United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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

Docket No. 21-0579
Issued: December 9, 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 March 3, 2021 appellant, through counsel, filed a timely appeal from a February 8,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3
1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 8, 2021 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 his burden of proof to establish that acceptance of
his claim should be expanded to include cervical myelopathy with radiculopathy and lumbar
radiculopathy causally related to the accepted December 10, 2015 employment injury.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances as set forth
in the Board’s prior decision and order are incorporated herein by reference. The relevant facts
are as follows.
On January 8, 2016 appellant, then a 64-year-old electrician, filed a traumatic injury claim
(Form CA-1) alleging that on December 10, 2015 he bruised his right hip when he tripped and fell,
landing on a two-way radio in his right pocket.
An August 2, 2016 magnetic resonance imaging (MRI) scan of the lumbar spine revealed
foraminal stenosis from L3 to S1, central canal stenosis, and grade one anterolisthesis from L3 to
5 with advanced facet arthropathy. An MRI scan of the cervical spine dated November 15, 2016
revealed advanced cervical degenerative disc disease with cord impingement, findings suggestive
of myelomalacia, and high-grade foraminal stenosis with nerve root impingement bilaterally.
In a December 7, 2016 duty status report (Form CA-17), Dr. Karl F. Bowman, Jr., a Boardcertified orthopedic surgeon, diagnosed facet arthropathy of the lumbar spine, lumbar spinal
stenosis and spondylosis, and right hip osteoarthritis. He indicated that appellant was unable to
work.
In a December 13, 2016 attending physician’s report (Form CA-20), Dr. Mark B. Kerner,
a Board-certified orthopedic surgeon, diagnosed cervical myelopathy and checked a box marked
“Yes” indicating that the condition was caused or aggravated by employment, noting that
appellant’s symptoms had begun after an employment injury. 5 In a January 20, 2017 CA-20 form,
he diagnosed cervical myelopathy and radiculopathy and again checked a box marked “Yes”
indicating that the condition was caused or aggravated by the described employment a ctivity of a
fall at work. Dr. Kerner related that after the incident appellant had experienced increasing neck
pain and arm pain with numbness. He indicated that the cord contusion resulted in a spinal cord
injury with “central cord syndrome.”
On November 22, 2016 Dr. Kerner noted that appellant had complained of increasing neck
and arm pain and numbness after a fall at work. He diagnosed severe cervical stenosis and “areas
of gliosis, clearly myelopathic with ongoing cervical stenosis with a cord contusion causing what

4

Docket No. 18-1238 (issued January 18, 2019); Order Remanding Case, Docket No. 19-1801 (issued
September 9, 2020).
5

In December 7, 2016 and January 17, 2017 CA-20 forms, Dr. Bowman diagnosed lumbar spine pain and facet
arthropathy, cervical radiculopathy, bilateral carpal tunnel syndrome, right hip osteoarthritis, and stenosis of the
lumbar spine.

2

appears to be a cord injury with central cord syndrome.”
decompression and fusion.

Dr. Kerner recommended a

On December 2, 2016 Dr. Kerner performed an anterior cervical discectomy and fusion
and multiple levels. 6
By decision dated April 17, 2017, OWCP denied appellant’s traumatic injury claim. It
found that the medical evidence was insufficient to establish a diagnosed condition caused or
aggravated by the accepted employment incident.
In an April 27, 2017 report, Dr. Bowman related that he had initially evaluated appellant
on May 16, 2016 for cervical radiculopathy, cervical arthritis, and carpal tunnel syndrome. He
noted that x-rays revealed advanced cervical arthritis that compressed the spinal cord necessitating
surgery. Dr. Bowman discussed appellant’s history of a fall on December 10, 2015 at work. He
opined that the “fall certainly could have aggravated [appellant’s] preexisting medical condition
to the point that it would have exceeded a symptom threshold requiring an intervention for his
resolution of neurological symptoms.”
On May 23, 2017 appellant requested reconsideration.
In a July 27, 2017 CA-20 form, Dr. Kerner diagnosed cervical myelopathy and
radiculopathy and checked a box marked “Yes” indicating that the condition was caused or
aggravated by the described employment activity of a fall at work. He found that the injury to the
spinal cord had caused in central cord syndrome.
By decision dated August 21, 2017, OWCP denied modification of its April 17, 2017
decision.
In a January 30, 2018 report, Dr. David D. Alcantara, a Board-certified physiatrist, noted
that appellant had experienced an employment-related fall on December 10, 2015 causing cervical
myelopathy due to severe cord compression treated with a decompression and fusion at multiple
levels.7 Subsequent to the injury, he “presented as myelopathic, meaning an upper motor neuron
injury, concordant with [a] neck injury, resulting in signs of decreased strength, se nsation, and
hyperreflexia.” Dr. Alcantara related that appellant had preexisting cervical spinal stenosis that
was often an asymptomatic condition. He asserted that appellant’s fall had caused a nerve injury,
noting that the “forces sustained during a fall combined with central stenosis can compress and/or
strike the spinal cord with sufficient force to injure it.” Dr. Alcantara indicated that appellant had
symptoms in all the extremities, but less on the left lower extremity, which was suggestive of an
injury to the right central cervical spine. He related, “In short, [appellant’s] impairment/disability
is related directly to the injury sustained by his fall. Degenerative and genetic factors predisposed

6

Dr. Kerner provided progress reports subsequent to the surgery on January 20 and May 16, 2017. In a
December 13, 2016 Form CA-17, he diagnosed cervical myelopathy and checked a box marked “Yes” that the history
provided by appellant corresponded to that on the form of a neck injury in a fall.
7

Dr. Alcantara on July 24, 2017 evaluated appellant for right lower extremity weakness, noting that appellant
complained of weakness on the right side after a fall.

3

to this injury. There are other aforementioned factors that contribute to his full breadth of
symptoms, but their contribution is limited and for all intents and purposes can be disregarded. ”
On February 8, 2018 appellant, through counsel, requested reconsideration.8
By decision dated March 29, 2018, OWCP modified in part and affirmed in part its
August 21, 2017 decision. It accepted appellant’s claim for a contusion of the right thigh. OWCP
found, however, that the medical evidence was insufficient to show that he sustained right hip
osteoarthritis, cervical myelopathy with radiculopathy, or lumbar radiculopathy causally related to
the December 10, 2015 employment injury.
On April 9, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
By decision dated April 26, 2018, OWCP denied appellant’s request for a telephone
hearing under 5 U.S.C. § 8124(b). After exercising its discretion, it noted that the underlying issue
in the case could equally well be addressed through the reconsideration process.
On June 4, 2018 appellant appealed the March 29 and April 26, 2018 decisions to the
Board.
On June 11, 2018 appellant filed a claim for compensation (Form CA-7) for disability from
work for the period December 12, 2016 to September 14, 2017.
In a report dated August 13, 2018, Dr. Bowman discussed appellant’s history of a
December 10, 2015 injury when appellant fell on a two-way radio bruising his right hip and thigh.
He noted that appellant had preexisting arthritis and that after appellant’s injury appellant had pain
and reduced motion in his right leg and an antalgic gait. Dr. Bowman opined that appellant’s
myositis ossificans resulting from appellant’s thigh contusion had “likely significantly
contribut[ed] to his persistent alteration in gait.” He indicated that appellant might require a total
hip replacement at a future date.
By decision dated November 7, 2018, OWCP denied appellant’s disability claim for the
period December 12, 2016 through September 14, 2017 causally related to his accepted
employment injury.
On November 7, 2018 OWCP expanded acceptance of appellant’s claim to include
myositis ossificans traumatic of the right thigh and an aggravation of unilateral primary
osteoarthritis of the right hip.
By decision dated January 18, 2019, the Board affirmed OWCP’s March 29, 2018 decision
denying appellant’s request to expand acceptance of his claim to include right hip osteoarthritis,

8
On February 1, 2018 Dr. Bowman advised that he had treated appellant for a right leg and hip injury after he
tripped and fell on December 10, 2015, landing on a two-way radio in appellant’s right front pocket. He diagnosed a
tear of the right hip musculature and an exacerbation of preexisting osteoarthritis of the right hip due to appellant’s
employment injury.

4

cervical myelopathy with radiculopathy, and lumbar radiculopathy causally related to the accepted
December 10, 2015 employment injury. 9
In a report dated April 12, 2019, Dr. Alcantara advised that the mechanism of injury of
appellant falling to the ground was sufficient to cause a spinal cord injury. He related, “While my
review of the records does not appear to support a significant delay in [appellant’s] symptoms,
more likely representing an underreporting of symptoms, a delay of onset is plausible given the
pathophysiology of spinal cord injury, which can include a subacute component of vascular
injury.” Dr. Alcantara advised that the record supported that appellant had complained of
symptoms that correlated to a spinal cord injury around the time of his injury. He opined that his
“cervical myelopathic injury is directly (proximately) related to the incident of December 10, 2015
with reasonable medical certainty.”
Dr. Bowman continued to submit progress reports regarding his treatment of appellant.
By decision dated April 29, 2019, OWCP’s hearing representative set aside the
November 7, 2018 decision denying appellant’s claim for disability from December 12, 2016 to
September 14, 2017. He found that Dr. Bowman’s reports were sufficient to warrant further
development regarding whether appellant had sustained additional employment-related conditions
and whether he had experienced employment-related disability.
On May 7, 2019 appellant, through counsel, requested reconsideration of OWCP’s denial
of appellant’s request to expand acceptance of his claim.
On May 16, 2019 OWCP referred appellant to Dr. Kevin F. Hanley, a Board-certified
orthopedic surgeon, for a second opinion examination.
In a report dated June 5, 2019, Dr. Hanley provided his review of appellant’s history of
injury and the medical evidence of record. He diagnosed a quadriceps contusion of the right thigh
with the development of myositis ossificans, advanced cervical spinal stenosis with a fixed cervical
cord injury and residual central cord syndrome, bilateral hip arthritis, lumbar spinal stenosis, and
carpal tunnel syndrome. Dr. Hanley related that appellant had not sustained a hip, back, or neck
injury at the time of appellant’s fall “as none of those areas were complained of at the time.” He
indicated that appellant had an ataxic gait disorder due to neurologic compromise. Dr. Hanley
opined that appellant had sustained only a quadriceps contusion and myositis ossificans due to the
December 10, 2015 employment injury. He related, “I do not believe that the work injury
aggravated an underlying existing condition, to include [appellant’s] hip arthritis or his lumbar
degenerative disease.” Dr. Hanley opined that appellant’s disability from December 12, 2016 to
September 14, 2017 was unrelated to appellant’s accepted employment injury and that the
“symptomatology from the work-related condition has resolved.”
On July 11, 2019 Dr. Bowman reviewed a May 22, 2018 MRI scan of appellant’s right hip
and pelvis. He attributed appellant’s limp to a permanent aggravation of osteoarthritis of the right
hip due to his December 10, 2015 employment injury. In a Form CA-20 of even date, Dr. Kerner
diagnosed cervical myopathy and checked a box marked “Yes” to indicate that the condition
9

Supra note 4.

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resulted from the described employment activity of a fall causing neck pain and progressive
numbness and tingling in the arms.
In a supplemental report dated July 24, 2019, Dr. Hanley advised that Dr. Kerner had
determined that appellant’s limp was not antalgic or resulting from pain, but instead a limp arising
from a neurological condition due to damage to the spinal cord in the cervical area. He opined
that appellant’s progressive, degenerative cervical condition was not due to a traumatic injury,
noting that appellant did not complain of an injury to his neck or head at the time of his fall.
Dr. Hanley reiterated that he “did not aggravate anything ongoing in [appellant’s] hip” and that if
there was a brief period of aggravation it was “temporary, if at all.”
By decision dated August 2, 2019, OWCP denied modification of its denial of appellant’s
request to expand acceptance of his claim. 10 It advised that the report from Dr. Alcantara was
insufficient to support that appellant’s fall caused cervical myelopathy.
By decision dated August 15, 2019, OWCP denied appellant’s claim for disability from
December 12, 2016 to September 14, 2017.
On August 20, 2019 appellant, through counsel, requested a telephonic hearing on the
August 15, 2019 decision before a representative of OWCP’s Branch of Hearings and Review.
On August 27, 2019 appellant, through counsel, appealed the August 2, 2019 decision to
the Board.
Appellant submitted progress reports from Dr. Arthur W. Wardell, a Board-certified
orthopedic surgeon, describing his treatment of appellant for a contusion of the right thigh and
osteoarthritis of the right hip.
By decision dated February 10, 2020, OWCP’s hearing representative set aside the
August 15, 2019 decision. He found that Dr. Hanley failed to use the statement of accepted facts
(SOAF) as the basis for his opinion, noting that he had determined that appellant’s hip condition
was unrelated to the accepted employment injury. The hearing representative instructed OWCP
to refer appellant to a new second opinion examiner to determine whether appellant was disabled
from December 12, 2016 to September 14, 2017 due to his thigh contusion, myositis ossificans,
and aggravation of hip osteoarthritis.
On February 27, 2020 OWCP referred appellant to Dr. James Schwartz, a Board-certified
orthopedic surgeon, for a second opinion examination on the issue of disability from employment.
In a report dated March 20, 2020, Dr. Schwartz diagnosed cervical spondylosis spinal cord
myelomalacia that was “unaccepted as related to December 10, 2015 date of injury [and] not
clearly related by history,” an accepted right thigh contusion with myositis ossificans, and an
accepted aggravation of unilateral primary osteoarthritis of the right hip. He advised that appellant

10

OWCP indicated that it was denying modification of the January 18, 2019 Board decision; however, Board
decisions and orders are final as to the subject matter appealed and such decisions and orders are not subject to review,
except by the Board. See 20 C.F.R. § 501.6(d).

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missed work from December 12, 2016 to September 14, 2017 due to cervical spinal surgery.
Dr. Schwartz opined that the employment-related conditions had resolved.
By decision dated April 17, 2020, OWCP denied appellant’s disability claim for the period
December 12, 2016 to September 14, 2017.
On April 24, 2020 appellant, through counsel, requested a telep honic hearing on the
August 2, 2019 decision before a representative of OWCP’s Branch of Hearings and Review.
By decision dated September 1, 2020, OWCP terminated appellant’s medical benefits
effective September 2, 2020.
By order dated September 9, 2020, the Board set aside the August 2, 2019 decision and
remanded the case for proper consideration of the evidence of record, to be followed by a de novo
decision on appellant’s expansion claim.11 The Board found that OWCP had failed to reference
or review Dr. Hanley’s report in issuing its August 2, 2019 decision.
In a report dated September 14, 2020, Dr. Wardell opined that appellant had sustained an
injury to his spinal cord on December 10, 2015 “from which [appellant] was predisposed due to
preexisting cervical spinal stenosis. He related, “Dr. Schwartz is correct in saying that this cervical
cord injury has not been accepted as related to his December 10, 2015 injury, but the causality is
not in doubt. Had it not been for [appellant’s] fall, his spinal cord would not have been crushed,
resulting in his chronic cervical myelopathy, and this is a large component of his continuing
disability.” Dr. Wardell also disagreed that appellant had recovered from his hip injury.
By decision dated October 26, 2020, OWCP’s hearing representative vacated the April 17,
2020 decision and remanded the case for Dr. Schwartz to review Dr. Wardell’s September 14,
2020 report.
By decision dated February 8, 2021, OWCP denied modification of its August 2, 2019
decision. It found that the opinion of Dr. Hanley constituted the weight of the evidence and
established that appellant’s cervical and lumbar conditions were unrelated to appellant’s accepted
employment injury.
LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.12
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 13 A physician’s opinion on whether there is a causal relationship
11

Order Remanding Case, F.H., Docket No. 19-1801 (issued September 9, 2020).

12

J.R., Docket No. 20-0292 (issued June 26, 2020); W.L., Docket No. 17-1965 (issued September 12, 2018); Jaja K.
Asaramo, 55 ECAB 200, 204 (2004).
13

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

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between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background. 14 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition , and
appellant’s employment injury. 15
ANALYSIS
The Board finds that the case is not in posture for decision.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s March 29, 2018 decision because the Board
considered that evidence in its January 18, 2019 decision and found that it was insufficient to
establish that OWCP should expand acceptance of his claim. Findings made in prior Board
decisions are res judicata absent further review by OWCP under section 8128 of FECA. 16 The
Board, therefore, need not review the evidence addressed in the prior appeal.
Subsequent to appellant’s appeal to the Board, OWCP expanded acceptance of the claim
to include an aggravation of unilateral osteoarthritis of the right hip.
OWCP referred appellant to Dr. Hanley for a second opinion examination to determine
whether acceptance of appellant’s claim should be expanded to include additional employmentrelated conditions and whether he had established disability from employment. Based on his
reports, it denied appellant’s request to expand acceptance of his claim.
In a June 5, 2019 report, Dr. Hanley diagnosed a quadriceps contusion of the right thigh
with the development of myositis ossificans, advanced cervical spinal stenosis with a fixed cervical
cord injury and residual central cord syndrome, bilateral hip arthritis, lumbar spinal stenosis, and
carpal tunnel syndrome. He attributed the quadriceps contusion and myositis ossificans to the
December 10, 2015 employment injury. Dr. Hanley opined that appellant had not sustained any
other condition due to the work injury, including an aggravation of arthritis of the hip or lumbar
degenerative joint disease. In a supplemental report dated June 24, 2019, he found appellant’s
degenerative cervical condition unrelated to his December 10, 2015 employment injury and again
advised that he had not aggravated any ongoing hip condition, or at most had sustained a temporary
aggravation for a brief period. OWCP, however, accepted that appellant sustained an aggravation
of right hip osteoarthritis as a result of the December 10, 2015 employment injury.
OWCP’s procedures provide that the findings of an OWCP referral physician or impartial
medical specialist must be based on the factual underpinnings of the claim, as set forth in the

14

F.A., Docket No. 20-1652 (issued May 21, 2021); M.V., Docket No. 18-0884 (issued December 28, 2018);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
15

Id.

16

D.A., Docket No. 19-1965 (issued February 10, 2021); G.B., Docket No. 19-1448 (issued August 21, 2020).

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SOAF.17 OWCP’s procedures and Board precedent dictate that when OWCP’s referral physician
or impartial medical specialist renders a medical opinion based on a SOAF, which is incomplete
or inaccurate, or does not use the SOAF as the framework in forming his or her opinion, the
probative value of the opinion is seriously diminished o r negated altogether. 18 As Dr. Hanley
determined that appellant had not sustained an aggravation of hip osteoarthritis, or at most had
sustained only a temporary aggravation, he failed to rely on the SOAF and thus his report is not
based upon an accurate history.19 Consequently, his report is of diminished probative value and
insufficient to constitute the weight of the evidence.20
Proceedings under FECA are not adversarial in nature, and while appellant has the burden
to establish entitlement to compensation, OWCP shares responsibility in the development of the
evidence.21 It has an obligation to see that justice is done. 22 Accordingly, once OWCP undertakes
to develop the medical evidence further, it has the responsibility to do so in a manner that will
resolve the relevant issues in the case. 23
The Board, therefore, finds that the case must be remanded to OWCP for further
development. On remand, OWCP shall refer appellant and a SOAF to a physician in the
appropriate field of medicine to resolve the issue of whether acceptance of his claim should be
expanded to include additional employment-related conditions. After this and such further
development as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.810.11a
(September 2019).
18

Id. at Chapter 3.600.3(10) (October 1990); J.R., Docket No. 19-1321 (issued February 7, 2020); M.D., Docket
No. 18-0468 (issued September 4, 2018); Paul King, 54 ECAB 356 (2003).
19

Id. at Chapter 3.600.3 (October 1990); V.K., Docket No. 19-0422 (issued June 10, 2020).

20

Id. See also L.F., Docket No. 20-0459 (issued January 27, 2021).

21

See M.G., Docket No. 18-1310 (issued April 16, 2019); Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985).

22

See A.J., Docket No. 18-0905 (issued December 10, 2018); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

23

T.K., Docket No. 20-0150 (issued July 9, 2020); T.C., Docket No. 17-1906 (issued January 10, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the February 8, 2021 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: December 9, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, COLLINGWOOD
POST OFFICE, Cleveland, OH, Employer
__________________________________________

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

Docket No. 09-1467
Issued: February 5, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 26, 2009 appellant, through her attorney, filed a timely appeal from
September 22, 2008 and May 1, 2009 merit decisions of the Office of Workers’ Compensation
Programs denying her claim for an increased schedule award. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 10 percent permanent impairment of the
right upper extremity and a 6 percent permanent impairment of the left upper extremity for
which she received schedule awards.
FACTUAL HISTORY
On July 26, 2000 appellant, then a 54-year-old window clerk, filed an occupational
disease claim alleging that she sustained carpal tunnel syndrome due to factors of her federal
employment. The Office accepted the claim for bilateral carpal tunnel syndrome. Appellant

underwent a right carpal tunnel release on October 3, 2000.
employment on November 27, 2000.

She resumed her regular

By decision dated March 15, 2002, the Office granted appellant a schedule award for a
five percent permanent impairment of the right upper extremity and a six percent permanent
impairment of the left upper extremity.1 Following an oral hearing, in a decision dated
December 6, 2002, an Office hearing representative affirmed the March 15, 2002 decision.
On June 13, 2007 appellant filed a claim for an increased schedule award.2 She
submitted an impairment evaluation dated October 12, 2007 from Dr. Timothy Morley, an
osteopath, who found that she had a 10 percent permanent impairment of the upper extremity.
On December 15, 2007 an Office medical adviser reviewed Dr. Morley’s report and concurred
with his finding that appellant had a 10 percent permanent impairment of the right upper
extremity.3
By decision dated March 4, 2008, the Office granted appellant a schedule award for an
additional five percent permanent impairment of the right upper extremity. The period of the
award ran for 15.6 weeks from October 12, 2007 to January 29, 2008.
On August 19, 2008 appellant again filed a claim for an increased schedule award. By
letter dated August 21, 2008, the Office requested that she submit medical evidence within 30
days showing that she had more than a 10 percent impairment of the right upper extremity and a
6 percent impairment of the left upper extremity. In a decision dated September 22, 2008, it
denied appellant’s claim for an increased schedule award. The Office noted that she had not
submitted any evidence in support of her claim that she had a greater permanent impairment of
her upper extremities than previously awarded.
On October 1, 2008 appellant, through her attorney, requested an oral hearing. At the
hearing, held on February 17, 2009, her attorney asked the hearing representative to hold the
record open 30 days for the submission of additional medical evidence. By decision dated
May 1, 2009, the hearing representative affirmed the September 22, 2008 decision. She
indicated that appellant had not submitted any evidence showing an additional impairment of
either upper extremity.

1

The Office initially issued the schedule award decision on November 15, 2001 but sent the decision to an
incorrect address.
2

In a decision dated May 10, 2007, the Office found that appellant did not establish a recurrence of disability
beginning January 7, 2002 due to her accepted work injury.
3

By letter dated December 21, 2007, the Office requested that Dr. Morley clarify whether appellant had a
permanent impairment of the right, left or both upper extremities. In a telephone call dated February 26, 2008,
appellant requested an increased schedule award for the right arm only.

2

LEGAL PRECEDENT
The Federal Employees’ Compensation Act4 provides compensation for both disability
and physical impairment. “Disability” means the incapacity of an employee, because of an
employment injury, to earn the wages the employee was receiving at the time of injury.5 In such
cases, the Act compensates an employee for loss of wage-earning capacity. In cases of physical
impairment the Act, under section 8107(a), compensates an employee, pursuant to a
compensation schedule, for the permanent loss of use of certain specified members of the body,
regardless of the employee’s ability to earn wages.6
As a claimant seeking compensation under the Act has the burden of establishing the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence, it is the claimant’s burden to establish that he or she sustained a permanent impairment
of a scheduled member or function as a result of his or her employment injury entitling him or
her to a schedule award.7 Where a claimant has previously received a schedule award and
subsequently claims an additional schedule award due to a worsening of his or her condition, the
claimant bears the burden of proof to establish a greater impairment causally related to the
employment injury.8
ANALYSIS
The Office accepted appellant’s claim for bilateral carpal tunnel syndrome. In March 15
and December 6, 2002 decisions, the Office granted her a schedule award for a five percent
permanent impairment of the right upper extremity and a six percent permanent impairment of
the left upper extremity. On June 13, 2007 appellant requested an increased schedule award. In
a decision dated March 4, 2008, the Office granted her a schedule award for an additional five
percent permanent impairment of the right upper extremity.
On August 19, 2008 appellant filed another claim for an increased schedule award. By
letter dated August 21, 2008, the Office requested that she submit medical evidence showing that
she had more than a 10 percent permanent impairment of the right upper extremity and a 6
percent permanent impairment of the left upper extremity. Appellant, however, did not submit
evidence addressing the extent of her permanent impairment. On February 17, 2009 a hearing
representative advised her attorney that he would hold the record open for the submission of
supporting medical evidence. Appellant did not submit medical evidence addressing the extent
of her permanent impairment of the bilateral upper extremities. It is her burden to submit
evidence showing that she sustained an increased impairment of a scheduled member as a result

4

5 U.S.C. §§ 8101-8193.

5

Lyle E. Dayberry, 49 ECAB 369 (1998).

6

Renee M. Straubinger, 51 ECAB 667 (2000).

7

See D.H., 58 ECAB 358 (2007); Veronica Williams, 56 ECAB 367 (2005).

8

Edward W. Spohr, 54 ECAB 806 (2003).

3

of an employment injury.9 She did not submit such evidence and thus failed to meet her burden
of proof.
CONCLUSION
The Board finds that appellant has no more than a 10 percent permanent impairment of
the right upper extremity and a 6 percent permanent impairment of the left upper extremity for
which she received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 1, 2009 and September 22, 2008 are affirmed.
Issued: February 5, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

9

Id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF LABOR, MINE SAFETY & )
HEALTH ADMINISTRATION, Warrendale, PA, )
Employer
)
__________________________________________ )
J.Z., Appellant

Appearances:
Marc J. Levy, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0428
Issued: February 21, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

On December 26, 2017 appellant, through counsel, filed a timely appeal from an
August 18, 2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
The Board assigned Docket No. 18-0428.
On October 27, 2015 appellant, then a 38-year-old mine safety and health inspector, filed
an occupational disease claim (Form CA-2) alleging that his life was threatened by a mine operator
in 2014. He alleged that he developed seizures as a result of the continued threats on
October 22, 2015.

1

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

By decision dated May 13, 2016, OWCP denied appellant’s emotional condition claim. It
found that appellant had not provided the necessary factual information to support his allegations
of threats or harassment.
On June 10, 2016 appellant requested reconsideration. By decision dated October 14,
2016, OWCP denied modification of the May 13, 2016 decision, finding that appellant had not
established a compensable factor of employment as causing or contributing to his diagnosed
emotional condition.
On October 28, 2016 appellant requested reconsideration of the October 14, 2016 merit
decision. OWCP did not issue its nonmerit decision denying appellant’s request for reconsideration
until August 18, 2017, approximately 10 months after the request was made. OWCP’s procedures
provide:
“When a reconsideration decision is delayed beyond 90 days, and the delay
jeopardizes the claimant’s right to review of the merits of the case by the Board,
OWCP should conduct a merit review. That is, the basis of the original decision
and any new evidence should be considered and, if there is no basis to change the
original decision, an order denying modification (rather than denying the
application for review) should be prepared. There is no obligation to conduct a
merit review on insufficient evidence if the maximum 180-day time limit for
requesting review by the Board will have expired within the 90-day period
following OWCP’s receipt of the claimant’s reconsideration request.”2
The Board, having duly considered the matter, finds that OWCP’s delay of 10 months in
issuing a decision on appellant’s reconsideration request effectively precluded him from appealing
OWCP’s most recent merit decision to the Board.3 Had OWCP acted upon his request within 90
days, appellant would have been able to seek review of the most recent merit decision dated
October 14, 2016.4
Accordingly, the case will be remanded to OWCP to issue an appropriate decision on the
merits of the claim in order to preserve appellant’s appeal rights.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7(a) (February 2016).

3

See 20 C.F.R. §§ 501.2(c) and 501.3. For final adverse OWCP decisions issued on or after November 19, 2008,
a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).
4
See K.A., Docket No. 16-1392 (issued November 7, 2016); Geoma R. Munn, 50 ECAB 242 (1999); Debra E.
Stoler, 43 ECAB 561 (1992).

2

IT IS HEREBY ORDERED THAT the August 18, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with the above opinion.
Issued: February 21, 2019
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
H.S., Appellant
and
U.S. POSTAL SERVICE, DOWNTOWN
HONOLULU POST OFFICE, Honolulu, HI,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-0939
Issued: February 12, 2021

Case Submitted on the Record

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

JURISDICTION
On March 23, 2020 appellant filed a timely appeal from a February 21, 2020 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 February 21, 2020 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
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish right upper extremity
conditions causally related to the accepted December 14, 2019 employment incident.
FACTUAL HISTORY
On December 18, 2019 appellant, then a 53-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 14, 2019 he strained his right elbow, forearm, and
wrist when pushing five trays of letters under a desk while in the performance of duty. On the
reverse side of the claim form, the employing establishment indicated that on December 14, 2019
he was injured in the performance of duty and had stopped work on that date. It also stated that
appellant’s medical records indicated that he was disabled for work.
OWCP received an undated position description for a city carrier.
Appellant submitted a number of reports dated December 16, 2019 from Dr. Adolph DiazOrdaz, Board-certified in internal medicine. In a narrative report dated December 16, 2019,
Dr. Diaz-Ordaz indicated that appellant presented with right elbow, forearm, and wrist pain.
Appellant stated that he was injured on December 14, 2019 at work when he pushed a stationary
bin with his right arm. He indicated that his wrist was flexed and his hand was in a supinated
position, and he related that he heard a crack and felt pain and numbness in the palm of his hand
and later a tingling sensation in his fingertips. Appellant stated that his pain had worsened and
that exacerbating factors included direct pressure and lifting and alleviating factors included rest.
Dr. Diaz-Ordaz related that appellant’s medical history was noncontributory. Appellant’s physical
examination revealed right elbow tenderness in the medial and lateral epicondyle, pain and
resistance upon right wrist extension and flexion and decreased flexion, a positive Tinel’s sign at
the ulnar nerve, and right elbow tenderness. Dr. Diaz-Ordaz indicated that x-rays of appellant’s
right wrist and elbow revealed normal results and he diagnosed a right elbow strain, a right wrist
strain, and a right forearm strain. He concluded that appellant’s causalgia following his
December 14, 2019 injury was work related and indicated that appellant could return to modified
duty with the restriction of no usage of his upper right extremity.
A December 16, 2019 work status report by Dr. Diaz-Ordaz diagnosed a strain of the
muscle/fascia/tendon of the right shoulder/upper arm, a strain of the muscle/fascia/tendon of the
right forearm, and a strain of the muscle/fascia/tendon of the right wrist/hand. He advised that
appellant could return to work, but could not use the right upper extremity to perform work
activities.
In a December 16, 2019 report, Dr. Diaz-Ordaz indicated that appellant related that on
December 14, 2019 appellant pushed tubs of mail under a desk with his right arm. He diagnosed
a strain of the muscle/fascia/tendon of appellant’s right shoulder/upper arm, a strain of the
muscle/fascia/tendon of the right forearm, and a strain of the muscle/fascia/tendon of the right
wrist/hand. Dr. Diaz-Ordaz checked a box marked “Yes” indicating that appellant’s condition was
solely caused by the December 14, 2019 employment incident. In separate December 16, 2019
report, he reviewed appellant’s history of injury and diagnosed an injury of the ulnar nerve at the
right forearm, a strain of a muscle/fascia/tendon of the right forearm, and a strain of a

2

muscle/fascia/tendon of the right shoulder/upper arm. Dr. Diaz-Ordaz checked a box marked “No”
indicating that appellant’s condition was not solely caused by the claimed December 14, 2019
employment incident.
A December 16, 2019 report by Fielding Mercer, a certified physician assistant, indicated
that on December 14, 2019 appellant was injured when pushing tubs of mail under a desk with his
right arm. He diagnosed a right arm injury of the ulnar nerve, a right elbow strain, a right forearm
strain, and a right wrist strain and checked a box marked “No” indicating that appellant’s condition
was not solely caused by his claimed December 14, 2019 employment incident. In another
December 16, 2019 report, Mr. Mercer checked a box marked “Yes” indicating that appellant’s
condition was solely caused by the December 14, 2019 employment incident.
OWCP received physical therapy notes from December 2019 through January 2020 signed
by a physical therapist.
A December 27, 2019 medical report by Mr. Mercer indicated that appellant presented with
improving symptoms. He reviewed appellant’s medical history and conducted a physical
examination which revealed right elbow tenderness, 4/5 right biceps strength, negative Tinel’s sign
at the ulnar nerve, and right forearm tenderness. Mr. Mercer diagnosed neurapraxia of the right
ulnar nerve, a right elbow strain, a right forearm strain, and a right wrist strain. Appellant
continued to follow up with Mr. Mercer regarding his right upper extremity conditions.
In a development letter dated January 20, 2020, OWCP advised appellant that when his
claim was first received it appeared to be a minor injury that resulted in minimal or no lost time
from work, and it was therefore administratively approved to allow payment of a limited amount
of medical expenses. It informed him that a formal adjudication required additional evidence was
needed in support of his claim. OWCP advised appellant of the medical evidence necessary to
establish the claim and attached a questionnaire for his completion. It afforded him 30 days to
submit the requested evidence.
OWCP subsequently received a December 16, 2019 report wherein Dr. Darwin Chan, a
family medicine specialist, indicated that on December 14, 2019 appellant was injured while
pushing tubs of mail under a desk with his right hand. Dr. Chan checked a box marked “Yes”
indicating that appellant’s condition was solely caused by appellant’s claimed December 14, 2019
employment incident and diagnosed an injury of the ulnar nerve at the right forearm, a strain of a
muscle/fascia/tendon of the right forearm, a strain of a muscle/fascia/tendon of the right wrist, and
a strain of a muscle/fascia/tension of the right shoulder/upper arm.
A December 19, 2019 medical report by Dr. Diaz-Ordaz indicated that appellant presented
with pain and tingling sensations in his right upper extremity. Appellant’s pain had improved, but
the tingling sensation was worse in the right hand on the palmer aspect of appellant’s thumb and
on digits 4 and 5. Dr. Diaz-Ordaz reviewed appellant’s history of injury and medical history and
conducted a physical examination. He continued to diagnose a right forearm strain, a right elbow
strain, and a right wrist strain. Dr. Diaz-Ordaz repeated that the causalgia of appellant’s claimed
December 14, 2019 employment incident was work related and indicated that he could return to
work with the restriction of no upper extremity usage.

3

A January 10, 2020 medical report by Dr. Diaz-Ordaz indicated that appellant presented
with tingling in his right hand. He reviewed appellant’s history of injury and medical history and
conducted a physical examination. Dr. Diaz-Ordaz diagnosed neurapraxia of the right ulnar nerve,
a right elbow strain, and a right forearm strain. He indicated that appellant could return to work
with restrictions including lifting, pushing, and pulling up to 20 pounds.
On January 16, 2020 appellant accepted the employing establishment’s offer of a modified
city carrier position.
A February 7, 2020 medical report by Dr. Chan indicated that appellant presented with
right wrist, elbow, and arm pain and tingling. He stated that appellant was injured on
December 14, 2019. Dr. Chan reviewed appellant’s medical history and conducted a physical
examination. He diagnosed neurapraxia of the right ulnar nerve, a right elbow strain, a right
forearm strain, and a right wrist strain. Dr. Chan stated that appellant could return to work with
the restrictions of lifting, pushing, and pulling up to 30 pounds
By decision dated February 21, 2020, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish causal relationship between his
diagnosed right upper extremity conditions and the accepted December 14, 2019 employment
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 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.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
Generally, fact of injury consists of two components that must be considered in conjunction with
one another. The first component is whether the employee actually experienced the employment

3

Supra note 1.

4

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

4

incident that allegedly occurred. The second component is whether the employment incident
caused a personal injury.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 Aphysician’s opinion on whether there is causal relationship
between the diagnosed condition and the accepted employment incident must be based on a
complete factual and medical background. Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and the
specific employment incident.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish right upper
extremity conditions causally related to the accepted December 14, 2019 employment incident.
OWCP received narrative and form reports from Dr. Diaz-Ordaz. In a December 16, 2019
narrative report, Dr. Diaz-Ordaz indicated that appellant presented with right elbow, forearm and
wrist pain. He recounted appellant’s history of injury where appellant pushed a stationary bin with
his right arm, while his wrist was flexed and his hand was in a supinated position, that he heard a
crack and felt pain and numbness in the palm of his hand, and later felt a tingling sensation in his
fingertips. Dr. Diaz-Ordaz diagnosed right elbow, right wrist, and right forearm strains, and
concluded that appellant’s causalgia following his December 14, 2019 injury was work related. In
a December 19, 2019 report, he repeated his conclusion that the causalgia was work related. While
Dr. Diaz-Ordaz provided an opinion on causal relationship, he did not offer any rationale to explain
how the accepted employment incident would have caused appellant’s diagnosed conditions. The
Board has held that a medical opinion should offer a medically-sound explanation of how the
specific employment incident physiologically caused the injury.10 These reports were therefore
insufficient to establish causal relationship.11
In his December 16, 2019 report, Dr. Diaz-Ordaz checked a box marked “No” indicating
that appellant’s condition was not caused by his December 14, 2019 employment incident;
however, in another December 16, 2019 report he checked a box marked “yes” indicating that
appellant’s condition was solely caused by appellant’s December 14, 2019 employment incident.
The Board has found that inconsistent and contradictory reports from the same physician lack

7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

L.S., Docket No. 19-1769 (issued July 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

B.C., Docket No. 20-0221 (issued July 10, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

10

T.W., Docket No. 20-0767 (issued January 13, 2021); see H.A., Docket No. 18-1466 (issued August 23, 2019);
L.R., Docket No. 16-0736 (issued September 2, 2016).
11

C.D., Docket No. 20-0762 (issued January 13, 2021).

5

probative value and cannot constitute competent medical evidence.12 As such, these reports do
not establish appellant’s claim.
OWCP also received work status reports from Dr. Diaz-Ordaz dated December 16, 2019
and January 10, 2020. In his January 10, 2020 report, Dr. Diaz-Ordaz added the diagnosis of
neurapraxia of the right ulnar nerve to his previous diagnoses of right elbow and forearm strain.
In both reports he indicated that appellant could return to work with restrictions. Dr. Diaz-Ordaz
however did not offer any opinion regarding the cause of appellant’s diagnosed conditions. The
Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.13 As such, these
reports are insufficient to establish appellant’s claim.
OWCP also received reports from Dr. Chan. In his December 16, 2019 report, Dr. Chan
reviewed appellant’s history of injury and his medical history, conducted a physical examination
and diagnosed neurapraxia of the right ulnar nerve, a right elbow strain, a right forearm strain, and
a right wrist strain. He checked a box marked “Yes” indicating that appellant’s condition was
solely caused by the accepted employment. However, Dr. Chan did not explain how the accepted
December 14, 2019 employment incident caused appellant’s diagnosed conditions. The Board has
held that an opinion on causal relationship with an affirmative check mark, without more by way
of medical rationale, is insufficient to establish the claim.14 As such, this report is insufficient to
establish appellant’s claim.
In a February 7, 2020 report, Dr. Chan concluded that appellant’s diagnosed conditions of
neurapraxia of the right ulnar nerve, right wrist, elbow, and forearm strains were sustained on
December 14, 2019. However, he did not provide a further opinion regarding causal relationship.
The Board has held that a medical opinion is of limited probative value if it is conclusory in
nature.15 This report is therefore insufficient to establish causal relationship.16
Appellant also submitted reports from Mr. Mercer, a certified physician’s assistant, and
notes from a physical therapist. However, certain healthcare providers such as physician
assistants, nurse practitioners, physical therapists, and social workers are not considered

12

J.O., Docket No. 19-0850 (issued October 22, 2020).

13
D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
14

See C.S., Docket No. 18-1633 (issued December 30, 2019); D.S., Docket No. 17-1566 (issued
December 31, 2018).
15

C.M., Docket No. 19-0360 (issued February 25, 2020).

16

Supra note 11.

6

“physician[s]” as defined under FECA.17 Consequently, these reports do not constitute competent
medical evidence.18
As the record lacks rationalized medical evidence establishing causal relationship between
appellant’s diagnosed upper extremity conditions and the accepted December 14, 2019
employment incident, the Board finds that appellant has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish right upper
extremity conditions causally related to the accepted December 14, 2019 employment incident.

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA); R.L., Docket No. 19-0440 (issued July 8, 2019) (physical therapists are not considered physicians under
FECA).
17

18

See C.S., supra note 14; D.S., Docket No. 17-1566 (issued December 31, 2018).

7

ORDER
IT IS HEREBY ORDERED THAT the February 21, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 12, 2021
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.R., Appellant
and
U.S. POSTAL SERVICE, CADMAN PLAZA
STATION, Brooklyn, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1120
Issued: November 19, 2019

Case Submitted on the Record

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

JURISDICTION
On April 22, 2019 appellant, through counsel, filed a timely appeal from a March 22, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 22, 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 a left foot/ankle
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On June 5, 2018 appellant, then a 51-year-old letter carrier, filed a notice of recurrence
(Form CA-2a) alleging that she sustained a recurrence of disability on May 3, 2018. She had
originally injured her left foot and ankle on February 26, 2018 when she tripped over a light fixture
on the ground while in the performance of duty, which OWCP accepted for left foot strain under
File No. xxxxxx448. Appellant had resumed her normal duties on April 30, 2018 and filed a
recurrence claim three days later. She stated that her left foot was swollen from walking and
ascending and descending steps while in the performance of duty. Appellant indicated that at first
she was able to perform her duties, but as the day went on she felt pain and swelling that increased
over the following three days. She stopped work on May 3, 2018.
On June 5, 2018, appellant informed the employing establishment that her work caused her
ankle and foot to swell and have pain.
An x-ray dated May 7, 2018 revealed no evidence of fracture or dislocations of the left
ankle or left foot. Paracervical muscle spasm of the left ankle was noted.
In a May 8, 2018 report, Dr. Pushp R. Bhansali, an orthopedic surgeon, diagnosed internal
derangement of the left ankle with post-traumatic swelling and contusion/sprain of the left foot.
In a prescription note dated May 31, 2018, he indicated that appellant was seen that day for a workrelated injury to the left ankle. On May 31, 2018 Dr. Bhansali advised that appellant could not
return to work until her next appointment on June 14, 2018.
In a development letter dated June 27, 2018, OWCP notified appellant that it was
converting her recurrence claim to a claim for a new occupational disease because the alleged
injury occurred as a result of a new work exposure due to repetitive work over the course of three
days. It advised her of the deficiencies of her claim and instructed her as to the factual and medical
evidence necessary to establish her claim. OWCP afforded appellant 30 days to submit additional
evidence and respond to its inquiries.
In response, appellant submitted a July 20, 2018 prescription note from Dr. Bhansali who
reiterated that she injured her left foot and ankle and needed a magnetic resonance imaging (MRI)
scan of her left ankle to determine the extent of her injury.
By decision dated July 31, 2018, OWCP denied the claim, finding that the medical
evidence of record was insufficient to establish causal relationship between appellant’s diagnosed
left foot/ankle condition(s) and the accepted factors of her federal employment.
In an attending physician’s report (Form CA-20) dated July 26, 2018, Dr. Bhansali
reiterated his diagnoses and advised appellant to stay off work until her next visit on
August 9, 2018. He checked a box marked “yes,” indicating his belief that the conditions were
caused or aggravated by her federal employment.

2

On August 8, 2018 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative.
In an August 16, 2018 prescription note, Dr. Bhansali diagnosed contusion sprain of left
foot and ankle and continued to advise that appellant was not able to return to work. In an attending
physician’s report (Form CA-20) dated August 27, 2018, he reiterated his diagnoses and advised
appellant to “stay off work until her next appointment.” Dr. Bhansali checked a box marked “yes,”
indicating his belief that the conditions were caused or aggravated by her federal employment.
On December 6, 2018 Dr. Siddhartha Sharma, a podiatrist, diagnosed left ankle
derangement, left ankle joint effusion, left ankle osteochondral lesion of medial talar dome with
high-grade cartilage loss, left ankle thickening of anterior talofibular ligament and calcaneofibular
ligament, left ankle instability, left ankle ligamentous laxity, left ankle Achilles tendinosis with
interstitial tear, left ankle plantar fascia partial-thickness tear of central and lateral bands, left ankle
posterior tibial tendon tendinosis with interstitial tear, and sinus tarsi syndrome. He asserted that
appellant was undergoing physical therapy which was not improving her symptoms and opined
that she was totally disabled.
During the telephonic hearing held on January 10, 2019 before an OWCP hearing
representative, appellant provided testimony and the hearing representative held the case record
open for 30 days for the submission of additional evidence.
Appellant subsequently submitted an x-ray of the left foot dated March 16, 2018 which
showed mild hallux valgus with degenerative changes at the first metatarsophalangeal (MTP) joint,
pes planus, hammertoes, degenerative change midfoot, and large plantar calcaneal spur and small
posterior calcaneal enthesophyte.
Appellant also submitted an MRI scan of the left ankle dated October 25, 2018, which
demonstrated osteochondral lesion of the medial talar dome with high-grade cartilage loss, marrow
edema, cystic change, and 1 mm of inferior articular depression, mild thickening of the anterior
talofibular ligament and calcaneofibular ligament consistent with previous low-grade partial
thickness tear, osteoarthritis of the talonavicular and calcaneocuboid joint, plantar fasciitis, atrophy
of the abductor digit minimi, Ganglion cyst, sinus tarsi edema, Achilles tendinosis, tendinosis and
interstitial tear of the distal posterior tibial tendon, and evidence of pes planus.
Appellant further submitted physical therapy treatment notes dated March 23, 2018
through January 16, 2019.
In reports dated February 18, March 23, April 27, August 17, October 1 and 31, and
November 30, 2018, Dr. Nitin Narkhede, a general practitioner, diagnosed left foot and ankle
sprain and asserted that appellant was injured at work on February 26, 2018 due to tripping on a
light fixture.
On January 31, 2019 Dr. Sharma reiterated his diagnoses and reported that appellant
wanted to move forward with surgery since she had not made any improvement with conservative
therapy.

3

By decision dated March 22, 2019, OWCP’s hearing representative affirmed the July 31,
2018 decision.4
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish 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, 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.6 These are the essential elements of every compensation claim regardless of whether the
claim is predicated on a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.10 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).11
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
4

The hearing representative advised her to consider pursuing a claim expansion and any resultant recurrent
disability based on new imaging studies and medical opinion found in her previously accepted claim, under OWCP
File No. xxxxxx448.
5

Supra note 2.

6
K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
7

K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

8

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
9

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

10

M.V., Docket No. 18-0884 (issued December 28, 2018).

11

Id.; Victor J. Woodhams, supra note 8.

4

the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left foot/ankle
condition causally related to the accepted factors of her federal employment.
Appellant had a previously accepted left foot and ankle condition she sustained on
February 26, 2018 when she tripped over a light fixture on the ground. OWCP accepted left foot
and ankle sprain under OWCP File No. xxxxxx448. Appellant alleged that she reinjured her left
foot and ankle after she resumed her normal work duties from April 30 to May 3, 2018.
In support of her claim, appellant submitted reports from Dr. Bhansali. In his May 8 and
31, 2018 reports, Dr. Bhansali noted that she was seen that day for a work-related injury to her left
ankle and diagnosed internal derangement of the left ankle with post-traumatic swelling and
contusion/sprain of the left foot. However, he failed to identify the specific employment factors
alleged by appellant or provide a pathophysiological explanation as to how those activities either
caused or contributed to her diagnosed condition.13 The Board has consistently held that
rationalized medical opinion evidence is particularly necessary when there are preexisting
conditions involving the same body part,14 and has required medical rationale differentiating
between the effects of the work-related injury and the preexisting condition in such cases.15
Therefore, these reports are insufficient to establish causal relationship between appellant’s
diagnosed left ankle condition and the accepted employment factors.
In a subsequent report dated July 26, 2018, Dr. Bhansali checked a box marked “yes,”
indicating that appellant’s conditions were caused or aggravated by the employment activity. The
Board has held that a checkmark or affirmative notation in response to a form question on causal
relationship is insufficient, without medical rationale, to establish causal relationship.16 The Board
finds that this report is also insufficient to meet appellant’s burden of proof
Appellant was also followed by Dr. Sharma, who diagnosed multiple left ankle conditions
on December 6, 2018, and Dr. Narkhede, who had treated her for her previously accepted

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).
13

Supra note 10.

14

E.g., K.R., Docket No. 18-1388 (issued January 9, 2019).

15

See, e.g., A.J., Docket No. 18-1116 (issued January 23, 2019); M.F., Docket No. 17-1973 (issued December 31,
2018); J.B., Docket No. 17-1870 (issued April 11, 2018); E.D., Docket No. 16-1854 (issued March 3, 2017);
P.O., Docket No. 14-1675 (issued December 3, 2015).
16

See H.A., Docket No. 18-1466 (issued August 23, 2019); K.T., Docket No. 15-1758 (issued May 24, 2016).

5

February 26, 2018 employment injury. As neither physician addressed causal relationship, their
reports are of no probative value on the issue of causal relationship.17
Appellant further submitted diagnostic imaging studies in the form of x-rays dated
March 16 and May 7, 2018 and an MRI scan dated October 25, 2018 in support of her claim. The
Board has held that diagnostic studies lack probative value as they do not provide an opinion on
causal relationship between the employment factors and her diagnosed conditions.18
Additionally, appellant submitted a series of physical therapy treatment notes into the
record. The Board has held that medical reports signed solely by a physical therapist are of no
probative value as such health care providers are not considered physicians as defined under FECA
and are therefore not competent to provide medical opinions.19 Consequently, their medical
findings and/or opinions will not suffice for purposes of establishing entitlement to FECA
benefits.20
As appellant has not submitted any rationalized medical evidence to support her claim that
she sustained a left foot/ankle condition causally related to the accepted employment factors, she
has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left foot/ankle
condition causally related to the accepted factors of her federal employment.

17

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

18

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

19

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law); J.M., 58 ECAB 448 (2007)
(physical therapists are not considered physicians under FECA).
20

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the March 22, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 19, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Laredo, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1110
Issued: March 3, 2022

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 July 8, 2021 appellant filed a timely appeal from a June 30, 2021 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 permanent impairment
of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On February 25, 2020 appellant, then a 40-year-old criminal investigator, filed a traumatic
injury claim (Form CA-1) alleging that on January 29, 2020, he injured his right wrist when
1

5 U.S.C. § 8101 et seq.

attempting to perform a bridge maneuver during survival training while in the performance of duty.
He asserted that he heard and felt something “pop” in his right wrist.
On May 14, 2020 OWCP accepted the claim for sprain of unspecified part of right wrist
and hand, and other instability of the right wrist.
In a May 21, 2020 report, Dr. Michael Jones, a Board-certified orthopedic surgeon
specializing in surgery of the hand, provided a history of injury and treatment. On examination of
the right upper extremity, he noted mild subluxation of the ulna with manipulation with the forearm
in full supination. Dr. Jones diagnosed a right wrist sprain. He recommended an MRI scan of the
right wrist to assess whether the TFCC remained detached at the insertion of the ulnar fovea.
A June 3, 2020 MRI scan of the right wrist demonstrated a TFCC tear at its ulnar
attachment with a small bony flake and fluid around the ulnar styloid, small central perforation of
the TFCC with fluid in the distal radioulnar joint, tears of the ulnar collateral and radial collateral
ligaments, thickening and mild intrasubstance increased thickening and mild intrasu bstance
increased signal in the extensor carpi ulnaris tendon compatible with tendinosis, and a small
amount of fluid in the carpometacarpal joint of the right thumb.
In a June 17, 2020 report, Dr. Jones noted that appellant experienced intermittent slight
soreness on the ulnar side of the right wrist, which appellant attributed to his return to full duty.
On examination, he found no abnormalities of the right wrist. Dr. Jones returned appellant to fullduty work with no restrictions.
In a June 17, 2020 Form OWCP-5c, Dr. Jones diagnosed a right wrist sprain with
instability. He returned appellant to full-duty work with no restrictions.
On June 17, 2020 Dr. Jones referred appellant for an impairment rating. On June 26, 2020
his office requested OWCP authorization for an impairment rating to be performed by Snowden
Orthopedic and Occupational Rehabilitation.
In a July 21, 2020 impairment rating, Thomas I. Washington, a physical therapist with
Snowden Orthopedic and Occupational Rehabilitation, reviewed a history of injury and treatment.
On examination of the right upper extremity, he observed right wrist flexion at 50 degrees, right
wrist extension at 40 degrees, radial deviation at 15 degrees, ulnar deviation at 25 degrees, forearm
supination at 75 degrees, and forearm pronation at 70 degrees. Appellant completed a QuickDASH
questionnaire, scored at 18. Mr. Washington provided an impairment rating referring to the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides),2 utilizing the diagnosis-based impairment (DBI) method, to find that, under
Table 15-3, page 396, the class of diagnosis (CDX) for TFCC injury with residual findings,
resulted in a class 1 impairment with a default value of eight. He assigned a grade modifier for
functional history (GMFH) of 1 according to Section 15.3a, page 406 of the A.M.A., Guides, based
on his clinical observations and functional history, a grade modifier for physical examination
(GMPE) of 1 according to Table 15-8, page 408, for minimal palpatory findings consistently
documents, and a grade modifier for clinical studies of (GMCS) of 1 for June 3, 2020 MRI findings
2

A.M.A., Guides (6 th ed. 2009). Table 15-3 is entitled “Wrist Regional Grid: Upper Extremity Impairments.”

2

according to Table 15-9, page 410. Applying the net adjustment formula, (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX), or (1-1) + (1-1) + (1-1) = 0, Mr. Washington calculated a net
adjustment of zero. He therefore found an eight percent permanent impairment of the right upper
extremity.
On September 9, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a development letter dated September 16, 2020, OWCP advised appellant of the
additional evidence needed to establish his schedule award claim. It noted that the impairment
rating received was insufficient to support his claim as it had not been countersigned by a qualified
physician. OWCP requested that appellant submit his physician’s opinion as to whether appellant
had attained maximum medical improvement (MMI), the date MMI had been reached, the clinical
findings indicating that the employment condition had reached a fixed and stable state, a detailed
description of all pertinent findings, and a final rating of permanent impairment according to the
applicable criteria of the A.M.A., Guides. It afforded him 30 days to respond.
On October 14, 2020 Dr. Jones examined appellant, noted findings, and provided ROM
measurements of the hand and wrist. He opined that appellant had attained MMI. Dr. Jones
reviewed the impairment rating performed by Mr. Washington and concurred with the rating. He
maintained appellant on full duty with no physical restrictions.
On November 10, 2020 OWCP referred the case record, along with a statement of accepted
facts (SOAF) noting Mr. Washington’s July 21, 2020 impairment rating, to Dr. Arthur S. Harris,
a Board-certified orthopedic surgeon serving as a District Medical Adviser (DMA), for a
permanent impairment rating of the right upper extremity.
Dr. Harris submitted a May 11, 2021 report in which he found that appellant had attained
MMI as of the July 21, 2020 impairment evaluation. He reviewed Mr. Washington’s calculations
and references to the A.M.A., Guides, and concurred with the methodology and calculations as
presented. Dr. Harris found that appellant had eight percent permanent impairment of the right
upper extremity utilizing the DBI method, based on the diagnosed right wrist TFCC tear. He
commented that the range of motion (ROM) rating method would have also resulted in an eight
percent permanent impairment of the right upper extremity.
By decision dated June 30, 2021, OWCP denied appellant’s schedule award claim, finding
that the medical evidence of record did not support permanent impairment of a scheduled member
or function of the body.
LEGAL PRECEDENT
The schedule award provisions of FECA 3 and its implementing federal regulations, 4 set
forth the number of weeks of compensation payable to employees sustaining permanent
3

Supra note 1.

4

20 C.F.R. § 10.404.

3

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
edition of the A.M.A., Guides, published in 2009. 5 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. 6
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. 7 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 da te 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.8
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment CDX, which is then adjusted by GMFH, GMPE, and GMCS. 9 The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10
The A.M.A., Guides also provide that ROM impairment methodology is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
DBI sections are applicable. 11 If ROM is used as a stand-alone approach, the total of motion
impairment for all units of function must be calculated. All values for the joint are measured and
added.12 Adjustments for functional history may be made if the evaluator determines that the

5

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

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).
7

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).
8

See 5 U.S.C. § 8101(19); J.K., Docket Nos. 19-1420 and 19-1422 (issued August 12, 2020); Francesco C.
Veneziani, 48 ECAB 572 (1997).
9

Supra note 2 at 383-492.

10

Id. at 411.

11

Id. at 461.

12

Id. at 473.

4

resulting impairment does not adequately reflect functional loss and functional reports are
determined to be reliable.13
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments. 14 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“Upon initial review of a referral for upper extremity impairment evaluatio n, 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.)15
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”16
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified. 17
ANALYSIS
The Board finds that appellant has established that he sustained eight percent permanent
impairment of the right upper extremity, warranting a schedule award.
The record establishes that on June 26, 2020, Dr. Jones, a Board-certified orthopedic
surgeon specializing in surgery of the hand, referred appellant for an impairment rating by
Snowden Orthopedic and Occupational Rehabilitation which was performed by Mr. Washington,
a physical therapist, on July 21, 2020. On October 14, 2020 Dr. Jones examined appellant, noted
13

Id. at 474.

14

FECA Bulletin No. 17-06 (May 8, 2017).

15

Id.

16

Id.; see also H.H., Docket No. 19-1530 (issued June 26, 2020); A.G., Docket No. 18-0329 (issued July 26, 2018).

17

Supra note 5 at Chapter 2.808.6(f); J.M., Docket No. 20-0602 (issued October 8, 2021); P.W., Docket No.
19-1493 (issued August 12, 2020).

5

findings, and provided ROM measurements of the hand and wrist. He opined that appellant had
attained MMI. Dr. Jones reviewed the impairment rating performed by Mr. Washington and
concurred with the rating.18
Consistent with its procedures, OWCP properly referred the case record to Dr. Harris,
serving as DMA, for an opinion regarding appellant’s permanent impairment in accordance with
the sixth edition of the A.M.A., Guides.19 In his May 11, 2021 report, Dr. Harris agreed that
appellant had sustained an eight percent permanent impairment of the right upper extremity based
on the diagnosed TFCC tear.
The Board finds that the DMA, Dr. Harris, properly considered the findings contained in
the July 21, 2020 impairment evaluation, as reviewed and approved by Dr. Jones, and explained
that appellant’s current impairment was eight percent total permanent impairment of the right
upper extremity based on the diagnosed right wrist TFCC tear. In addition, the DMA properly
utilized the DBI method and considered the ROM method to rate appellant’s accepted upper
extremity condition pursuant to FECA Bulletin No. 17-06.
Therefore, the Board finds that appellant has established eight percent permanent
impairment of the right upper extremity, based upon the reports of Dr. Jones and DMA Dr. Harris.
Consequently, OWCP’s June 30, 2021 decision must be reversed, and the case returned to OWCP
for payment of the schedule award for an eight percent permanent impairment of the right upper
extremity.
CONCLUSION
The Board finds that appellant has established that he sustained eight percent permanent
impairment of the right upper extremity, warranting a schedule award.

18

The Board has held that a report may be considered as probative medical evidence when either signed or reviewed
by a qualified physician. Merton J. Sills, 39 ECAB 572, 575 (1988); see also D.J., Docket No. 21-0414 (issued
October 14, 2021); R.H., Docket No. 20-1684 (issued August 27, 2021); M.W., Docket No. 19-1667 (issued
June 29, 2020).
19

P.T., Docket No. 21-0138 (issued June 14, 2021); see S.C., Docket No. 20-0769 (issued January 12, 2021).

6

ORDER
IT IS HEREBY ORDERED THAT the June 30, 2021 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: March 3, 2022
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

7