendered from
March 9, 2007 through November 20, 2009.
OWCP reviewed the four factors under 20 C.F.R. § 10.703(c) and noted that appellant
merely submitted unsubstantiated assertions that her former counsel had not been effective in his
representation. It also noted that she had not submitted evidence to support her contention that the
fees charged were unreasonable. OWCP indicated that her former counsel had voluntarily reduced
his fees, based upon the schedule award recovery, to ensure reasonableness. The Board notes that
appellant’s former counsel was involved in filing appellant’s recurrence and schedule award
claims and he submitted supportive medical evidence. Appellant also had regular communications
with her former counsel for which he was entitled to compensation. Having reviewed the evidence,
the Board does not find an abuse of discretion by OWCP.
The Board has frequently held that it will not interfere with or set aside a determination by
OWCP of a fee for legal services unless the determination is clearly in error.35 OWCP has the
discretion to approve attorney fees, and in this case, the Board finds no abuse of discretion.36
Therefore the March 11, 2019 decision approving the attorney fee of $2,500.00 is affirmed.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than 11
percent permanent impairment of her right upper extremity, for which she previously received a
schedule award. The Board further finds that OWCP properly denied her February 5, 2019 request
33

20 C.F.R. § 10.703(c).

34

Id.

35

R.P., Docket No. 18-0681 (issued November 1, 2018); William Arthur Burney, 29 ECAB 253 (1978).

36
C.H., Docket No. 17-0623 (issued June 27, 2017); W.H., Docket No. 16-1297 (issued May 9, 2017); L.H., Docket
No. 11-0900 (issued December 6, 2011); C.H., Docket No. 10-0987 (issued March 22, 2011); Eric B. Petersen, 57
ECAB 680 (2006); Sharon Edwards, 56 ECAB 749 (2005).

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for reconsideration of the merits of her schedule award claim pursuant to 5 U.S.C. § 8128(a).
Finally, the Board further finds that OWCP has not abused its discretion in approving a fee in the
amount of $2,500.00 for 16.7 hours of services rendered by her former counsel from March 9,
2007 through November 20, 2009.
ORDER
IT IS HEREBY ORDERED THAT the April 16, February 27, and January 11, 2019
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 12, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Indianapolis, IN, Employer
__________________________________________

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

Docket No. 11-1411
Issued: November 21, 2011

Case Submitted on the Record

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

JURISDICTION
On May 20, 2011 appellant filed a timely appeal from a February 11, 2011 merit decision
of the Office of Workers’ Compensation Programs’ (OWCP) denying his traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c)(1) and 501.3, the Board has jurisdiction to consider the merits of the case.2
ISSUE
The issue is whether appellant has established that he sustained an injury in the
performance of duty on May 24, 2010.

1
2

5 U.S.C. § 8101 et seq.

Appellant also filed a timely request for an oral argument before the Board, pursuant to 20 C.F.R. § 501.3(a),
which was scheduled for November 1, 2011. The Board canceled the scheduled oral argument at his request.

FACTUAL HISTORY
On July 13, 2010 appellant, then a 50-year-old housekeeping aid, filed a traumatic injury
claim alleging that he injured his left arm pulling a bag of fitted sheets out of a bin on May 24,
2010 at 8:00 a.m.
Appellant submitted narrative notes from the employing establishment health unit.
Dr. V.S. Howard, the employing establishment physician, diagnosed left arm pain with
numbness and tingling in four fingers. He provisionally diagnosed triceps strain or lateral
epicondylitis on June 15, 2010. Appellant underwent a magnetic resonance imaging scan of the
cervical spine on July 2, 2010 which revealed cervical spondylosis with degenerative disc
disease from C3-4 through C7-T1 as well as bilateral disc herniations at C5-6 and left lateral disc
herniation at C7-T1. In a note dated July 2, 2010, Dr. Stephen Ritter, an orthopedic surgeon,
diagnosed left cervical pain. On July 12, 2010 he diagnosed neck pain. Dr. Ritter diagnosed
cervical pain on August 12, 2010.
He diagnosed C6 and C8 foraminal stenosis on
August 16, 2010. In a note dated August 13, 2010, Dr. Ritter noted that appellant injured himself
at work. He noted that appellant had left arm symptoms consistent with a nerve injury in the C7
and C8 nerve distributions.
Dr. Judith Dunipace, Board-certified in pain medicine, completed a report on July 27,
2010 and stated that appellant reported straining and feeling a pop in his neck in May 2010
which resulted in left neck pain radiating into his upper arm, forearm and hand. She diagnosed
degeneration of cervical intevertebral disc and performed a cervical epidural steroid injection.
In a letter dated October 22, 2010, OWCP stated that the merits of appellant’s claim had
not yet been addressed as it appeared to be a minor injury that resulted in minimal or no time lost
from work. It requested additional medical and factual evidence in support of appellant’s claim
and allowed 30 days for a response.
By decision dated November 23, 2010, OWCP denied appellant’s claim finding that he
had not submitted the necessary medical evidence to establish that his diagnosed conditions were
due to his accepted work incident on May 24, 2010.
Appellant requested reconsideration on December 17, 2010. He submitted a narrative
statement stating that his injury occurred on May 24, 2010 at work. Appellant described his
medical treatment. He also submitted additional medical evidence.
On June 8, 2010 Dr. Ritter recorded appellant’s history of left shoulder pain beginning on
May 26, 2010 pushing a shelf out of the way. He diagnosed left upper extremity pain with
decreased sensation in the fingers. Appellant submitted a report dated July 2, 2010 from
Dr. Ritter, who stated that he had a one-month history of left shoulder and arm pain and noted
that he was lifting at work and sustained an injury. On physical examination, Dr. Ritter found
reduced range of motion in the neck with reproducible Spurling-type finding to his left only. He
stated that appellant had subtle decrease in grip strength on the left with no obvious atrophy.
Dr. Ritter reviewed appellant’s cervical radiographs and found advanced degenerative disc
changes at C6-7 and multilevel spondylotic changes. He diagnosed stable C6-7 degenerative
spondylosis and stated that appellant had pain in the C7 distribution. Appellant underwent nerve

2

conduction and electromyelogram testing on June 16, 2010 which demonstrated mild acute or
chronic left cervical radiculopathy at C7 and C8 with some evidence of mild ongoing
denervation and chronic neuropathic changes. In a note dated July 12, 2010, Dr. Ritter
diagnosed possible C8 as well as possible C6 radiculpathy with neck pain and spinal stenosis.
By decision dated February 11, 2011, OWCP denied modification of appellant’s prior
decision finding that the medical evidence submitted was not sufficient to establish a causal
relationship between his diagnosed conditions and his accepted lifting incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.4 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.5
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”6 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First the employee must
submit sufficient evidence to establish that he and she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
sufficient evidence, generally only in the form a medical evidence, to establish that the
employment incident caused a personal injury.8
ANALYSIS
OWCP has accepted that appellant lifted in the performance of duty on May 24, 2010.
However, it has not accepted that his employment incident resulted in a personal injury.

3

5 U.S.C. §§ 8101-8193.

4

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

20 C.F.R. § 10.5(ee).

7

John J. Carlone, 41 ECAB 354 (1989).

8

J.Z., 58 ECAB 529 (2007).

3

Appellant initially submitted a note from Dr. Howard, an employing establishment
physician, diagnosing left arm pain, triceps strain or lateral epicondylitis. The Board has held
that the mere diagnosis of “pain” does not constitute the basis for payment of compensation.9
Furthermore, Dr. Howard did not clearly diagnose any condition indicating that appellant’s
condition could be either strain or lateral epicondylitis. As this report does not contain a firm
diagnosis of an acceptable condition, this report is not sufficient to meet appellant’s burden of
proof of establishing a traumatic injury on May 24, 2010.
In support of his claim for a traumatic injury, appellant submitted a series of reports from
Dr. Ritter beginning on June 8, 2010 diagnosing a variety of conditions including left arm pain.
The Board has held, as already noted, that the mere diagnosis of “pain” does not constitute the
basis for payment of compensation.10 Dr. Ritter also diagnosed cervical pain, C6 and C8
foraminal stenosis, nerve injury, C6 and C8 degenerative spondylosis and radiculopathy C6 and
C8. He indicated that appellant was injured at work in several reports. However, the Board
finds that Dr. Ritter did not specifically explain how appellant’s lifting at work would result in
any of the conditions diagnosed. Dr. Ritter did not provide a clear opinion on the causal
relationship between appellant’s diagnosed conditions of stenosis, spondylosis or radiculopathy
and the lifting incident. Without an opinion on the causal relationship between appellant’s
employment incident and his diagnosed conditions, these reports are not sufficient to meet his
burden of proof.
Appellant submitted a note from Dr. Dunipace providing history of injury including
lifting at work and diagnosing degeneration of a cervical disc. This report does not provide a
statement that his diagnosed condition was caused or aggravated by his accepted employment
activity. Furthermore, Dr. Dunipace’s opinion that appellant’s cervical disc had degenerated
suggests a preexisting condition rather than a traumatic injury. Due to the lack of a medical
opinion establishing a causal relationship, the Board finds that appellant has not met his burden
of proof in establishing a traumatic injury.
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 submitted the necessary medical opinion evidence
to establish a causal relationship between lifting in the performance of duty on May 24, 2010 and
any of his diagnosed condition. Therefore, the Board finds that he has failed to meet his burden
of proof.

9

Robert Broome, 55 ECAB 339 (2004).

10

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the February 11, 2011 decision of Office of
Workers’ Compensation Programs is affirmed.
Issued: November 21, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Long Beach, CA, Employer
_________________________________________

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

Docket No. 13-2087
Issued: April 8, 2014

Case submitted on the record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On September 13, 2013 appellant filed a timely appeal of an August 14, 2013 merit
award decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish more than nine
percent permanent impairment of his left upper extremity.
FACTUAL HISTORY
On October 7, 2011 appellant, then a 52-year-old city carrier, injured his left shoulder
while twisting and reaching at work. On December 2, 2011 OWCP accepted the claim for sprain
1

5 U.S.C. § 8101 et seq.

of the left shoulder and upper arm acromioclavicular (AC), other affections of the shoulder
region, not otherwise specified. It expanded the claim to include impingement syndrome, with
partial rotator cuff tear, arthroscopic subacromial decompression and chondral debridement.
Appellant received compensation benefits.
On April 23, 2012 Dr. Charles Herring, a Board-certified orthopedic surgeon, performed
an authorized left shoulder arthroscopy with subacromial decompression, with bursectomy and
coracoacromial ligament resection, as well as extensive rotator cuff debridement. In an April 27,
2012 report, he noted that appellant had normal postoperative pain. Dr. Herring diagnosed highgrade partial shoulder rotator cuff tear, left shoulder glenoid osteochondral defect, cervical
sprain/strain, status post left shoulder arthroscopy with subacromial decompression and chondral
debridement on April 23, 2012. In a December 4, 2012 report, he noted that appellant had full
range of motion of the left shoulder and negative impingement sign with Hawkins and Neer test.
Dr. Herring advised that there was a well-healed incision status postsurgical intervention and that
appellant had reached maximum medical improvement. In a January 9, 2013 report, Dr. Vikram
Hatti, a Board-certified diagnostic radiologist, advised that a left shoulder magnetic resonance
imaging (MRI) scan showed no full thickness tear of the rotator cuff. He also noted
supraspinatus tendinopathy, a small amount of fluid in the subacromial/subdeltoid bursa, which
indicated possible bursitis and AC joint arthropathy.
On April 25, 2013 appellant filed a claim for a schedule award. He submitted a
January 14, 2013 report from Dr. Charles Xeller, a Board-certified orthopedic surgeon, who
noted appellant’s history of injury and treatment and utilized the American Medical Association,
Guides to the Evaluation of Permanent Impairment, (6th ed. 2008) (A.M.A., Guides). Dr. Xeller
noted that the January 9, 2013 MRI scan revealed no full thickness tear and some remnant of a
partial tear. His narrative report listed range of motion findings for the left shoulder that
included flexion of 150 degrees, abduction of 150 degrees, internal rotation of 40 degrees and
external rotation of 40 degrees. Dr. Xeller noted that appellant had a painful impingement test;
however, he found no evidence of radiculopathy. He opined that appellant reached maximum
medical improvement. Dr. Xeller diagnosed status post left shoulder arthroscopy with
subacromial decompression and extensive chondral debridement as well as left shoulder residual
tendinopathy. He advised that impairment should be rated utilizing range of motion. Dr. Xeller
referred to Table 15-342 and noted: flexion of 30 degrees corresponded to three percent upper
extremity impairment and abduction of 150 degrees also corresponded to three percent upper
extremity impairment, external rotation of 40 degrees corresponded to four percent upper
extremity impairment and external rotation of 40 degrees corresponded to four percent upper
extremity impairment. He totaled these ratings and opined that appellant had 14 percent
impairment of the left arm.
In an attached January 14, 2013 range of motion study, he listed left shoulder findings of
flexion of 170 degrees, abduction of 170 degrees, internal rotation of 69 degrees and external
rotation of 60 degrees. The study noted that the active range of motion was objectively
evaluated using the dual inclinometry protocols outlined in the A.M.A., Guides, to include three
consecutive range of motion measurements with the mean or average calculated.
2

Id. at 475.

2

In an August 1, 2013 report, OWCP’s medical adviser noted appellant’s history of injury
and treatment and utilized the A.M.A., Guides. She noted that the accepted conditions included
left shoulder sprain and impingement syndrome, with partial rotator cuff tear, arthroscopic
subacromial decompression and chondral debridement. The medical adviser determined that
impairment due to left shoulder post-traumatic degenerative joint disease would be rated
according to Table 15-5.3 She explained that appellant was in the class 1 default position C, five
percent arm impairment. For grade modifiers, the medical adviser noted that clinical studies was
inapplicable as it was used for placement. The medical adviser referred to a modifier for
physical examination and determined that appellant had a grade modifier 2, pursuant to
Table 15-8.4 Regarding the functional history modifier, she determined that appellant had a
grade modifier 2, pursuant to Table 15-7.5 The medical adviser utilized the net adjustment
formula.6 She explained that the default position was modified by +2, moving to position E, and
an impairment of nine percent. The medical adviser noted that, while Dr. Xeller used range of
motion for the impairment rating, range of motion could vary based on effort and pain. She
explained that the A.M.A., Guides had moved away from range of motion as a sole method of
rating and moved to diagnosis-based impairment classes. The medical adviser indicated that this
was why she used a diagnosis-based rating. She opined that the total impairment for the left
upper extremity was nine percent and that appellant reached maximum medical improvement on
November 22, 2010.
On August 14, 2013 OWCP granted appellant a schedule award for nine percent
permanent impairment of the left upper extremity. The award covered a period of 28.08 weeks
from July 27, 2013 to February 8, 2014.7
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.8 FECA,
however, does not specify the manner by which the percentage loss of a member, function, or
organ shall be determined. To ensure consistent results and equal justice for all claimants under
the law, good administrative practice requires the use of uniform standards applicable to all
claimants.9 The A.M.A., Guides has been adopted by the implementing regulations as the

3

Id. at 405.

4

Id. at 408.

5

Id. at 406.

6

Id. at 411.

7

The record reflects that appellant received a schedule award of five percent to the right upper extremity in a
prior claim that is not presently before the Board. File No. xxxxxx704.
8

5 U.S.C. § 8107.

9

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

3

appropriate standard for evaluating schedule losses.10 Effective May 1, 2009, schedule awards
are determined in accordance with the sixth edition of the A.M.A., Guides.11
In addressing upper extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS).12 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).13
ANALYSIS
OWCP accepted appellant’s claim for conditions that included left shoulder sprain and
impingement syndrome, with partial rotator cuff tear. It authorized arthroscopic subacromial
decompression and chondral debridement. On August 14, 2013 OWCP granted appellant a
schedule award for nine percent impairment of the left arm based on the August 1, 2013 opinion
of OWCP’s medical adviser.
In a January 14, 2013 report, Dr. Xeller utilized the A.M.A., Guides and the range of
motion method to provide an impairment rating for the shoulder. He noted some remnant of a
partial tear referred to Table 15-34 and determined that appellant had an impairment of 14
percent of the left arm due to lost range of motion.14 However, Dr. Xeller did not sufficiently
explain how he arrived at this rating utilizing range of motion. The A.M.A., Guides provides
that, under specific circumstances, range of motion may be selected as an alternative approach in
rating upper extremity impairment and cautions that an impairment rating that is calculated using
range of motion stands alone and may not be combined with a diagnosis-based impairment.15
Additionally, section 15.7a indicates that range of motion should be measured after a warm up,
that the maximum range of motion should be measured at least three times and that the
maximum measurement is used to determine range of motion measurement.16 While Dr. Xeller
indicated that he had complied with these requirements, he did not show the three individual
measurements and appears to have listed the average of the measurements. Without these
measurements, the Board is not able to verify how he determined his impairment findings. The
Board also notes that the measurements contained in the range of motion study that Dr. Xeller
attached to his narrative report are not the same as the measurements listed in Dr. Xeller’s

10

20 C.F.R. § 10.404.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010); J.B., Docket No. 09-2191 (issued May 14, 2010).
12

A.M.A., Guides 385-419; see J.B., Docket No. 09-2191 (issued May 14, 2010).

13

Id. at 411.

14

Id. at 475.

15

Id. at 390.

16

Id. at 464.

4

narrative report that he used to rate impairment.17 He did not explain the discrepancies.
Additionally, the Board notes that Dr. Xeller did not indicate if or how he made any adjustments
utilizing functional history or range of motion grade modifiers.18 As it does not appear that
Dr. Xeller correctly complied with the procedures outlined in the A.M.A., Guides, his
calculations are not valid for impairment rating purposes.19 As his report did not comport with
the A.M.A., Guides, it is of diminished probative value and insufficient to establish appellant’s
left arm impairment.
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 nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.20
The Board notes that, in an August 1, 2013 report, OWCP’s medical adviser properly
chose the diagnosis-based method for determining the degree of impairment as opposed to the
methodology for loss of range of motion in the left shoulder, the method used by Dr. Xeller and
based her rating on post-traumatic degenerative joint disease diagnosis in Table 15-5 on page
405 of the A.M.A., Guides. She explained that appellant qualified for the default position, class
1, grade C, or five percent impairment for post-traumatic degenerative joint disease. The
medical adviser then utilized the grade modifier tables. She explained that clinical studies was
inapplicable as it was used for placement.21 The medical adviser referred to Table 15-7 for
functional history adjustment and found a grade modifier of two.22 She also referred to
Table 15-8 for physical examination and found a grade modifier of 2.23 The medical adviser
utilized the net adjustment formula: (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX)24 and
determined that the default position was modified by +2, moving the grade from position C to
position E, for an impairment rating of nine percent of the left upper extremity. The Board finds
that OWCP properly relied on this impairment rating and finds the record does not support a
greater permanent impairment.

17

In his narrative report, Dr. Xeller listed left shoulder flexion of 150 degrees, abduction 150, internal rotation 40,
and external rotation 40. The corresponding numbers from the range of motion study are 170, 170, 69 and 60.
18

A.M.A., Guides 406, Table 15-7 and 477, Table 15-36.

19

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 little probative value in determining the extent of a claimant’s permanent
impairment. I.F., Docket No. 08-2321 (issued May 21, 2009).
20

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
21

See A.M.A., Guides 407 (if a finding is used for placement of diagnosis within a specific class in a diagnosisbased impairment grid, that same finding cannot also be used as a grade modifier).
22

Id. at 406.

23

Id. at 408.

24

Id. at 411.

5

The Board finds that appellant did not meet his burden of proof to establish more than a
nine percent permanent impairment of his left upper extremity.
Appellant may submit evidence or argument with a written request for reconsideration
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 did not meet his burden of proof to establish that he
sustained more than a nine percent permanent impairment of his left upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the August 14, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 8, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.F., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Fort Dix, NJ, Employer
__________________________________________

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

Docket No. 12-466
Issued: July 13, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 29, 2011 appellant, through his attorney, filed a timely appeal from an
October 12, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant’s wage-earning capacity
was represented by the selected position of computer support specialist.
FACTUAL HISTORY
On May 1, 2006 appellant, then a 27-year-old correctional officer, filed a traumatic injury
claim (Form CA-1) alleging that on April 20, 2006 he sustained injuries when he slipped and fell
on his left side while running in the performance of duty. OWCP accepted the claim for left
1

5 U.S.C. § 8101 et seq.

shoulder and hip sprains, lumbar sprain and lumbar radiculopathy. Appellant underwent L4-5
fusion surgery on February 6, 2007 and received compensation for wage loss.
OWCP referred appellant for a second opinion examination by Dr. Zohar Stark, an
orthopedic surgeon. In a report dated July 26, 2007, Dr. Stark opined that appellant remained
disabled for his date-of-injury position and further opined that appellant was “totally disabled
from any work.” He completed a work capacity evaluation (OWCP-5c) indicating no lifting,
pushing or pulling.
In a report dated December 6, 2007, Dr. Stark stated that it appeared appellant was
suffering from a failed back syndrome with disabling residuals from the April 20, 2006 work
injury. He completed an OWCP-5c indicating appellant could work three hours a day sitting,
walking or standing, with a 10-pound lifting restriction.
Appellant was referred for vocational rehabilitation services. In a report dated July 9,
2009, Dr. Jeffrey Pollack, an attending internist, stated that appellant remained disabled due to
chronic lumbar pain, including a lumbar laminectomy and ongoing radicular symptoms
following this procedure.
OWCP again referred appellant for a second opinion examination. In a report dated
December 3, 2009, Dr. Robert Draper, Jr., a Board-certified orthopedic surgeon, provided a
history and results on examination. He diagnosed herniated L4-5 disc, status post decompression
laminectomy. Dr. Draper indicated that appellant had a permanent partial disability related to the
work injury and he could work in a job with 50 pounds occasional lifting and 25 pounds frequent
lifting.
By letter dated March 4, 2010, appellant’s representative indicated that appellant had
obtained a part-time, temporary job with a private corporation. In an undated statement,
appellant indicated the position would end in May 2010.
On September 17, 2010 a vocational rehabilitation counselor prepared a job classification
(Form CA-66) for the position of computer support specialist (Department of Labor, Dictionary
of Occupational Titles (DOT)) No. 039.264-010. The job was described as a medium strength
level position, available in appellant’s commuting area, with wages of $855.57 per week. The
counselor noted that appellant had received computer training. In a letter dated December 7,
2010, the employing establishment indicated that the current salary for the date-of-injury
position was $55,405.00 annually.
By letter dated January 19, 2010, OWCP advised appellant that it proposed to reduce his
compensation based on his capacity to earn wages as a computer support specialist. In a decision
dated March 3, 2011, it determined that the selected position of computer support specialist
represented his wage-earning capacity.
Appellant requested a hearing before an OWCP hearing representative, which was held
on July 21, 2011. In a report dated February 11, 2011, Dr. Pollack stated that he had been
treating appellant since 2006 and he had reviewed his treatment notes. He indicated that he had
also reviewed Dr. Draper’s report. Dr. Pollack stated, “[Appellant] certainly is disabled for his
prior occupation completely. In a sedentary setting, he might do but he would require frequent
2

repositioning and would have a certain amount of chronic discomfort in the back which may not
be beneficial for the patient’s well being and also may make the back worse. Hence, I
respectfully disagree with Dr. Draper’s conclusion that [appellant] is able to be working full-time
in a sedentary environment at this time.” In a duty status report (Form CA-17) dated February 9,
2011, Dr. Pollack reported that appellant could work four to five hours per day with a 10-pound
lifting restriction.
By decision dated October 12, 2011, the hearing representative affirmed the March 3,
2011 decision. The hearing representative found that Dr. Pollack “provided no actual
examination findings or medical rationale to establish an objective worsening of the claimant’s
accepted conditions or a decrease in his physical abilities since he was released to full-time work
in 2007.” In addition, the hearing representative found Dr. Pollack’s report was speculative and
a fear of future injury is not compensable. According to the hearing representative, Dr. Draper
represented the weight of the medical evidence. In addition, the hearing representative found
part-time actual earnings were inappropriate for wage-earning capacity as medical evidence
showed appellant could work full time.
LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction in such benefits.2 Under section 8115(a) of FECA, wage-earning capacity is determined
by the actual wages received by an employee if the earnings fairly and reasonably represent his
wage-earning capacity. If the actual earnings do not fairly and reasonably represent wage-earning
capacity, or if the employee has no actual earnings, his wage-earning capacity is determined with
due regard to the nature of his injury, his degree of physical impairment, his usual employment, his
age, his qualifications for other employment, the availability of suitable employment, and other
factors and circumstances which may affect his wage-earning capacity in his disabled condition.3
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position, listed in the Department of Labor, Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his or
her physical limitations, education, age and prior experience. Once this selection is made, a
determination of wage rate and availability in the labor market should be made through contact
with the state employment service or other applicable service.4 Finally, application of the
principles set forth in Albert C. Shadrick will result in the percentage of the employee’s loss of
wage-earning capacity.5

2

Carla Letcher, 46 ECAB 452 (1995).

3

See Wilson L. Clow, Jr., 44 ECAB 157 (1992); see also 5 U.S.C. § 8115(a).

4

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

5

5 ECAB 376 (1953); see also 20 C.F.R. § 10.403.

3

ANALYSIS
With respect to whether appellant was physically able to perform the selected position of
computer support specialist, OWCP found that Dr. Draper, the second opinion physician,
represented the weight of the medical evidence. Dr. Draper indicated that the only work
restrictions were 50 pounds lifting occasionally and 25 pounds frequently. The selected position
is a “medium” strength level position, which has a limitation of 50 pounds occasionally and 25
pounds frequently.
The hearing representative found the February 11, 2011 report from attending physician
Dr. Pollack was of diminished probative value. According to the hearing representative
appellant was “released to full duty” in 2007 and Dr. Pollack did not establish an “objective
worsening” of his employment-related condition. The record does not establish that appellant
was released to full duty in 2007. Dr. Stark, a second opinion physician, did not indicate that
appellant could work full time in 2007, and his work restrictions were clearly not within the
selected position’s physical requirements. Moreover, it is not appellant’s burden to show an
objective worsening of his condition. It is OWCP that has the burden to show that appellant can
perform the physical requirements of the selected position.
Dr. Pollack indicated that he had treated appellant for several years, had reviewed his
notes and Dr. Draper’s report. There is no indication that his opinion was based on an
insufficient background. Dr. Pollack offered an unequivocal opinion that appellant could not
work a full-time position and the stated work restrictions, provided in a Form CA-17, were not
within the requirements of the selected position. This is not a case of a restriction based solely
on fear of future exposure to environmental factors at work.6
The Board accordingly finds that Dr. Pollack provided a probative medical opinion that
was in disagreement with the second opinion physician Dr. Draper. Under FECA, if there is a
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician who shall make the
examination.7 OWCP should have resolved the conflict in the medical evidence. It is OWCP’s
burden of proof to reduce compensation, and OWCP failed to meet its burden in this case.
CONCLUSION
The Board finds that OWCP did not properly determine that appellant’s wage-earning
capacity was represented by the selected position of computer support specialist.

6

See Gaetan F. Valenza, 39 ECAB 1349 (1988) (the claimant’s temporary aggravation of asthma had resolved,
and medical evidence indicating possible reaggravation on return to work did not establish a continuing
employment-related disability).
7

5 U.S.C. § 8123.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 12, 2011 is reversed.
Issued: July 13, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
M.L., Executor of the Estate of E.L., Appellant
and
U.S. POSTAL SERVICE, MOSS POINT
BRANCH POST OFFICE, Moss Point, MS,
Employer
__________________________________________

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

Docket No. 20-0605
Issued: January 27, 2021

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 January 21, 2020 appellant filed a timely appeal from an August 2, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
have elapsed from OWCP’s last merit decision, dated July 12, 2018, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of the claim.

1

Appellant submitted a timely request for oral argument. 20 C.F.R. § 501.5(b). Pursuant to the Board’s Rules of
Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In support of appellant’s
oral argument request, he asserted that oral argument should be granted because OWCP ignored legal arguments and
evidence submitted on reconsideration which supported his claim for survivor’s benefits. The Board, in exercising its
discretion, denies appellant’s request for oral argument because the arguments on appeal can adequately be addressed
in a decision based on a review of the case record. Oral argument in this appeal would further delay issuance of a
Board decision and not serve a useful purpose. As such, the oral argument request is denied and this decision is based
on the case record as submitted to the Board.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 24, 2000 the employee, then a 36-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed a cervical condition due to factors of her
federal employment including lifting heavy trays of mail. She first noticed her condition and that
it was related to factors of her federal employment on May 4, 1998. OWCP assigned OWCP File
No. xxxxxx845 and initially accepted the claim for aggravation of cervical strain. On July 24,
2006 it expanded acceptance of the claim to include: chronic tension headaches, cerviogenic in
nature; postlaminectomy syndrome, arising from anterior cervical discectomy surgery to C5-6 with
anterior arthrodesis on July 10, 2000; cervical torticollis, cervical dystonia to the right; and
depression.
On May 2, 2000 the employee filed a separate Form CA-2 under OWCP File No.
xxxxxx847 for cervical conditions causally related to factors of her federal employment resulting
from twisting motions performed while in the performance of duty. OWCP accepted the claim for
herniated cervical disc. On September 28, 2004 it expanded acceptance of the claim to include
postlaminectomy syndrome cervical region, and mechanical complications of implant nervous
system device and graft.3 OWCP files have been administratively combined with OWCP File No.
xxxxxx845 serving as the master file. The employee stopped work in 2000 and did not return.
The record reflects that OWCP paid her wage-loss compensation benefits on the periodic rolls as
of June 16, 2002.
On May 31, 2013 the employee was admitted to her local hospital emergency room with
complaints of chest pain. She underwent cardiac catheterization on June 2, 2013 and was
discharged on June 3, 2013. The catheterization report related no angiographic evidence of
coronary artery disease. The employee passed away on June 4, 2013.
On May 18, 2015 appellant the employee’s widower, filed a claim for compensation by
surviving spouse and/or children (Form CA-5). The employee’s death certificate identified
hemorrhagic lungs as the immediate cause of death. The underlying causes of death included
respiratory impairment and recent intake of drugs. The death was identified as accidental due to
intake of prescribed medication.
A provisional autopsy report dated June 5, 2013, noted diagnoses inter alia of recent intake
of drugs: multiple venipunctures of right forearm and antecubital fossa; hemorrhagic atelectatic
lungs with aspirated gastric contents; dilated heart hypoxic myocardium, congested cyanotic brain
and viscera; small bloody pleural effusions; and autolytic changes in the brain.
By letter dated April 25, 2014 to OWCP, Coroner Vicki L. Broadus, RN related that the
employee’s cause of death was the intake of her prescription medication which was required for
3
On July 5, 2002 the employee had surgery to implant a Genesis Pulse Generator. On March 9, 2006 the spinal
neurostimulator was removed.

2

pain management related to a job-related injury. Ms. Broadus noted that the employee had been
hospitalized up to 12 hours prior to her death and that her medication count was correct at the death
scene. She concluded that the employee’s long-term narcotic use was the underlying cause of the
employee’s hemorrhagic lungs and respiratory impairment.
In an April 29, 2015 letter, Dr. Terry Millette, a Board-certified neurologist, related that he
had been the employee’s physician of record for the last nine years of her life. He noted that her
medical history related to her cervical condition and also noted that she had been released from a
hospital the evening before her death. Dr. Millette indicated that the employee had taken
medications approved for her employment injury.
On June 17, 2015 Dr. Eric Puestow, an OWCP district medical adviser (DMA), Boardcertified in internal medicine, reviewed the case record. He noted that the employee had been
treated with chronic narcotics for years and had passed all drug screen studies and had no history
of drug-seeking behavior. Dr. Puestow also noted that a pathologist had opined that she died of
cardiopulmonary failure consequential to ingestion of prescribed narcotics. However, he
disagreed, explaining that the employee had been on narcotics for years with no severe
consequences. Death would not have occurred if the employee had taken her medications as
prescribed. It was much more likely that she died of an overdose of prescribed narcotics after
leaving the hospital. Dr. Puestow concluded that there was no causal relationship between the
employee’s death and her work-related conditions.
OWCP referred the medical record for further review by a second opinion physician. On
August 3, 2015 Dr. Alan Heldman, a Board-certified internist, specializing in cardiovascular
disease and interventional cardiology, noted the employee’s history of injury and extensive
medical treatment. He reviewed in detail medical records dating back to 2000. Dr. Heldman
related that the medical records suggested a broad list of possible causes of unexplained death
including: seizure with aspiration of gastric contents, as the employee had a history of seizure
disorder; cardiac arrhythmia as the employee had electrocardiographic (EKG) findings of left
bundle branch block; and delayed adverse drug reaction to a treatment or diagnostic agent
administered during hospitalization. He concluded that he had not found evidence that narcotics
or other medication used for chronic pain was the cause of the employee’s unexpected sudden
death.
By decision dated August 11, 2015, OWCP denied appellant’s claim for survivor benefits.
The weight of the medical evidence was attributed to OWCP’s DMA and Dr. Heldman, who found
that the evidence did not establish that the employee’s death was directly related to the narcotic
medications prescribed for her employment-related injuries.
On July 28, 2016 appellant requested reconsideration. He also submitted additional
evidence.
In a report dated July 15, 2016, Dr. John McCloskey, a neurosurgeon, related that he had
performed the employee’s anterior cervical fusion two years after her employment injury. He
thereafter explained that sudden death was known to occur as a result of chronic opioid usage when
on a stable long-term dose. Dr. McCloskey also noted that the employee’s EKG tests had shown
a stable left branch block since 2009 and that she had been taking medication for her chronic pain,
which was known to cause heart problems including heart block. He further noted that he believed
3

that her seizure disorder was work related. Dr. McCloskey concluded that the employee’s
employment injury and subsequent severe chronic pain resulted in her death, caused by her longterm use of opioids.
In a report dated July 20, 2016, Dr. Jaswinder Singh Kandola, a Board-certified
cardiologist, related that he had reviewed medical records relating to the employee’s cardiac
condition as of 2006. He related that all EKG studies made available to him showed normal
findings. Dr. Kandola concluded that it was his impression that the employee did not die from
chronic heart disease.
Dr. Millette reported on July 22, 2016 that additional information was now available which
indicated that the amount of drugs in the employee’s system at autopsy were within the prescribed
range. He also noted that serious, life-threatening fatal respiratory depression had been reported
with the use of modified-release opioids, even when used as recommended.
OWCP determined that a conflict in medical opinion existed as to whether the employee’s
death was causally related to her employment injuries and/or treatment/sequelae. The case record,
along with a statement of accepted facts (SOAF) was sent to Dr. Robert E. Percy, a Board-certified
internist serving as an impartial medical examiner (IME), to resolve the conflict in medical
opinion.4 In a January 18, 2017 report, Dr. Percy opined that the employee’s death was not caused,
aggravated, precipitated, or accelerated by the employment injury or sequelae of her treatment.
He opined that her death was likely related to a seizure, noting that the autopsy report indicated
vomit in and around her nares and mouth, which suggested aspiration. Dr. Percy indicated that
this could be due to seizure, noting that the SOAF noted a seizure disorder and the medical records
supported that appellant’s medications of Tegretol (Carbamazepine) and Keppra (Levetiracetam)
were for seizures. He opined that there was no connection to a seizure diagnosis and the
employment injuries. Dr. Percy also advised that while an overdose of opioid medications,
intentional or unintentional may result in a life-threatening hypoventilation event, there was no
evidence to support that occurred. He also reviewed the cardiac records from the employee’s last
hospitalization for chest pain prior to her death. Dr. Percy discussed how she might have suffered
a cardiac arrhythmic event, which may stimulate a seizure or aspiration.
By decision dated May 3, 2017, OWCP denied modification of its August 11, 2015
decision. Special weight was afforded to the opinion of Dr. Percy, the IME, who opined that the
employee’s death was likely the result of a seizure, which may have been precipitated by a cardiac
arrhythmic event. He specifically denied a causal relationship between the side effects of her
opioid pain medication and her death.
On April 17, 2018 appellant requested reconsideration.
In a July 24, 2016 report, Dr. Thomas L. Yearwood, a Board-certified pain management
anesthesiologist, opined that the employee’s requirement for long-term opioid analgesics and their
untoward side-effects was “completely related” to her death. He opined that her autopsy and the
findings of the coroner were completely in line with opioid-induced central sleep apnea as the
4
The June 23, 2015 SOAFs noted that nonemployment-related conditions included: dilated bile duct; retained food
in stomach; seizure; tongue swelling; left breast cancer with mastectomy and implant; abdominal bloating; hiatal
hernia; acute arthritis, cholelithiasis; and cardiac infarction and internal hemorrhoids.

4

cause of her death. Dr. Yearwood explained that the other potential diagnoses “paled by
comparison” to the overwhelming evidence of central sleep apnea with concomitant aspiration of
gastric contents compounding pulmonary function due to loss of airway control as a result of
central nervous system depression.
By decision dated July 12, 2018, OWCP denied modification of its May 3, 2017 decision.
It found that Dr. Yearwood’s July 24, 2015 report was insufficient to overcome the special weight
of the medical evidence accorded to Dr. Percy’s IME opinion.
On July 2, 2019 appellant requested reconsideration. He contended that the employee’s
death was accidental due to long term use of opioid pain medications as a result of her employment
injuries, as supported by the medical evidence. Alternatively, appellant contended that, if in fact
Dr. Percy, the IME, was correct and that her death was due to a seizure, then it was still an
employment-related death as her anti-seizure medications were approved by OWCP and
prescribed to her for many years. In support of his argument, he submitted a listing of the
employee’s medications for the period June 1 to July 1, 2013, which included two anti-seizure
medications.
In an April 11, 2019 statement, the Jackson County Sheriff, concurred that the employee’s
death was related to her long-term narcotic use in order to control pain, which resulted from an
employment-related injury. He indicated that the medication count was correct at the death scene.
The Jackson County Sheriff opined that the drug use was the underlying cause of the hemorrhagic
lungs and respiratory impairment.
By decision dated August 2, 2019, OWCP denied reconsideration of the merits of the
claim. It found that appellant failed to submit new and relevant legal argument or evidence in
support of the request for reconsideration.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.5 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.6 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.7
A timely request for reconsideration, including all supporting documents, must set forth arguments
and contain evidence that either: (i) shows that OWCP erroneously applied or interpreted a
specific point of law; (ii) advances a relevant legal argument not previously considered by OWCP;

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
5

6

20 C.F.R. § 10.607.

7

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of its decision for which review is sought. Federal (FECA) Procedure Manual,
Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document
receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal Employees’
Compensation System (iFECS). Id. at Chapter 2.1602.4b.

5

or (iii) constitutes relevant and pertinent new evidence not previously considered by OWCP.8
When a timely request for reconsideration does not meet at least one of the above-noted
requirements, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.9
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
In his reconsideration request, appellant contended that the employee’s death was due to
long-term use of opioid pain medications prescribed for her employment injuries. He also asserted
that, if in fact Dr. Percy, the IME, was correct and that her death was due to a seizure, then it was
still an employment-related death as her anti-seizure medications were approved by OWCP and
prescribed to her for many years.
In support of his argument, appellant submitted a listing of the employee’s medications for
the period June 1 to July 1, 2013, which included two anti-seizure medications, and he indicated
that OWCP was paying for this medication.10 The Board finds that his legal arguments are new
and relevant to the underlying issue in this case of whether there is a new conflict of medical
opinion with Dr. Percy, the IME, that her death was caused or aggravated by, precipitated or
accelerated by the employment injury or sequelae of her treatment. While the record does not
document that, seizure was an accepted diagnosis, whether the employee suffered a seizure which
led to her death, and whether such seizure was causally related to the accepted employment injury
presents a relevant question, pertinent to the underlying medical issue. Consequently, he is entitled
to further merit review of his claim based on the first and second requirements under 20 C.F.R.
§ 10.606(b)(3).
As appellant has advanced a new and relevant legal argument, he is entitled to a review of
the merits of the claim under section 10.606(b)(3) of OWCP’s regulations.11 Following any further
development as deemed necessary, OWCP shall issue an appropriate merit decision regarding his
survivor claim.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

8

Id. at § 10.606(b)(3).

9

Id. at § 10.608(a), (b).

10

See T.V., Docket No. 19-1504 (issued January 23, 2020); S.P., Docket No. 18-1419 (issued February 27, 2019);
L.F., Docket No. 17-0243 (issued June 20, 2017); Bobbie F. Cowart, 55 ECAB 746 (2004).
11
See D.T., (L.S.), Docket No. 19-1060 (issued October 20, 2020); J.T., Docket No. 19-1829 (issued August 21,
2020); T.P., Docket No. 18-0608 (issued August 2, 2018). See L.K., Docket No. 15-0659 (issued September 15,
2016); T.L., Docket No. 16-0536 (issued July 6, 2016).

6

ORDER
IT IS HEREBY ORDERED THAT the August 2, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: January 27, 2021
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

7