United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Herman, NE, Employer
__________________________________________

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

Docket No. 11-147
Issued: September 8, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 25, 2010 appellant, through her attorney, filed a timely appeal of a July 16,
2010 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
consequential injury claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant sustained a right ankle fracture and left knee condition as a
consequence of her December 6, 1995 employment injuries.
On appeal, appellant’s attorney contends that OWCP’s July 16, 2010 decision is contrary
to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board. By decision dated June 7, 2010, the Board
vacated a June 8, 2009 OWCP decision which denied appellant’s reconsideration request on the
basis that it was untimely filed and did not establish clear evidence of error.2 The Board found
that she had timely requested reconsideration and remanded the case to OWCP to review the
evidence under the proper standard of review. The findings of fact from the prior decision are
incorporated by reference.3
On September 18, 2007 appellant filed a recurrence for a right ankle fracture which
occurred on August 25, 2007. She also alleged that her left knee had broken cartilage due to the
excess stress she place on it because of the injured right knee.
By decision dated April 30, 2008, OWCP denied appellant’s claim for a consequential
right ankle fracture and left knee condition.
In a March 26, 2009 letter, appellant requested reconsideration of OWCP’s April 30,
2008 decision. She indicated that on August 25, 2007 while going down stairs at her home, her
right knee had buckled, causing her to fall and break her right ankle. Appellant was unable to
avoid falling because of the broken cartilage in the left knee. She stated that her medical record
contained documentation of numerous falls when her right knee buckled. Appellant contended
that the physician’s assistant who examined her after her August 25, 2007 fall, a Lisa Iseminger,
no longer worked at the medical clinic and the current physician’s assistant, Christina Prauner, a
nurse practitioner, and Dr. Steven C. Kumagai, a Board-certified orthopedic surgeon, stated that
Ms. Iseminger had provided poor documentation with regards to her injury.
Appellant submitted diagnostic studies dated March 18, 2008 to June 10, 2010; lab
testing of September 4, 2008 and June 25, 2009; and treatment notes, work restriction notes and
CA-7 forms dated June 10, 2001 to August 27, 2007 from Ms. Prauner.
In an August 27, 2007 report, Dr. Kumagai reported that appellant was walking down her
basement steps when her right knee gave out causing her to fall down several steps and twist her
right ankle. He noted that her knee had been giving out, causing her falling episodes.
Dr. Kumagai noted that the x-rays showed a nondisplaced right medial malleolar fracture.
Appellant was to remain nonweightbearing for six to eight weeks. On September 2, 2008
Dr. Kumagai noted that she had increased left knee pain over the weekend. He ordered an
aspiration and steroid shot, but appellant left before the knee could be aspirated. In a
September 4, 2008 report, Dr. Kumagai reported she had effusion in her left knee and was in
2

Docket No. 09-2128 (issued June 7, 2010).

3

On December 6, 1995 appellant, then a 42-year-old rural mail carrier, injured her right knee when she slipped
and fell while working. OWCP accepted the conditions of right medical meniscus tear and aggravation of right knee
degenerative joint disease. It paid benefits, including arthroscopic surgeries and right knee extensor reconstruction.
Appellant returned to limited duty September 2002 and full-time regular duty on April 3, 2003. OWCP accepted a
recurrence of disability beginning August 14, 2003 and she was placed back on limited-duty work. By decision
dated February 25, 2005, it reduced appellant’s compensation to zero finding that her actual earnings as a modified
general clerk fairly and reasonably represented her wage-earning capacity.

2

quite a bit of pain. X-rays showed appellant had maintained joint space in her left knee, with
moderate degenerative changes in all three compartments. Appellant also had changes consistent
with a previous anterior cruciate ligament reconstruction in her right knee and had maintained
joint space. Dr. Kumagai noted that Dr. Lori K. Reed, a Board-certified orthopedic surgeon,
placed appellant in a cam boot that appellant believed was traumatic for her left knee. He noted
that left knee surgery was a future option.
In an August 15, 2008 report, Dr. Reed reported that appellant sustained a right ankle
fracture on August 25, 2007 which was treated nonoperatively with a cam boot and crutches.
She advised that appellant had bad knees and the boot worsened her knee pain. Appellant
continued to experience pain and swelling in her ankle. She presented findings on examination
and noted the x-rays obtained that day revealed some mild ankle arthritis with a small amount of
valgus tilt to her ankle. A computerized tomography scan of May 7, 2008 revealed degenerative
changes along the anterior aspect of her ankle with subchondral cysts and osteophytes. Dr. Reed
diagnosed mild post-traumatic right ankle arthritis.
By decision dated July 16, 2010, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.4
Regarding the range of compensable consequences of an employment-related injury, Larson
notes that, when the question is whether compensability should be extended to a subsequent
injury or aggravation related in some way to the primary injury, the rules that come into play are
essentially based upon the concepts of direct and natural results and of the claimant’s own
conduct as an independent intervening cause. The basic rule is that a subsequent injury, whether
an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct
and natural result of a compensable primary injury. Thus, once the work-connected character of
any condition is established, the subsequent progression of that condition remains compensable
so long as the worsening is not shown to have been produced by an independent nonindustrial
cause.5
A claimant bears the burden of proof to establish a claim for a consequential injury.6 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. Rationalized medical
evidence is evidence which relates a work incident or factors of employment to a claimant’s
condition, with stated reasons of a physician. The opinion must be one of reasonable medical

4

Albert F. Ranieri, 55 ECAB 598 (2004).

5

A. Larson, The Law of Workers Compensation, § 10.01 (November 2000).

6

J.J., Docket No. 09-27 (issued February 10, 2009).

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certainty and must be supported by medical rationale explaining the nature of the relationship of
the diagnosed condition and the specific employment factors or employment injury.7
ANALYSIS
OWCP accepted that on December 6, 1995 appellant sustained right medial meniscus tear
and aggravation of right knee degenerative joint disease and authorized several surgeries.
Appellant filed a notice of recurrence requesting expansion of her claim to include an August 25,
2007 right ankle fracture and a consequential left knee condition. She stated that on August 25,
2007 while going down stairs at her home, her right knee buckled, causing her to fall and break
her right ankle. Appellant was also unable to avoid falling because of the broken cartilage in the
left knee. She alleged that she fell due to buckling of her right knee and that historically her right
knee had given way.
The Board finds that there is insufficient medical opinion attributing appellant’s right
ankle fracture to the December 6, 1995 employment injury or explaining how the fall that caused
the ankle fracture was a consequence of the conditions related to the December 6, 1995 work
injury. Neither Dr. Reed nor Dr. Kumagai offered any opinion that the right ankle fracture of
August 25, 2007 was due to residuals of the accepted injury. While Dr. Kumagai stated that
appellant’s right knee had been giving out, he did not provide any specific opinion addressing
how the right ankle fracture was attributable to the accepted right knee condition. In the absence
of well-rationalized medical opinion evidence explaining the nature of the relationship between
the diagnosed condition and residuals of the employment injury, appellant did not meet her
burden of proof.
Regarding the claimed consequential left knee condition, appellant stated that she favored
her right knee that led to her left knee condition. However, she did not submit sufficient medical
opinion from a physician who, on the basis of a complete and accurate factual and medical
history, concluded that her left knee condition was caused or aggravated by residuals of her
accepted injury. Dr. Kumagai and Dr. Reed noted appellant’s left knee condition but neither
physician provided a well-rationalized opinion explaining how her left knee condition was
causally related to the accepted employment injuries to her right knee. Dr. Kumagai noted
appellant’s belief that being placed in a cam boot was traumatic for her left knee; but he did not
offer a specific opinion regarding how appellant’s left knee condition was a consequence of her
accepted conditions. Similarly, Dr. Reed stated that appellant’s use of a cam boot worsened her
knee pain but Dr. Reed did not explain how a left knee condition resulted from the accepted right
knee condition or the treatment of the right knee condition. Thus, their reports are insufficient to
establish appellant’s claim.
Appellant submitted notes and reports from Ms. Prauner, a nurse practitioner. However,
the reports of a nurse practitioner are not considered medical evidence as a nurse practitioner is
not a physician under FECA.8 As Ms. Prauner’s reports do not constitute probative medical

7

Charles W. Downey, 54 ECAB 421 (2003).

8

Sean O’Connell, 56 ECAB 195 (2004). See 5 U.S.C. § 8101(2).

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evidence, they are insufficient to establish the claim.9 The remainder of the medical evidence,
including x-ray and Magnetic resonance imaging reports and lab testing, is insufficient to
establish the claim as it fails to address causal relationship between any diagnosed condition and
appellant’s accepted conditions.
Appellant argues on appeal that OWCP’s July 16, 2010 decision was contrary to fact and
law. However, it is her burden of proof to submit the necessary medical evidence to establish a
new or consequential injury. As noted above, appellant has not met her burden of proof as the
medical evidence submitted is insufficient to establish a consequential relationship between her
accepted work-related conditions and her claimed right ankle fracture and left knee condition.
Appellant may submit additional evidence, together with a formal written request for
reconsideration, to OWCP within one year of the Board’s merit decision pursuant to 5 U.S.C.
§ 8128(a).
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a right ankle
fracture and left knee condition as a consequence of her December 6, 1995 employment injuries.

9

See Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in general, can
only be given by a qualified physician).

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ORDER
IT IS HEREBY ORDERED THAT the July 16, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 8, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, KANSAS CITY
MARTIN POST OFFICE, Kansas City, MO,
Employer
__________________________________________

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

Docket No. 20-0598
Issued: December 2, 2020

Case Submitted on the Record

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

JURISDICTION
On January 23, 2020 appellant, through counsel, filed a timely appeal from a September 13,
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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty on February 5, 2018, as alleged.
FACTUAL HISTORY
On March 5, 2018 appellant, then a 41-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that, on February 5, 2018, he fell while casing his route in the
performance of duty. He indicated that he lost consciousness, fell, and hit his head on the cement
workroom floor and sustaining an open head wound.
Appellant stopped work on
February 5, 2018. On the claim form, the employing establishment indicated that appellant’s
injury was not sustained in the performance of duty because his injury was caused by a prior illness,
for which he had been hospitalized for approximately one month prior to his return to work on
February 5, 2018. It also noted that appellant had bragged about the amount of beer he had
consumed during the Super Bowl.
With his claim, appellant submitted a March 2, 2018 statement in which he described
falling on February 5, 2018 and striking his head on the cement floor. He also submitted a March 1,
2018 work release from Dr. Benjamin J. Saylor, a family practitioner.3
The record reflects that on February 5, 2018 appellant was transported to the hospital by
ambulance. In a February 5, 2018 emergency department report, Dr. Eric R. Macrae, a Boardcertified emergency medicine practitioner, noted that appellant had trouble recalling past medical
history, but noted that he had been recently hospitalized (reason unknown) and had a past history
of being “knocked unconscious after being hit in head, staples placed.” He indicated that appellant
had a sudden onset of a syncopal episode while at work putting mailboxes up above him. Appellant
denied taking any medications regularly, denied any history of seizures, denied family history of
cardiac dysrhythmias or sudden cardiac death. A computerized tomography (CT) scan4 was
performed of appellant’s head along with a physical examination. Dr. Macrae provided an
impression of syncope with altered mental status. Appellant was transferred to another facility for
further evaluation and a magnetic resonance imaging (MRI) scan.
In a February 5, 2018 report, Dr. Varsha Pawate, a family medical specialist, noted that
appellant had a history of anxiety, depression, and chronic lower back pain with radiculopathy and
presented status post syncope episode at work. Appellant was noted to have some bleeding from
the site of his fall on the left occipital lobe. Dr. Pawate reviewed the CT scan and indicated that
this possibly represented subtle calcification or petechial hemorrhage. She provided an impression
of status post syncope with no preceding symptoms. Dr. Vijay Parthiban, a Board-certified
internist, cosigned the report.

3

The work release indicated that appellant was released to part-time, light-duty work on March 6, 2018 with
increasing work hours until a return to full duty on March 17, 2018.
4
The CT scan of appellant’s head showed focal hypodensity within inferior right frontal lobe cortex and subtle
hyperdensities within the adjacent right frontal cortex which may be subtle calcification or petechial hemorrhage.

2

In a development letter dated March 29, 2018, OWCP advised appellant that additional
evidence was needed to establish his claim. It informed him of the type of factual and medical
evidence necessary and provided a questionnaire for his completion. OWCP afforded appellant
30 days to submit the necessary evidence.
On April 5, 2018 appellant completed OWCP’s development questionnaire. He denied
striking any object on his way down to the floor. Appellant also denied having a history of fainting
or other medical condition which may have contributed to his injury.
In a February 8, 2018 hospital discharge report, Dr. Pawate indicated that appellant was
admitted for syncope and discharged with small right frontal subdural hemorrhage, anxiety and
depression. The hospital course indicated that CT head showed possible petechial hemorrhages
and magnetic resonance imaging (MRI) brain scan showed minimal linear subdural hemorrhage
over anterior right frontal lobe. The electroencephalogram (EEG), electrocardiogram (EKG), and
echocardiogram were normal and did not show a cardiac reason for his syncopal episode. Repeat
CT head scan did not show a worsening bleed. A copy of a February 6, 2018 brain MRI scan was
provided.5
In a March 28, 2018 report, Dr. Cynthia L. Costa, a Board-certified neurologist, indicated
that appellant presented for a history of a head injury. She noted that in 2011 appellant was hit on
the back of the head and lost consciousness. Appellant reported that he was in an induced coma
for three days and suffered some cognitive difficulties thereafter. In January 2018, he was
hospitalized for rhabdomyolysis. In February 2018, appellant had a syncopal episode at work and
fell straight back, striking his head and losing consciousness. Dr. Costa noted that since the injury
appellant has had difficulty with headaches, memory (more immediate than long term), focus,
insomnia, fatigue, and mood. Appellant also had some disequilibrium that has improved.
Dr. Costa noted that the cause of the syncope was unknown and that the EEG and vascular imaging
were negative. She provided an assessment of post-concussive syndrome.
In an April 5, 2018 report, Dr. Saylor diagnosed post-concussive syndrome and
asymptomatic microscopic hematurla. He indicated that other medical conditions appellant had
included adenoma of right adrenal gland and transaminitis.
In an April 30, 2018 note, Dr. Costa advised that the reason for appellant’s episode of loss
of consciousness was unknown, as all the hospital testing was negative.
By decision dated April 30, 2018, OWCP denied the claim. It found that the medical
evidence of record was insufficient to establish that appellant’s diagnosed abrasion, postconcussive syndrome, and subdural hemorrhage were caused, aggravated, accelerated, or
precipitated by the accepted employment incident.

5

The February 6, 2018 brain MRI scan indicated encephalomalacia and gliosis with evidence of prior hemorrhage
and anterior inferior lateral right frontal lobe compatible with old trauma, and minimal linear subdural hemorrhage
over anterior right frontal lobe which appeared subacute.

3

On May 30, 2018 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative. A telephonic hearing was held on November 15, 2018.
By decision dated January 30, 2019, an OWCP hearing representative vacated OWCP’s
April 30, 2018 decision and remanded the case to determine whether appellant’s injury occurred
in the performance of duty. The hearing representative noted that appellant had been hospitalized
prior to the claimed injury, but had been released for at least 48 hours. Also appellant had testified
that he consumed beer in moderation on the day of the Super Bowl. The hearing representative
noted that the evidence of record made reference to several other factors which may have been
contributory to the February 5, 2018 event, including the 2011 head injury, the February 7, 2018
MRI scan findings indicative of old trauma, the hospitalization immediately preceding the work
event, appellant’s medications, and any effects of the right adrenal gland adenoma and
transaminitis. The hearing representative determined that OWCP must initiate further
development with Dr. Costa as to whether any of those items could be considered contributory to
the cause of the February 5, 2018 syncope and to address how those factors were ruled out as the
cause of appellant’s syncope.
In a January 31, 2019 letter, OWCP requested that Dr. Costa review the statement of
accepted facts (SOAF) and a list of questions and to provide a comprehensive narrative medical
report with a rationalized medical opinion on the cause of appellant’s syncope. Dr. Costa was
afforded 30 days to respond. The letter included a note to appellant that he should follow up with
Dr. Costa to insure that a response was received. Both appellant and appellant’s counsel were
provided a copy of the letter. No further response was received from Dr. Costa.
By decision dated March 7, 2019, OWCP denied the claim, finding that the evidence of
record was insufficient to establish that appellant’s injury occurred in the performance of duty was
not established. It advised that Dr. Costa had not provided a comprehensive narrative medical
report as requested to explain that appellant’s injury was not caused by the outside factors
identified in hearing representative’s decision.
On March 12, 2019 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative. A telephonic hearing was held on July 10, 2019. The hearing
representative noted that she needed appellant’s 2011 hospital records regarding appellant’s coma
with cognitive difficulties and the hospital records for the time period immediately preceding the
February 5, 2018 incident. Appellant testified that he had not seen Dr. Costa for some time, but
he could make an appointment with her office. He also testified that he was hospitalized in
February 2018, prior to the work incident. The hearing representative left the record open for 30
days. OWCP received duplicative evidence.
By decision dated September 13, 2019, an OWCP hearing representative affirmed OWCP’s
March 7, 2019 decision, finding that that appellant had not met his burden of proof to establish
that he sustained an injury in the performance of duty.

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LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,7 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.8 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.9
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.10 Fact
of injury consists of two components that must be considered in conjunction with one another.
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.11 Second, the employee
must submit sufficient evidence to establish that the employment incident caused a personal
injury.12
It is a well-settled principle of workers’ compensation law, and the Board has so held, that
an injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology causes
an employee to collapse and to suffer injury upon striking the immediate supporting surface and
there is no intervention or contribution by any hazard or special condition of employment -- is not
within coverage of FECA.13 Such an injury does not arise out of a risk connected with the
employment and is, therefore, not compensable. However, as the Board has made equally clear,
the fact that the cause of a particular fall cannot be ascertained or that the reason it occurred cannot
be explained, does not establish that it was due to an idiopathic condition.14

6

Id.

7

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
8
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
9

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
10

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

11

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

12

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

13

A.B., Docket No. 17-1689 (issued December 4, 2018); L.G., Docket No. 13-0927 (issued August 27, 2013);
Carol A. Lyles, 57 ECAB 265 (2005).
14

A.B., id.; M.M., Docket No. 08-1510 (issued November 25, 2008).

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This follows from the general rule that an injury occurring on the industrial premises during
working hours is compensable unless the injury is established to be within an exception to such
general rule.15 OWCP has the burden of proof to submit medical evidence showing the existence
of a personal, nonoccupational pathology if it chooses to make a finding that a given fall is
idiopathic in nature.16 If the record does not establish that the particular fall was due to an
idiopathic condition, it must be considered as merely an unexplained fall, one which is
distinguishable from a fall in which it is definitely proven that a physical condition preexisted and
caused the fall.17
ANALYSIS
The Board finds that this case is not in posture for decision.
In determining whether appellant’s injury occurred in the performance of duty, the Board
must first consider factors to determine whether the February 5, 2018 incident was caused by an
idiopathic fall. Factors to be considered include whether there is evidence of a preexisting
condition that caused appellant to collapse, whether there were any intervening circumstances or
conditions that contributed to his fall, and whether appellant struck any part of his body against a
wall, piece of equipment, furniture, or similar object as he fell.18 In L.J.,19 the Board found that
OWCP failed to establish that a fall was idiopathic in nature because the medical evidence of
record failed to establish that the employee’s fall was solely the result of a nonoccupational
orthostatic hypotension condition. The Board has also previously explained in A.B.,20 that “if the
record does not establish that a particular fall was due to an idiopathic condition, it must be
considered as merely an unexplained fall, one which is distinguishable from a fall in which it is
definitely proved that a physical condition was preexisting and caused the fall.”
Similarly, herein, the Board finds that the medical evidence of record fails to establish that
appellant’s fall was solely the result of a personal, nonoccupational pathology.21 The medical
evidence noted that appellant was standing casing/putting mail in boxes up above him when he
fell. Appellant denied striking any object on his way down to the floor. The medical evidence
related to his hospitalization on February 5, 2018 was submitted to the record and did not establish

15

Dora J. Ward, 43 ECAB 767 (1992); Fay Leiter, 35 ECAB 176 (1983).

16

A.B., supra note 13; P.P., Docket No. 15-0522 (issued June 1, 2016).

17

See D.T., Docket No. 19-1486 (issued January 17, 2020); P.N., Docket No. 17-1283 (issued April 5, 2018);
John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988); Martha G. List, 26 ECAB 200 (1974).
18
See D.T., Docket No. 19-1486 (issued January 17, 2020); A.B., supra note 13; P.P., Docket No. 15-0522 (issued
June 1, 2016); see also Jennifer Atkerson, 55 ECAB 317 (2004).
19

Docket No. 08-1415 (issued December 22, 2008).

20

Supra note 13.

21

See D.M., Docket No. 18-1552 (issued June 2, 2020).

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any cause for appellant’s fall. Dr. Costa reported in an April 30, 2018 note that the reason for
appellant’s episode of loss of consciousness was unknown, as all the hospital testing was negative.
Because appellant denied any intervention or contribution by some hazard or special
condition of the employment, OWCP undertook further development to address whether his fall
at work on February 5, 2018 was idiopathic or unexplained. It requested his medical records
regarding his hospitalization immediately prior to his return to duty on February 5, 2018 as well
as comprehensive medical report from Dr. Costa which explained whether any of appellant’s past
circumstances (i.e., 2011 head injury and induced coma, February 2018 MRI scan findings
indicative of old trauma, appellant’s hospitalization immediately preceding the work incident,
potential side effects of appellant’s medications, and any effects of the right adrenal gland adenoma
and transaminitis) contributed to his fall on February 5, 2018. However, despite OWCP’s
requests, the record remains devoid of this information. The mere fact that an employee has a
preexisting medical condition, without supporting medical rationale to establish that it was the
cause of the employment incident, is insufficient to establish that a fall is idiopathic.22 The record
at hand does not establish that the February 5, 2018 fall was due to an idiopathic condition; thus,
it must be considered as merely an unexplained fall, one which is distinguishable from a fall in
which it is definitely proved that a physical condition preexisted and caused the fall.23 The Board
finds that OWCP has failed to meet its burden to establish that appellant’s fall while standing and
casing at work was of an idiopathic nature with no contribution or intervention from employment
factors.24 The evidence of record is sufficient to require OWCP to further develop the medical
evidence and the case record.25
Accordingly, the case will be remanded for OWCP to determine whether appellant
sustained an injury causally related to the February 5, 2018 employment incident, and if so, to also
determine the nature and extent of disability, if any.
CONCLUSION
The Board finds that this case is not in posture for decision.

22

D.M., id.; A.B., supra note 13.

23

H.B., Docket No. 18-0278 (issued June 20, 2018).

24

A.B., supra note 13; R.D., Docket No. 13-1854 (issued December 23, 2014).

25

A.B., supra note 13; see Robert A. Redmond, 40 ECAB 796, 801 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the September 13, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: December 2, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, MEMPHIS BULK
MAIL CENTER, Memphis, TN, Employer
__________________________________________

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

Docket No. 07-1958
Issued: February 1, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 18, 2007 appellant filed a timely appeal from a May 15, 2007 decision of the
Office of Workers’ Compensation Programs hearing representative that affirmed an August 22,
2006 denial of his recurrence of disability 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 the Office properly denied appellant’s claim for a recurrence of
disability beginning June 14, 2004.
FACTUAL HISTORY
On August 20, 1992 appellant, then a 36-year-old distribution clerk, filed a traumatic
injury claim stating that he injured his shoulders on June 10, 1992 while “working pallet mail.”
He initially stopped work on June 10, 1992 and returned on June 24, 1992. After appropriate
development, the Office accepted appellant’s claim for lumbar strain, bilateral shoulder strain
and left shoulder tendinitis and paid compensation. On August 3, 1994 he filed a recurrence of

disability claim alleging that he experienced soreness and stiffness in both shoulders on
June 29, 1994. Appellant stopped work on June 29, 1994 and returned to a limited-duty
assignment on July 11, 1994. The Office accepted his recurrence of disability claim for left
shoulder tendinitis.
Appellant provided several progress notes from Dr. Rommel Childress, a Board-certified
orthopedic surgeon. On February 21, 1995 he stated that appellant continued to have symptoms,
particularly in his left shoulder and arm even with his light-duty work. Appellant underwent a
left shoulder arthroscopy on April 12, 1995. In a September 14, 1995 report, Dr. Childress noted
that appellant preferred to take medical retirement rather than return to work. On October 6,
1995 he explained that appellant did not wish to push himself or stress himself and therefore he
preferred medical retirement even though he could likely work a limited-duty job.
In a September 11, 1995 report, Dr. Jere M. Disney, a Board-certified orthopedic surgeon
and second opinion physician, noted appellant’s complaints of shoulder pain and limited range of
motion. He reported that appellant felt that he could not use his left shoulder at all, although he
took no medications. Dr. Disney concluded that appellant had chronic capsulitis of the left
shoulder but could work with permanent restrictions on heavy lifting and reaching above
shoulder level. On December 20, 1995 Dr. Childress stated that he agreed with Dr. Disney that
appellant could perform light-duty work, but opined that medical retirement would be in
appellant’s best interest if he felt that he could not function productively due to shoulder pain.
On April 17, 1996 the employing establishment offered appellant a limited-duty
assignment as a modified clerk. He rejected the offered position on May 2 and 14, 1996, stating
that “the physical requirements do not include the right side.” On August 7, 1996 appellant
informed the Office that he had elected to retire through the Office of Personnel Management
(OPM) and requested that the Office discontinue his compensation payments.1
On August 1, 1998 appellant informed the Office that he would like to “convert back to
workers’ compensation” effective August 3, 1998. He stated that he had requested that the OPM
discontinue his benefits effective that date. On October 2, 1998 the Office informed appellant
that it was unable to “offer [him] an election” because he had not provided medical evidence
establishing that he was permanently disabled.
In an October 1, 1998 report, Dr. Childress noted that, although appellant was not
working, he continued to experience shoulder pain with the activities of daily living and
particularly with overhead reaching.
On December 16, 1998 the Office informed appellant that the previously offered
modified clerk position remained open for him and that the Office had determined that the
position was suitable for and commensurate with his physical restrictions. On December 28,
1998 he accepted the position. The employing establishment offered appellant a “temporary
limited[-]duty job” on April 7, 1999. The job requirements included performing “duties within
medical restrictions as directed by a supervisor” and assisting “in facilitating the efforts of the
1

On September 11, 1997 the Office granted appellant a schedule award for 17 percent permanent impairment of
the upper extremities, bilaterally.

2

[employing establishment] in the distribution and delivery of mail.” The job offer noted
“maximum physical requirements” of “limited reaching above left shoulder” and lifting
restrictions “limited to 10 pounds left side” and indicated that appellant’s duties may include
casing of mail and “other job[-]related tasks in support of the basic duties that are within the
prescribed medical restrictions.” Appellant accepted the temporary limited-duty assignment on
April 13, 1999. On August 10, 1999 the employing establishment offered him a new temporaryjob assignment. The assignment noted physical restrictions of limited reaching above shoulder
level on the left side and no lifting above 10 pounds. The position required appellant “to assist
Human Resources in personnel functions.”
By decision dated May 13, 1999, the Office denied appellant’s claim for compensation
benefits from September 1 to October 31, 1998. It found that he had rejected an offer of suitable
work under 5 U.S.C. § 8106(c)(2) in 1998. On June 7, 1999 appellant requested an oral hearing.
The hearing was held on October 27, 1999. By decision dated December 30, 1999, the hearing
representative affirmed, as modified, the Office’s prior decision finding that appellant refused an
offer of suitable work pursuant to section 8106(c)(2) of the Act. He found that appellant refused
the April 17, 1996 job offer by the employing establishment and consequently was not entitled to
ongoing disability or schedule award benefits after May 14, 1996, the date of his refusal.
Appellant did not appeal this decision.
On November 25, 2003 the employing establishment offered another temporary modified
assignment. The position, as a modified clerk, required appellant to tray loose letters and flats,
rate and time mail and perform “any clerk assignment within employee’s current medical
restrictions.” The applicable physical requirements included lifting 10 to 20 pounds for four to
eight hours per day, bending and stooping for one hour, twisting for two hours and simple
grasping or fine manipulation for four to eight hours. After initially rejecting the position,
explaining that he had “medical concerns and fears,” appellant accepted the position on
November 25, 2003. However, in a December 1, 2003 note, he rejected the assignment.
Appellant explained that the offered assignment was “out of [his] limitations” and that his initial
acceptance was influenced by “duress.” On December 9, 2003 the Office informed him that it
found the offered modified-clerk position to be commensurate with his physical abilities.
On June 10, 2004 appellant filed a recurrence of disability claim, stating that he
experienced stress and depression as well as left wrist tendinitis, on the same day while working
“in the same job that my original injury occurred.” He stopped work on June 14, 2004.
Appellant advised that he had the same job duties that “caused [his] permanent disability.” He
noted that he had permanent impairment due to chronic tendinitis and capsulitis in both
shoulders.2 In a duty status report prepared on the same day, Dr. Childress diagnosed bilateral
shoulder tendinitis and capsulitis and stated that appellant would be disabled for six weeks. In an
October 19, 2004 duty status report, he diagnosed bilateral shoulder tendinitis and advised that
appellant was still disabled from work. In a September 8, 2005 report, Dr. Childress advised that

2

The record reflects that on July 29, 2004 the Office informed appellant that his claim had been accepted for a
back condition only and that it was unable to locate “evidence that we have extended coverage for a job-related
shoulder problem under this claim.” The record reflects, as noted above, that appellant’s claim was accepted for
bilateral shoulder strain and left shoulder tendinitis as well as lumbar strain.

3

appellant had continuing symptoms and difficulty with overhead reaching. However, he stated
that appellant was “functional at home just taking care of him-self.”
On January 27, 2006 appellant filed a claim for compensation for leave without pay taken
on June 10, 2004 and continuing.
On May 16, 2006 Dr. Childress explained that appellant still had shoulder pain and
difficulty with certain activities. He stated that appellant “thinks that he was offered a specific
job activity and [the employing establishment] [did not] give and that, … he was officially on
disability retirement and came back voluntarily, but he still has options regarding what he can do
and what he’s obligated to do.”
In a July 8, 2006 conference memorandum, the Office noted that appellant was not
entitled to temporary total disability benefits after his refusal of the employing establishment’s
April 17, 1996 job offer.
By decision dated August 22, 2006, the Office denied appellant’s claim for recurrence of
disability and for compensation benefits after June 10, 2004 on the grounds that the “factual and
medical evidence provided does not establish that the claimed recurrence resulted from the
accepted work injury.”
On September 14, 2006 appellant requested an oral hearing. He provided a July 11, 2004
duty status report from Dr. Childress who diagnosed tendinitis and capsulitis in both shoulders.
On February 15, 2007 Dr. Childress advised that appellant was “seen in follow-up today
regarding his wrist.”
An oral hearing was conducted on February 22, 2007. At the hearing, appellant testified
that after returning to the employing establishment he was required to perform the same job
duties that he performed at the time he was injured.
By decision dated May 15, 2007, the hearing representative affirmed the Office’s
August 22, 2006 denial of appellant’s recurrence of disability claim. He found that appellant
established a change in the nature and extent of his light-duty job requirements, but did not show
that such change precipitated a worsening of his injury-related condition.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.3 Under section 8106(c)(2) of the Federal Employees’
Compensation Act, the Office may terminate the compensation of a partially disabled employee
who refuses or neglects to work after suitable work is offered to, procured by, or secured for the
employee.4 To justify termination, the Office must show that the work offered was suitable and

3

Linda D. Guerrero, 54 ECAB 556 (2003).

4

5 U.S.C. § 8106(c)(2 ); see also Geraldine Foster, 54 ECAB 435 (2003).

4

must inform appellant of the consequences of refusal to accept such employment.5 Section
8106(c) serves as a penalty provision, barring an employee’s future entitlement to compensation
for the same injury based on a refusal to accept a suitable offer of employment.6
ANALYSIS
The Board finds that appellant’s claim for recurrence of disability is precluded pursuant
to section 8106(c)(2) of the Act, which bars entitlement to future wage-loss compensation after
termination due to a claimant’s refusal of an offer of suitable work.7 The employing
establishment offered appellant a limited-duty assignment on April 17, 1996. He rejected the
offer on May 2, 1996 stating that “the physical requirements do not include the right side.”
Appellant elected to retire and collect benefits through OPM. In 1998, he informed the Office
that he would like to “convert back to workers’ compensation” and on December 16, 1998 the
employing establishment offered him a limited-duty job which he accepted. However, on
May 13, 1999 the Office denied appellant’s claim for compensation benefits from September 1
to October 31, 1998 finding that he rejected an offer of suitable work in 1998 and thus, was
barred from entitlement to future compensation benefits. Appellant requested an oral hearing
and the hearing representative affirmed the Office’s May 13, 1999 decision modifying it to find
that appellant’s rejection of an offer of suitable work took place in 1996 rather than 1998 and
that he consequently was not entitled to compensation after May 14, 1996.8
Because the Office terminated appellant’s compensation due to his refusal of an offer of
suitable work under section 8106(c)(2), appellant is barred from future entitlement to wage-loss
compensation for his 1992 employment injury, although he may still receive medical benefits for
his employment-related condition.9 Therefore, the Board finds that appellant’s recurrence of
disability claim is barred.10
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that on
June 10, 2004 he sustained a recurrence of total disability causally related to his June 10, 1992
employment injury and therefore that the Office properly denied appellant’s claim on the
grounds that he was barred from receiving compensation under 5 U.S.C. § 8106(c)(2).

5

Ronald M. Jones, 52 ECAB 190 (2000).

6

Joan F. Burke, 54 ECAB 406 (2003).

7

5 U.S.C. § 8106(c)(2).

8

Because the hearing representative’s December 30, 1999 decision was issued more than one year prior to the
filing of this appeal on July 18, 2007 the Board does not have jurisdiction over the decision terminating appellant’s
compensation pursuant to section 8106(c)(2). See 20 C.F.R. §§ 501.2(c), 501.3.
9

20 C.F.R. § 10.517.

10

Id.; Merlind K. Cannon, 46 ECAB 517 (1995).

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ORDER
IT IS HEREBY ORDERED THAT the May 15, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 1, 2008
Washington, DC

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

David S. Gerson, 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
__________________________________________
F.V., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTATION MEDICAL
CENTER, Riviera Beach, FL, Employer
__________________________________________

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

Docket No. 19-0006
Issued: September 19, 2019

Case Submitted on the Record

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

JURISDICTION
On October 1, 2018 appellant filed a timely appeal from a September 18, 2018 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 to consider the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition in the performance of duty, as alleged.
FACTUAL HISTORY
On June 25, 2018 appellant, then a 55-year-old security assistant, filed an occupational
disease claim (Form CA-2) alleging that “he started a new job in an office environment where the
1

5 U.S.C. § 8101 et seq.

people he had to work with caused him a lot of stress.” He first became aware of his emotional
condition and attributed it to factors of his federal employment on April 23, 2018.
In support of his claim, appellant submitted progress notes dated May 21 and 23, 2018
from Melanie Hemmingsen, a physician assistant.
In an April 4, 2018 e-mail to appellant, J.R., Chief of Police Service, indicated that he
addressed “the issue” with J.B. and inquired with appellant as to whether there had been any other
issues. Appellant responded indicating that he had noticed an improvement in J.B.’s demeanor
and that it was a very good day in the Personal Identity Verification (PIV) office. He also provided
a May 30, 2018 e-mail addressed to a “PIV Card User” indicating that a PIV card was ready for
pick up. Appellant copied J.R. and J.B. on this e-mail. J.R. replied and asked why appellant sent
the e-mail to him. Appellant indicated that J.B. had instructed him to do so. In a June 4, 2018
e-mail, appellant’s union president, G.B., reported that appellant felt that he was working in a
hostile work environment and requested to be temporarily relocated as he no longer felt safe in his
present work area.
In a development letter dated August 9, 2018, OWCP informed appellant that additional
factual and medical evidence was needed to establish his emotional condition claim. It advised
him of the type of factual and medical evidence needed and provided a questionnaire for his
completion. OWCP afforded appellant 30 days to submit additional evidence. Appellant did not
respond.
By decision dated September 18, 2018, OWCP denied appellant’s emotional condition
claim, finding that he had not established the factual elements of his occupational disease claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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, that an injury was sustained while 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.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion

2

Id.

3

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

4
20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).

2

evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.6 There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.7 On the other hand, the disability
is not covered when it results from such factors as an employee’s fear of a reduction-in-force or
his or her frustration from not being permitted to work in a particular environment or to hold a
particular position.8
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.9 However,
the Board has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.10
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.11
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be probative and reliable evidence that harassment or discrimination did in fact occur.12
Mere perceptions of harassment, retaliation, or discrimination are not compensable under FECA.13
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
5

See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).
6

T.G., Docket No. 19-0071 (issued May 28, 2019); L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB
622 (2006).
7
L.H., Docket No. 18-1217 (issued May 3, 2019); Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB
125 (1976).
8

A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

9

See G.R., Docket No. 18-0893 (issued November 21, 2018); Andrew J. Sheppard, 53 ECAB 170-71 (2001), 52
ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42 ECAB 556 (1991).
10
See O.G., Docket No. 18-0359 (issued August 7, 2019); D.R., Docket No. 16-0605 (issued October 17, 2016);
William H. Fortner, 49 ECAB 324 (1998).
11

B.S., Docket No. 19-0378 (issued July 10, 2019); Ruth S. Johnson, 46 ECAB 237 (1994).

12

T.G., Docket No. 19-0071 (issued May 28, 2019); Marlon Vera, 54 ECAB 834 (2003).

13

Id.; see also Kim Nguyen, 53 ECAB 127 (2001).

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function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship and which working conditions are not deemed compensable factors of
employment and may not be considered.14 If an employee does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor. As a rule,
allegations alone by a claimant are insufficient to establish a factual basis for an emotional
condition claim. The claim must be supported by probative evidence.15 If a compensable factor
of employment is substantiated, OWCP must base its decision on an analysis of the medical
evidence which has been submitted.16
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an emotional
condition in the performance of duty, as alleged.
OWCP denied appellant’s emotional condition claim, finding that he had not established
compensable employment factors. The Board must, thus, initially review whether these alleged
incidents and conditions of employment are covered employment factors under the terms of FECA.
The Board notes that appellant’s allegations do not pertain to his regular or specially assigned
duties under Lillian Cutler.17 Rather, appellant has alleged difficult relationships at work and a
hostile working environment resulted in his stress.
Difficult relationships with supervisors and coworkers, when sufficiently detailed by the
claimant and supported by the record, may constitute factors of employment. This does not imply,
however, that every statement uttered in the workplace will give rise to coverage under FECA.18
Appellant did not provide a detailed statement describing the employment events which he felt
caused or contributed to his alleged emotional condition. He provided a general statement on his
claim form that the people he worked with caused him stress. Appellant did not further describe
the events or actions that he felt were stressful and did not provide specific dates or times that the
events or actions occurred or who carried out the stressful activities. Furthermore, he did not
submit evidence to establish his allegations.19 Therefore, appellant has not established difficult
working relationships as a compensable factor of employment.
In support of his emotional condition claim, appellant submitted an e-mail from his union
president alleging that appellant felt that he was working in a hostile working environment and felt
unsafe at work. The Board finds that appellant submitted no evidence corroborating his allegations

14

Dennis J. Balogh, 52 ECAB 232 (2001).

15

J.Q., Docket No. 17-1276 (issued December 27, 2017); Charles E. McAndrews, 55 ECAB 711 (2004).

16

V.R., Docket No. 18-1179 (issued June 11, 2019); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

17

S.K., supra note 5; 28 ECAB 125 (1976).

18

Y.B., Docket No. 16-0194 (issued July 24, 2018).

19

Supra note 15.

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of a hostile work environment or harassment.20 Mere perceptions of harassment or discrimination
are not compensable. Appellant must establish a basis in fact for the claim by supporting his
allegations with probative and reliable evidence.21 Here again, the record contains no specific
allegations and no corroborating evidence that he was exposed to hostility in his workplace.22
Thus, appellant has failed to establish these allegations as factual.
As appellant has not established a compensable factor of employment, the Board need not
consider the medical evidence of record.23 As such, he has failed to meet his burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s 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 an emotional
condition in the performance of duty, as alleged.

20

M.C., Docket No. 18-0585 (issued February 13, 2019).

21

Id.; Curtis Hall, 45 ECAB 316 (1994); Margaret S. Krzycki, 43 ECAB 496 (1992).

22

C.V., Docket No. 18-0580 (issued September 17, 2018).

23

Supra note 16.

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ORDER
IT IS HEREBY ORDERED THAT the September 18, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 19, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, NATIONAL INSTITUTES OF
HEALTH, Bethesda, MD, Employer
__________________________________________

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

Docket No. 17-0541
Issued: October 17, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 10, 2017 appellant, through counsel, filed a timely appeal from an October 7,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established a permanent impairment of a scheduled
member warranting him to a schedule award.
FACTUAL HISTORY
On August 10, 2007 appellant, then a 37-year-old utility systems repairman, filed a
traumatic injury claim (Form CA-1) alleging that on July 18, 2007 he injured his lower back
while moving equipment to a dumpster. He stopped work on August 10, 2007. By decision
dated November 6, 2007, OWCP accepted appellant’s claim for displacement of the right lumbar
intervertebral disc without myelopathy.
Appellant received medical and wage-loss
compensation on the supplemental roll from September 24, 2007 until he was placed on the
periodic rolls. He returned to full-time work on June 10, 2009.
OWCP continued to receive progress notes and copies of prescription orders for
treatment of appellant’s accepted lumbar condition.
On March 11, 2015 appellant filed a claim for a schedule award (Form CA-7).
By letter dated April 8, 2015, OWCP informed appellant that it had not received any
medical evidence in support of his claim. It advised that the medical evidence was needed in
order to determine the extent, if any, of permanent impairment. It afforded him 30 days to
submit additional evidence.
In a report dated July 27, 2015, Dr. Pauline Ignacio, Board-certified in physical medicine
and rehabilitation, examined appellant, reviewed his history of injury, and reviewed diagnostic
studies of his spine. She diagnosed disorder of lumbar disc, lumbar pain, and lumbar
radiculopathy, and noted that appellant continued to have soreness and stiffness in his back.
Dr. Ignacio recommended aquatherapy, work modifications, and taking precautions with his
lumbar area. Appellant submitted additional reports from Dr. Ignacio dated March 9, April 6,
May 4, June 1, and June 29, 2015, which were substantially similar to the July 27, 2015 report
and included the same diagnoses. Dr. Ignacio did not render an impairment rating according to
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) in these reports.
By decision dated August 12, 2015, OWCP denied appellant’s claim for a schedule
award. It found that he had not submitted any medical evidence from a physician containing an
impairment rating rendered according to the A.M.A., Guides.
On August 17, 2016 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative with regard to the August 12, 2015 decision. With his request,
appellant submitted follow-up evaluation reports from Dr. Ignacio dated August 24,
September 21, October 19, November 16, and December 14, 2015, January 11, February 8, and
March 7, 2016. These reports were substantially similar to the report of July 27, 2015 and
contained the same diagnoses of disorder of lumbar disc, lumbar pain, and lumbar radiculopathy,

2

as well as the same recommendations for treatment. They did not contain an impairment rating
rendered according to the A.M.A., Guides.
The hearing was held on March 11, 2016. At the hearing, counsel explained that
appellant had an upcoming appointment with Dr. Robert Macht, a surgeon, in order to obtain an
impairment rating. He requested that the record be held open for 30 days in order to submit this
report.
By letter dated March 29, 2016, counsel requested an additional 15 to 30 days in order to
submit the report.
By decision dated May 5, 2016, the hearing representative affirmed the decision of
August 12, 2015. She noted that no report from Dr. Macht had been received and that there was
no medical evidence of record containing an impairment rating rendered according to the
A.M.A., Guides.
In a follow-up report dated May 2, 2016, Dr. Ignacio examined appellant and stated that
appellant had good motor strength in the lower limbs, and that light touch was intact in the
bilateral lower extremities. She further noted that appellant’s knees had functional range of
motion with no swelling, crepitus, or tenderness.
By letter dated June 24, 2016, appellant, through counsel, again requested reconsideration
of the May 5, 2016 decision. With the request for reconsideration, appellant submitted a May 3,
2016 report from Dr. Macht. Dr. Macht noted that a December 2014 electromyogram (EMG)
demonstrated chronic right L5 radiculopathy. On physical examination, he noted that there was
decreased sensation to light touch about the right foot and lateral right thigh, mild weakness of
extension of the great toe, and a positive straight leg raising test on the right at 40 degrees with
back pain only. Based on a lower limb questionnaire, Dr. Macht found that his standardized
mean score was 37 out of 100. Referring to Table 16-6 of the A.M.A., Guides, he found a grade
modifier of 1 for Functional History. Referring to The Guides Newsletter of July/August 2009,
he found a mild sensory deficit, class 1 and mild motor deficit, class 1 impairment of the right L5
nerve root. Dr. Macht found a grade modifier of 1 for Physical Examination based on Table 166 of the A.M.A., Guides. He found one percent impairment of the right lower extremity due to
sensation loss and five percent permanent impairment for the mild motor deficit, which resulted
in a total of six percent permanent impairment of the right lower extremity. Dr. Macht
concluded that the impairment rating was causally related to the accepted injury and that
maximum medical improvement (MMI) was reached on April 29, 2016.
In a follow-up report dated May 27, 2016, Dr. Dr. Ignacio examined appellant and once
again found good motor strength in the lower limbs, and that light touch was intact in the
bilateral lower extremities. She noted that appellant’s knees had functional range of motion with
no swelling, crepitus, or tenderness.
On September 14, 2016 OWCP referred the case to a district medical adviser (DMA). He
was asked to review the medical evidence of record and the statement of accepted facts (SOAF),
in order to provide a rating of appellant’s permanent impairment of his right lower extremity, in
accordance with the sixth edition of the A.M.A., Guides.

3

On September 27, 2016 Dr. Morley Slutsky, Board-certified in occupational medicine
serving as a DMA, reviewed the medical evidence of record and responded to OWCP’s inquiries.
He found that there was no basis for a lower extremity impairment under The Guides Newsletter
of July/August 2009, because appellant had been consistently found to have normal lower
extremity sensory and motor findings. Dr. Slutsky noted that, although Dr. Macht found
decreased light touch in the right foot and mild L5 motor loss associated with the great toe,
Dr. Ignacio’s reports from before and after Dr. Macht’s report found normal sensation and motor
strength of both lower extremities. As such, he found that there was consistent evidence of
normal lower extremity sensory and motor findings and therefore no basis for a ratable lower
extremity impairment.
By decision dated October 7, 2016, OWCP reviewed the merits of appellant’s claim and
affirmed its decision of May 5, 2016. It found the weight of the medical evidence with
Dr. Slutsky.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing federal regulations4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions, and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.5 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.6 For decisions issued after
May 1, 2009, the sixth edition is used to calculate schedule awards.7 It is well established that in
determining the amount of a schedule award for a member of the body that sustained an
employment-related permanent impairment, preexisting impairments of the body are to be
included.8
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.9 A
3

Id. at § 8107.

4

20 C.F.R. § 10.404.

5

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

6

Id.

7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
8

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3.a.3 (January 2010). This portion of OWCP’s procedure provides that the impairment
rating of a given scheduled member should include any preexisting permanent impairment of the same member or
function.
9

Pamela J. Darling, 49 ECAB 286 (1998).

4

schedule award is not payable for the loss or loss of use, of a part of the body that is not
specifically enumerated under FECA.10 Moreover, neither FECA nor its implementing
regulations provide for a schedule award for impairment to the back or to the body as a whole.
Furthermore, the back is specifically excluded from the definition of organ under FECA.11
In 1960 amendments to FECA modified the schedule award provisions to provide for an
award for permanent impairment to a member of the body covered by the schedule regardless of
whether the cause of the impairment originated in a scheduled or nonscheduled member.
Therefore, as the schedule award provisions of FECA include the extremities, a claimant may be
entitled to a schedule award for permanent impairment to an extremity even though the cause of
the impairment originated in the spine.12
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides
Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition
(July/August 2009) is to be applied.13 The Board has long recognized the discretion of OWCP to
adopt and utilize various editions of the A.M.A., Guides for assessing permanent impairment.14
In particular, the Board has recognized the adoption of this methodology for rating extremity
impairment, including the use of The Guides Newsletter, as proper in order to provide a uniform
standard applicable to each claimant for a schedule award for extremity impairment originating
in the spine.15
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of permanent impairment in accordance with the A.M.A., Guides with the medical
adviser providing rationale for the percentage of impairment specified.16
ANALYSIS
Appellant filed a claim for a schedule award due to his accepted July 18, 2007 workrelated injury. The Board finds that the medical evidence of record fails to establish any
permanent impairment of a scheduled member warranting a schedule award.
10

Thomas J. Engelhart, 50 ECAB 319 (1999).

11

James E. Mills, 43 ECAB 215, 219 (1991); James E. Jenkins, 39 ECAB 860, 866 (1990).

12

J.Q., 59 ECAB 367 (2008).

13

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual,
Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is
included as Exhibit 4.
14

D.S., Docket No. 14-12 (issued March 18, 2014).

15

See E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).

16

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

5

The only medical report of record from appellant with an impairment rating is the
June 24, 2016 report of Dr. Macht. In this report, Dr. Macht noted that a December 2014 EMG
study demonstrated chronic right L5 radiculopathy. On physical examination, he noted that there
was decreased sensation to light touch about the right foot and lateral right thigh, mild weakness
of extension of the great toe, and a positive straight leg raising test on the right at 40 degrees with
back pain only. Referring to Table 16-6 of the A.M.A., Guides, Dr. Macht found a grade
modifier of 1 for Functional History. Referring to The Guides Newsletter of July/August 2009,
he found a mild sensory deficit, class 1 and mild motor deficit, class 1 impairment of the right L5
nerve root. Dr. Macht found a grade modifier of 1 for Physical Examination based on Table 166 of the A.M.A., Guides. He found one percent impairment of the right lower extremity due to
sensation loss and five percent permanent impairment for the mild motor deficit, which resulted
in a total of six percent permanent partial impairment of the right lower extremity. Dr. Macht
stated that the impairment was causally related to his accepted injury and that appellant had
reached maximum medical improvement on April 29, 2016.
In follow-up reports dated May 2 and 27, 2016, Dr. Ignacio examined appellant and
noted that appellant had good motor strength in the lower limbs, and that light touch was intact in
the bilateral lower extremities. She further noted that appellant’s knees had functional range of
motion with no swelling, crepitus, or tenderness.
On September 27, 2016 Dr. Slutsky, the DMA, reviewed the medical evidence of record
and responded to OWCP’s inquiries. He found that there was no basis for a lower extremity
impairment under The Guides Newsletter of July/August 2009, because appellant had been
consistently found to have normal lower extremity sensory and motor findings. Dr. Slutsky
noted that, although Dr. Macht found decreased light touch in the right foot and mild L5 motor
loss associated with the great toe, Dr. Ignacio’s reports from both before and after Dr. Macht’s
report found normal sensation and motor strength of both lower extremities. As such, he found
that there was consistent evidence of normal lower extremity sensory and motor findings and
therefore no basis for a ratable lower extremity impairment.
The Board finds that OWCP correctly assigned the weight of medical evidence to
Dr. Slutsky’s September 27, 2016 report. It is well established that, where there exists opposing
medical reports of virtually equal weight and rationale, the case should be referred to an
impartial medical specialist for the purpose of resolving the conflict.17 However, in this case,
Dr. Macht’s report was not of virtually equal weight and rationale as Dr. Slutsky’s report. A
review of the medical evidence indicates that Dr. Ignacio, appellant’s treating physician, during
her physical examinations consistently found no motor or sensory deficits of appellant’s lower
extremities. Dr. Ignacio’s findings of no motor or sensory deficits were noted both before and
after Dr. Macht’s report. Dr. Ignacio has consistently followed appellant’s course of injury and
treatment and found no sensory or motor deficits in the right lower extremity. Dr. Macht,
however, having examined appellant only once, found sensory and motor deficits. His June 24,
2016 report has lesser probative value than Dr. Ignacio’s reports. Dr. Slutsky was correct to find
that, based on Dr. Ignacio’s reports finding no sensory or motor deficits in the lower extremities,
there was no ratable permanent impairment of the right lower extremity.
17

H.S., Docket No. 10-1220 (issued May 24, 2011).

6

Accordingly, the Board finds that OWCP properly denied appellant’s claim for schedule
award compensation.
Appellant may request a schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established a permanent impairment of a
scheduled member warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the October 7, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 17, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-401
Issued: October 2, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 25, 2008 appellant filed a timely appeal from an August 20, 2008 merit
decision of the Office of Workers’ Compensation Programs denying his claim for a schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule
award decision.
ISSUE
The issue is whether appellant sustained permanent impairment of his upper or lower
extremities.
FACTUAL HISTORY
On October 7, 1995 appellant, then a 44-year-old city letter carrier, filed a claim alleging
that he sustained an injury to his left ankle on that date in the performance of duty. The Office
accepted the claim, assigned file number xxxxxx402, for a left ankle sprain, bilateral carpal

tunnel syndrome and bilateral tenosynovitis of the foot and ankle.1 Appellant underwent a right
carpal tunnel release in 1998 and a left carpal tunnel release in 1999.
On January 30, 2006 appellant filed a claim for a schedule award. In an impairment
evaluation dated June 27, 2005, Dr. Sofjan Lamid, a Board-certified physiatrist, diagnosed right
carpal tunnel syndrome postsurgery with continued complaints of pain and numbness in the hand
and fingers. On examination he found a positive Tinel’s sign and Phalen’s test. Citing the
American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed.
2001) (A.M.A., Guides), Dr. Lamid found that, for the right upper extremity, appellant had a
20 percent impairment due to loss of grip strength2 and a 15 percent impairment due to a sensory
deficit of the right median nerve below the mid-forearm.3 He further generally determined that
appellant had a 10 percent impairment of the whole person due to loss of range of motion of the
right upper extremity. Dr. Lamid concluded that appellant had a 28 percent whole person
impairment.
In an impairment evaluation dated July 5, 2005, Dr. Lamid diagnosed left ankle synovitis
and a talocalcaneal ligament injury. Citing the A.M.A., Guides, he found a 15 percent left lower
extremity impairment from plantar flexion weakness, a 10 percent impairment from dorsiflexion
weakness, a 5 percent impairment from inversion weakness and a 5 percent impairment from
eversion weakness.4 Dr. Lamid further determined that appellant had a seven percent whole
person impairment due to a mild abnormal gait.5 He additionally found a six percent whole
person impairment due to loss of left ankle plantar flexion and a six percent whole person
impairment due to loss of left ankle dorsiflexion.6 Dr. Lamid concluded that appellant had a
29 percent whole person impairment.
On January 22, 2007 an Office medical adviser reviewed Dr. Lamid’s June 27, 2005
report. He found that the physician did not adequately describe the impairment and
recommended a second opinion examination.
On February 9, 2007 the Office referred appellant to Dr. Christopher E. Cenac, a Boardcertified orthopedic surgeon. In a March 1, 2007 examination, Dr. Cenac found a mild Tinel’s
sign on the right and a negative Tinel’s sign on the left. He found no atrophy or sensory deficits
of the upper extremities and normal range of motion and dexterity. Dr. Cenac related that grip
strength testing showed “flat line deficits in all three settings which is inconsistent.” He
determined that appellant had normal range of motion of the ankle with “minimal crepitation on
the right as compared to the left ankle.” Dr. Cenac found no swelling of either ankle or atrophy
of the calves and feet. He measured normal motion of the ankles and interpreted x-rays as
1

The Office also accepted that appellant sustained right carpal tunnel syndrome under file number xxxxxx030.

2

A.M.A., Guides 439, Table 16-3.

3

Id. at 492-93, Tables 16-15, 16-3.

4

Id. at 527, 532, Tables 17-3, 17-8.

5

Id. at 529, Table 17-5.

6

Id. at 537, Table 17-11.

2

revealing normal joint spaces of the ankle and mid tarsal joints with mild calcifications in the
syndesmosis of the right distal tibia and fibula. Dr. Cenac concluded that appellant had no
“orthopedic mechanical dysfunction or neurological deficits and/or residual causally related to
the October 7, 1995 injury and conditions of left ankle sprain, bilateral carpal tunnel syndrome
[and] tenosynovitis of both feet and ankles.”
An Office medical adviser reviewed Dr. Cenac’s report on March 14, 2007 and concurred
with his finding that appellant had no right or left upper or lower extremity impairment. He
listed the date of maximum medical improvement as March 1, 2007.
By decision dated March 16, 2007, the Office denied appellant’s claim for a schedule
award on the grounds that the weight of the medical evidence established that he had no ratable
permanent impairment due to his employment injury.
On March 10, 2008 appellant requested reconsideration. In a report dated December 5,
2007, Dr. Bernard Manale, a Board-certified orthopedic surgeon, discussed appellant’s
complaints of pain and numbness in the right and left hands and wrists and pain, locking and
clicking in the right and left ankles. On examination, Dr. Manale found a positive Phalen’s sign
bilaterally and decreased bulk thenar muscles on the right. He measured range of motion and
grip strength for the wrists. On examination of the ankles, Dr. Manale found tenderness of the
bilateral ankles and medial and lateral subtalar joints. He found 50 percent range of motion for
dorsiflexion and plantar flexion due to pain and 5 to 10 degrees of inversion and eversion with
marked pain. Dr. Manale noted “audible snapping tendons on the right with circular motion….”
He diagnosed bilateral carpal tunnel syndrome, traumatic arthropathy of the ankle and foot,
congenital pes planus, ankle sprain/strain and bilateral sinus tarsi syndrome. Dr. Manale
estimated that appellant had a 10 percent impairment of each upper and lower extremity.
On August 13, 2008 an Office medical adviser reviewed Dr. Manale’s December 5, 2007
report. He stated that limitations in range of motion due to pain were not utilized in determining
impairment and that loss of grip strength was not relevant in rating impairments due to carpal
tunnel syndrome. The Office medical adviser concluded that Dr. Manale’s report was “not
adequate to determine [the] impairment in this case.”
By decision dated August 20, 2008, the Office denied modification of its March 16, 2007
decision. It found that the medical evidence was not sufficient to show that appellant had a
permanent impairment of a scheduled member.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act7 and its
implementing federal regulations,8 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

3

loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.9 Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in
2001, for all decisions made after February 1, 2001.10
Page 495 of the A.M.A., Guides states that after an optimal recovery time following
surgical decompression of carpal tunnel syndrome, three scenarios are possible: if positive
clinical findings of median nerve dysfunction are present, impairment is rated according to
sensory or motor deficits; with normal sensibility and opposition strength or abnormal sensory or
motor latencies or abnormal electromyogram (EMG) testing, an impairment rating not to exceed
five percent may be justified; finally, with normal sensibility, opposition strength and nerve
conduction studies, there is no objective basis for an impairment rating.11
ANALYSIS
The Office accepted that appellant sustained bilateral carpal tunnel syndrome, left ankle
sprain and bilateral tenosynovitis of the foot and ankle. Appellant had a right carpal tunnel
release in 1998 and a left carpal tunnel release in 1999.
On January 30, 2006 appellant requested a schedule award. On July 5, 2005 Dr. Lamid
diagnosed left ankle synovitis and an injury to the talocalcaneal ligament. He determined that
appellant had impairments due to weakness in plantar flexion, dorsiflexion, inversion and
eversion according to Table 17-8 on page 532. The A.M.A., Guides provide, however, that
strength measurements are functional tests influenced by subjective factors that are difficult to
control; consequently, the A.M.A., Guides does not assign a large role to such measurements.12
Section 17.2e on page 531 of the A.M.A., Guides states, “Measurements can be made by one or
two observers. If the measurements are made by one examiner, they should be consistent on
different occasions.” Dr. Lamid did not provide the specific measurements he obtained during
manual muscle testing to find the impairment due to weakness and did not indicate that the
measurements were consistent on different occasions; consequently, his finding is not in
accordance with the A.M.A., Guides. He also found that appellant had a whole person
impairment due to loss of range of motion in plantar flexion and dorsiflexion and a whole person
impairment resulting from an abnormal gait. The Act, however, does not provide for impairment
of the whole person.13 As Dr. Lamid’s opinion does not conform to the A.M.A., Guides, it is of
diminished probative value.14

9

Id. at § 10.404(a).

10

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

11

A.M.A., Guides 495.

12

Id. at 507.

13

Tania R. Keka, 55 ECAB 354 (2004).

14

Mary L. Henninger, 52 ECAB 408 (2001).

4

In a report dated December 5, 2007, Dr. Manale determined that appellant had an
impairment due to loss of range of motion in dorsiflexion, plantar flexion, inversion and eversion
due to pain. He found audible snapping of the right tendons with circular motion and tenderness
of the ankles and joints. Dr. Manale concluded that appellant had a 10 percent impairment of
each lower extremity. He did not, however, reference any specific tables and pages of the
A.M.A., Guides utilized in rating impairment. As Dr. Manale did not explain the protocols used
in making the impairment determination, his opinion is insufficient to establish permanent
impairment.15
On March 1, 2007 Dr. Cenac performed a second opinion examination. He found that
appellant had normal range of motion of the ankle with no atrophy or swelling and normal joint
spaces of the ankle and mid tarsal joints by x-ray. Dr. Cenac determined that appellant had no
impairment of the lower extremities. An Office medical adviser reviewed Dr. Cenac’s report and
concurred with his conclusion. As there is no probative medical evidence in accordance with the
A.M.A., Guides showing that appellant has a lower extremity impairment, the Board finds that
the Office properly denied his claim.
In support of his claim for an upper extremity impairment, appellant submitted a June 27,
2005 impairment evaluation from Dr. Lamid, who diagnosed right carpal tunnel syndrome
postsurgery. Dr. Lamid found a right positive Tinel’s sign and Phalen’s test on examination. He
determined that appellant had a 20 percent right upper extremity impairment due to loss of grip
strength, a 15 percent right upper extremity impairment due to a sensory deficit of the right
median nerve and a 10 percent whole person impairment due to loss of range of motion of the
right hand. Dr. Lamid concluded that appellant had a 28 percent whole person impairment. In
evaluating carpal tunnel syndrome, however, an impairment is determined not by measuring
range of motion or grip strength but by the criteria set forth on page 495 of the A.M.A., Guides.
Page 495 of the A.M.A., Guides states that after an optimal recovery time following surgical
decompression of carpal tunnel syndrome, three scenarios are possible: if positive clinical
findings of median nerve dysfunction are present, impairment is rated according to sensory or
motor deficits; with normal sensibility and opposition strength or abnormal sensory or motor
latencies or abnormal EMG testing, an impairment rating not to exceed five percent may be
justified; finally, with normal sensibility, opposition strength and nerve conduction studies, there
is no objective basis for an impairment rating.16 The A.M.A., Guides thus provides a specific
method for determining the permanent impairment due to carpal tunnel syndrome. It is not
proper to rate residuals of carpal tunnel syndrome on loss of grip strength.17 Additionally, as

15

See Carl J. Cleary, 57 ECAB 563 (2006) (an opinion which is not based upon the standards adopted by the
Office and approved by the Board as appropriate for evaluating schedule losses is of little probative value in
determining the extent of a claimant’s impairment).
16

Supra note 11.

17

A.M.A., Guides 494-95; see also Kimberly M. Held, 56 ECAB 670 (2005); David D. Cumings, 55 ECAB
285 (2004).

5

previously noted, the Act does not provide for impairment of the whole person.18 As
Dr. Lamid’s report is not in accordance with the A.M.A., Guides, it is of little probative value.19
In a report dated December 5, 2007, Dr. Manale measured range of motion and grip
strength for the wrists. He found that appellant had a 10 percent impairment of each upper
extremity. Dr. Manale did not evaluate his impairment due to carpal tunnel syndrome by rating
his motor or sensory deficits as provided in the A.M.A., Guides.20 Consequently, his opinion is
of little probative value.21
In a report dated March 1, 2007, Dr. Cenac listed findings of a mildly positive Tinel’s
sign on the right and a negative Tinel’s sign on the left. He found no atrophy or sensory deficits
of the upper extremities and a normal range of motion and dexterity. Dr. Cenac concluded that
appellant had no impairment of the upper extremities. As noted, the A.M.A., Guides provides a
specific method for determining the permanent impairment due to carpal tunnel syndrome. The
A.M.A., Guides on page 495 states that following surgical decompression, if there remains
positive clinical findings of median nerve dysfunction, the impairment should be rated according
to sensory and motor deficits. Dr. Cenac properly determined that appellant had no impairment
of the left upper extremity as he had found no positive clinical findings. On the right side,
however, he found a mild Tinel’s sign. Consequently, as Dr. Cenac found positive clinical
findings of median nerve dysfunction, he should have evaluated appellant’s impairment of the
right upper extremity according to the procedures for rating sensory and motor deficits set forth
in the A.M.A., Guides.22 The Board, therefore, finds that the case must be remanded for further
development of the issue of whether appellant has a permanent impairment of the right upper
extremity, to be followed by a de novo decision.
CONCLUSION
The Board finds that the Office properly found that appellant was not entitled to a
schedule award for the left upper extremities and lower extremities. The Board finds that the
case is not in posture for decision on the issue of the extent of impairment to appellant’s right
upper extremity.

18

Supra note 13.

19

Richard A. Neidert, 57 ECAB 474 (2006).

20

Supra note 11; Kimberly M. Held, supra note 17.

21

See Richard A. Neidert, supra note 19.

22

Supra note 11; see also Michelle L. Collins, 56 ECAB 552 (2005).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 20, 2008 is affirmed, in part, and set aside, in part. The
case is remanded for further proceedings consistent with this opinion of the Board.
Issued: October 2, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7