United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
NATIONAL TRANSPORTATION SAFETY
BOARD, Washington, DC, Employer
__________________________________________

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Appearances:
Robert A. Taylor, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-2105
Issued: July 19, 2010

Case Submitted on the Record

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

JURISDICTION
On August 24, 2009 appellant, through his attorney, filed a timely appeal from the
June 23, 2009 nonmerit decision of the Office of Workers’ Compensation Programs. The most
recent merit decision of record is an Office hearing representative’s February 25, 2008 decision
denying appellant’s emotional condition claim. As this decision was issued more than one year
prior to the date of the docketing of the current appeal, the Board has no jurisdiction to review it
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration of
the merits pursuant to 5 U.S.C. § 8128(a).

1

For final adverse decisions issued by the Office prior to November 19, 2008, an appellant had up to one year to
file an appeal with this Board. See 20 C.F.R. § 501.3(d)(2). For Office decisions issued on and after November 19,
2008, appellant has 180 days from the date of issuance to file a Board appeal, unless appellant demonstrates
“compelling circumstances” for failing to timely file. See 20 C.F.R. § 501.3(e).

On appeal appellant, through his attorney, contends that the hearing representative
committed various errors in denying appellant’s claim and that, the Office delayed responding to
his November 12, 2008 reconsideration request, thereby depriving appellant of his right to have
his claim reviewed on the merits.
FACTUAL HISTORY
On October 24, 2005 appellant, then a 56-year-old financial management specialist, filed
an occupational disease claim alleging that he sustained depression and an anxiety disorder
caused or aggravated by his federal employment. He first started to experience anxiety and
depression in December 2000. Appellant attributed his condition to chronic obstructive
pulmonary disease and work-related stress. He listed various causes for his emotional condition
including, two on-the job injures that caused constant pain while attempting to perform his job.
Specific aspects of his work were very stressful, his duties on a particular project were undefined
and he received directions from more than one person. Appellant contended that he had to meet
impossible and unrealistic deadlines, did not have sufficient staff to help with his work, and had
not received appropriate training. He also alleged instances of harassment and a hostile work
environment.
By decision dated August 21, 2006, the Office denied appellant’s claim finding that his
injury did not arise in the performance of duty.
On September 14, 2006 appellant requested a hearing which was held on
December 12, 2007.
In a decision dated February 25, 2008, an Office hearing representative affirmed the
August 21, 2006 denial of appellant’s claim. The hearing representative found that appellant did
not establish a compensable work factor.
In a facsimile transmittal dated March 18, 2009, appellant, through his attorney, inquired
about when he could “expect a decision on the Request for Reconsideration dated
November 12, 2008.” Appellant’s attorney was concerned that the Office’s delay in deciding the
reconsideration request would deprive the Board of jurisdiction to review the merits of the
February 25, 2008 decision. By letter dated March 27, 2009, the Office informed counsel that
appellant had not submitted any request for reconsideration and that there had been no activity
on his claim since April 7, 2008.
By letter dated November 12, 2008, received by the Office on March 31, 2009, appellant
requested reconsideration, through his attorney.2 Counsel alleged several errors by the hearing
representative and submitted a statement from Charlotte Casey. The employing establishment
responded to appellant’s request for reconsideration, contending that appellant failed to establish
that the hearing representative erred in denying his claim for an emotional condition.

2

Appellant’s attorney also submitted a “print history” indicating that he mailed the November 12, 2008 letter on
the same date to the Office at London, Kentucky.

2

In a June 23, 2009 decision, the Office denied appellant’s request for reconsideration
without reviewing the merits of the case. It noted that the issues raised by counsel were
previously addressed and that Ms. Casey’s statement was irrelevant to the claim.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,3 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.4 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.5 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.6
ANALYSIS
The Board finds that the Office improperly failed to review the merits of appellant’s
claim.
In a February 25, 2008 decision, the hearing representative affirmed the denial of
appellant’s claim. Appellant’s attorney submitted a copy of a letter dated November 12, 2008
requesting reconsideration. He also submitted a print history record offering further support that
he mailed this letter on that date to the London, Kentucky district Office. However, the Office
indicated that it received this request on March 31, 2009.
The Board has found that in the absence of evidence to the contrary, it is presumed that a
notice mailed in the ordinary course of business was received in due course by the intended
recipient. This presumption is commonly referred to as the mailbox rule. It arises when the
record reflects that the notice was properly addressed and duly mailed.7 The Board has held that
the presumption of receipt under the mailbox rule applies equally to claimants and the Office
alike. Provided that the conditions which give rise to the presumption remain the same, namely,
evidence of a properly addressed letter together with evidence of proper mailing, the mailbox
rule may be used to establish receipt by the Office.8
3

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

7

Kenneth E. Harris, 54 ECAB 502, 505 (2003).

8

Id.; see also Larry L. Hill, 42 ECAB 596 (1991).

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In the instant case, appellant, through counsel, submitted sufficient evidence to establish
that he mailed a request for reconsideration on November 12, 2008. The request for
reconsideration was properly addressed to the Office, mailed in the due course of business and
properly addressed to the Office at its London, Kentucky address. Counsel submitted a print
history detailing correspondence sent from his office on that date. His correspondence to the
Office is listed on that date. There is no evidence to rebut the presumption that a letter properly
addressed and mailed in the due course of business, such as in the course of counsel’s practice,
arrived at the mailing address in due course. Accordingly, the Board finds that appellant, filed a
request for reconsideration on November 12, 2008.
Office procedures provide that if a reconsideration decision is delayed beyond 90 days,
and the delay would jeopardize a claimant’s ability to seek a merit review of his claim before the
Board, the Office should conduct a merit review and issue a decision so as to protect appellant’s
right to appeal.9 In this case, appellant filed his appeal of the hearing representative’s
February 25, 2008 decision on November 12, 2008. The Office did not issue its decision
denying appellant’s request for reconsideration until June 23, 2009, over 90 days after the
request was filed. It did not review the merits of appellant’s case in denying reconsideration. As
appellant had until February 24, 2009 to file an appeal with the Board requesting reconsideration
of the merits of his case10 and 90 days after the November 12, 2008 letter, February 9, 2009
would have allowed him adequate time to request review of the merits of his appeal. The
Office’s delay in issuing a decision jeopardized appellant’s appeal rights by effectively
preventing appellant from obtaining merit review of the February 25, 2008 decision. This action
was not consistent with the provisions of the Office’s procedure manual.
The Board will set aside the June 23, 2009 decision and remand the case to the Office for
merit review of the February 25, 2008 decision. Following this and such other development of
the record as it deems necessary, the Office shall issue an appropriate merit decision.
CONCLUSION
The Board finds that the Office abused its discretion in refusing to reopen appellant’s
case for further consideration of the merits pursuant to 5 U.S.C. § 8128(a).

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.9 (May 1996); see
also Ronald A. Eldridge, 53 ECAB 218 (2001).
10

The February 25, 2008 decision was issued prior to November 19, 2008; accordingly, appellant had one year to
request reconsideration before this Board. See supra note1.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 23, 2009 is set aside and the case is remanded for action
consistent with the terms of this decision.
Issued: July 19, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
L.Y., Appellant
and
U.S. POSTAL SERVICE, CAPITAL METRO
AREA OFFICE, Gaithersburg, MD, Employer
__________________________________________

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

Docket No. 20-0398
Issued: February 9, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 11, 2019 appellant filed a timely appeal from a November 5, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the November 5, 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 more than 14 percent
permanent impairment of her left upper extremity and more than 3 percent permanent impairment
of her right upper extremity, for which she previously received schedule award compensation.
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 October 27, 2010 appellant, then a 58-year-old retired human resources manager, filed
an occupational disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel
syndrome while performing repetitive duties which were required by factors of her federal
employment.4 OWCP accepted her claim for bilateral carpal tunnel syndrome, left rotator cuff
sprain, and other affections of the left shoulder region not elsewhere classified. Appellant
underwent a left carpal tunnel release on February 21, 2011 and a right carpal tunnel release on
June 27, 2011. OWCP subsequently expanded acceptance of the claim to include an acquired
trigger finger on the right. On October 11, 2012 appellant underwent an arthroscopic left rotator
cuff tendon repair with debridement and subacromial decompression. On February 26, 2013 she
underwent a right index trigger finger release. OWCP paid appellant wage-loss compensation and
she returned to work after each surgery.
By decision dated December 29, 2011, OWCP granted appellant a schedule award for three
percent permanent impairment of each upper extremity due to carpal tunnel syndrome.
On August 7, 2013 appellant filed a claim for an additional schedule award (Form CA-7).
On February 25, 2014 OWCP granted her a schedule award for an additional four percent
permanent impairment of the left upper extremity due to a full-thickness tear of the rotator cuff,
for a total of seven percent left upper extremity permanent impairment.5
On February 2, 2015 appellant requested reconsideration. She argued that she had an
increased total left upper extremity impairment as Dr. Webber’s seven percent impairment rating

3

Docket No. 15-1344 (issued March 10, 2016).

4

Appellant had retired on July 30, 2010.

5

This award was based a July 3, 2013 report by Dr. Stephen D. Webber, a Board-certified orthopedic surgeon, who
reported seven percent permanent impairment of appellant’s left upper extremity based on a full-thickness tear of the
rotator cuff.

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related only to her shoulder and did not include her carpal tunnel condition. Additional reports
from Dr. Webber were submitted.6
By decision dated March 10, 2015, OWCP denied appellant’s request for reconsideration.
Appellant appealed to the Board. By decision dated March 10, 2016, the Board set aside OWCP’s
March 10, 2015 decision and remanded the case for a de novo review.7
Following further development, by decision dated November 17, 2016, OWCP found that
appellant had an additional 3 percent permanent impairment of the left upper extremity, for a total
10 percent impairment of the left upper extremity. It accorded the weight of the medical evidence
to the November 10, 2016 report of Dr. Morley Slutsky, a Board-certified occupational medicine
physician serving as OWCP’s district medical adviser (DMA), who reviewed July 5 and
September 16, 2016 reports of Dr. D. Burke Haskins, a Board-certified orthopedic surgeon and
second opinion physician.
In a May 14, 2017 report, Dr. Robert W. Macht, a general surgeon, opined that appellant
had reached maximum medical improvement (MMI) by April 30, 2017. He noted appellant’s
physical examination findings, which included decreased sensation to light touch about all the
fingers, slight pain with motion of the right index finger, and no triggering. Dr. Macht also
provided active range of motion (ROM) findings, which he noted that were repeated at least three
times.8 Based on diagnosis-based impairment (DBI) methodology, Dr. Macht opined that
appellant had 12 percent left upper extremity impairment of the left shoulder and 5 percent left
upper extremity impairment for carpal tunnel syndrome, for a total combined left upper extremity
permanent impairment of 16 percent. He also opined that she had six percent right upper extremity
permanent impairment due to carpal tunnel syndrome and triggering finger. Dr. Macht found
under Table 15-2, page 392, of the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides)9 that appellant had a class 1 or six
percent impairment of the right index finger due to continuing triggering, which converted to one
percent impairment of the right upper extremity. He also cited to other appropriate sections and
tables in the A.M.A., Guides. A copy of an April 16, 2014 upper extremity electromyogram and
nerve conduction velocity (EMG/NCV) study revealed moderate bilateral median
mononueropathy carpal tunnel syndrome, worse on right side, was also submitted.10 In a
6

In an October 1, 2014 report, Dr. Webber confirmed that his seven percent rating for the shoulder did not take
into account any other impairment of the left upper extremity. In a February 24, 2015 report, he assigned 3 percent
for right carpal tunnel syndrome and 7 percent impairment for a right-sided full-thickness rotator cuff tear, for a total
right upper extremity impairment of 14 percent.
7

See supra note 3.

8

This was reported as flexion of 100 degrees, extension of 30 degrees, abduction of 90 degrees, adduction of 30
degrees, internal rotation of 30 degrees and external rotation of 50 degrees.
9

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

10

In his initial review of Dr. Macht’s May 14, 2017 report, the DMA indicated that the EMG performed on
June 2011 was not available for his review. He also noted, while the April 16, 2014 EMG/NCV test was of record, it
did not meet the A.M.A., Guides criteria for use under Table 15-23 as the electrodiagnostic measurements were
unreadable on OWCP’s scanned copies.

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supplemental report dated October 16, 2017, Dr. Macht related that on May 10, 2017 he had taken
three measurements of appellant’s left shoulder ROM. He provided the measurements and noted
that he had not averaged the measurements, but had utilized the best measurement.
In a report dated December 16, 2017, Dr. Slutsky, the DMA, reviewed Dr. Macht’s
May 14, 2017 report. He related that appellant’s final combined left upper extremity permanent
impairment was 13 percent, which was comprised of 12 percent impairment of the left shoulder,
the same rating as Dr. Macht, but only 1 percent impairment due to her left carpal tunnel syndrome,
for which Dr. Macht had assigned 5 percent. The DMA also related that she had a total combined
right upper extremity permanent impairment of three percent, which was composed of two percent
for carpal tunnel syndrome, while Dr. Macht had assigned five percent, and one percent for trigger
finger, the same percentage assigned by Dr. Macht. He explained that appellant’s 12 percent left
shoulder permanent impairment rating was based upon ROM methodology, as it exceeded the 6
percent impairment rating found use the DBI methodology. The DMA also related that her left
carpal tunnel impairment was rated under the DBI method for nonspecific wrist pain as her left
median nerve measurements did not meet the criteria for measurement under Table 15-23, page
449 of the A.M.A., Guides for entrapment compression neuropathy. Regarding the right upper
extremity, the DMA reported that appellant had a two percent permanent impairment due to carpal
tunnel syndrome, for entrapment compression neuropathy, and a 1 percent permanent impairment
due to trigger finger, which he noted was the same as Dr. Macht’s rating. Regarding her right
trigger finger, he explained that no trigger was found during Dr. Macht’s examination however
she still had some residuals which were consistent with a sprain, therefore, instead of rating based
on loss of ROM, her right index finger impairment was rated under the DBI methodology as a
right index finger sprain. The DMA concluded that his final assessment of six percent permanent
impairment of the right index finger converted to a one percent permanent impairment of the right
upper extremity. He totaled appellant’s two permanent impairment ratings due to right carpal
tunnel syndrome, with her one percent permanent impairment due to trigger finger, to find a
combined rating of three percent permanent impairment of the right upper extremity.
By decision dated January 18, 2018, OWCP granted appellant a schedule award for an
additional 3 percent permanent impairment of the left upper extremity, for a total 13 percent left
upper extremity impairment. No additional impairment was awarded for the right upper extremity
greater than the three percent impairment previously awarded. OWCP accorded the weight of the
medical evidence to the DMA’s December 16, 2017 report, which reviewed Dr. Macht’s May 14
and October 16, 2017 reports.
On January 22, 2018 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. During the hearing, held on June 8, 2018, she advised
that she was appealing the schedule award decision regarding permanent impairment of her right
upper extremity. In support thereof, appellant submitted a duplicate copy of Dr. Macht’s May 14,
2017 report.
By decision dated August 6, 2018, the hearing representative vacated OWCP’s January 18,
2018 decision. He remanded the case to OWCP for further review by the DMA followed by a de
novo decision.

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In a September 30, 2018 report, the DMA indicated that appellant’s final combined left
upper extremity permanent impairment was 14 percent. He concurred with Dr. Macht’s May 14,
2017 findings that she had 12 percent left shoulder upper extremity impairment, but based this
finding on ROM methodology as it yielded the higher impairment over that of the DBI
methodology for full-thickness rotator cuff tear with residual dysfunction. The DMA however,
indicated that the left carpal tunnel impairment was two percent, not five percent as assigned by
Dr. Macht. He further found that the final combined right upper extremity impairment was three
percent, which was comprised of two percent impairment for carpal tunnel syndrome and one
percent impairment for trigger finger. The DMA opined that appellant was not entitled to an
additional schedule award. He concurred with Dr. Macht’s one percent right upper extremity
impairment for trigger finger. For the right carpal tunnel syndrome, the DMA utilized Table 1523, page 449, of the A.M.A., Guides, and found, like Dr. Macht, a grade modifier for clinical
studies of 1 (GMCS) for EMG/NCV testing. However, he found that appellant’s condition had a
grade modifier for functional history (GMFH) of 1 and a grade modifier for physical examination
(GMPE) of 1. The DMA further found that the QuickDASH score was invalid. This resulted in
an average grade modifier of 1, which resulted in final two percent right upper extremity
impairment. The DMA cited to appropriate tables within the A.M.A., Guides and provided his
calculations. He related that the date of MMI was May 14, 2017, the date of Dr. Macht’s
impairment evaluation.
OWCP determined that a conflict in medical opinion existed between Dr. Macht and the
DMA, Dr. Slutsky, regarding the extent of appellant’s left and right upper extremity permanent
impairment. It referred appellant, along with a November 1, 2018 statement of accepted facts, to
Dr. Sankara Kothakota, a Board-certified orthopedic surgeon, for an impartial medical
examination.
In a report dated December 6, 2018, Dr. Kothakota opined that regarding appellant’s carpal
tunnel syndrome “both sides’ problems have been resolved” however he also noted that she had
more residual problems on the right side. In the absence of significant objective findings, he found
a GMPE of 1. Dr. Kothakota noted that there was no significant grip strength loss and there was
no atrophy on examination. He agreed with the DMA’s two percent impairment rating for the
carpal tunnel diagnoses, noting that he reviewed the DMA’s entire report and that his enumeration
was accurate. For the left shoulder, Dr. Kothakota indicated that there was no impact or actual
injury to the shoulder other than lifting paperwork. He advised that all the degenerative changes
seen on the diagnostic testing of the shoulder were related to appellant’s age, not to the
employment injury. As a result, Dr. Kothakota opined that DBI methodology better represented
her impairment than ROM methodology, as the lack of ROM in the left shoulder was most
probably related to the arthritic process, a preexisting clinical condition. He opined that as the
arthritic process in the shoulder would not be caused by paperwork or lifting boxes, he did not
agree with Dr. Macht’s impairment findings. Rather, Dr. Kothakota indicated that because part of
the left shoulder problems were not related to the employment-related injury, he agreed with the
DMA’s opinion that the DBI methodology was the best representation of appellant’s impairment
as ROM impairments would be inaccurate in this patient. The DMA, however, had utilized the
ROM methodology, finding that it represented the highest impairment rating. Dr. Kothakota also
indicated that he concurred with ratings and numbers provided by the DMA on
September 30, 2018.

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In a March 7, 2019 letter, appellant indicated that her disagreement with Dr. Kothakota’s
opinion. She also indicated that the DMA had found that she had 14 percent permanent impairment
of her left upper extremity, but she had not been paid the additional 1 percent owed over the 13
percent permanent impairment previously paid.
By de novo decision dated March 25, 2019, OWCP denied appellant’s claim for an
increased schedule award. It accorded the special weight of the medical evidence to
Dr. Kothakota’s impartial medical opinion.
In a revised de novo decision dated April 9, 2019, OWCP notified appellant that the claim
for an increased schedule award for the right upper extremity in excess of the three percent
impairment previously awarded remained denied. However, an additional one percent impairment
to the left upper extremity was awarded, for a total of 14 percent permanent impairment to the left
upper extremity. The claims examiner noted that appellant never received the additional one
percent left upper extremity impairment which the DMA found that she was entitled to in his
September 30, 2018 report and with which Dr. Kothakota agreed.
By separate decision dated April 9, 2019, OWCP awarded appellant an additional one
percent schedule award for permanent impairment of the left upper extremity, for a total of 14
percent left upper extremity permanent impairment. The period of the award, equivalent to 3.12
weeks of compensation, ran for the period from July 19 to August 9, 2017.
On April 24, 2019 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. During the hearing, held on August 21, 2019, appellant testified
that her physicians had informed her that her preexisting arthritis was exacerbated and permanently
aggravated by the employment injury. OWCP subsequently received a July 27, 2019 statement
from appellant.
By decision dated November 5, 2019 the hearing representative affirmed OWCP’s April 9,
2019 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA,11 and its implementing federal regulations,12 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. FECA,
however, 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

11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404.

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specified edition of the A.M.A., Guides, published in 2009.13 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.14
The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the
World Health Organization’s International Classification of Functioning Disability and Health
(ICF).15 Under the sixth edition, the evaluator identifies the impairment class of diagnosis (CDX),
which is then adjusted by a grade modifier for functional history (GMFH), grade modifier for
physical examination (GMPE), and grade modifier for clinical studies (GMCS).16 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).17 Evaluators are
directed to provide reasons for their impairment choices, including the choices of diagnoses from
regional grids and calculations of modifier scores.18
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides, in part:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)19
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a
13

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).
14

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

15

A.M.A., Guides (6th ed. 2009) 3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
16

Id. at 383-492.

17

Id. at 411.

18

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

19

FECA Bulletin No. 17-06 (issued May 8, 2017); see also W.H., Docket No. 19-0102 (issued June 21, 2019).

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third physician who shall make an examination.20 In situations where there exist opposing medical
reports of virtually equal weight and rationale and the case is referred to an impartial medical
examiner (IME) for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.21
OWCP’s procedures provide that, if a case has been referred to an IME to resolve a conflict
regarding permanent impairment, it is unnecessary to route the file to a DMA as long as the IME
explains his or her impairment rating and cites to the appropriate tables and the A.M.A., Guides.
The DMA should not resolve the conflict in medical opinion.22
When OWCP obtains an opinion from an IME for the purpose of resolving a conflict in the
medical evidence, and the IME’s opinion requires clarification or elaboration, OWCP must secure
a supplemental report from the examiner for the purpose of correcting the defect in the original
opinion.23 If the referral physician fails to respond or does not provide an adequate response,
OWCP should refer appellant for a new impartial medical examination.24
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP determined that a conflict in medical opinion existed between Dr. Macht, an
attending physician, and the DMA, Dr. Slutsky. Dr. Macht found that appellant had 12 percent
permanent impairment of her left shoulder based on DBI methodology and 5 percent permanent
impairment for carpal tunnel syndrome, for a total combined left upper extremity impairment
rating of 16 percent. He also opined that she had six percent right upper extremity impairment due
to carpal tunnel syndrome and trigger finger. The DMA found that appellant had final combined
left upper extremity impairment of 14 percent. He concurred with Dr. Macht that there was 12
percent left shoulder upper extremity impairment, but found that it was based on ROM
methodology, and that her left carpal tunnel syndrome caused two percent permanent impairment.
The DMA also found three percent final combined right upper extremity impairment, which was
comprised of two percent impairment for carpal tunnel syndrome and one percent impairment for
trigger finger. In order to resolve the conflict of medical opinion regarding the impairment to

20

5 U.S.C. § 8123(a); see also 20 C.F.R. § 10.321.

21

K.D., Docket No. 19-0281 (issued June 30, 2020); J.W., Docket No. 19-1271 (issued February 14, 2020).

22

See also J.M., Docket No. 18-1387 (issued

23

W.H., Docket No. 16-0806 (issued December 15, 2016); supra note 14 at Chapter 2.810.11(e) (September 2010).

24

Id.; see also R.W., Docket No. 18-1457 (issued February 1, 2019).

See supra note 14 at Chapter 2.808.6(g) (March 2017).
February 1, 2019).

8

appellant’s upper extremities, OWCP properly referred her to Dr. Kothakota for an impartial
medical examination.25
In his December 6, 2018 report, Dr. Kothakota reviewed the DMA’s September 30, 2018
report and concurred with his impairment ratings. However, he did not provide specific
impairment ratings under the tables of the A.M.A., Guides for either the left or the right upper
extremity. As such, Dr. Kothakota’s impairment rating does not conform to the A.M.A., Guides
and is of diminished probative value.26
The Board also notes that Dr. Kothakota opined that the arthritic process in appellant’s left
shoulder was a preexisting condition which was unrelated to the May 6, 2008 employment injury.
Thus, Dr. Kothakota opined that the DBI methodology better represented her left shoulder
impairment than ROM methodology as the lack of ROM was most probably related to the arthritic
process, a preexisting clinical condition. However, in determining entitlement to a schedule award,
preexisting impairment to the scheduled member are included.27 Further, Table 15-5 of the
A.M.A., Guides allows an alternative rating for a rotator cuff injury, full-thickness tear with
residual loss under the ROM impairment methodology. Dr. Kothakota failed to provide an
impairment for appellant’s left shoulder based on his ROM findings despite OWCP’s instructions.
Moreover, he misstated the DMA’s report by indicating that he agreed with the DMA that the DBI
methodology was the best representation of appellant’s left upper extremity impairment. The
DMA’s report based her left shoulder impairment on ROM methodology. As Dr. Kothakota’s
report was incomplete and inaccurate, he failed to resolve the conflict in medical opinion with
regard to appellant’s left upper extremity.
With regard to appellant’s right upper extremity, Dr. Kothakota properly relied on the
DMA’s two percent impairment rating based on carpal tunnel syndrome as that calculation was
proper under the A.M.A., Guides. However, he failed to provide any explanation for his reliance
on the DMA’s one percent impairment based on trigger finger. Dr. Kothakota did not offer any
specific clinical or physical findings or opinion regarding appellant’s right trigger finger condition.
In light of these discrepancies, he has not resolved the conflict in medical opinion with regard to
impairment of the right upper extremity.
When OWCP obtains an opinion from an IME for the purpose of resolving a conflict in the
medical evidence, and the IME’s opinion requires clarification or elaboration, OWCP must secure
a supplemental report from the examiner for the purpose of correcting the defect in the original
opinion.28 Accordingly, the Board finds that OWCP should have referred the case back to
Dr. Kothakota, or to a new impartial medical specialist for clarification. Consequently, the case is
remanded for further medical development with regard to appellant’s entitlement to a greater
25

B.S., Docket No. 19-1717 (issued August 11, 2020); supra note 16.

26

Supra note 20; see N.B., Docket No. 07-1622 (issued November 26, 2007).

27

C.H., Docket No. 17-1065 (issued December 14, 2017); 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).
28

W.H., Docket No. 16-0806 (issued December 15, 2016); supra note 14 at Chapter 2.810.11(e) (September 2010).

9

schedule award for permanent impairment of her left and right upper extremities. After this and
other such further development as necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 5, 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: February 9, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

10


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

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

Docket No. 13-1169
Issued: April 18, 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 April 17, 2013 appellant filed a timely appeal from a February 6, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP), denying his authorization for
physical therapy treatment. 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 abused its discretion by denying authorization for physical
therapy treatment for the period November 30, 2012 to March 30, 2013.
FACTUAL HISTORY
On October 15, 1984 appellant, then a 33-year-old letter sorting machine operator, began
working for the employing establishment. On that same date he experienced pain in his back

1

5 U.S.C. § 8101 et seq.

with radiation to his right knee as a result of sliding a tray of mail out of a rack. OWCP accepted
the claim for lumbosacral strain.
On March 17, 1986 appellant experienced back pain while lifting a sack of mail off a
rack at work. OWCP accepted the claim for right sacroiliac strain and herniated nucleus
pulposus at L5-S1. On August 26, 1986 appellant underwent laminectomy of L5-S1, bilateral
foraminotomies L5-S1 and excision of L5-S1 disc.
On September 3, 1987 appellant experienced back symptoms while bending and throwing
bundles at work. OWCP accepted the claim for protruded disc at L4-5.
In January 1989, appellant underwent excision of herniated disc and foraminotomy at
L4-5. On September 11, 1995 he underwent a decompressive lumbar laminectomy at L5-S1. On
July 13, 2004 appellant underwent decompressive lumbar laminectomy at L3, L4 and L5,
discectomy at L3-4 and L3-5 fusion with instrumentation and grafting. On May 12, 2006
Dr. Jorge J. Inga, a Board-certified neurological surgeon, released appellant to work with
restrictions.
On June 25, 2006 Dr. Walter E. Afield, a Board-certified psychiatrist, reported that
appellant was totally disabled and unable to return to work due to acute depression and anxiety.
On July 21, 2006 OWCP accepted appellant’s claim for acute situational reaction to stress with
depression.
On May 9, 2007 Dr. Inga stated that appellant was permanently disabled and unable to
engage in any type of employment. Appellant stopped work in February 2006 and did not return.
On June 23, 2009 appellant was referred to Dr. Ponnavolu D. Reddy, a Board-certified
orthopedic surgeon, for a second opinion evaluation. Dr. Reddy reported that appellant appeared
to have postlaminectomy syndrome, spinal stenosis of the lumbar spine postspinal fusion and
cervical spondylosis. He stated that none of appellant’s work-related conditions had resolved
and that appellant remained totally disabled with lumbar and cervical stiffness. Dr. Reddy stated
that appellant’s prolonged disability and disabling symptoms were due to postoperative changes
in the lumbar spine resulting in chronic nerve irritation which caused appellant pain. He further
noted cervical spine arthritis which caused him pain and limited activity. Dr. Reddy stated that
there were no subjective complaints that did not correspond with objective findings. He
concluded that appellant was totally disabled and could not return to work. Dr. Reddy
recommended home therapy once a month.
Appellant underwent various forms of physical therapy treatments, which were approved
by OWCP. Most recently, OWCP approved his physical therapy requests for the period
April 12, 2011 through November 30, 2012.
On November 23, 2012 Dr. Inga requested that OWCP authorize treatment for
neuromuscular reeducation, massage therapy, therapeutic activities and self-care management
training for the period November 30, 2012 to March 30, 2013. He indicated that the requested
therapy was to treat the lumbosacral spine in order to reduce pain, improve circulation and
increase range of motion as appellant’s condition was permanent.

2

OWCP wrote to Dr. Inga by letter dated November 30, 2012 stating that it had recently
authorized physical therapy services for the period July 31 to November 30, 2012 and received a
request for neuromuscular reeducation, massage therapy, therapeutic activities and self-care
management training for the period December 1, 2012 to March 30, 2013. It informed Dr. Inga
that, because appellant was more than eight years postoperative, the therapy requested appeared
excessive and further medical information was required before authorization for these services
was granted. OWCP requested additional information, including the diagnosis for which
physical therapy would be administered, specific functional deficits which were to be treated,
how it affected appellant’s physical activities, functional goals of the additional therapy,
expected duration and frequency of treatment and the appropriateness of home exercise verses
supervised physical therapy.
By letter dated December 12, 2012, Dr. Inga responded to OWCP’s request stating that
appellant suffered from degenerated bulging disc at L2-3, bulging disc at T12-L1, bulging disc
and status post lumbar laminectomies, discectomies and fusion with spinal instrumentation at
L3-4, L4-5 and L5-S1. He noted that appellant continued to have lumbar pain which was
exacerbated by prolonged sitting, radiation going down into the sacroiliac joints on both sides
and radiation going over the anterior aspect of the right thigh down to the knee. On examination
appellant had tenderness in the paraspinal muscles of the lumbar region with reflex spasm and
restrictions to range of motion of the lumbar spine. Dr. Inga stated that the specific functional
goals of physical therapy were to improve appellant’s persistent residual lumbar
symptomatology. He noted that, after receiving therapy, appellant had significant relief of part
of his symptomatology.
Appellant currently received physical therapy two times a week for 12 weeks at a time.
Dr. Inga recommended that appellant continue with this mode of treatment for two to three times
a year since it provided significant relief of his symptoms following these therapy sessions. He
noted that physical therapy included heat packs, massage, ultrasound to the lumbar spine and
strengthening exercises to both lower extremities. Dr. Inga further noted that appellant should
continue with this physical therapy program for the next 12 weeks because of relief to his present
residual lumbar symptoms and also be instructed on a home exercise program for strengthening
exercises to both lower extremities.
In a December 18, 2012 medical report, Dr. Afield reported that he reviewed OWCP’s
November 30, 2012 letter and Dr. Inga’s December 12, 2012 report. He noted that appellant
suffered from bulging discs and had lumbar laminectomies, discectomies and fusion with spinal
instrumentation at L3-4, L4-5 and L5-S1. Dr. Afield reported that appellant’s failed back
syndrome and surgery had done nothing to improve his condition as he continued to have pain
which was exacerbated by prolonged sitting. Appellant was most recently provided with a zero
gravity chair by OWCP, which allowed him to sit for longer periods of time. Dr. Afield noted
Dr. Inga’s findings and reported that he reached the same conclusions upon physical
examination. He further stated that the goal of therapy was to improve appellant’s persistent
residual lumbar symptomology, namely to help him with his failed back, which was never going
to improve and could get worse. The therapy appellant had received provided him with
significant relief of some of his residual lumbar symptoms. Dr. Afield concluded that he agreed
with Dr. Inga’s report and recommendation for therapy, noting that massage therapy was
probably the best form of physical therapy for treatment of appellant’s symptoms.

3

On January 28, 2013 OWCP referred the case to a district medical adviser (DMA) to
determine whether further medical treatment, specifically physical therapy, was necessary. It
noted that appellant’s accepted conditions included herniated nucleus pulposus (HNP) L5-S1,
lumbar disc disorder and acute situational reaction to stress with depression. OWCP stated that it
had previously authorized an extended period of therapy from April 12, 2011 through
November 30, 2012 and received a request for additional therapy for muscular reeducation,
massage therapy, therapeutic activities and self-care management training for the period
November 30, 2012 to March 30, 2013. It requested that the DMA provide a response as to
whether the physical therapy request was appropriate and warranted for treatment of the accepted
conditions.
In a January 29, 2013 note, the DMA reported that appellant had been receiving physical
therapy and massage therapy for a prolonged period which had not resulted in a significant
improvement of his condition. Thus, the DMA opined that nothing would be gained by
continuing this treatment.
By decision dated February 6, 2013, OWCP denied appellant’s request for continued
physical therapy treatments finding that the medical evidence of record failed to establish that
such additional treatment was reasonable and medically necessary for his accepted work injury.
It noted that OWCP had already approved what was allowable under its program for extended
therapy in the treatment of his accepted conditions and it had not been demonstrated how the
continued therapies would improve his conditions.
LEGAL PRECEDENT
Section 8103(a) of FECA provides for the furnishing of services, appliances and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability or
aid in lessening the amount of monthly compensation.2 In interpreting the section 8103(a), the
Board has recognized that OWCP has broad discretion in approving services provided under
FECA to ensure that an employee recovers from his or her injury to the fullest extent possible in
the shortest amount of time.3 OWCP has administrative discretion in choosing the means to
achieve this goal and the only limitation on OWCP’s authority is that of reasonableness.4 Abuse
of discretion is generally 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. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.5
While OWCP is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the expenditure is incurred for treatment of the
2

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

3

W.T., Docket No. 08-812 (issued April 3, 2009); A.O., Docket No. 08-580 (issued January 28, 2009).

4

D.C., 58 ECAB 629 (2007); Mira R. Adams, 48 ECAB 504 (1997).

5

L.W., 59 ECAB (2008); P.P., 58 ECAB 673 (2007); Daniel J. Perea, 42 ECAB 214 (1990).

4

effects of an employment-related injury or condition.6 Proof of causal relationship in a case such
as this must include supporting rationalized medical evidence.7 Therefore, in order to prove that
the physical therapy is warranted, appellant must submit evidence to show that the procedure
was for a condition causally related to the employment injury and that the treatment was
medically warranted.8
ANALYSIS
The Board finds that this case is not in posture for decision.
On November 23, 2012 Dr. Inga requested that OWCP authorize treatment for
neuromuscular reeducation, massage therapy, therapeutic activities and self-care management
training for the period November 30, 2012 to March 30, 2013. He indicated that the requested
therapy was to treat the lumbosacral spine in order to reduce pain, improve circulation and
increase range of motion as appellant’s condition was permanent.
In a detailed letter dated November 30, 2012, OWCP requested that Dr. Inga provide
additional information regarding the need for physical therapy treatments including how it
affected appellant’s physical activities and the functional goals of the additional therapy.
In a December 12, 2012 report, Dr. Inga responded to OWCP’s request stating that
appellant suffered from degenerated bulging disc at L2-3, bulging disc at T12-L1, bulging disc
and status post lumbar laminectomies, discectomies and fusion with spinal instrumentation at
L3-4, L4-5 and L5-S1. He noted that appellant continued to have lumbar pain and radiation into
the sacroiliac joints and the anterior aspect of the right thigh down to the knee. Upon physical
examination, appellant had tenderness in the paraspinal muscles of the lumbar region with reflex
spasm and restrictions to the range of motion of the lumbar spine. Dr. Inga stated that the
specific functional goal of physical therapy was to improve appellant’s persistent residual lumbar
symptomatology. He noted that, after receiving therapy, appellant had significant relief of part
of his symptomatology.
In a December 18, 2012 medical report, Dr. Afield agreed with Dr. Inga’s findings. He
further noted that the goal of therapy was to improve appellant’s persistent residual lumbar
symptomology, namely to help him with his failed back, which was never going to improve and
could get worse. Dr. Afield stated that the therapy appellant had received provided him with
significant relief of some of his residual lumbar symptoms.
OWCP referred the case to a DMA to determine whether appellant required further
physical therapy treatment for his accepted conditions of HNP L5-S1, lumbar disc disorder and
acute situation reaction to stress with depression. It noted that it had previously authorized an
extended period of therapy from April 12, 2011 through November 30, 2012 and received a
6

See Dona M. Mahurin, 54 ECAB 309 (2003); see also Debra S. King, 44 ECAB 203, 209 (1992).

7

See Debra S. King, id.; Bertha L. Arnold, 38 ECAB 282 (1986).

8

See Dona M. Mahurin, supra note 6; see also Cathy B. Millin, 51 ECAB 331, 333 (2000).

5

request for additional therapy for muscular reeducation, massage therapy, therapeutic activities
and self-care management training for the period November 30, 2012 to March 30, 2013.
In a January 29, 2013 report, the DMA reported that appellant had been receiving
physical therapy and massage therapy for a prolonged period which had not resulted in a
significant improvement in his condition. Thus, the DMA opined that nothing would be gained
by continuing this treatment.
Pursuant to section 8103 of FECA,9 medical treatment shall be authorized by OWCP to
“give relief” of symptoms of the accepted injury and not only to cure or reduce the effects of the
accepted injury.10 Therefore, in Richard A. Reece,11 the Board noted that in determining whether
physical therapy shall be authorized, OWCP should obtain a medical opinion as to whether the
treatment was necessary to provide relief from pain or symptoms of the employment injury, or
reduce disability due to the employment-related injury. While a total lack of objective findings
may indicate that a claimant’s pain complaints are without physical basis, where some functional
impairment exists accompanied by pain symptoms, therapy is appropriate for relief of such
symptoms.12 Thus, OWCP must consider whether the treatment will give relief.13
The Board finds a conflict of medical opinion between the DMA, the physician for
OWCP, and Dr. Inga and Dr. Afield, appellant’s treating physicians. Similar to the case of
Lori E. Rayner-Brown, the Board found a conflict of medical opinion between appellant’s
treating physician who recommended continued physical therapy, and OWCP’s referral
physician who recommended physical therapy cease.14
In this instance, Dr. Inga’s November 23, 2012 physical therapy request noted that the
requested therapy was to treat the lumbosacral spine in order to reduce pain, improve circulation
and increase range of motion as appellant’s condition was permanent. Both Dr. Inga and
Dr. Afield provided findings on physical examination and reported that continued physical
therapy improved appellant’s persistent residual lumbar symptomology. Dr. Afield further noted
that appellant’s condition could worsen without continued physical therapy. The DMA,
however, opined that prolonged periods of physical therapy had not resulted in significant
improvement of appellant’s condition. Despite having indicated some improvement with
physical therapy, the DMA concluded that nothing would be gained by continued treatment.
Given that OWCP did not resolve the disagreement between the attending physicians and the
DMA before issuing its decision on the matter, the Board finds that OWCP abused its discretion
9

Supra note 2.

10

Valerie H. Von Evans, Docket No. 95-1547 (issued June 20, 1997).

11

42 ECAB 829 (1991).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing & Evaluating Medical Evidence, Chapter
2.810.19 (October 2010).
13

John F. Erjavec, Docket No. 96-1640 (issued June 29, 1998).

14

Docket No. 02-375 (issued July 12, 2002); see also Barbara E. Harsh, Docket No. 95-2003 (issued
March 9, 1998).

6

in denying authorization.15 Based on this conflict of medical opinion, OWCP should obtain an
opinion from an impartial medical specialist on whether appellant should continue to receive
physical therapy.16 Following this and any other further development as deemed necessary,
OWCP shall issue an appropriate merit decision on appellant’s request for continued physical
therapy beginning November 30, 2012.
CONCLUSION
The Board finds that this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the February 6, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.
Issued: April 18, 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

15

Supra note 14 and 15.

16

Supra note 15.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Toledo, OH, Employer
__________________________________________

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

Docket No. 07-1584
Issued: November 15, 2007

Case Submitted on the Record

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

JURISDICTION

On May 23, 2007 appellant filed a timely appeal from a May 4, 2007 merit decision of an
Office of Workers’ Compensation Programs’ hearing representative who affirmed the denial of
her traumatic injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained a
traumatic injury in the performance of duty.
FACTUAL HISTORY
On August 22, 2006 appellant, then a 42-year-old letter carrier, filed a traumatic injury
claim alleging that she injured her back, stomach and groin area on August 16, 2006 while lifting
a number of heavy parcels. She stated that she experienced back, shoulder and abdominal pain
while attempting to lift boxes from a gurney and that she called a fellow employee as well as

Mark Masella, acting union president, from her route and informed them of her pain. Appellant
stated that she asked for help from Valarie Zindren, her supervisor, and Jim Radford, manager,
but that neither one was willing to accommodate her. She noted telephoning her post office at
2:00 p.m. but that no management officials were available. Appellant spoke to a pool clerk
regarding the “morning events and my physical limitations.” She stopped work on August 18,
2006 and returned on August 31, 2006. The employing establishment controverted appellant’s
claim.
In an August 18, 2006 note, Dr. Jay Nielsen, a Board-certified family practitioner,
advised that appellant should be realistic about her capabilities and not lift objects that were too
heavy. On August 21, 2006 he advised that appellant was unable to work and provided work
restrictions. In an attending physician’s report dated the same day, Dr. Nielsen diagnosed pelvic
muscle sprain, sacroiliac strain, public strain, post-traumatic cystocele and right femoral or
inguinal hernia. He noted that he treated appellant for her conditions on August 18 and 21, 2006.
In an undated statement received by the Office on August 31, 2006, Mr. Masella
explained that he observed William Rawski, union steward, assisting appellant with her parcels
on August 16, 2006. He approached appellant and asked if she needed help and she requested
that he lift one box. In an undated statement received by the Office on September 12, 2006,
Mr. Rawski stated that appellant informed him that she was unable to lift the parcels on her
gurney and that he then advised management of the situation. He lifted the parcels at her
request.
By decision dated October 10, 2006, the Office denied appellant’s traumatic injury claim,
finding that she had established that the claimed incident occurred but did not submit sufficient
medical evidence to establish that the incident caused a personal injury.
In an October 5, 2006 report, Dr. Nielsen noted a new flare up of lumbar pain and a new
incisional hernia. In a narrative report prepared the same day, he explained that appellant’s
history was significant for a work-related motor vehicle accident in 2003, in which she injured
her pelvis, neck and back. Dr. Nielsen related that appellant and her supervisor disagreed about
whether she should lift boxes and that appellant felt abdominal pain after lifting eight parcels.
On November 6, 2005 appellant requested an oral hearing that was held on
February 22, 2007. In a November 13, 2006 report, Dr. Nielsen presented his examination notes
from August 18, 2006. He explained that on August 16, 2006, while lifting parcels that
“everyone agreed were heavier than most in the department,” appellant experienced abdominal
soreness and felt a bulge in her groin. Dr. Nielsen indicated that appellant’s bladder had changed
and that she may have “dropped out” a cystocele. He opined that appellant’s lifting of heavy
parcels caused prior surgical scar tissue to herniate, which in turn caused her cystocele.
The employing establishment submitted documents pertaining to its review of appellant’s
claim. On October 5, 2006, in connection with an internal investigation, the employing
establishment interviewed Dr. Nielsen, who opined that appellant sustained a hernia due to the
tearing of old scar tissue, which “could have happened during a lifting motion.” In a
September 18, 2006 witness interview, Mr. Rawski explained that appellant approached him on
August 16, 2006 and requested that he lift heavy boxes from her gurney. He stated that appellant

2

told him that she had work restrictions but that after consulting appellant’s medical
documentation he was under the impression that appellant had no such restrictions. Mr. Rawski
indicated that he and Mr. Masella assisted appellant with the parcels but that he never observed
her lifting any of the packages. He stated that appellant “gave no physical or verbal sign of
being injured from handling the parcels,” that she moved without noticeable pain, and that she
did not mention an injury when she returned to the facility after delivering her route. The
employing establishment also provided an investigative report noting that no employee observed
appellant lifting any of the parcels and that she received physical assistance in handling the
parcels and was not responsible for their delivery.
In an October 5, 2006 investigative interview, Debra Pipes, a letter carrier, explained that
she was responsible for answering office telephones on the day of appellant’s claimed injury and
did not recall receiving a telephone call from appellant reporting her injury. She could not recall
whether appellant reported any injury after returning from her route on that day. In an
October 5, 2006 interview, Jim Radford, acting manager, explained that letter carriers are
required to lift up to 70 pounds and, therefore, appellant should have been able to lift the
packages when working without restrictions. He reported seeing appellant when she returned
from her route on August 16, 2006, and noted that she did not mention an injury. In a
September 18, 2006 statement, Donna Varga, a distribution clerk, noted that she had placed the
parcels in appellant’s gurney. She did not see appellant lift or move any of the parcels on
August 16, 2006. Ms. Zindren, appellant’s immediate supervisor, stated that appellant advised
her on August 16, 2006 that she could not pick up her parcels due to physical restrictions. She
explained that Mr. Masella offered to lift the parcels. Ms. Zindren never observed appellant
lifting the parcels despite the fact that appellant’s gurney was situated near her desk and that she
had no recollection of appellant calling to report any difficulties while delivering her route. In a
September 18, 2006 interview, Mr. Masella explained that he observed Mr. Rawski lifting
parcels from appellant’s gurney and offered to assist with the lifting and delivery. He noted that
the gurney was in a “very busy” area. Mr. Masella reported that appellant did not seem to be in
pain and did not mention an injury after returning from her route. He never observed appellant
lifting any of the parcels. Mr. Masella also noted that appellant’s gurney was located in a
particularly busy area of the workplace. Appellant declined to be formally interviewed by the
investigator.
In an April 17, 2006 response, appellant stated that she lifted between six and eight
parcels before alerting Mr. Rawski to her difficulties. She stated that Mr. Rawski helped her in
“lifting the post.” Appellant stated that she called the employing establishment at approximately
2:00 p.m. on August 16, 2006 and informed Ms. Pipes that she was experiencing physical
difficulty. She also noted that she informed Mr. Masella of her injuries but was unable to reach a
manager.
By decision dated May 4, 2007, the hearing representative affirmed the denial of
appellant’s claim. The hearing representative modified the Office’s prior decision to find that
appellant had not met her burden of proof in establishing that the August 16, 2006 lifting
incident occurred as alleged.

3

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disabilities and/or specific
conditions for which compensation is claimed are causally related to the employment injury.2
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.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.4 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.5
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.6 An injury
does not have to be confirmed by eyewitnesses in order to establish that an employee sustained
an injury in the performance of duty, but the employee’s statements must be consistent with the
surrounding facts and circumstances and his or her subsequent course of action.7 An employee
has not met his or her burden of proof of establishing the occurrence of an injury when there are
such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.8
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury and failure to obtain medical
treatment may, if otherwise unexplained, cast doubt on an employee’s statements in determining
whether a prima facie case has been established.9 However, an employee’s statement alleging
1

5 U.S.C. §§ 8101-8193.

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

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

5

Id.

6

See Louise F. Garnett, 47 ECAB 639 (1996).

7

See Gene A. McCracken, 46 ECAB 593 (1995).

8

See Louise F. Garnett, supra note 6.

9

Linda S. Christian, 46 ECAB 598 (1995).

4

that an injury occurred at a given time and in a given manner is of great probative value and will
stand unless refuted by strong or persuasive evidence.10
ANALYSIS
The Board finds that appellant did not meet her burden of proof in establishing that she
lifted mail packages on August 16, 2006 as alleged. As noted above, the first element of “fact of
injury” requires that appellant submit evidence establishing that an incident occurred at the time,
place and in the manner alleged.11
Appellant asserted that she injured her stomach, back and groin when she lifted six to
eight heavy parcels from her gurney on August 16, 2006. She stated that she asked for assistance
and that Mr. Rawski helped her perform lifting. However, no other employee witnessed
appellant lifting the parcels despite the fact that, as Mr. Masella indicated, her gurney was
located in a particularly busy area. Ms. Zindren, appellant’s immediate supervisor, did not
observe appellant lifting any of the parcels despite the fact that appellant’s gurney was situated
near her desk. Mr. Rawski and Mr. Masella both reported that they lifted the parcels at
appellant’s request but never saw her lifting them herself. Ms. Zindren noted that Mr. Masella
also volunteered to assist appellant. Although appellant stated that she was in excruciating pain
after lifting the parcels, her coworkers reported that she did not behave as though she were in
pain and in fact continued to prepare for her route without apparent physical difficulty.
Appellant stated that she called the employing establishment at 2:00 p.m. and reported her
physical difficulties to Ms. Pipes. However, Ms. Pipes had no recollection of receiving a call
from appellant while she was on her route or after her return. Appellant also stated that she
informed Mr. Masella of her injury, but he did not recall such a conversation. Furthermore,
Dr. Nielsen’s November 13, 2006 report advised that he was providing his treatment notes of
appellant’s August 18, 2006 visit. This note, within the November 13, 2006 report, referenced
lifting heavy parcels on August 16, 2006. But the physician’s earlier submitted August 18, 2006
treatment note did not reference any employment incident occurring on August 16, 2006. The
evidence from appellant’s coworkers and managers dispute that the claimed lifting incident
occurred as alleged.
The Board notes that a claimant’s relation of an employment incident carries great
probative value and will stand unless refuted by strong or persuasive evidence.12 Appellant’s
characterization of the circumstances surrounding her claimed injury is contradicted by
numerous witness statements, none of which support that she lifted any parcels on
August 16, 2006. Appellant also did not notify the employing establishment of her claimed
injury that day and she continued to work without apparent difficulty according to her
coworkers’ observations. The Board finds that the evidence submitted contains such
inconsistencies as to cast doubt on the validity of appellant’s claim. Accordingly, the Board

10

Constance G. Patterson, 41 ECAB 206 (1989); Thelma S. Buffington, 34 ECAB 104 (1982).

11

See supra note 4.

12

See supra note 10.

5

finds that appellant has not met her burden of proof in establishing that she experienced an
employment-related incident at the time, place and in the manner alleged.13
CONCLUSION
The Board finds that appellant did not meet her burden of proof in establishing that she
sustained an injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the May 4, 2007 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 15, 2007
Washington, DC

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

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

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

13

As appellant did not establish an employment incident alleged to have caused her injury, it is not necessary to
consider any medical evidence. Bonnie A. Contreras, 57 ECAB ___ (Docket No. 06-167, issued February 7, 2006).

6


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

)
)
)
)
)
)
)
)

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

Docket No. 14-1915
Issued: January 7, 2015

Case Submitted on the Record

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

JURISDICTION
On September 2, 2014 appellant, through counsel, filed a timely appeal from the
August 26, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish total disability on or
after August 17, 2013 due to his accepted work injuries.
FACTUAL HISTORY
On October 20, 2012 appellant, then a 45-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 20, 2012 he was delivering mail when he stepped
down on a stoop covered with green moss which caused him to slip and fall. OWCP initially
1

5 U.S.C. §§ 8101-8193.

accepted his claim for closed fracture of the right tibia and fibula shaft. The accepted conditions
were later expanded to include closed fracture of the medial malleolus of the right ankle and
right osteochondritis dissecans. Appellant did not initially stop work but continued performing
light-duty work and received wage-loss compensation on the daily rolls until he stopped on
August 17, 2013.
On September 25, 2013 the employing establishment provided appellant with a
temporary light-duty assignment as a modified city carrier. The duties and requirements of the
position were within the work restrictions provided on May 28, 2013 by Dr. Jeffrey Lakin, a
Board-certified orthopedic surgeon serving as an OWCP referral physician.2 These restrictions
indicated that appellant could work eight hours per day with lifting, pushing, and pulling at no
more than 10 pounds. He could walk or stand for eight hours per day, operate a motor vehicle at
work for two hours per day, and operate a motor vehicle to/from work for two hours per day.
Appellant did not accept the job offered by the employing establishment.
On October 11, 2013 appellant filed a claim for compensation for the period August 17,
2013 and continuing.
In an October 21, 2013 letter, OWCP requested that appellant submit medical evidence in
support of his claim for disability. Appellant was advised that he is expected to accept the lightduty position offered by his employing establishment and to report for duty. He was provided 30
days to submit evidence to support that the modified assignment was no longer available or that
the position no longer accommodated his medical restrictions.
In support of his claim, appellant submitted medical reports dated between October 11
and 29, 2013 of Dr. Cary P. Chapman, an attending Board-certified orthopedic surgeon. The
reports did not contain a medical opinion, supported by objective findings and medical rationale,
showing that appellant was totally disabled or unable to perform modified duties.
In a November 22, 2013 decision, OWCP denied appellant’s claim for total disability
stating that he had not established that he had a return or increase in disability due to a
change/withdrawal of the limited-duty assignment made specifically to accommodate his workrelated conditions.
Appellant requested a hearing before an OWCP hearing representative. During the
June 12, 2014 hearing, appellant’s counsel asserted that there was no work available for
appellant within his medical restrictions noting that it was not clear that appellant could perform
the walking and standing duties of the modified city carrier position. Counsel argued that
appellant should have been on the periodic rolls instead of the daily rolls. Appellant testified
regarding his job duties before stopping work. He indicated that he underwent surgery on his
ankle on March 17, 2014.
Before and after the hearing, appellant submitted additional medical records, treatment
notes, an operative report and physical therapy notes from Metropolitan Surgical Institute, Staten
2

The job required performing the following duties for one to two hours per day: casing mail, delivering mail not
to exceed 10 pounds, walking to deliver mail, and driving a postal vehicle.

2

Island Physical Therapy, Orthopedic Sports Medicine, and Dr. Chapman, dated from
February 2013 to May 2014. The medical records indicated that appellant was still being treated
for the work-related injuries, but they did not show that he was unable to perform modified work
duties.
In an August 26, 2014 decision, OWCP hearing representative affirmed OWCP’s
November 22, 2013 decision denying appellant’s claim for total disability on or after
August 17, 2013.
LEGAL PRECEDENT
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 of record
establishes that he or she 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 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.3
ANALYSIS
OWCP accepted that appellant sustained a work injury on October 20, 2012 and accepted
the conditions of closed fracture of the right tibia and fibula shaft, closed fracture of the medial
malleolus of the right ankle, and right osteochondritis dissecans. Appellant did not stop work at
the time of the injury but continued performing light-duty work. He stopped work on August 17,
2013 and on October 11, 2013, he filed a claim for compensation for the period August 17, 2013
and continuing.
Appellant submitted medical records, treatment notes, an operative report and physical
therapy notes from Metropolitan Surgical Institute, Staten Island Physical Therapy, Orthopedic
Sports Medicine, and Dr. Chapman, an attending Board-certified orthopedic surgeon, which
were dated between February 2013 and May 2014. Although the medical records showed that
appellant still had residuals of his work-related injuries, they did not show that he was unable to
perform modified work duties on or after August 17, 2013. OWCP denied appellant’s claim as
he failed to establish total disability on or after August 17, 2013 due to his accepted work
injuries.

3

S.F., 59 ECAB 525 (2008); Terry R. Hedman, 38 ECAB 222 (1986). 20 C.F.R. § 10.5(x) provides, “Recurrence
of disability means an inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness. This term also means an inability to work that takes place
when a light-duty assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force), or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.”

3

Before OWCP and on appeal, counsel argued that there was no work available for
appellant within his medical restrictions noting that it was not clear that he could perform the
walking and standing duties of the modified city carrier position. However, modified duty
remained available to appellant and a comparison of the work requirements of the modified
position with appellant’s work restrictions shows that he was able to perform the modified work.
Counsel argued that appellant should have been on the periodic rolls instead of the daily rolls,
but he did not explain how this viewpoint obviated appellant’s responsibility to submit medical
evidence showing that he had total disability on or after August 17, 2013 due to his accepted
work injuries.4
For these reasons, the Board finds that appellant did not meet his burden of proof to
establish total disability on or after August 17, 2013 due to his accepted work injuries.
CONCLUSION
The Board finds that OWCP properly denied appellant’s claim for recurrence of total
disability on or after August 17, 2013 due to his accepted work injuries.
ORDER
IT IS HEREBY ORDERED THAT the August 26, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 7, 2015
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
4

Appellant also did not show a change in the nature and extent of the light-duty job requirements. See supra
note 3.

4