United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY & INSPECTION SERVICE,
Carrollton, GA, Employer
__________________________________________

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

Docket No. 10-726
Issued: November 8, 2010

Case Submitted on the Record

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

JURISDICTION
On January 25, 2010 appellant, through her attorney, filed a timely appeal from a
December 9, 2009 merit decision of the Office of Workers’ Compensation Programs reducing
her compensation to zero. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof to reduce appellant’s
compensation benefits to zero on the grounds that she had no further disability due to her
accepted employment injury.
FACTUAL HISTORY
On October 21, 1992 appellant, then a 42-year-old food inspector, filed an occupational
disease claim alleging that she sustained tenosynovitis of the right wrist and shoulder and an

aggravation of left carpal tunnel syndrome due to factors of her federal employment. The Office
accepted the claim, assigned file number xxxxxx216, for tenosynovitis of the right wrist.
The Office also accepted that appellant sustained bilateral carpal tunnel syndrome under
file number xxxxxx395 and xxxxxx640. Appellant underwent a right carpal tunnel release on
January 11, 1991 and a left carpal tunnel release on February 21, 1997. The Office combined the
claims under file number xxxxxx216. Appellant received compensation on the periodic rolls
effective January 23, 1993. On December 13, 1993 she returned to work as an accounting
technician.
By decision dated March 7, 1994, the Office reduced appellant’s compensation based on
its finding that her actual earnings as an accounting technician effective December 13, 1993
fairly and reasonably represented her wage-earning capacity.1
On January 21, 2009 Dr. Stephen M. McCollam, a Board-certified orthopedic surgeon,
evaluated appellant for a history of trigger finger in multiple digits.2 He advised that she might
need surgery if the condition worsened.
On February 20, 2009 the Office referred appellant to Dr. Alexander Doman, a Boardcertified orthopedic surgeon, for a second opinion evaluation. On March 18, 2009 Dr. Doman
discussed appellant’s history of injury and current complaints of triggering in both thumbs and
the bilateral index, middle and ring fingers. He diagnosed status post bilateral carpal tunnel
releases and a release of the first extensor compartment of the right wrist. Dr. Doman noted that
nerve conduction velocity studies revealed normal findings for the right wrist and mild slowing
of the median nerve of the left wrist and ulnar nerve probably at the cubital tunnel level. He
stated:
“It is my opinion that the accepted conditions of the bilateral carpal tunnel
syndrome and tenosynovitis of the right wrist have resolved. [Appellant] has no
physical findings of symptoms of carpal tunnel syndrome at this time. [She] has
no physical exam[nation] findings of tenderness or exacerbation of the
tenosynovitis of the right wrist. This condition has been successfully treated with
the surgical procedure. [Appellant] has normal nerve conduction velocity studies
on the right wrist. There is mild slowing of the left wrist [that] is not felt to be
clinically significant in light of her excellent clinical resolution from the carpal
tunnel surgery in addition to the normal physical exam[nation] findings.”
Dr. Doman found that the accepted conditions had resolved and that appellant could work
in her usual employment. He opined that her bilateral triggering symptoms were not related to
her employment or the accepted conditions and noted that “triggering of the fingers is a
1

By decision dated September 5, 1997, the Office granted appellant a schedule award for a six percent permanent
impairment of the right arm.
2

In a report dated September 13, 2005, Dr. Neil C. Berry, a Board-certified orthopedic surgeon, evaluated
appellant for ongoing hand pain. He noted a negative Tinel’s sign and full range of motion of the wrist with no
swelling. Dr. Berry also indicated that March 2005 nerve conduction studies were normal. On August 31, 2006 he
diagnosed left trigger thumb and on September 13, 2006 performed a surgical release.

2

condition seen especially in middle-aged women….” In an accompanying work-restriction
evaluation, Dr. Doman found no limitations due to appellant’s employment injury.
On April 24, 2009 the Office advised appellant of its proposed termination of her
compensation based on its modification of her loss of wage-earning capacity to zero.
On April 22, 2009 Dr. McCollam treated appellant for multiple trigger fingers bilaterally.
On May 13, 2009 he found that she could return to her usual employment effective that date.
Dr. McCollam opined that an underlying employment-related tendinitis caused both her carpal
tunnel syndrome and trigger fingers.3
By letter dated May 14, 2009, appellant challenged the proposed termination of her
compensation.4 She argued that the trigger fingers of both hands resulted from her carpal tunnel
syndrome.
On June 11, 2009 an Office medical adviser opined that trigger finger did not result from
either carpal tunnel syndrome or a carpal tunnel release. He noted that carpal tunnel syndrome
involved the median nerve while trigger finger involved the flexor tendon.
By decision dated July 1, 2009, the Office finalized its reduction of appellant’s loss of
wage-earning capacity to zero. It determined that the medical evidence established that her
bilateral carpal tunnel syndrome and right wrist tenosynovitis did not prevent her from returning
to her date-of-injury position.
On July 7, 2009 appellant, through her attorney, requested a telephone hearing that was,
held on October 9, 2009. Counsel asserted that he did not challenge the termination of
compensation benefits, but argued that she was entitled to continuing medical care and a
schedule award.
In a December 9, 2009 decision, an Office hearing representative affirmed the July 1,
2009 decision. He found, however, that the record contained a conflict in medical evidence
regarding the cause of appellant’s bilateral trigger fingers and instructed the Office to refer her
for an impartial medical examination. The hearing representative noted that the Office had not
denied medical coverage for the accepted conditions.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn

3

In a progress report dated December 31, 2008, received by the Office on June 11, 2009, Dr. McCollam indicated
that tenosynovitis caused carpal tunnel syndrome and trigger finger and found both conditions directly related.
4

Appellant submitted multiple reports from a physician’s assistant.

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wages.5 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.6
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.7 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.8
ANALYSIS
The Office accepted that appellant sustained bilateral carpal tunnel syndrome and
tenosynovitis of the right wrist due to factors of her federal employment. Appellant returned to
work as an accounting technician on December 13, 1993. The Office reduced appellant’s
compensation based on her findings that her actual earnings as an accounting technician fairly
and reasonably represented her wage-earning capacity. As it is seeking modification of the loss
wage-earning capacity determination, it has the burden to establish that the original rating was in
error, that the injury-related condition has improved or that the claimant has been vocationally
rehabilitated.9
The Board finds that the Office presented sufficient medical evidence to modify
appellant’s loss in wage-earning capacity to zero. In a report dated March 18, 2009, Dr. Doman,
an Office referral physician, reviewed the history of injury and discussed appellant’s complaints
of trigger finger in her thumbs and bilateral index, middle and ring fingers. He diagnosed status
post bilateral carpal tunnel releases and a release of the first extensor compartment of the right
wrist. Dr. Doman found that nerve conduction velocity studies revealed normal studies for the
right wrist and mild slowing of the median nerve of the left wrist and ulnar nerve probably at the
cubital tunnel level. He opined that the accepted conditions of bilateral carpal tunnel syndrome
and right wrist tenosynovitis had resolved. Dr. Doman provided rationale for his opinion by
explaining that there were no physical findings of carpal tunnel syndrome or right wrist
tenosynovitis on examination or indicated by diagnostic studies. He noted that appellant had a
mild slowing at the left wrist on nerve conduction study, but found that it was not clinically
significant in view of the examination findings. Dr. Doman advised that she had no physical
limitations resulting from her employment injury.10 His report, which is thorough and supported
5

See 5 U.S.C. § 8115 (determination of wage-earning capacity).

6

S.M., 58 ECAB 166 (2006); Sharon C. Clement, 55 ECAB 552 (2004).

7

Harley Sims, Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375, 377 (2000); see also Federal (FECA)
Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.11
(June 1996).
8

Id.

9

Id.

10

Dr. Doman further found that appellant’s trigger fingers were not related to her employment. The Office is
developing the record on this issue.

4

by medical rationale, is sufficient to meet the Office’s burden of proof to modify appellant’s loss
of wage-earning capacity to zero.
On May 13, 2009 Dr. McCollam noted that Dr. Doman believed that appellant’s
triggering symptoms were unrelated to her employment. He disagreed with his conclusion.
Dr. McCollam did not address whether appellant had any further disability due to her accepted
bilateral carpal tunnel syndrome or right wrist tenosynovitis and, thus, his opinion is of
diminished probative value on this issue.
CONCLUSION
The Board finds that the Office met its burden of proof to reduce appellant’s
compensation benefits to zero on the grounds that she had no further disability due to her
accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 9, 2009 merit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: November 8, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pasadena, CA, Employer
__________________________________________

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

Docket No. 16-1708
Issued: April 6, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 24, 2016 appellant filed a timely appeal from an April 18, 2016 decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant established more than 28 percent permanent impairment of
the right upper extremity, for which he previously received a schedule award.
On appeal appellant asserts that OWCP used a March 18, 2008 medical report for
establishing permanent impairment when his treating physician submitted reports dated
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted evidence with his appeal to the Board. The Board’s jurisdiction is
limited to the review of evidence which was before OWCP at the time it issued its final decision. Thus, the Board
cannot consider this evidence. 20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012).

October 26 and December 8, 2015 and April 8, 2016 which should have been considered. He
further asserts that he was not examined by Dr. Mesfin Seyoum, a family practitioner, who
provided an impairment evaluation.
FACTUAL HISTORY
On January 3, 2000 appellant, then a 39-year-old letter carrier, filed an occupational
disease claim (Form CA-2), alleging that employment duties as a letter carrier caused left
shoulder pain. OWCP adjudicated this claim under File No. xxxxxx117, and on July 14, 2000
accepted aggravation of left shoulder impingement syndrome. Appellant had left shoulder
surgery on September 5, 2000. On August 22, 2002 he was granted a schedule award for 11
percent permanent impairment of the left upper extremity.
On December 5, 2006 appellant filed a second occupational disease claim alleging that
job duties caused right elbow lateral epicondylitis. He had stopped work on October 26, 2006.
OWCP adjudicated the claim under File No. xxxxxx965, and on January 25, 2007 accepted the
condition of right lateral epicondylitis. Under this claim appellant received intermittent wageloss compensation from October 17, 2006 to August 2, 2008 and was placed on the periodic
compensation rolls for total disability effective August 3, 2008. He continued to receive total
disability compensation on the periodic rolls until he elected Office of Personnel Management
retirement benefits effective January 10, 2016.
On January 3, 2008 appellant filed a third occupational disease claim alleging that
bilateral carpal tunnel syndrome and a cervical disc protrusion were caused by work duties.
OWCP adjudicated the claim under File No. xxxxxx005, and on April 7, 2008 accepted bilateral
carpal tunnel syndrome, displacement of cervical intervertebral disc without myelopathy, and
spinal stenosis in the cervical region.
By report dated March 18, 2008, Dr. Gil Tepper, an attending Board-certified orthopedic
surgeon, advised that, under the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),3 appellant had 24 percent
permanent right upper extremity impairment due to loss of elbow range of motion (ROM) and
decreased strength, with an additional two percent whole person permanent impairment due to
pain.
Following an inquiry by appellant, on May 5, 2008 OWCP informed him that a schedule
award on File No. xxxxxx965 could not be paid until such time as he was no longer receiving
wage-loss compensation under that claim.
On May 7, 2008 Dr. Ellen Pichey, an OWCP medical adviser who is Board-certified in
family and occupational medicine, reviewed the record, including Dr. Tepper’s March 18, 2008
report. She advised that Dr. Tepper had not properly utilized the fifth edition of the A.M.A.,
Guides. Dr. Pichey concluded that appellant had 12 percent right upper extremity permanent
impairment due to loss of elbow motion and 18 percent permanent impairment due to loss of
strength and sensory deficit. She combined these, finding that he had a total 28 percent
3

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

2

permanent right upper extremity impairment with March 18, 2008 as the date of maximum
medical improvement.4 On December 27, 2009 Dr. Pichey noted that schedule awards were now
evaluated under the sixth edition of the A.M.A., Guides.5 She reiterated that appellant had 28
percent permanent right arm impairment.
By decision dated March 5, 2010, OWCP denied appellant’s claim for a right upper
extremity schedule award. It noted that he had previously received an award for 28 percent
permanent right upper extremity impairment.
On May 2, 2010 Dr. Pichey utilized the sixth edition of the A.M.A., Guides and
determined that appellant had 28 percent right arm permanent impairment due to loss of right
elbow motion.
In correspondence and telephone calls dated May 5 to September 20, 2015, appellant
informed OWCP that he had not received a schedule award for 28 percent permanent impairment
of the right upper extremity.
The record includes an August 19, 2015 impairment evaluation for File No. xxxxxx965,
from Dr. Seyoum. Dr. Seyoum noted appellant’s workers’ compensation claims, his review of
records including Dr. Tepper’s March 18, 2008 report, and appellant’s complaint of severe right
elbow pain and difficulty with activities of daily living. After examination, he diagnosed right
elbow lateral epicondylitis, right elbow enthesopathy, and right ulnar neuropathy across the
elbow, per electrodiagnostic testing and nerve conduction study. Dr. Seyoum advised that, under
the sixth edition of the A.M.A., Guides, appellant had 8 percent right arm impairment for loss of
elbow motion and 5 percent impairment for ulnar neuropathy, for a total 13 percent right arm
permanent impairment.
On January 9, 2016 appellant filed three schedule award claims, (Form CA-7) under File
Nos. xxxxxx965, xxxxxx117, and xxxxxx005. The claims under File Nos. xxxxxx117 and
xxxxxx005 remain under development and are not before the Board in this appeal, which solely
addresses the schedule award claim for File No. xxxxxx965.6

4

OWCP continued to develop the claim regarding appellant’s work capability. In May 2007, it referred him to
Dr. Bunsri T. Sophon, a Board-certified orthopedic surgeon. In a June 11, 2007 report, Dr. Sophon advised that
appellant could work modified duty. OWCP then found a conflict in medical evidence between Dr. Sophon and
Dr. Tepper. In May 2008, it referred appellant to Dr. Steven A. Mora, also Board-certified in orthopedic surgery,
for an impartial evaluation. In a June 3, 2008 report, Dr. Mora diagnosed right elbow lateral epicondylitis, right
elbow C5-6 radiculopathy, and chronic pain. He advised that appellant could return to restricted duty and agreed
with Dr. Tepper’s impairment evaluation.
5

Supra note 3 at (6th ed. 2009).

6

The record includes an August 12, 2015 report in which Dr. Seyoum evaluated appellant’s left shoulder and
advised that, with regard to File No. xxxxxx117, appellant had 25 percent left upper extremity impairment. In an
August 26, 2015 report, he advised that, with regard to File No. xxxxxx005, appellant had bilateral 6 percent
impairments due to carpal tunnel syndrome, and 25 percent cervical impairment. The Board notes that OWCP has
administratively combined all three claims, with File No. xxxxxx965 serving as the Master File.

3

In support of his schedule award claims, appellant submitted an October 26, 2015 report
in which Dr. Tepper described appellant’s treatment and current complaints involving the
cervical spine, both shoulders, both elbows, and both hands and wrists. These symptoms led to
difficulties in activities of daily living. Dr. Tepper provided physical and neurological
examination findings including cervical spine, shoulder, elbow, and wrist ROM. He diagnosed
status post September 2000 left shoulder arthroscopy with residuals; cervical spine disc
protrusions, severe central canal stenosis, and bilateral neural foraminal narrowing at C3-4, C4-5,
C5-6 and C6-7; right-sided C5-6 radiculopathy; left upper extremity radicular pain; bilateral
carpal tunnel syndrome; bilateral arm weakness; bilateral lateral epicondylitis; right ulnar
neuropathy at the elbow; and bilateral shoulder impingement. Dr. Tepper advised that, in
accordance with the fifth edition of the A.M.A., Guides, appellant had 10 percent bilateral upper
extremity permanent impairment due to peripheral sensory deficit, 4 percent left upper extremity
and 6 percent right upper extremity permanent impairment due to loss of elbow ROM, 22 percent
left upper extremity and 21 percent right upper extremity permanent impairment due to loss of
shoulder ROM, and bilateral 20 percent upper extremity permanent impairment due to brachial
plexus motor deficits, for a total 48 percent whole person permanent impairment. He opined that
all conditions were caused wholly or in part to appellant’s federal employment.
OWCP asked its medical adviser to review all records for evaluation of a right upper
extremity schedule award. In a January 31, 2016 report, Dr. Morley Slutsky, Board-certified in
occupational medicine, advised that he would only address the accepted spine conditions. He
reviewed Dr. Seyoum’s August 19, 2015 report and advised that it did not demonstrate a basis
for granting a schedule award pursuant to the use of the July and August 2009, The Guides
Newsletter, to be used for evaluating extremity impairments that originate in the spine.7
By decision dated March 24, 2016, OWCP denied appellant’s claim for a schedule award
under File No. xxxxxx965. It noted that he had previously received schedule awards for 28
percent of the right arm and 11 percent of the left arm.
In an April 18, 2016 decision, appellant was granted a schedule award for 28 percent
permanent impairment of the right arm, to run for 87.36 weeks, from January 10, 2016 to
September 12, 2017.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.8 Section 8107
7

The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating spinal nerve injuries
as extremity impairment. The A.M.A., Guides for decades has offered an alternative approach to rating spinal nerve
impairments. OWCP has adopted this approach for rating impairment of the upper or lower extremities caused by a
spinal injury, as provided in section 3.700 of its procedures, which memorializes proposed tables outlined in the
July and August 2009, The Guides Newsletter. FECA Transmittal No. 10-0004 (issued January 9, 2010); Federal
(FECA) Procedure Manual, Part 3 -- Medical, Chapter 3.700, Exhibit 1, note 5 (January 2010); The Guides
Newsletter is included as Exhibit 4. Specifically, OWCP will address lower extremity impairments originating in
the spine through Table 16-11 and upper extremity impairment originating in the spine through Table 15-14.
8

See 20 C.F.R. §§ 1.1-1.4.

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of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.9 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 under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.10
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).11 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.12
ANALYSIS
The issue on appeal is whether appellant has established that he has more than 28 percent
permanent impairment of the right upper extremity, for which he previously received a schedule
award on April 18, 2016. The accepted right upper extremity conditions are right lateral
epicondylitis and enthesopathy of the right elbow under File No. xxxxxx965, and carpal tunnel
syndrome under File No. xxxxxx005. The accepted conditions under File No. xxxxxx005 also
include displacement of cervical intervertebral disc without myelopathy and spinal stenosis in the
cervical region.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the diagnosis-based
impairment (DBI) or the ROM methodologies when assessing the extent of permanent
impairment for schedule award purposes.13 The purpose of the use of uniform standards is to
9

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
10

5 U.S.C.

20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001).

11

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).
12

Isidoro Rivera, 12 ECAB 348 (1961).

13

T.H., Docket No. 14-0943 (issued November 25, 2016).

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ensure consistent results and to ensure equal justice under the law to all claimants.14 In T.H., the
Board concluded that OWCP physicians are at odds over the proper methodology for rating
upper extremity impairment, having observed attending physicians, evaluating physicians,
second opinion physicians, impartial medical examiners, and district medical advisers use of
both DBI and ROM methodologies interchangeably without any consistent basis. Furthermore,
the Board has observed that physicians interchangeably cite to language in the first printing or
the second printing when justifying use of either ROM or DBI methodology. Because OWCP’s
own physicians are inconsistent in the application of the A.M.A., Guides, the Board finds that
OWCP can no longer ensure consistent results and equal justice under the law for all claimants.15
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment.
In order to ensure consistent results and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the April 18, 2016 decision. Following
OWCP’s development of a consistent method for calculating permanent impairment for upper
extremities to be applied uniformly, and such other development as may be deemed necessary,
OWCP shall issue a de novo decision on appellant’s claim for an additional right upper extremity
schedule award.16
CONCLUSION
The Board finds this case not in posture for decision.

14

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

15

Supra note 13.

16

Regarding appellant’s assertion that his impairment should be based on reports by Dr. Tepper dated
October 26, 2015, December 8, 2015, and April 8, 2016, the Board finds that, the latter two impairment ratings in
which Dr. Tepper utilized the sixth edition of the A.M.A., Guides, were not submitted to OWCP until after the
issuance of the schedule award decision on April 18, 2016. Therefore, they were not before OWCP when it
rendered that decision and cannot be considered by the Board on this appeal. Supra note 2.

6

ORDER
IT IS HEREBY ORDERED THAT the April 18, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: April 6, 2017
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT ADMINISTRATION, U.S.
EMBASSY, Santa Cruz, Republic of Panama,
Employer
__________________________________________

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

Docket No. 08-2269
Issued: August 17, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 18, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decisions dated March 14, June 24 and August 4, 2008, denying
authorization for the modification of his home. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(2), the Board has jurisdiction over the merits of this appeal.
ISSUE
The issue is whether the Office properly denied appellant authorization for the purchase
and installation of window shutters.
FACTUAL HISTORY
The Office accepted that on October 29, 1998 appellant, then a 40-year-old criminal
investigator, sustained paraplegia, closed fracture at T1-6 with complete cord lesion, posttraumatic stress disorder, disruption of external operative wound, decubitus ulcer of the right

buttock, right shoulder sprain with bilateral rotator cuff tear, bilateral carpal tunnel syndrome,
neurogenic bladder and bowel, bilateral dermatophytosis of the feet, organic impotence and
herniated nucleus pulposus at C5-6 as a result of falling from a ladder during a training exercise.
He stopped work on October 29, 1998. The Office paid him appropriate compensation benefits.
On February 28, 2002 appellant returned to full-time modified-duty work as a special agent.
On May 21, 2007 appellant requested that the Office authorize the installation of
accordion window shutters on his home. He explained that when he purchased the house, it had
bulky iron shutters that he was unable to install or put up when a hurricane was forecast. When
Hurricane Wilma struck his area in September 2005, his roof and windows were damaged
because the iron shutters were too heavy for him to put up. Appellant contended that this
situation posed a direct safety threat to his family. He stated that he would be able to pull
accordion shutters together in the event of a hurricane. Appellant had to rely on other people
who were sometimes unavailable to put up the iron shutters. He submitted two bids for the
proposed modification. A May 8, 2007 prescription of Dr. Daniel Ettedgui, a Board-certified
physiatrist, stated that appellant was a spastic paraplegic. He ordered accordion shutters, noting
that appellant was unable to install regular shutters.
By decision dated July 10, 2007, the Office denied authorization for the modification of
appellant’s home. It reviewed section 2.1800 of its procedure manual regarding the provision of
modifications and found that appellant failed to establish that the requested shutters were needed
for the management of his accepted October 29, 1998 employment injuries.1 On July 16, 2007
he requested an oral hearing before an Office hearing representative.
At the December 18, 2007 hearing, appellant stated that on two occasions during the past
two years, he experienced difficulty in putting up the heavy iron shutters. His wife was also
unable to put them up. He stated that if he had the accordion shutters he could, with the help of
his wife, close them in 15 minutes. Appellant’s wife testified that appellant’s condition
prevented him from putting up the shutters. During the prior two hurricanes, appellant’s former
boss sent personnel to help them install the shutters on their windows. Appellant’s wife stated
that the accordion shutters were best for safety reasons. Troy Mihok, a witness, testified that,
with his full mobility, it was a challenge for appellant to install them. He stated that anyone with
limited strength could not install them and protect their family.
In a March 14, 2008 decision, an Office hearing representative affirmed the July 10, 2007
decision. She found that appellant failed to establish a causal relationship between the requested
accordion shutters and his accepted employment injuries pursuant to 5 U.S.C. § 8103.
In an undated letter received by the Office on April 9, 2008, appellant requested
reconsideration. In a March 26, 2008 letter, Dr. Ettedgui stated that appellant had tried to install
the metal shutters on his own during hurricanes but was unable to do so due to a bilateral rotator
cuff tear and carpal tunnel syndrome, spastic paraplegia, cervical disc herniation, neck pain,
cervicalgia and severe muscle spasms. Being wheelchair bound also prevented him from
installing the shutters. Dr. Ettedgui opined that appellant would greatly benefit from having the
1

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Housing and Vehicle Modifications, Chapter
2.1800.5b(6) (September 1994).

2

accordion shutters installed because he could manage them himself. In a March 28, 2008 letter,
Dr. Ronald Laracuente, an internist, stated that appellant needed hurricane protection due to his
multiple medical problems which included acquired paralysis of both lower limbs and acute
myelocytic leukemia.
By decision dated June 24, 2008, the Office denied modification of the March 14, 2008
decision. It found the evidence submitted by appellant insufficient to establish that the requested
housing modification was warranted for the effects of his accepted employment injuries. On
July 10, 2008 he requested reconsideration.
In an August 4, 2008 decision, the Office denied modification of the June 24, 2008
decision. It found the evidence insufficient to establish that the requested accordion shutters
were necessary due to appellant’s accepted employment injuries.
LEGAL PRECEDENT
Section 8103 of the Federal Employees’ Compensation Act provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances and supplies prescribed or recommended by a qualified physician, which the
Secretary of Labor considers likely to cure, give relief, reduce the degree of the period of any
disability or aid in lessening the amount of any monthly compensation. These services,
appliances and supplies shall be furnished by or on the order of the United States medical
officers and hospital or at the employee’s option, by or on the order of physicians and hospitals
designated or approved by the Secretary.2 The Office may apply a test of cost-effectiveness to
appliances and supplies.3 The Office has broad discretionary authority in the administration of
the Act and must exercise that discretion to achieve the objectives of section 8103.4 The only
limitation on the Office’s authority is that of reasonableness. Abuse of discretion is generally
shown through proof of manifest error, clearly unreasonable exercise of judgment, or actions
taken which are contrary to both logic and probable deductions from established facts. It is not
enough to merely show that the evidence could be construed so as to produce a contrary factual
conclusion.5
With regard to housing modifications for accessories, Chapter 2.1800.5b.(6) of the
Office’s procedure manual provides as follows:
“Modification may include what are normally considered to be comfort or
convenience accessories, if needed for the effects of the compensable injury. In
specific cases, heating, air condition and air filtration devices may be necessary
based on the nature of the accepted condition. For example, such items might be
required for an individual with a respiratory or cardiac ailment, and the physician
2

5 U.S.C. § 8103(a).

3

20 C.F.R. § 10.310(b).

4

Marjorie S. Geer, 39 ECAB 1099 (1988).

5

Daniel J. Perea, 42 ECAB 214 (1990).

3

recommending the accessories would be responsible to explain such needs.”6
(Emphasis in the original.)
ANALYSIS
The Office accepted that appellant sustained paraplegia, closed fracture at T1-T6 with
complete cord lesion, post-traumatic stress disorder, disruption of external operative wound,
decubitus ulcer of the right buttock, right shoulder sprain with bilateral rotator cuff tear, bilateral
carpal tunnel syndrome, neurogenic bladder and bowel, bilateral dermatophytosis of the feet,
organic impotence and herniated nucleus pulposus at C5-6 in the performance of duty. The
Board finds that the Office properly denied appellant’s subsequent request for authorization to
purchase and install accordion window shutters.
On May 8, 2007 Dr. Ettedgui stated that appellant was a spastic paraplegic and required
accordion shutters since he was unable to install regular shutters. In a March 26, 2008 letter,
Dr. Ettedgui noted that appellant was unable to install his metal shutters during hurricanes due to
his accepted employment injuries and being wheelchair bound. He opined that appellant would
greatly benefit from having accordion shutters because he could manage them himself.
Dr. Laracuente’s March 28, 2008 letter stated that appellant needed hurricane protection due to
his multiple medical problems, which included acquired paralysis of both lower limbs and acute
myelocytic leukemia. As noted, the only restriction on the Office’s authority to authorize
housing modification is one of reasonableness. Both Dr. Ettedgui and Dr. Laracuente
recommended the installation of accordion shutters.7 However, they did not adequately explain
how the shutters would cure, give relief or reduce the disability related to appellant’s accepted
medical conditions. Rather, they stated that he needed the shutters for protection from hurricanes
and that they would be easier to manage during a hurricane. The medical evidence from
Dr. Ettedgui and Dr. Laracuente does not adequately explain how the shutters were medically
necessary due to the accepted medical conditions, i.e., how the shutters were needed for the
management of the accepted employment conditions as provided for in Chapter 2.1800.5b.(6) of
the Office’s procedures.8 The Board has held that an opinion without supporting rationale is of
diminished probative value.9 Further, the Board notes that appellant’s claim has not been
accepted for acute myelocytic leukemia and appellant has not established an employment
relationship. For these reasons, the Board finds that the Office did not abuse its broad discretion
under section 8103 of the Act when it denied authorization for the purchase and installation of
accordion shutters.

6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Housing and Vehicle Modifications, Chapter
2.1800.5b(6) (September 1994).
7

William C. Thomas, 45 ECAB 591 (1994).

8

Id.

9

Willa M. Frazier, 55 ECAB 379 (2004).

4

CONCLUSION
The Board finds that the Office properly denied appellant authorization for the purchase
and installation of window shutters.
ORDER
IT IS HEREBY ORDERED THAT the August 4, June 24 and March 14, 2008
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 17, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


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

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Appearances:
William Hackney, for the appellant
Office of Solicitor, for the Director

Docket No. 13-1543
Issued: January 2, 2014

Case Submitted on the Record

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

JURISDICTION
On June 18, 2013 appellant filed a timely appeal from a May 15, 2013 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). Because more than 180 days has
elapsed since the most recent merit decision dated December 10, 2012 and the filing of this
appeal on June 18, 2013, and pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the
claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
without a review of the merits of the claim.
1
2

5 U.S.C. §§ 8101-8193.

Regarding appellant’s assertions that OWCP should accept an additional condition, the Board notes that it has
no jurisdiction over such matter as the May 15, 2013 decision did not adjudicate this. See 20 C.F.R. § 501.2(c).
This decision of the Board does not preclude appellant from requesting that OWCP issue a decision addressing this
matter.

FACTUAL HISTORY
On October 2, 2006 appellant, then a 57-year-old mail handler, filed an occupational
disease claim alleging she developed painful and swollen hands from performing repetitive
movements and cutting straps, plastic bundles and trays. OWCP accepted the claim for bilateral
carpal tunnel syndrome, right lateral epicondylitis and left trigger finger. It authorized a left
carpal tunnel release performed on August 17, 2006, left middle trigger finger release performed
on May 13, 2008 and later a right middle trigger finger release performed on September 8, 2009.
The surgeries were performed by Dr. Brian A. Murphy, a Board-certified orthopedic surgeon,
who continued submitting reports regarding appellant’s status.
On October 15, 2008 appellant filed a claim for a schedule award. She submitted an
October 1, 2008 report from Dr. Syed M. Zaffer, a Board-certified physiatrist, who diagnosed
residual symptoms related to the bilateral carpal tunnel syndrome, status post carpal tunnel
release and left middle finger stiffness and weakness following a trigger finger release. On
October 1, 2008 Dr. Zaffer opined that appellant had reached maximum medical improvement
and had 38 percent upper extremity impairment and 23 percent whole person impairment in
accordance with the fifth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment3 (A.M.A., Guides).
On November 26, 2008 Drs. Zaffer and Murphy’s reports and the case record were
referred to OWCP’s medical adviser, who reviewed Drs. Zaffer and Murphy’s findings and
opined that appellant had 20 percent permanent impairment of each arm under the A.M.A.,
Guides.
In a decision dated March 18, 2009, OWCP granted appellant a schedule award for 20
percent permanent impairment of each arm. The period of the schedule award was from
October 1, 2008 to February 21, 2011.4
Appellant continued to submit reports from Dr. Murphy who, on September 8, 2009
performed a right middle trigger finger release and diagnosed right middle trigger finger. She
submitted reports from Dr. Zaffer dated December 22, 2010 who opined that appellant sustained
a 38 percent right upper extremity or a 23 percent whole person impairment in accordance with
the A.M.A., Guides.
On February 14, 2011 appellant filed a claim for an additional schedule award.
On July 18, 2011 OWCP requested Dr. Zaffer to provide an impairment rating in
accordance with the sixth edition of the A.M.A., Guides.5

3

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

4

In a March 23, 2009 decision, OWCP reduced appellant’s compensation to reflect her actual earnings as a parttime modified mail handler effective August 27, 2008. On May 15, 2009 it combined her current claim, number file
xxxxxx097, with file number xxxxxx646, a consequential injury.
5

A.M.A., Guides (6th ed. 2008).

2

In a June 25, 2011 report, Dr. Zaffer advised that appellant was being referred to another
physician who specialized in impairment ratings. In an August 3, 2011 report, Dr. Luis Munoz,
Board-certified in occupational medicine, opined that she had 23 percent impairment of the left
hand, 42 percent impairment of the arm and 25 percent whole person impairment in accordance
with the A.M.A., Guides.
On November 20, 2011 OWCP’s medical adviser reviewed Dr. Munoz’s report and
opined that appellant had nine percent impairment of the right and left upper extremities in
accordance with the A.M.A., Guides.
In a decision dated June 29, 2012, OWCP denied appellant’s claim for an additional
schedule award as appellant had already been granted a schedule award for 20 percent
impairment of each arm.
On August 23, 2012 appellant requested reconsideration. She submitted a July 25, 2012
report from Dr. Murphy, who noted findings of mild stiffness with range of motion of the middle
fingers, no evidence of triggering and intact sensation with pain. Dr. Murphy diagnosed stiffness
of the joint of the hand. In a report dated July 26, 2012, he noted that appellant had been under
his care for bilateral carpal tunnel syndrome, right-sided lateral epicondylitis and bilateral middle
trigger fingers. He noted performing bilateral carpal tunnel releases and A1 pulley releases on
the middle fingers and opined that appellant’s condition was work related. Dr. Murphy noted
that appellant was at maximum medical improvement with residual symptoms.
On November 9, 2012 the case record was referred to OWCP medical adviser, who in a
November 11, 2012 report reviewed Dr. Murphy’s findings and opined that appellant had nine
percent impairment of the right and left upper extremities in accordance with the A.M.A.,
Guides. OWCP’s medical adviser noted that appellant was previously granted 20 percent
impairment of the bilateral upper extremities. He noted that Dr. Murphy found no evidence of
triggering and advised that the epicondylitis had resolved. The medical adviser noted no
impairment with regards to the accepted left trigger finger and lateral epicondylitis. He noted
that impairment for bilateral carpal tunnel syndrome was nine percent for each arm.
In a December 10, 2012 decision, OWCP denied modification of the decision dated
June 29, 2012. It noted that the evidence submitted was insufficient to warrant an impairment
rating greater than the previously granted 20 percent impairment of the bilateral upper
extremities previously granted. OWCP noted that left trigger finger was accepted as work
related; however, the evidence was insufficient to support acceptance of right trigger finger as
work related.
On January 16, 2013 appellant requested reconsideration. She asserted that her current
accepted conditions should be expanded to include right trigger finger. Appellant indicated that
Dr. Murphy had noted findings in 2006 of stiffness and pain along the flexor tendon sheath of the
right middle finger which occurred when appellant was doing repetitive activities. She advised
that on February 21, 2007 Dr. Murphy noted her difficulty and tenosynovitis symptoms with the
right middle finger and on April 9, 2008 he noted her difficulties with the middle finger
consistent with tenosynovitis and/or trigger finger. Appellant contended that he documented her

3

condition in the record and these injuries were causally related to her repetitive work duties and
shared the same origin as the left trigger finger and bilateral carpal tunnel syndrome.
Appellant submitted a December 24, 2012 report from Dr. Murphy, who treated her for
numbness at the tips of her fingers with stiffness with cracking of her skin on the fingers. He
noted findings of mild stiffness in the middle finger especially on the right side with no further
evidence of triggering. Dr. Murphy diagnosed stiffness of the joint of the hand and referred
appellant to a dermatologist. In a December 26, 2012 report, he referenced his April 12, 2006
treatment record in which he noted findings of stiffness and pain along the flexor tendon sheath
of the right middle finger, when she was using a hook knife and performing repetitive activities.
Dr. Murphy stated that on February 21, 2007 he noted that appellant reported difficulty and
tenosynovitis-type symptoms with the right middle finger and on April 9, 2008 she noted
difficulties with the middle finger that were consistent with tenosynovitis and trigger finger. He
opined that these conditions were documented and causally related to her repetitive activities at
work and share the same origin as the left trigger finger and bilateral carpal tunnel syndrome.
In a May 15, 2013 decision, OWCP denied appellant’s request for reconsideration on the
grounds that the evidence submitted was insufficient to warrant a merit review.
LEGAL PRECEDENT
Under section 8128(a) of FECA,6 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provides that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(1) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
(2) Advances a relevant legal argument not previously considered by OWCP; or
(3) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”7
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.8

6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.606(b)(2).

8

Id. at § 10.608(b).

4

ANALYSIS
OWCP’s most recent merit decision dated December 10, 2012 denied appellant’s claim
for an additional schedule award on the grounds that the evidence submitted was insufficient to
warrant impairment rating greater than the 20 percent impairment of the bilateral upper
extremities previously granted. On May 15, 2013 it denied her reconsideration request, without
a merit review and she appealed this decision to the Board.
The issue presented is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim. In her
reconsideration request, appellant did not show that OWCP erroneously applied or interpreted a
specific point of law. She did not identify a specific point of law or show that it was erroneously
applied or interpreted. Appellant did not advance a new and relevant legal argument.
Appellant asserted in her January 16, 2013 reconsideration request that her current
conditions needed to be expanded to include right trigger finger as work related. She indicated
that Dr. Murphy, in his report dated December 26, 2012, documented appellant’s right trigger
finger diagnosis in reports dated April 12, 2006, February 21, 2007 and April 9, 2008,
specifically noting stiffness along the flexor tendon sheath of the right middle finger when
appellant was using a hook knife and doing repetitive activities and difficulties with the middle
finger consistent with tenosynovitis and/or trigger finger. Appellant contends that Dr. Murphy
found these injuries were causally related to her repetitive duties at work and share the same
origin as the left trigger finger and bilateral carpal tunnel syndrome. These assertions do not
show a legal error by OWCP or a new and relevant legal argument. The underlying issue in this
case is whether appellant was entitled to an additional schedule award pursuant to the A.M.A.,
Guides. That is a medical issue which must be addressed by relevant medical evidence.9
A claimant may also be entitled to a merit review by submitting new and relevant
evidence, but appellant did not submit any new and relevant medical evidence in support of her
claim. Appellant submitted a December 24, 2012 report from Dr. Murphy, who treated her for
numbness at the tips of her fingers with stiffness with cracking of her skin on the fingers.
Dr. Murphy did not address her permanent impairment under the A.M.A., Guides. In a report
dated December 26, 2012, he referenced his notes asserting that this documented that appellant
had right trigger finger which was work related. The Board notes that these reports are similar to
Dr. Murphy’s prior July 24 and 26, 2012 reports which were previously considered by OWCP in
its December 10, 2012 decision and found insufficient. Evidence that repeats or duplicates
evidence already in the case record has no evidentiary value and does not constitute a basis for
reopening a case.10 Therefore, this report is insufficient to require OWCP to reopen the claim for
a merit review.11 Therefore, this new evidence is not relevant and is insufficient to warrant
reopening the case for a merit review.
9

See Bobbie F. Cowart, 55 ECAB 746 (2004).

10

See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984); Bruce E. Martin, 35
ECAB 1090, 1093-94 (1984).
11

See id.

5

The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
On appeal, appellant reiterated that she sustained a right trigger finger injury and
underwent surgery for this condition and should have been granted a schedule award for
impairment based on the reports submitted by her treating physician, Dr. Murphy. As explained,
the Board does not have jurisdiction to review the merits of the claim. Appellant did not submit
any evidence or argument in support of her reconsideration request that warrants reopening of
her claim for a merit review under 20 C.F.R. § 10.606(b)(2).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the May 15, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 2, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
DEPARTMENT OF THE NAVY, U.S. NAVAL
HOSPITAL, Patuxent River, MD, Employer
__________________________________________

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

Docket No. 18-0966
Issued: September 20, 2019

Case Submitted on the Record

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

JURISDICTION
On April 10, 2018 appellant, through counsel, filed a timely appeal from a February 1,
2018 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 her burden of proof to establish more than eight
percent permanent impairment of the left wrist, for which she previously received a schedule
award.
FACTUAL HISTORY
On September 17, 1992 appellant, then a 42-year-old medical records clerk, filed a
traumatic injury claim (Form CA-1) alleging a left wrist injury on September 16, 1992 as a result
of “pull[ing] out about four or five medical records with left hand” while in the performance of
duty. OWCP accepted the claim for left ganglion cyst of synovium, tendon, and bursae; other
tenosynovitis of left hand and wrist; and other synovitis and tenosynovitis, left. On September 14,
1996 it accepted appellant’s claim for a recurrence of disability and OWCP expanded the accepted
conditions to include trigger finger (acquired), left.3 OWCP later authorized an October 12, 2009
left wrist arthroscopy and left carpal tunnel surgery and then expanded the claim to include carpal
tunnel syndrome, left upper limb.
On April 11, 2013 appellant filed a claim for a schedule award (Form CA-7).
In support of her claim, appellant submitted a May 1, 2013 report by Dr. Stuart J.
Goodman, a Board-certified psychiatrist and neurologist, who diagnosed left ganglion cyst of
synovium tendon and bursa, left trigger finger, left other tenosynovitis of hand and wrist, and left
other synovitis and tenosynovitis. Dr. Goodman conducted a physical examination and found that
appellant had “tenderness of the left hand and wrist aggravated by movement.” Appellant was
otherwise alert, oriented, and coherent. Motor examination revealed strength to essentially be
equal and normal throughout with tenderness due to pain and limitation of motion on the hand and
wrist, left side. Dr. Goodman found that appellant continued to have left hand and wrist problems
as related to her September 16, 1992 work injury and determined that she had reached maximum
medical improvement (MMI). He opined that she had residual issues and was working in a lightduty status. Utilizing the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides),4 Table 15-3, page 395 (Wrist Regional
Grid), Dr. Goodman calculated that appellant had a class 0 diagnosis and assigned a grade modifier
of 1 for both the functional history and physical examination. He concluded that appellant had a
net adjustment of 2 and a grade E impairment, equaling five percent permanent impairment of the
left upper extremity.

3

OWCP accepted that on September 12, 2005 appellant was injured at work while reaching for a pen on her desk
and her chair flipped. It assigned OWCP File No. xxxxxx002 and accepted the condition of left elbow sprain. OWCP
granted appellant a schedule award for one percent permanent impairment of the left upper extremity for this condition.
Under OWCP File No. xxxxxx828, OWCP accepted that on September 21, 2004 appellant was injured at work when
she lost her balance stepping off the sidewalk and fell down onto her left wrist. It accepted a left wrist fracture and
contusion due to the September 21, 2004 work injury and granted a schedule award for eight percent permanent
impairment of the left upper extremity. Therefore the Board notes that appellant previously received nine percent
permanent impairment of her left upper extremity.
4

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

2

On September 12, 2015 the report of Dr. Goodman was sent to a district medical adviser
(DMA) for review. No response was received.
By decision dated October 5, 2015, OWCP denied appellant’s schedule award claim
finding that the medical evidence of record did not establish permanent impairment of a scheduled
member or function of the body. It noted that, although Dr. Goodman opined that appellant’s
impairment was related to the accepted September 16, 1992 employment injury, he had not
described the injury. He also indicated that her current symptoms were caused by “use and
overuse.” OWCP, therefore, found that appellant could have developed an occupational disease
caused by work activities over more than one workday or shift, which may have caused her
impairment. It indicated that it had requested additional factual evidence from appellant to clarify
this issue, but had not received a response.
On October 14, 2015 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
In a September 23, 2015 narrative statement, received by OWCP on October 20, 2015,
appellant indicated that on September 16, 1992 she had developed swelling and pain in her left
hand and wrist due to pulling records from shelves that were not easy to pull because they were
stored tightly.
By decision dated April 18, 2016, an OWCP hearing representative conducted a
preliminary review of the case and determined that the case was not in posture for a hearing. He
found that OWCP’s prior decision should be vacated and remanded for appellant’s claims to be
administratively combined with common claims to be followed by a de novo decision regarding
entitlement to schedule award benefits.
OWCP administratively combined appellant’s claims and referred appellant to Dr. Willie
Thompson, a Board-certified orthopedic surgeon, for a second opinion evaluation to determine the
nature and extent of her accepted employment-related conditions. In his September 15, 2016
report, Dr. Thompson reviewed a statement of accepted facts, history of the injury, and the medical
evidence of record. He conducted a physical examination and found that there was mild limitation
of motion at the wrist and there was some tenderness present. Grip strength was graded at 4+/5.
There was minimal decreased sensation over the median nerve distribution to the left hand. The
radial pulse was 3+ and regular. Appellant had intact skin. The Tinel’s sign was negative with
percussion over the median nerve. Dr. Thompson diagnosed status post left carpal tunnel release
on October 12, 2009 with debridement of the scapholunate ligament. He also found that appellant
suffered a fracture to the left wrist on September 21, 2004, resulting in surgery to repair the
fracture. Dr. Thompson determined that appellant had reached MMI. Utilizing Table 15-23 of the
A.M.A., Guides, he found that appellant’s most impairing diagnosis was median nerve entrapment,
a CDX of 1. Dr. Thompson assigned a grade modifier for clinical studies (GMCS) of 1 due to a
conduction delay on an electromyography and nerve conduction velocity (EMG/NCV) studies, a
grade modifier for functional history (GMFH) of 1 due to intermittent symptoms, and a grade
modifier for physical examination (GMPE) of 2 due to physical findings. He concluded that
appellant had a net adjustment of 4, equaling two percent permanent impairment of the left upper
extremity.

3

On March 22, 2017 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as
a DMA, reviewed the medical evidence of record and found that Dr. Goodman’s impairment
evaluation could not be considered probative for the purpose of establishing a schedule award
under FECA because it lacked sufficient detail to permit assignment of an impairment rating on
the basis of a records review due to lack of physical examination findings. Using the findings
provided by Dr. Thompson’s second opinion report, the DMA concurred that appellant’s most
impairing diagnosis was median nerve entrapment under Table 15-23, page 449, of the A.M.A.
Guides. He also concurred with the GMCS of 1 due to electrodiagnostic studies with delay, a
GMPE of 2 due to decreased sensation, and a GMFH of 1 due to mild intermittent symptoms.
Using the net adjustment formula (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), the DMA
calculated that appellant had a net adjustment of (1-1) + (2-1) + (1-1) = 1, equaling a default
grade C. Based on these calculations, he concluded that appellant had two percent permanent
impairment of her left upper extremity.
In a May 9, 2017 addendum report, the DMA noted that appellant’s date of MMI was
September 15, 2016, the date of Dr. Thompson’s second opinion examination and explained that
since the present impairment of two percent was less than a prior overlapping award of eight
percent permanent impairment of the left upper extremity on the basis of carpal tunnel syndrome,
there was no basis for an increased schedule award.
By decision dated May 11, 2017, OWCP denied appellant’s claim for an increased
schedule award finding that the medical evidence of record was insufficient to establish greater
permanent impairment than eight percent of the left upper extremity that which was previously
awarded.
On May 22, 2017 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
A telephonic hearing was held on November 17, 2017. Appellant provided testimony and
the hearing representative held the case record open for 30 days for the submission of additional
evidence. OWCP did not receive additional evidence.
By decision dated February 1, 2018, OWCP’s hearing representative affirmed the May 11,
2017 schedule award decision.
LEGAL PRECEDENT
The schedule award provisions of FECA and its implementing regulations 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.5 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for

5

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

4

evaluating schedule losses.6 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to
calculate schedule awards.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, the evaluator identifies the impairment for the CDX
condition, which is then adjusted by grade modifiers based on GMFH, GMPE, and GMCS. The
net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).9 Evaluators are
directed to provide reasons for their impairment rating choices, including the choices of diagnosis
from regional grids and calculations of modifier scores.10
The A.M.A., Guides specifically indicates that, if multiple simultaneous neuropathies
occur in the same limb, both impairments may be rated, and the nerve qualifying for the larger
impairment is given the full impairment while the nerve qualifying for the smaller impairment is
rated at 50 percent.11 The A.M.A., Guides further indicate that Table 15-23 is to be used for rating
focal nerve compromise,12 and Appendix 15-B provides further guidance regarding
electrodiagnostic evaluation of entrapment syndromes.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish more than eight
percent permanent impairment of her left wrist, for which she previously received a schedule
award.
In support of her claim appellant submitted a May 17, 2013 report by Dr. Goodman.
Utilizing the sixth edition of the A.M.A., Guides, Table 15-3 (Wrist Regional Grid), page 395,
Dr. Goodman calculated that appellant had a CDX of 0 and assigned a GMFH and GMPE of 1.
He concluded that appellant had a net adjustment of 2 and a grade E impairment, equaling five
percent permanent impairment of the left upper extremity.

6

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition
will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
7
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.6 (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
8

A.M.A., Guides (6th ed. 2009) at 3, section 1.3, The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.
9

Id. at 411.

10

See R.V., Docket No. 10-1827 (issued April 1, 2011).

11

Supra note 10 at 448.

12

Id.

13

Id. at 487-90.

5

In his September 15, 2016 report, Dr. Thompson provided physical examination findings
and noted her prior history as set forth in the medical record, including the report of Dr. Goodman.
He diagnosed status post left carpal tunnel release on October 12, 2009 with debridement of the
scapholunate ligament and found that appellant suffered a fracture to the left wrist on
September 21, 2004, resulting in surgery to repair the fracture. Utilizing Table 15-23 of the
A.M.A., Guides, Dr. Thompson found that appellant’s most impairing diagnosis was median nerve
entrapment with a CDX of 1. He assigned a GMCS of 1 due to a conduction delay on
electrodiagnostic studies, a GMFH of 1 due to intermittent symptoms, and a GMPE of 2 due to
physical findings. Dr. Thompson concluded that appellant had a net adjustment of 4, equaling two
percent permanent impairment of the left upper extremity.
In accordance with its procedures, OWCP properly referred the evidence of record to its
DMA, Dr. Katz, who, in his reports dated March 22 and May 9, 2017, reviewed the evidence and
determined that appellant’s date of MMI was September 15, 2016, the date of Dr. Thompson’s
second opinion examination. Using the findings provided by Dr. Thompson’s second opinion
report, the DMA concurred that appellant’s most impairing diagnosis was median nerve
entrapment under Table 15-23, page 449, of the A.M.A., Guides. He also concurred with the
GMCS of 1 due to electrodiagnostic studies with delay, a GMPE of 2 due to decreased sensation,
and a GMFH of 1 due to mild intermittent symptoms. Using the net adjustment formula (GMFHCDX) + (GMPE-CDX) + (GMCS-CDX), the DMA calculated that appellant had a net adjustment
of (1-1) + (2-1) + (1-1) = 1, equaling a default grade C. Based on these calculations, the DMA
concluded that appellant had two percent permanent impairment left upper extremity. He
explained that since the present impairment was less than a prior overlapping award of eight
percent permanent impairment of the left upper extremity.
The Board finds that the DMA applied the appropriate tables and grading schemes of the
sixth edition of the A.M.A., Guides to Dr. Thompson’s clinical findings. The DMA’s calculations
were mathematically accurate. There is no medical evidence of record utilizing the appropriate
tables of the sixth edition of the A.M.A., Guides demonstrating a greater percentage of permanent
impairment. The DMA reviewed the medical evidence of record and explained that
Dr. Goodman’s impairment evaluation could not be considered probative for the purpose of
recommending a schedule award under FECA because it lacked sufficient detail to permit
assignment of an impairment rating on the basis of a records review. The Board has held that
when the attending physician fails to provide an estimate of impairment conforming to the A.M.A.,
Guides, or does not discuss how he or she arrives at the degree of impairment based on physical
findings, his or her opinion is of diminished probative value in establishing the degree of
impairment such that OWCP may rely on the opinion of the DMA to apply the A.M.A., Guides to
the findings reported by the attending physician.14 The Board finds that OWCP’s DMA in this
case properly applied the standards of the A.M.A., Guides. The DMA’s opinion represents the
weight of medical evidence and OWCP properly relied on his assessment of two percent
permanent impairment of the left upper extremity.15

14

See L.M., Docket No. 12-0868 (issued September 4, 2012); John L. McClanic, 48 ECAB 552 (1997).

15

See M.T., Docket No. 11-1244 (issued January 3, 2012).

6

OWCP’s procedures provide that previous impairment to the member under consideration
is included in calculating the percentage of loss, except when the prior impairment is due to a
previous work-related injury, in which case the percentage already paid is subtracted from the total
percentage of impairment.16 Appellant previously received schedule award compensation for one
percent permanent impairment of the left upper extremity under OWCP File No. xxxxxx002 and
eight percent permanent impairment of the left upper extremity under File No. xxxxxx828. Thus,
the Board finds that OWCP properly denied an increased schedule award.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than eight
percent permanent impairment of the left wrist, for which she previously received a schedule
award.
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 20, 2019
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
16
Supra note 8 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.7.a(1)(a)
(February 2013). See W.M., Docket No. 14-0953 (issued August 13, 2014).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Jason S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-889
Issued: August 1, 2013

Case Submitted on the Record

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

JURISDICTION
On March 5, 2013 appellant, through her attorney, filed a timely appeal from a
December 7, 2012 decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits effective July 30, 2011 on the grounds that she no longer had any
residuals or disability causally related to her accepted employment-related injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on June 4, 2009 appellant, then a 48-year-old tax examiner, tripped
over a desk in the performance of duty and sustained injuries to her back, knees and ankle. It
accepted her claim for lumbosacral sprain, left ankle sprain and contusion of both legs.
Appellant stopped work on June 4, 2009. OWCP paid wage-loss compensation. Appellant was
placed on the periodic rolls and treated by Dr. Gary Oxenberg, an internist.
In a July 20, 2009 report, Dr. Robert E. Liebenberg, a Board-certified orthopedic
surgeon, noted that appellant sustained an injury at work and had been out of work since early
June 2009. Appellant related that her back pain bothered her the most, but it had improved over
the past six to seven weeks. Upon examination, Dr. Liebenberg observed normal gait and
normal posture. He stated that appellant would not or could not move her back in any direction
without complaining of pain. Straight leg raise testing was negative and her neurological
examination revealed intact sensation, symmetrical reflexes and normal strength. Dr. Liebenberg
reported that x-rays revealed some degree of degenerative disc disease. He opined that
appellant’s back pain may be related to her degenerative disc disease and noted that she had
signs of symptom magnification. Dr. Liebenberg explained that she could have sprained her
back superimposed on her degenerative condition.
On November 26, 2010 OWCP referred appellant, together with a statement of accepted
facts and the medical record, to Dr. Robert A. Smith, a Board-certified orthopedic surgeon, for a
second-opinion examination to determine the extent of her continuing employment-related
residuals and disability. In a December 29, 2010 report, Dr. Smith related her complaints of
axial low back pain that was aggravated with walking and standing and residual left ankle pain.
He reviewed the statement of accepted facts and noted that appellant’s claim had been accepted
for soft tissue sprains of the lumbosacral spine and left ankle and contusion of the left lower leg.
Dr. Smith provided an accurate history of the June 4, 2009 employment injury and reviewed her
records. Appellant’s medical records indicated that she had been diagnosed with degenerative
disease of the spine by Dr. Liebenberg in July 2009. Dr. Smith stated that she was not currently
receiving any active treatment but was recently admitted to the hospital from December 5 to 8,
2010 for asthma and back pain.
Upon examination, Dr. Smith observed no findings of any spasm, atrophy, trigger points
or deformity. Active thoracolumbar range of motion was satisfactory without spasm or rigidity
but she had complaints of discomfort with extension of spine. Examination of appellant’s left
ankle revealed no evidence of any swelling or deformity and satisfactory range of motion and
strength. Dr. Smith found that she had fully recovered from her accepted conditions of
lumbosacral sprain, left ankle sprain and contusions of the lower extremities and no longer had
residuals related to these conditions. Appellant’s current complaint of low back pain was
reasonably related to her nonindustrial-related degenerative disease, which was not caused or
aggravated by the June 4, 2009 employment incident. Dr. Smith concluded that appellant’s
conditions related to the June 4, 2009 employment incident had resolved and that she could
return to regular duty.
In a December 22, 2010 report, Dr. Liebenberg noted appellant’s complaints of chronic
low back pain and some pain in her left ankle and foot. He related that he examined her in

2

July 2009 and found some degree of degenerative disc disease. Dr. Liebenberg reported that
physical therapy had not improved appellant’s condition. He stated that her physical
examination did not reveal objective abnormalities and referred her to pain management.
In a December 22, 2010 diagnostic report, a Dr. Scott Haber noted appellant’s complaints
of low back pain. He observed normal lumbar vertebrae and no significant intervertebral disc
space narrowing. Dr. Haber reported mild osteophyte formation at the anterior endplates of the
lumbar spine extending from L2 to L4. He also found sclerosis and narrowing at the facets of
L5-S1 consistent with mild facet osteoarthritis. Dr. Haber diagnosed degenerative changes of the
lumbar spine.
In a January 5, 2011 magnetic resonance imaging (MRI) scan report, Dr. Ryan Lee, a
Board-certified diagnostic radiologist, noted appellant’s complaints of low back pain radiating
down the left. He stated that alignment was anatomic. Dr. Ryan Lee noted preservation of
vertebral body heights in the lumbosacral spine and preservation of intervertebral disc heights in
the lumbosacral spine. He observed mild bilateral facet hypertrophy with mild right-sided
foraminal narrowing at L5-S1. Dr. Ryan Lee diagnosed mild degenerative changes of the lower
lumbar spine with mild foraminal stenosis at L4-5 and L5-S1, greater on the left and probable
cyst in the right kidney.
In a January 24, 2011 office note, Dr. Liebenberg reviewed the MRI scan and noted the
presence of degenerative disc disease and possible foraminal irritation at L4-5 and L5-S1.
Dr. Liebenberg stated that appellant was not a candidate for surgery and recommended pain
management.
In a February 14, 2011 report, Dr. Deepak Mehrotra, a Board-certified anesthesiologist
who specializes in pain management, related appellant’s complaints of severe pain in the lower
back and neck radiating into her lower extremities that she attributed to a June 4, 2009 fall at
work. A June 17, 2009 MRI scan revealed mild osteophyte formation at the endplates of the
lumbar spine extending from L2 to L4 and sclerosis and narrowing of the facets of L5-S1,
consistent with mild facet osteoarthritis. Upon examination, Dr. Mehrotra observed tenderness
in the cervical and lumbar spinous processes and right side facet column tenderness in the
lumbar spine. He noted limited thoracolumbar flexion and extension and limited and painful
cervical range of motion. Straight leg raise texting was negative. Dr. Mehrotra diagnosed
lumbar spondylosis, cervical spondylosis, lumbar facet arthropathy and lumbar radiculitis. He
opined that appellant’s pain was multifactorial and originated from radiculitis, cervical/lumbar
spine and lumbar facet arthropathy.
In April 14, 2011 hospital records, Dr. Mehrotra noted that appellant was treated for
lumbosacral spondylosis without myelopathy, essential hypertension, asthma and panic disorder.
He administered steroid injections.
OWCP found a conflict in medical opinion between Dr. Smith, the second-opinion
examiner, and Drs. Oxenberg and Liebenberg, appellant’s treating physicians, as to whether she
had any continuing residuals or disability due to her accepted employment injuries. On April 14,
2011 it referred her, together with a statement of accepted facts and the medical record, to
Dr. Bong S. Lee, a Board-certified orthopedic surgeon, for an impartial medical examination.

3

In a May 5, 2011 report, Dr. Bong Lee reviewed an accurate history of appellant’s June 4,
2009 employment injury and subsequent medical treatment. He noted her current complaints of
constant pain in the low back that increased with movement and that her left ankle did not feel
smooth. Upon examination, Dr. Lee observed normal curvature of the lumbosacral spine. He
noted that forward bending was performed cautiously and with a complaint of pain.
Hyperextension was poorly performed and lateral bending to each side showed no segmental
restriction of motion. Dr. Lee stated that both lower extremities were symmetrical in the supine
position with no gross deformity. He observed minimal tenderness on palpation of the spinous
process and the paravertebral muscles, but no tenderness of the sciatic notch or root of the sciatic
nerve. Straight leg raise testing was negative. Dr. Lee reported that neurological examination of
the lower extremities revealed no sensory deficit or motor weakness and no pathological
reflexes. Deep tendon reflexes of the knees and ankles were present and symmetric bilaterally.
Dr. Lee reviewed appellant’s records and noted that a June 17, 2009 x-ray showed mild
degenerative changes of the lumbar spine with mild sclerosis of the facet joints with facet
osteoarthritis and minimum osteophytes. An MRI scan of the lumbar spine also revealed mild
degenerative changes of the lower lumbar spine with mild foraminal stenosis at L4-5 and L5-S1,
greater on the left. Dr. Lee diagnosed resolved sprains of the low back and left ankle and
contusions of the lower extremities and degenerative discogenic disease of the lumbosacral
spine. He opined that appellant’s accepted June 4, 2009 injuries had resolved and that she was
recovered with no disability. Dr. Lee stated that her present symptoms were most likely
associated with degenerative disc disease of the lumbar spine, which was not caused by the
June 4, 2009 incident, but was part of the normal aging process. He concluded that her present
diagnostic studies and current treatment were not the result of the June 4, 2009 incident, but due
to the underlying degenerative disc disease of the lumbar spine.
On May 5, 2011 OWCP issued a notice of proposed termination of appellant’s
compensation and medical benefits based on Dr. Lee’s May 5, 2011 medical report. Appellant
was advised that she had 30 days to submit additional relevant evidence or argument if she
disagreed with the proposed action.
In an undated report and admission records, Dr. Mehrotra noted a diagnosis of lumbar
radiculitis and lumbar spondylosis and administered steroid injections.
By decision dated July 14, 2011, OWCP terminated appellant’s compensation benefits
effective July 30, 2011. It found that Dr. Lee’s May 5, 2011 report represented the weight of the
medical evidence and established that her accepted conditions had ceased. Appellant no longer
had any residuals or disability causally related to her accepted employment injuries.
In a July 5, 2012 letter, appellant, through counsel, submitted a request for
reconsideration. He stated that a June 28, 2012 report by Dr. Mehrotra created a conflict in
medical opinion with Dr. Lee’s opinion. In the June 28, 2012 report, Dr. Mehrotra related
appellant’s complaints of low back and neck pain and accurately described the June 4, 2009
employment injury. He stated that her pain became progressively worse since her fall and
eventually led to paresthesis of the lower extremities, left more than right. Dr. Mehrotra
reviewed her history and noted that an MRI scan of the lumbar spine revealed mild osteophyte
formation at the anterior endplates of the lumbar spine extending from L2 to L4. He reported
that there was sclerosis and narrowing of the facets of the L5-S1 consistent with facet

4

osteoarthritis. Dr. Mehrotra administered various steroid and facet joint injections and lumbar
radiofrequency neurotomy of the facet joint nerve.
Upon examination, Dr. Mehrotra observed normal toe and heel walking and negative
sensory examination. He noted tenderness in the cervical and lumbar spinous processes and in
the lumbar facet column present on the right side. Straight leg raise testing was negative.
Hoffman and Spurling’s tests were also negative. Dr. Mehrotra reported that range of motion of
the cervical spine was painful and somewhat limited in rotation bilaterally. He diagnosed lumbar
and cervical radiculitis, lumbar discogenic pain because of internal disc disruption and lumbar
facet arthropathy. Dr. Mehrotra disagreed with Dr. Lee’s opinion. He stated within a reasonable
degree of medical certainty that the June 4, 2009 incident caused appellant to have discogenic
pain due to disc injury from her fall at work. Although appellant had chronic degenerative disc
disease, the June 4, 2009 incident was responsible for her pain because she did not have pain
prior to the incident. He stated that appellant’s June 4, 2009 employment injury was responsible
for her severe back pain because of severe aggravation of a prior degenerative condition leading
to radiculitis in the lower extremities and internal disc disruption. Dr. Mehrotra stated that
appellant would be very limited in her functions because she was unable to sit or stand for
prolonged periods of time.
By decision dated December 7, 2012, OWCP denied modification of the July 14, 2012
decision terminating appellant’s compensation benefits.
LEGAL PRECEDENT
According to FECA, once OWCP accepts a claim and pays compensation, it has the
burden of justifying termination or modification of an employee’s benefits.2 OWCP may not
terminate compensation without establishing that the disability had ceased or that it was no
longer related to the employment.3 Its burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability compensation.5 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.6
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary
shall appoint a third physician (known as a referee physician or impartial medical specialist) who
2

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

3

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37
ECAB 541 (1986).
4

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

5

A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).
6

A.P., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

5

shall make an examination.7 This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.8 When there exists opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.9
ANALYSIS
OWCP accepted that on June 4, 2009 appellant sustained lumbosacral sprain, left ankle
sprain and contusion of the bilateral legs in the performance of duty. Appellant stopped work
and was placed on the periodic rolls. In a decision dated July 14, 2011, OWCP terminated her
compensation benefits based on the May 5, 2011 report of the impartial medical examiner,
Dr. Lee. The Board finds that it properly terminated appellant’s compensation benefits effective
July 30, 2011 on the grounds that she no longer had any residuals or disability causally related to
her accepted employment-related injuries.
OWCP found that a conflict in medical opinion between appellant’s physicians,
Drs. Oxenberg and Liebenberg, who determined that she had residuals from her work-related
injuries and Dr. Smith, the second-opinion examiner, who found that her work-related injuries
had resolved. It referred her to Dr. Lee to resolve the conflict. In his May 5, 2011 report,
Dr. Lee provided an accurate history of injury and reviewed appellant’s medical records. He
noted that a June 17, 2009 x-ray demonstrated mild degenerative changes of the lumbar spine
with facet osteoarthritis and minimum osteophytes and an MRI scan report demonstrated
degenerative changes of the lower lumbar spine with mild foraminal stenosis at L4-5 and L5-S1.
Upon examination, Dr. Lee observed minimal tenderness on palpation of the spinous process and
the paravertebral muscles, but no tenderness of the sciatic notch or root of the sciatic nerve.
Straight leg raise testing was negative. Dr. Lee reported that neurological examination of the
lower extremities revealed no sensory deficit or motor weakness and no pathological reflexes.
Deep tendon reflexes of the knees and ankles were present and symmetric bilaterally. Dr. Lee
opined that appellant’s June 4, 2009 employment injuries had resolved and that she had fully
recovered with no disability. He explained that her present symptoms were most likely
associated with degenerative disc disease of the lumbar spine and not the June 4, 2009
employment incident.
The Board finds that Dr. Lee’s May 5, 2011 report is sufficiently detailed and well
reasoned to constitute the weight of the medical opinion evidence. When there exist opposing
medical reports of virtually equal weight and rationale and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
7

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
8

20 C.F.R. § 10.321.

9

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

6

weight.10 Dr. Lee reviewed appellant’s history and accurately described the June 4, 2009
employment injury. He conducted an examination and found that the physical findings did not
establish that she continued to suffer residuals or disability from her work-related injuries.
Dr. Lee determined that appellant’s present symptoms were a result of her degenerative disc
disease and the normal aging process. The Board finds that his opinion represents the special
weight of medical opinion evidence. Accordingly, Dr. Lee’s opinion constitutes the special
weight of evidence and is sufficient to justify OWCP’s termination of wage-loss compensation
benefits for the accepted conditions.
The Board further finds that the medical evidence submitted after Dr. Lee’s independent
medical evaluation report is insufficient to overcome the weight of his report or to create a
conflict in medical evidence. The June 28, 2012 report of Dr. Mehrotra stated that her current
neck and back pain was causally related to the June 4, 2009 employment injury because it caused
a severe aggravation of a prior degenerative condition. Dr. Mehrotra explained that, although
she suffered from a degenerative lumbar disc disease, the June 4, 2009 employment incident was
the cause of her pain because she did not have pain prior to the incident. The Board has noted,
however, that an opinion that a condition is causally related because the employee was
asymptomatic before the injury is insufficient, without sufficient rationale, to establish causal
relationship.11 Dr. Mehrotra’s opinion is insufficient to overcome the special weight accorded to
Dr. Lee’s report as the impartial medical examiner or to create a new conflict.
On appeal, appellant’s counsel contends that OWCP’s decision was based on flawed
findings of fact and conclusions of law. The Board finds that the weight of medical opinion as
represented by Dr. Lee supports OWCP’s decision to terminate appellant’s wage-loss and
compensation benefits. The medical evidence from Dr. Mehrotra is not sufficient to establish
continuing residuals or disability related to her accepted work-related injuries.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation and wage-loss benefits effective July 30, 2011.

10

Id.

11

T.M., Docket No. 08-975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

7

ORDER
IT IS HEREBY ORDERED THAT the December 7, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 1, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8