United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
DEPARTMENT OF THE NAVY,
PHILADELPHIA NAVAL SHIPYARD,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 08-1732
Issued: April 10, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 3, 2008 appellant filed a timely appeal from decisions of the Office of Workers’
Compensation Programs dated August 16, 2007 and February 15, 2008. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a seven percent impairment of each lower
extremity for which he received schedule awards. On appeal, appellant’s attorney contends that
the opinion of the impartial examiner, Dr. Andrew J. Collier, Jr., a Board-certified orthopedic
surgeon, is not sufficient to carry the weight of the medical evidence. Counsel contends that he
relied on an incorrect history of injury, did not provide range of motion measurements and did
not correctly apply the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides).1

1

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

FACTUAL HISTORY
On October 20, 1987 appellant, then a 41-year-old rigger, sustained employment-related
injuries when he fell into a barrier trough of a ship. The claim was accepted for cervical
strain/sprain, bilateral knee contusions, contusions to the left elbow and buttock and left lateral
epicondylitis. Appellant worked a few days in December 1987 but stopped work and underwent
arthroscopic surgery of the right knee on May 26, 1989.2 By decision dated January 31, 1997,
the Office terminated appellant’s compensation benefits, effective February 2, 1997, based on
the opinion of Dr. Leonard Klinghoffer, a Board-certified orthopedic surgeon, who opined that
appellant’s condition was not due to the employment injury. On January 29, 1998 an Office
hearing representative affirmed the January 31, 1997 decision. In an October 14, 1998 decision,
the Office denied modification of the prior decisions.
By letter dated August 18, 1999, appellant’s attorney requested a schedule award and
submitted a June 30, 1999 report from Dr. Nicholas Diamond, an osteopath, who provided
examination findings and diagnosed post-traumatic right knee chondral fracture of the medial
femoral condyle and posterior horn of the medial meniscus, Grade 4 post-traumatic right knee
chondromalacia patella, post-traumatic right knee tenosynovitis, status post right knee
arthroscopy, unresolved chronic cervical spine strain and sprain, unresolved chronic left knee
strain and sprain and unresolved chronic left elbow strain and sprain. Dr. Diamond found that
under the fourth edition of the A.M.A., Guides, appellant had 31 percent right lower extremity
impairment and 16 percent left lower extremity impairment. On October 7, 2003 an Office
medical adviser reviewed the medical reports of record and stated that maximum medical
improvement was reached on September 3, 1996. He opined that since appellant sustained direct
trauma to both knees on October 20, 1987 with complaints of pain and crepitance on physical
examination. Under Table 17-31 of the fifth edition of the A.M.A., Guides, appellant had five
percent impairment to each lower extremity.
By decision dated October 21, 2003, appellant was granted a schedule award for a five
percent permanent impairment of each lower extremity.
On October 24, 2003 appellant, through his attorney, requested a hearing, which was held
on June 22, 2004. In an October 18, 2004 decision, an Office hearing representative determined
that a conflict in medical opinion arose between Drs. Diamond and Klinghoffer. The case was
remanded for referral to an impartial specialist regarding the extent permanent impairment as a
result of the accepted work injury.
On November 15, 2004 appellant was referred to Dr. Randall N. Smith, a Board-certified
orthopedic surgeon. In a November 30, 2004 report, Dr. Smith reviewed the medical record,
history of injury and appellant’s complaints. He provided physical examination findings and
advised that, under the fifth edition of the A.M.A., Guides, there were no objective evidence of
impairment beyond the crepitus and subjective complaints of pain which constituted a five
percent loss in each knee. On January 2, 2005 an Office medical adviser reviewed Dr. Smith’s

2

By decision dated January 23, 1995, an overpayment in compensation in the amount of $5,057.26 was waived.

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report and agreed with his determination that appellant had a five percent impairment of each
lower extremity.
In a January 10, 2005 decision, the Office denied appellant’s claim for an additional
schedule award.
On January 12, 2005 appellant, through his attorney, requested a hearing that was held on
November 17, 2005. By decision dated February 16, 2006, an Office hearing representative
remanded the case to the Office to obtain a supplemental opinion from Dr. Smith in accordance
with the A.M.A., Guides. Dr. Smith was to address whether appellant had an impairment of the
left upper extremity and whether x-rays demonstrated joint space narrowing of the lower
extremities.
As Dr. Smith, he was unable to clarify his opinion, on July 19, 2006, the Office referred
appellant to Dr. Joseph A. Jelen, Jr., a Board-certified orthopedic surgeon, for an impartial
evaluation. In an August 15, 2006 report, Dr. Jelen reviewed the medical record, the history of
injury and appellant’s complaints. He listed findings on physical examination and diagnosed
resolved cervical strain and bilateral knee contusions with cartilage injury on the right, treated
arthroscopically and stable. Dr. Jelen advised that, under Chapter 16 of the A.M.A., Guides,
appellant had no impairment of either upper extremity or the cervical spine. Regarding the lower
extremities, he advised that, under Table 17-6, appellant had a mild calf circumference decrease
on the left and a moderate thigh circumference decrease for 5 percent calf impairment and 10
percent thigh impairment. Dr. Jelen found no limited motion of the knee and, under Table 18-7,
rated 10 percent impairment for pain. He added the impairments, finding a 25 percent
impairment which, when converted under Table 17-3, yielded a 10 percent whole person
impairment.3 On September 5, 2006 an Office medical adviser reviewed the medical record. He
opined that the atrophy of the muscles of appellant’s left lower extremity was related to a hip
condition which was not employment related and, any pain rating had previously been accounted
for in the five percent impairment awarded in accordance with Table 17-31.
By decision dated September 12, 2006, the Office denied appellant’s claim for a left
upper extremity schedule award and for an additional schedule award for his lower extremities.
On September 19, 2006 appellant, through his attorney, requested a hearing. In a
December 6, 2006 decision, an Office hearing representative remanded the case to the Office to
obtain a supplemental report from Dr. Jelen to clarify his rating for atrophy to appellant’s left
leg.
In a January 15, 2007 report, Dr. Jelen advised that under Table 18-7 of the A.M.A.,
Guides, appellant had a 25 percent impairment to each lower extremity due to pain and that the
majority of his weakness was due to pain. In a February 7, 2007 report, an Office medical
adviser reviewed Dr. Jelen’s report. He advised that appellant’s knee pain was properly
addressed in Chapter 17 of the A.M.A., Guides and, pursuant to Office procedures, a pain-related
impairment of each lower extremity could not exceed three percent.
3

Dr. Jelen also noted appellant’s complaint of right elbow pain and also diagnosed right elbow tendinitis. A right
upper extremity condition, however, was not accepted as employment related.

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By decision dated February 16, 2007, the Office denied appellant’s claim for an
additional schedule award. In a May 3, 2007 decision, an Office hearing representative again
remanded the case, finding that Dr. Jelen’s supplemental report was not rationalized and did not
conform to the A.M.A., Guides. Therefore, another impartial medical evaluation was required.
The Office was also to reissue a denial of the upper extremity claim.
On June 12, 2007 the Office referred appellant to Dr. Andrew J. Collier, Jr., a Boardcertified orthopedic surgeon, for an impartial evaluation. In a July 11, 2007 report, Dr. Collier
reviewed the medical record and statement of accepted facts. He noted appellant’s report that he
had hit his right elbow, not his left elbow, in the fall on October 20, 1987. Dr. Collier reported
appellant’s complaints of pain at the base of the neck but no radiation, weakness, numbness or
paresthesias. Appellant also noted bilateral knee pain and swelling. Neurological examination
of both upper extremities was intact to sensory, motor and deep tendon reflexes with good grip
strength bilaterally. Examination of both elbows demonstrated minimal tenderness on the right
and no tenderness on the left with good range of motion. Examination of both knees
demonstrated no synovitis, effusion, erythema or warmth and minimal patellofemoral crepitus
with negative inhibition and grind and no ligamentous laxity. Lachman’s drawer and
McMurray’s tests were negative. Dr. Collier noted that appellant had a nonemployment-related
contusion on the mid portion of the left tibia. He was aware that appellant’s right elbow
condition had not been accepted and reported that appellant had no symptoms in his left elbow.
Dr. Collier advised that the accepted left elbow condition and cervical spine strain/sprain had
resolved. Regarding the knees, he noted that appellant had reached maximum medical
improvement and had no significant post-traumatic arthritis. There was no restriction to range of
motion from 0 to 140 degrees or evidence of decreased strength, atrophy, ankylosis or sensory
changes. Under the fifth edition of the A.M.A., Guides, appellant had no impairment of his
cervical spine. As to his knees, he had no impairment for range of motion and no deformity of
varus or valgus. Dr. Collier stated that the only applicable rating would be for post-traumatic
chondromalacia patellae with residuals or a seven percent impairment of each lower extremity.
In an attached work capacity evaluation, he advised that appellant could work four hours a day
with restrictions on his physical activity. On July 27, 2007 an Office medical adviser agreed
with Dr. Collier’s conclusion that appellant had a seven percent impairment of each lower
extremity, based on Table 17-31 of the A.M.A., Guides.
By decision dated August 16, 2007, appellant was granted a schedule award for an
additional two percent impairment of each lower extremity. The Office also found that appellant
was not entitled to a schedule award for the left upper extremity.
On August 22, 2007 appellant, through his attorney, requested a hearing that was held on
December 11, 2007. Counsel contended that Dr. Collier’s report was insufficient to carry the
weight of the medical evidence because he relied on an incorrect history in stating that appellant
fell on his right elbow when left elbow epicondylitis was an accepted condition. He noted that
Dr. Collier did not provide range of motion measurements for the knees, elbows or wrists and
should have x-rayed appellant’s knees to determine the loss of joint space. Counsel noted that
Dr. Collier did not reference the A.M.A., Guides in rating appellant’s impairment.
In a February 15, 2008 decision, an Office hearing representative affirmed the August 16,
2007 decision.

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LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act4 and section 10.404 of
the implementing federal regulations,5 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for 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., Guides6 has been adopted by the Office and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.7
Although the A.M.A., Guides include guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under the Act for injury to the spine.8 In
1960, amendments to the Act modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of the Act include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.9 Impairment should not be considered permanent until the
clinical findings indicate that the medical condition is static and well stabilized10 and schedule
awards for permanent impairment of the whole person are not authorized under the Act.11
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.12 When 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 on a proper factual background, must be
given special weight.13 Office procedures indicate that referral to an Office medical adviser is
appropriate when a detailed description of the impairment from the attending physician is
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

A.M.A., Guides, supra note 2.

7

See Joseph Lawrence, Jr., supra note 2; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287
(1989); Francis John Kilcoyne, 38 ECAB 168 (1986).
8

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

9

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

10

Patricia J. Penney-Guzman, 55 ECAB 757 (2004).

11

D.J., 59 ECAB ____ (Docket No. 08-725, issued July 9, 2008).

12

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

13

Manuel Gill, 52 ECAB 282 (2001).

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obtained. Where a medical conflict is present, to properly resolve the conflict, it is the impartial
medical specialist who should provide a reasoned opinion as to a permanent impairment to a
scheduled member of the body in accordance with the A.M.A., Guides. An Office medical
adviser may review the opinion, but the resolution of the conflict is the responsibility of the
impartial medical specialist.14
ANALYSIS
The Board notes appellant’s contention that Dr. Collier relied on an incorrect history of
injury without basis. Dr. Collier reported that appellant stated he had hit his right elbow on
October 20, 2007. However, appellant’s claim form and statement regarding the injury, the
statement of accepted facts and contemporaneous medical evidence describe a left upper
extremity injury.15 This is contradictory to appellant’s report to Dr. Collier, 20 years later, that a
left elbow contusion and left lateral epicondylitis were accepted as employment related. In his
July 11, 2007 report, Dr. Collier advised that appellant had no left elbow impairment and there is
no contemporaneous medical evidence to establish that appellant has any left upper extremity
impairment. He found that appellant would not be entitled to a schedule award for his left upper
extremity.
The Board also finds that Dr. Collier provided a reasoned impartial opinion that is
sufficient to establish that appellant is not entitled to an additional schedule award for his
bilateral knee condition. Dr. Collier noted a review of the medical record and provided findings
on examination. He applied the fifth edition of the A.M.A., Guides to find, appellant had no
impairment based on range of motion and no deformity of varus or valgus. He concluded that
the only applicable rating would be for post-traumatic chondromalacia patellae with residuals, or
a seven percent impairment of each lower extremity. Dr. Collier provided thorough findings on
evaluation and rationale for his determination that appellant has seven percent impairment to
each lower extremity under the A.M.A., Guides. The Board finds that his report is entitled to the
special weight accorded an impartial examiner and therefore constitutes the weight of the
medical evidence.16 Appellant therefore did not establish that he is entitled to greater than the
seven percent impairment of each lower extremity previously awarded.17

14

Thomas J. Fragale, 55 ECAB 619 (2004).

15

In reports dated November 12 and 13, 1987 respectively, Drs. Apollo M. Arenas and Henry E. David reported
that appellant hit his left elbow when he fell.
16

See Sharyn D. Bannick, 54 ECAB 537 (2003).

17

The Board notes that, while Table 17-31 provides that in an individual with a history of direct trauma, a
complaint of patellofemoral pain and crepitation on physical examination but without joint space narrowing on
x-rays, a five percent lower extremity impairment is given. A.M.A., Guides, supra note 2 at 544. In this case, there
is no x-ray evidence of record to demonstrate joint space narrowing that would increase the initial award of five
percent for each lower extremity. The record therefore establishes that appellant is entitled to a five percent
impairment of each lower extremity.

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CONCLUSION
The Board finds that appellant has no more than a seven percent impairment to each
lower extremity for which he received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 15, 2008 be affirmed.
Issued: April 10, 2009
Washington, DC

David S. Gerson, 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
__________________________________________
K.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lancaster, CA, Employer
__________________________________________

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

Docket No. 08-1188
Issued: October 14, 2008

Case Submitted on the Record

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

JURISDICTION
On March 10, 2008 appellant filed a timely appeal from a January 25, 2008 merit
decision of the Office of Workers’ Compensation Programs’ hearing representative, who
affirmed the denial of appellant’s recurrence of disability claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this decision.
ISSUE
The issue is whether appellant sustained a recurrence of disability for the period June 10
to 15, 2007 due to his accepted employment condition.
FACTUAL HISTORY
On February 24, 2003 appellant, then a 46-year-old letter carrier, filed an occupational
disease claim alleging that on December 21, 1999 he first realized his right great toe condition
was employment related. The Office accepted the claim for right great toe degenerative joint
disease and right hallux malleous and authorized wage-loss compensation for the period June 28

to August 13, 2003.1 Appellant returned to light-duty work on August 14, 2003. On February 9,
2004 he was released to regular duty by Dr. Natalie Kaveh, a treating Board-certified physiatrist.
Appellant filed a claim for a recurrence of disability beginning April 28, 2005, which was
denied by the Office in a decision dated January 4, 2006.
In a report dated September 15, 2006, Dr. Sharon Bangalan, a podiatrist, recommended
modifications to appellant’s job duties which minimized his ambulation and made his job more
sedentary. On October 30, 2006 she noted that appellant wanted to pursue big toe joint fusion
surgery and requested authorization to perform the surgery.
In a letter dated December 4, 2006, appellant noted that he had been trying to perform his
usual work duties but had difficulty due to his toe osteoarthritis. He stated that his condition had
been affected by the twisting, walking and changing temperatures of his job.
In a report dated January 9, 2007, Dr. G.B. Ha’Eri, a second opinion Board-certified
orthopedic surgeon, reviewed the medical evidence, a statement of accepted facts and provided
findings on physical examination. He concluded that appellant’s accepted injury had resolved.
Dr. Ha’Eri noted that appellant’s original job duties of prolonged walking had aggravated the
preexisting degenerative arthritis of the great right toe. As appellant’s job duties had been
modified under work restrictions provided by Dr. Bangalan, appellant did not currently have any
residuals of his accepted condition.
On March 26, 2007 Dr. Bangalan agreed with Dr. Ha’Eri that appellant’s arthritic 1st
metatarsal-phalangeal joint was nonemployment related. He opined, however, that appellant’s
usual job duties could exacerbate the condition.2
On June 26, 2007 appellant filed a claim for wage-loss compensation for the period
June 10 to 15, 2007. He noted that he used annual leave for the period June 11 to 14, 2007. In
support of his claim, appellant submitted a blank attending physician’s report (Form CA-5) and a
time analysis form. He noted that June 10 and 15, 2007 were nonscheduled days and he used 24
hours of annual leave for June 11 to 14, 2007.3
By letter dated July 12, 2007, the Office informed appellant that the evidence of record
was insufficient to support his recurrence claim and advised him as to the medical and factual
evidence to submit. The Office allowed 30 days for a response. No material was forthcoming.
By decision dated September 17, 2007, the Office denied appellant’s recurrence of
disability claim.
1

Appellant stopped work on June 17, 2003 and underwent surgery for right foot cheilectomy of the first
metatarsal phalangeal joint on June 19, 2003.
2

By letter dated December 7, 2007, the Office referred appellant for an impartial medical examination as it found
a conflict in the medical opinion evidence between Dr. Ha’Eri and Dr. Bangalan as to whether appellant’s
preexisting arthritis had been permanently aggravated by his usual employment duties.
3

The Office notes the author date for the time analysis sheet as June 14, 2007, but there is no date on the form.

2

On October 8, 2007 appellant requested a review of the written record by an Office
hearing representative.
By decision dated January 25, 2008, the Office hearing representative affirmed the
September 17, 2007 decision, which denied appellant’s claim for a recurrence of disability.4
LEGAL PRECEDENT
The Office’s implementing regulations define a recurrence of disability as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.5 If the disability results from new
exposure to work factors, the legal chain of causation from the accepted injury is broken, and an
appropriate new claim should be filed.6
Under the Federal Employees’ Compensation Act, the term disability is defined as an
inability, due to an employment injury, to earn the wages the employee was receiving at the time
of the injury, i.e., an impairment resulting in loss of wage-earning capacity.7 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.8 Whether a particular injury causes an
employee to become disabled for work and the duration of that disability are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.9 The
fact that a condition manifests itself during a period of employment does not raise an inference
that there is a causal relationship between the two.10
The Board will not require the Office to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is

4

The Board notes that, following the January 25, 2008 hearing representative’s decision, the Office received
additional evidence. However, the Board may not consider new evidence on appeal. See 20 C.F.R. § 501.2(c);
Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
5

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also R.S., 58 ECAB ___ (Docket No. 06-1346, issued February 16, 2007);
Phillip L. Barnes, 55 ECAB 426 (2004).
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3 (May 1997), Donald T.
Pippin, 54 ECAB 631 (2003).
7

See Prince E. Wallace, 52 ECAB 357 (2001).

8

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

9

Gary J. Watling, 52 ECAB 278 (2001).

10

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Roy L. Humphrey, 57 ECAB 238 (2005);
Manuel Garcia, 37 ECAB 767 (1986).

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claimed. To do so would essentially allow an employee to self-certify his disability and
entitlement to compensation.11
ANALYSIS
Appellant’s claim was accepted for right great toe degenerative joint disease and right
hallux malleous. He returned to limited-duty work on August 14, 2003 and was released to
regular-duty work on February 9, 2004 by Dr. Kaveh, a treating Board-certified physiatrist.
Appellant filed a claim for wage-loss compensation beginning June 10, 2007, which the Office
treated as a claim for a recurrence of disability. He did not submit any medical evidence
regarding his recurrence of disability for the period June 10 to 15, 2007.
The only recent medical reports of record are reports dated September 15, 2006 and
March 26, 2007 by Dr. Bangalan, a treating podiatrist, and a January 9, 2007 report by
Dr. Ha’Eri, a second opinion Board-certified orthopedic surgeon. These are prior to the period
of disability claimed. Dr. Bangalan recommended a more sedentary job for appellant on
September 15, 2006. On March 26, 2007 she opined that appellant’s usual job duties could
exacerbate his preexisting arthritic first metatarsal-phalangeal joint. Dr. Ha’Eri opined that
appellant’s condition had resolved. Neither Dr. Bangalan nor Dr. Ha’Eri addressed the issue of
disability beginning June 10, 2007 or disability for the period June 10 to 15, 2007.
The Board has held that reports containing no opinion as to the cause of appellant’s
claimed recurrence of disability are of little probative value.12 Neither Dr. Ha’Eri nor
Dr. Bangalan addressed appellant’s disability for work as of June 10, 2007. Rather, Dr. Ha’Eri
opined that appellant’s condition had resolved as he was no longer performing the duties which
had aggravated his preexisting arthritis condition. As noted, the Board will not require the
Office to pay compensation for disability in the absence of probative medical evidence directly
addressing the cause of the disability or the dates of disability for which compensation is
claimed. Consequently, the reports by Dr. Ha’Eri and Dr. Bangalan do not establish
employment-related disability for the claimed recurrence of disability beginning June 10, 2007.
The Board also notes that the record contains no evidence of a limited-duty job offer by
the employing establishment beyond Dr. Bangalan’s recommendation for a sedentary job for
appellant and Dr. Ha’Eri’s mention of a limited-duty job in his report. The Board finds there is
no evidence in the record regarding a limited-duty job, a withdrawal of any such job or that
appellant was unable to perform a sedentary limited-duty job. Appellant has failed to submit the
necessary factual and medical evidence to establish his claim for recurrence of disability for the
period June 10 to 15, 2007. The Office properly denied his claim.

11

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

12

Medical evidence which does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship. A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14,
2006); Michael E. Smith, 50 ECAB 313 (1999)

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CONCLUSION
The Board finds that appellant failed to establish that he sustained a recurrence of
disability for the period June 10 to 15, 2007 causally related to his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 25, 2008 is affirmed.
Issued: October 14, 2008
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Point Pleasant Beach, NJ, Employer
__________________________________________

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

Docket No. 08-1926
Issued: December 24, 2008

Case Submitted on the Record

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

JURISDICTION
On July 2, 2008 appellant filed a timely appeal from an April 4, 2008 decision of the
Office of Workers’ Compensation Programs that denied his claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he was totally disabled beginning on
February 23, 2003 due to his accepted bilateral lower extremity conditions.
FACTUAL HISTORY
On January 28, 1977 appellant, then a 35-year-old letter carrier, sustained an
employment-related torn left medial meniscus when he fell at work. He underwent surgical
repair on May 20, 1977 and on November 14, 1978 sustained a second employment injury that
was accepted for sprain of the right wrist and contusion of the left knee.1 Appellant had
1

The 1977 injury was initially adjudicated under OWCP No. xxxxxx478 and the 1978 injury under xxxxxx790.
The latter file number became the master for these two left lower extremity claims.

additional surgical procedures on his left lower extremity and on September 16, 1998 he fell
from a curb injuring both lower extremities. On April 16, 1999 he had surgical repair of the left
ankle. Appellant returned to modified duty after the September 1998 injury and on July 15, 1999
sustained a right shoulder injury when he fell from his postal vehicle. He stopped work and was
placed on the periodic rolls, due to his shoulder injury. On September 1, 1999 Dr. Il H. Kim, a
Board-certified orthopedic surgeon, performed arthroscopic repair of meniscal tears of the right
knee and on November 9, 1999 Dr. Robert Borgatti, Board-certified in orthopedic surgery,
performed right rotator cuff tear repair.2 On July 6, 2000 appellant fractured a thoracic vertebra
while cleaning his gutters at home.
Dr. Kim performed arthroscopic debridement of the left knee on July 18, 2002.3 On
August 1, 2002 appellant filed a Form CA-2a, claim for recurrence of disability, stating that,
when he returned to work on August 6, 2001, the postmaster refused to let him work. By
decision dated October 23, 2002, the Office denied the claim. On February 23, 2003 the Office
terminated appellant’s compensation benefits under the right shoulder injury claim on the
grounds that he had no residuals of his right shoulder injury. In a March 5, 2003 report, Dr. Kim
noted that he first evaluated appellant’s left knee on October 16, 2001 and described his
treatment, including the July 18, 2002 surgery. He related that he had last seen appellant on
August 20, 2002.
On December 10, 2003 appellant filed a Form CA-7, claim for disability, and a Form
CA-2a, recurrence claim. He submitted a September 25, 2003 treatment in which Dr. Kim noted
appellant’s complaint of problems with both knees and that he was using a cane. Dr. Kim
provided examination findings and advised that x-rays demonstrated bilateral degenerative joint
disease changes, worse on the left. In an April 21, 2004 report, Dr. Michael H. Gordon, a Boardcertified orthopedic surgeon advised that he began treating appellant in April 1979 for a left knee
injury incurred the previous fall. He described his treatment regimen through August 1989 and
noted a history of bilateral knee injuries at work and that appellant had fractured his spine.
Dr. Gordon reviewed x-ray and magnetic resonance imaging (MRI) scan studies and noted
appellant’s complaint of pain in both knees. He provided examination findings and advised that
appellant had developed work-related premature arthritis and was getting progressively worse,
such that he needed bilateral total knee replacement surgery. In a May 16, 2005 treatment note,
Dr. Kim noted appellant’s complaint of constant pain in both knees, advising that x-rays of both
knees demonstrated bilateral chondrocalcinosis and arthritis changes. He provided examination

2

The Board notes that appellant has a companion case before the Board for the right shoulder injury, Docket No.
08-532, OWCP No. xxxxxx166, that will be adjudicated separately. On February 7, 2008 the Office combined that
file with the current claim, with xxxxxx790 becoming the master file.
3

Under OWCP No. xxxxxx166, the right shoulder injury claim, in January 2001, the Office referred appellant to
Dr. Irving D. Strouse, a Board-certified orthopedist, for a second opinion evaluation. In a February 26, 2001 report,
Dr. Strouse reported a history that appellant also injured his right knee on July 15, 1999 but his findings and
conclusions were only with regard to appellant’s shoulder injury and a nonwork-related back injury. The Office
again referred appellant to Dr. Strouse in April 2002. In a May 6, 2002 report, Dr. Strouse noted a history that
appellant injured his left knee at work in 1978 with subsequent surgeries and current knee difficulties. He noted that
Dr. Kim was treating appellant’s left knee. On examination of the left knee, Dr. Strouse noted slight swelling and
medial joint line tenderness.

2

findings and opined that he did not think appellant’s symptoms had changed to the degree that
total knee replacement surgery was required.
By decision dated July 20, 2005, the Office denied the claim on the grounds that the
medical evidence was insufficient to establish that appellant was disabled from work beginning
February 24, 2003 due to his accepted lower extremity injuries. On July 25, 2005 appellant,
through his attorney, requested a hearing and submitted a January 26, 2004 foot x-ray that
demonstrated hallux valgus deformity, likely due to old fracture. In an October 12, 2005 report,
Dr. Kim noted that he had not seen appellant since May 16, 2005. Regarding disability, he
stated:
“The question is whether [appellant] has been disabled since September 25, 2003
which was his last visit prior to his 2005 visit. He did have a problem with both
knees with swelling and difficulty in walking with limping plus a joint effusion. I
was informed by [appellant] that he retired from work around February 2003 and
assumed this was due to disability from his knee problem. I felt I could not offer
any clear treatment plan to make him functional to work as a letter carrier for the
U.S. Postal Service yet his symptoms were not bad enough to recommend a total
knee arthroplasty which was his request. Even if a total knee replacement was
offered and performed, I doubt [appellant] could return to his job on a full-time
basis with no limitation.”
At the hearing held on December 20, 2005, appellant described his past work-related
injuries to his left lower extremity and surgical procedures for the left knee, with the latest on
July 18, 2002. He also described the September 16, 1998 injury when he fell while delivering
mail necessitating left ankle and right knee surgery. Appellant testified that bilateral knee
problems had worsened, requiring a cane, and that he could not have returned to work in
February 2003 when compensation for his right shoulder injury was terminated. His counsel
argued that the medical evidence established that appellant was disabled due to his lower
extremity employment-related injuries and submitted a June 25, 2005 report in which
Dr. Gordon noted that appellant returned for examination on April 5, 2005 with complaints of
persistent bilateral knee pain causing difficulty with activities of daily living. Dr. Gordon noted
that appellant was taking no medication for his knees and had received epidural injections for his
nonwork-related back injury. He provided examination findings and diagnosed progressive
degenerative arthritis of the knees and again recommended bilateral total knee replacements.
Dr. Gordon advised that appellant was disabled for all work due to his bilateral knee condition
and probably could never return to work at the employing establishment due to his employment
injuries.
In a March 8, 2006 decision, an Office hearing representative affirmed the July 20, 2005
decision. On June 27, 2006 appellant’s attorney requested reconsideration and submitted
additional medical evidence including a December 22, 2003 MRI scan of the left knee that
demonstrated joint effusion, a lateral meniscus tear and degenerative arthritic changes. A
December 22, 2003 MRI scan of the right knee demonstrated joint effusion and a tear of the
posterior horn of the medial meniscus. By report dated September 29, 2005, Dr. Alvin Ong, a
Board-certified orthopedic surgeon, reported a history of bilateral work-related knee injuries and
complaints of intolerable bilateral knee pain that limited activities of daily living and walking,

3

noting that appellant used a cane. He provided examination findings and noted that x-rays
demonstrated moderate-to-severe degenerative joint disease of both knees, left worse than right.
Dr. Ong diagnosed post-traumatic bilateral degenerative joint disease and recommended total
knee replacement for both knees. In a May 25, 2006 report, Dr. John M. Tozzi, a Board-certified
orthopedist, noted the history of employment injuries, appellant’s medical history and complaints
of limitations in knee motion and severe debilitating pain in both knees. He recommended
bilateral total knee replacement surgery.
By decision dated November 17, 2006, the Office denied modification of the prior
decisions. On January 3, 2007 appellant submitted reports dated March 17 and May 25, 2006 in
which Dr. Tozzi advised that appellant was totally disabled and had significant end-stage disease
in the right and left knee with severe limitations in range of motion, difficulties with ambulation,
and night, rest and day pain which affected his activities of daily living. Dr. Tozzi stated that
appellant was being scheduled for total knee replacement surgery. Appellant then filed an appeal
with the Board and, by order dated November 30, 2007, the Board remanded the case to the
Office.4 The Board found that, contrary to language found in prior decisions, the evidence
established that the Office had accepted appellant’s claim for a meniscus tear of the right knee
and internal derangement of the left knee. The Board ordered that OWCP Nos. xxxxxx368,
xxxxxx790 and xxxxxx166 be combined so as to provide full and fair adjudication of appellant’s
claim.5 The law and the facts of the previous Board order are incorporated herein by reference.
On February 7, 2008 the three claims were combined. By decision dated April 4, 2008,
the Office noted that it had reviewed the evidence in all three claim files and found that the
medical evidence did not establish that appellant’s claimed disability was due to his accepted
knee conditions.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.6 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.7
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
4

Docket No. 07-1397 (issued November 30, 2007).

5

Supra notes 2 and 3.

6

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

7

Id.

4

establishes that light duty can be performed, the employee has the burden to establish by the
weight of reliable, probative and substantial evidence a recurrence of total disability. As part of
this burden of proof, the employee must show either a change in the nature and extent of the
injury-related condition, or a change in the nature and extent of the light-duty requirements.8
ANALYSIS
The Board finds this case is not in posture for decision. The accepted conditions in this
case include a left knee internal derangement with secondary arthritis, a left ankle fracture and a
meniscus tear of the right knee. The latter injury was sustained on July 15, 1999 when appellant
fell from his postal vehicle. On that date, he also sustained a right shoulder rotator cuff tear and
received wage-loss compensation for his shoulder injury through February 23, 2003 when the
Office terminated his compensation on the grounds that the shoulder condition had resolved with
no residuals.9 Appellant then filed claims alleging that he was totally disabled due to his
employment-related bilateral knee conditions. He also sustained a nonwork-related thoracic
vertebral fracture when he fell while cleaning gutters at home.
The medical evidence relevant to whether appellant was totally disabled for any period
on or after February 23, 2003 due to his accepted bilateral lower extremity conditions includes a
number of reports from Dr. Kim, who performed arthroscopic surgery on appellant’s right knee
on September 1, 1999 and on his left knee on July 18, 2002. In an October 12, 2005 report,
Dr. Kim advised that appellant had degenerative joint disease in both knees. He related that
physical findings in May 2005 included swelling and joint effusion and noted that appellant had
difficulty walking. Dr. Kim stated that he presumed appellant had retired on disability in
February 2003 due to his knee problems and felt that he could not offer a treatment plan to make
appellant functional to work as a letter carrier. Dr. Gordon diagnosed work-related bilateral
progressive knee arthritis and on June 25, 2005 advised that appellant was permanently disabled
for all work due to his bilateral knee conditions. On May 25, 2006 Dr. Tozzi advised that
appellant was totally disabled due to end-stage disease of both knees with severe limitations of
range of motion, difficulties with ambulation and severe pain that affected his activities of daily
living.
The Board finds that, while these reports lack detailed medical rationale sufficient to
discharge appellant’s burden of proof to establish by the weight of reliable, substantial and
probative evidence that he was totally disabled for any period on or after February 23, 2003 due
to his accepted bilateral lower extremity conditions, this does not mean that they may be
completely disregarded by the Office. It merely means that their probative value is diminished.10
The Board also notes that the record provides scant information regarding the actual job
appellant was performing when he stopped work on July 15, 1999. While it appears that he was
working at a modified position, a complete description of his modified duties on that date is not
8

Shelly A. Paolinetti, 52 ECAB 391 (2001); Robert Kirby, 51 ECAB 474 (2000); Terry R. Hedman, 38 ECAB
222 (1986).
9

Supra note 2.

10

Shirley A. Temple, 48 ECAB 404 (1997).

5

found in the record. Furthermore, Drs. Gordon, Ong and Tozzi recommended bilateral total knee
replacement surgery.11
It is well established that proceedings under the Federal Employees’ Compensation Act12
are not adversarial in nature and, while the claimant has the burden to establish entitlement to
compensation, the Office shares responsibility in the development of the evidence.13 The case
shall therefore be remanded to the Office. On remand, the Office shall refer appellant, an
updated statement of accepted facts that includes a description of all accepted injuries, a
description of the modified duty appellant was performing on July 15, 1999 and the medical
evidence of record to an appropriate Board-certified specialist for an examination, diagnosis and
a rationalized opinion as to whether appellant had any disability for work on or after
February 23, 2003 causally related to his accepted bilateral lower extremity conditions and
whether the recommended total knee replacement surgery should be authorized. After this and
such further development deemed necessary, the Office shall issue an appropriate decision.
CONCLUSION
The Board finds this case is not in posture for decision regarding whether appellant
established that he was totally disabled beginning on February 23, 2003 due to his accepted
bilateral lower extremity conditions.

11

Drs. Kim, Gordon, Ong and Tozzi are Board-certified orthopedic surgeons.

12

5 U.S.C. §§ 8101-8193.

13

See Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41 ECAB 354 (1989).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 4, 2008 be set aside and the case remanded to the Office.
Issued: December 24, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS BENEFITS ADMINISTRATION,
Houston, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-633
Issued: October 7, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 5, 2009 appellant filed a timely appeal from an August 28, 2008 decision of
the Office of Workers’ Compensation Programs, which denied her request for further merit
review, and an August 11, 2008 schedule award decision. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the appeal.
ISSUES
The issues are: (1) whether appellant sustained any permanent impairment of either
upper extremity; and (2) whether the Office properly refused to reopen her case for further
review of the merits under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 6, 2006 appellant, then a 54-year-old loan specialist, slipped on a wet floor
and fell on her right knee at work. She stopped work on that date. The Office accepted
appellant’s claim for bilateral medial meniscus tear, bilateral knee contusion, bilateral knee/leg
sprain, lumbosacral sprain and cervical sprain. On October 17, 2006 appellant underwent
authorized surgery for right knee arthroscopy, bilateral meniscectomy, anterior cruciate ligament

(ACL) repair, and patellar and lateral tibial chondral arthroplasty. She returned to full-time
modified duty on October 29, 2007. The record reflects that appellant received schedule awards
for 20 percent impairment to the left leg and 10 percent impairment to the right leg on
June 27, 2007.
On January 9, 2008 appellant filed a claim for an additional schedule award. On
December 11, 2007 Dr. Carlton E. Smith, Board-certified in family medicine, reviewed
appellant’s history of injury and medical treatment. He diagnosed cervical and lumbar
sprain/strain. With reference to the American Medical Association, Guides to the Evaluation of
Permanent Impairment, (5th ed. 2001) (hereinafter A.M.A., Guides), Dr. Smith advised that
appellant had 10 percent whole person impairment based on the diagnosis-based criteria at pages
384 and 392 pertaining to the lumbar and cervical spines. He noted that she had received a prior
rating for her knees, which he did not include.1 Dr. Smith rated impairment as five percent for
the cervical spine and five percent for the lumbar spine. Appellant reached maximum medical
improvement as of December 11, 2007.
In a January 25, 2008 report, an Office medical adviser reviewed Dr. Smith’s report and
noted that impairment ratings were of the spine or whole person for which schedule awards were
precluded. He recommended further development of the medical evidence.
On February 18, 2008 Dr. Smith advised that he had further reviewed his records. He
rated appellant’s impairment as 12 percent of the whole person to the knees and 10 percent of the
whole person to the spine, or a combined impairment of 21 percent. In a March 26, 2008 report,
the Office medical adviser addressed the deficiencies in the rating by Dr. Smith and
recommended referral to another physician.
On May 1, 2008 the Office referred appellant, together with a statement of accepted facts,
a set of questions and the medical record, to Dr. Zvi Kalisky, a Board-certified physiatrist. In a
June 16, 2008 report, Dr. Kalisky advised that he examined appellant on June 9, 2008 and listed
his review of her medical treatment. He found no objective evidence of cervical radiculopathy;
no evidence of pain or paresthesias in a dermatomal distribution, no motor or sensory loss and no
muscle atrophy or loss of the deep tendon reflexes in either upper extremity. Dr. Kalisky stated
that appellant did not fit the diagnostic criteria of section 15.12, page 423, for nerve root and/or
spinal cord lesions. He concluded that appellant did not have any impairment of her arms due to
her accepted cervical condition. Dr. Kalisky also stated that there were no objective findings of
lumbar radiculopathy; no evidence of pain or paresthesias in the dermatomal distribution, no
motor or sensory loss, muscle atrophy or loss of the deep tendon reflexes in the lower
extremities.2

1

In a January 4, 2007 report, Dr. Smith evaluated permanent impairment attributable to appellant’s bilateral knee
conditions. On June 22, 2007 an Office medical adviser calculated appellant’s bilateral leg impairment based on
findings provided by Dr. Smith. Thereafter, the Office issued its June 27, 2007 schedule award decision.
2

Dr. Kalisky also had bilateral knee x-rays taken for him on June 11, 2008. While he offered findings relative to
appellant’s knees and legs, the matter presently before the Board pertains to whether appellant has work-related
impairment of the arms.

2

On July 24, 2008 the Office medical adviser reviewed the report of Dr. Kalisky and
agreed with his determination that the examination did not support impairment to either of the
upper extremities due to her accepted conditions.
By decision dated August 11, 2008, the Office denied appellant’s claim for a schedule
award. It found that the evidence did not establish any permanent impairment to her right or left
arms.
Appellant requested reconsideration on August 19, 2008. She contended that Dr. Kalisky
did not examine her neck or back but only her knees and had obtained an x-ray. Appellant
argues that Dr. Smith did not perform a full evaluation of her neck or back. She submitted the
June 11, 2008 x-rays of the right and left knees, taken for Dr. Kalisky, which noted mild to
moderate bi-compartment degenerative joint disease.
By decision dated August 28, 2008, the Office denied appellant’s request for
reconsideration without further review of the merits. It found that her request failed to raise
substantial legal questions or included new and relevant evidence.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act3 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.4 The Act, however, does not specify the manner by which the
percentage loss of a member, function, or organ shall be determined. To ensure consistent
results and equal justice for all claimants under the law, good administrative practice requires the
use of uniform standards applicable to all claimants.5 The A.M.A., Guides has been adopted by
the implementing regulations as the appropriate standard for evaluating schedule losses.6
Section 15.12 of the fifth edition of the A.M.A., Guides describes a method to be used for
rating impairment to the upper extremities due to sensory and motor loss from unilateral spinal
nerve root impairment.7 The affected nerves are first identified and then the maximum
percentages of impairment allowed for each nerve root is derived from Table 15-17. Thereafter,
Tables 15-15 and 15-16 are used to grade the extent of deficit based on sensory or motor loss.
The severity of the sensory or motor impairment is derived by multiplying the maximum
impairment value of the affected nerve by the grade classification of the sensory or motor loss.8
If there is both sensory and motor loss to a nerve root, the impairment percentages are then
combined.

3

5 U.S.C. §§ 8101-8193.

4

Id. at § 8107.

5

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

6

20 C.F.R. § 10.404.

7

Chapter 16 provides alternative tables for rating impairment to the upper extremities.

8

A.M.A., Guides 424; see also B.C., 58 ECAB ___ (Docket No. 06-925, issued October 13, 2006).

3

ANALYSIS -- ISSUE 1
The Board finds that appellant has not established that she sustained any impairment of
her left or right arms due to her accepted conditions.
On December 11, 2007 Dr. Smith, Board-certified in family medicine, reviewed
appellant’s medical records and provided an impairment rating. He found that appellant had 10
percent whole person impairment based on the DRE estimates for the lumbar and cervical spine.9
In a February 18, 2008 supplemental report, Dr. Smith found 21 percent impairment, based on 12
percent whole person attributable to the knees and 10 percent whole person attributable to her
spine. However, the Board notes that neither the Act nor its implementing regulations provide
for a schedule award for impairment to the back, spine or to the body as a whole.10 The back is
specifically excluded from the definition of organ under the Act.11 Therefore, Dr. Smith failed to
provide impairment ratings of those parts of the body listed under the schedule of section 8107
and the regulations. He did not explain how he made his rating without any description of
specific motor or sensory loss. Dr. Smith did not provide sufficient findings on examination of
the upper extremities.12 Thus, his estimates of impairment are of diminished probative value.
On June 16, 2008 Dr. Kalisky reported on his evaluation of appellant but advised that she
did not have any impairment to her upper extremities due to her accepted cervical condition. He
noted that, based on the lack of objective findings for sensory or motor loss, she did not fit into
any of the diagnostic criteria of section 15.12 on page 423 of the A.M.A., Guides for nerve root
impairment. The Office medical adviser reviewed the findings of Dr. Kalisky and concurred that
appellant had no ratable impairment of the upper extremities. There was no medical evidence
that supported impairment of either the left or right arms.
As noted, the Office evaluates schedule award claims pursuant to the standards set forth
in the A.M.A., Guides. Appellant has the burden to submit probative medical evidence
establishing that she sustained permanent impairment to a scheduled member of the body.13 The
evidence submitted in this case is not probative on the issue of her entitlement to a schedule
award for permanent impairment.
On appeal, appellant contends that she has a whole person impairment of five percent
under the cervical DRE category and five percent under the lumbar spine DRE category.
However, schedule awards are not payable for impairment to the back or spine, or to the body as
a whole. Any impairment contributed to by her back or spine must be described in terms of the
effect such condition has on her arms. When an attending physician fails to provide an estimate
9

A.M.A., Guides 384, 392.

10

See D.N., 59 ECAB ___ (Docket No. 07-1940, issued June 17, 2008); N.D., 59 ECAB ___ (Docket No.
07-1981, issued February 1, 2008).
11

See James E. Jenkins, 39 ECAB 860 (1988); 5 U.S.C. § 8101(19).

12

Before the A.M.A., Guides may be utilized, the record must contain medical evidence describing the claimant’s
alleged permanent impairment. The description of impairment must be in sufficient detail so that the claims
examiner and others reviewing the file will be able to clearly visualize the impairment with its restrictions and
limitations. See A.L., 60 ECAB ___ (Docket No. 08-1730, issued March 16, 2009).
13

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

4

of impairment conforming to the protocols of the A.M.A., Guides, his opinion is of diminished
probative value.14 The Office properly relied on the report of Dr. Kalisky as the weight of
medical opinion.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,15 the Office may reopen a case for review on the merits
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 if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that (i) shows that the Office erroneously applied or interpreted a specific
point of law; or (ii) advances a relevant legal argument not previously considered by the Office;
or (iii) constitutes relevant and pertinent new evidence not previously considered by the Office.16
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
the Office without review of the merits of the claim.17
ANALYSIS -- ISSUE 2
Appellant disagreed with the Office’s denial of schedule awards for impairment to her
arms. The underlying issue on reconsideration is whether she submitted medical evidence to
establish that she sustained any impairment to either upper extremity. Appellant failed to
provide any relevant or pertinent new evidence to this issue.
On reconsideration, appellant asserted that Dr. Kalisky’s evaluation was flawed and that
Dr. Smith provided proper impairment ratings after examination and with reference to the
A.M.A., Guides. However, her argument is not relevant to the issue on which her claim was
denied. The question of whether she has any permanent impairment of her arms is medical in
nature. The Office had previously reviewed the medical evidence from Dr. Smith and addressed
the deficiencies in his impairment ratings. Appellant’s argument does not constitute a basis for
reopening her claim for further merit review.18 Her general allegations regarding the
examination by Dr. Kalisky do not have a reasonable color of validity or support by any
evidence of bias on his part.19 The June 11, 2008 x-ray reports were also previously of record.
The submission of evidence which repeats or duplicates evidence already in the case record does

14

See John L. McClenic, 48 ECAB 552 (1997); see also Paul R. Evans, 44 ECAB 646, 651 (1993).

15

5 U.S.C. § 8128(a).

16

20 C.F.R. § 10.606(b).

17

Id. at § 10.608(b).

18

Robert P. Mitchell, 52 ECAB 116 (2000); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. NixonSteward, 52 ECAB 140 (2000).
19

See E.M., 60 ECAB ___ (Docket No. 09-39, issued March 3, 2009) (while the reopening of a case may be
predicated solely on a legal premise not previously considered, such reopening is not required where the legal
contention does not have a reasonable color of validity).

5

not constitute a basis for reopening a case.20 Appellant failed to meet any of the regulatory
criteria for reopening her claim for further merit review. Therefore, the Office properly denied
her request for reconsideration.21
CONCLUSION
The Board finds that appellant failed to establish that she has any impairment to her arms
warranting a schedule award. The Board also finds that the Office properly refused to reopen her
claim for further review of the merits.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 28 and 11, 2008 are affirmed.
Issued: October 7, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

20

D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007).

21

The Board notes that subsequent to the Office’s August 28, 2008 decision, appellant submitted additional
evidence. The Board has no jurisdiction to review this evidence for the first time on appeal. 20 C.F.R. § 501.2(c);
James C. Campbell, 5 ECAB 35 (1952).

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, LOS ANGELES REGIONAL
)
OFFICE, Los Angeles, CA, Employer
)
___________________________________________ )
C.O., Appellant

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

Docket No. 07-1793
Issued: January 22, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On June 25, 2007 appellant filed a timely appeal of a May 22, 2007 decision of the Office
of Workers’ Compensation Programs which denied her claim for a recurrence. 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 on appeal is whether appellant met her burden of proof to establish a recurrence
of disability causally related to her February 21, 2001 employment injury.
FACTUAL HISTORY
This case has previously been on appeal before the Board.1 In a December 16, 2003
decision, the Board found that appellant had met her burden of proof to establish that she
sustained an injury in the performance of duty on February 21, 2001. The Board reversed the
1

Docket No. 03-2064 (issued December 16, 2003).

Office’s April 30, 2003 decision denying appellant’s claim and remanded the claim to the Office
for further development as to the extent of the injuries sustained in her fall and for any additional
period or periods of disability causally related to the injury. The Board found that, after this and
other such development, the Office should issue an appropriate decision. The facts and the
history contained in the prior appeal are incorporated by reference.
On February 19, 2004 the Office accepted appellant’s claim for a lumbar strain and left
knee strain, which had resolved.2 The Office also informed appellant that to accept her claim for
left knee osteoarthritis and sciatica as work related, appellant would need to submit a narrative
report from her attending physician, with objective findings, to support her diagnosis.
Furthermore, the Office noted that appellant’s physician had cleared her to return to work with
no limitations or restrictions on October 28, 2002. Appellant was allotted 30 days to submit the
requested information.
The Office subsequently received several reports dating from March 2004 to May 2005
from appellant’s treating physician, Dr. Rama E. Chandran, a Board-certified orthopedic
surgeon. In Dr. Chandran’s April 26, 2004 report, he noted that appellant was seen for an
orthopedic evaluation as she had complaints of constant, moderate pain in the lower back with
pain radiating to the lower extremities. He conducted an examination and determined that
appellant had tenderness in the lumbosacral spine from L3 to S1 and paraspinal region.
Dr. Chandran noted that there was no paraspinal muscle spasm, straight leg raising was 90
degrees on both sides and reflexes were equal and normal, with no sensory deficit. He
recommended physical therapy three times a week for four weeks and recommended returning to
regular duties. Dr. Chandran continued to submit reports, in which she diagnosed lumbar spine
strain.
On March 13, 2007 appellant filed a claim for a recurrence of disability causally related
to the February 21, 2001 employment injury. Regarding the date of the recurrence, she alleged
that it “never stop” and that she hurt all of the time. Appellant also indicated that she was not
working. In a separate statement dated March 15, 2007, she alleged that she was injured on
February 13, 1996 and that she had pain every day since the injury. Appellant also alleged that
she was not working.
By letter dated March 28, 2007, the Office informed appellant that it had received her
notice of recurrence; however, it was unclear whether she was alleging total disability due to her
injury. The Office noted that appellant had returned to limited-duty work after her injury and she
was returned to work without restrictions on January 2, 2002. The Office informed appellant
that the evidence was insufficient to establish that her recurrence was related to her work injury
and requested additional factual and medical evidence.
In an April 7, 2007 statement, appellant alleged that “[t]his is not a recurrence.” She
alleged that the pain had never gone away since 1996 and would be with her all her life.
Appellant also alleged that she had not been working since May 3, 2007.

2

The Office also advised appellant that she would receive compensation for time lost from work for the period
March 21 to April 1, 2001.

2

The Office subsequently received a copy of a March 14, 2001 report from Dr. ChunChieh Chiu, a physician, who noted that, on February 21, 2001, appellant alleged that she went
to sit down, the chair moved, fell down and injured her left knee, left thigh and low back.
Dr. Chiu diagnosed back and left knee strain and noted that appellant was totally disabled on
February 21, 2001.
The Office subsequently received information from appellant advising that she was
retiring on May 3, 2007.
By decision dated May 22, 2007, the Office denied appellant’s claim for a recurrence of
disability beginning February 21, 2001.
LEGAL PRECEDENT
Section 10.5(x) of the Office’s regulations provide that a recurrence of disability means
an inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness.3
Section 10.5(y) of the Office’s regulations provide that a recurrence of a medical
condition means a documented need for further medical treatment after release from treatment
for the accepted condition or injury when there is no accompanying work stoppage. Continuous
treatment for the original condition or injury is not considered a “need for further medical
treatment after release from treatment,” nor is an examination without treatment.4
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and who supports that conclusion with sound medical
reasoning.5
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.6

3

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

4

20 C.F.R. § 10.5(y).

5

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956); 20 C.F.R. § 10.104.

6

Walter D. Morehead, 31 ECAB 188 (1986).

3

ANALYSIS
The Office accepted appellant’s claim for a lumbar strain and left knee strain in the
performance of duty on February 21, 2001, and both had resolved over time. Appellant’s
physician cleared her to return to work with no limitations or restrictions on October 28, 2002.
On March 13, 2007 appellant filed a claim for a recurrence of total disability causally
related to her February 21, 2001 employment injury. She did not specify a specific recurrence
date, but rather, she alleged that her injury “never stop” and that she hurt all of the time. In a
separate statement dated March 15, 2007, appellant alleged that she was injured on February 13,
1996, that she was not working and had pain every day since the injury. However, the Board
notes that the present claim was accepted for an injury in the performance of duty on
February 21, 2001.7
The Board also notes that appellant did not submit sufficient reasoned medical evidence
to establish that her present condition was causally related to her accepted injury. For example,
she did not submit a medical report in which her treating physician explained why her current
disability would be related to the accepted injury. This is particularly important, as appellant’s
treating physician cleared her to return to work with no limitations or restrictions on
October 28, 2002.
Appellant submitted a copy of a March 14, 2001 report from Dr. Chiu. The Board notes
that this report was previously received, and served as a basis for acceptance of appellant’s injury
on February 21, 2001. However, it is not relevant to support a recurrence of disability after her
treating physician cleared her to return to work with no limitations or restrictions on October 28,
2002, as he did not examine appellant or provide an opinion as to her condition after that time.
Appellant also submitted several reports dating from March 2004 to May 2005 from
Dr. Chandran, who diagnosed a lumbar spine strain. The submitted material included an
April 26, 2004 report, in which Dr. Chandran noted that appellant had complaints of pain in the
lower back and lower extremities, and recommended a course of physical therapy. However, she
did not provide any opinion that appellant’s lumbar spine sprain was due to the accepted
condition, which as noted above, had resolved in 2002. To establish causal relationship between
the claimed disability and the employment injury, appellant must submit rationalized medical
opinion evidence based on a complete factual and medical background supporting such a causal
relationship.8
Appellant did not submit any other evidence to support a recurrence of disability with
objective findings to support that her recurrence was causally related to the work injury of
February 21, 2001. Consequently, she has not met her burden of proof in establishing her claim
for a recurrence of disability.
7

The record reflects that appellant also has a February 13, 1996 injury in File No. 131102403. If appellant
wishes to file a recurrence related to her 1996 employment injury, she should file it with the Office under that claim
as that claim is not presently before the Board.
8

Robert A. Boyle, 54 ECAB 381 (2003).

4

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a recurrence
of disability causally related to her February 21, 2001 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 22, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 22, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees” Compensation Appeals Board
__________________________________________
N.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, East Boston, MA,
Employer
__________________________________________

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

Docket No. 07-382
Issued: April 19, 2007

Case Submitted on the Record

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

JURISDICTION
On November 27, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated February 23 and June 29, 2006 which denied her
claim for a traumatic injury. She also timely appealed the Office’s November 13, 2006 nonmerit
decision denying her request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of appellant’s claim.
ISSUES
The issues are: (1) whether appellant established that she sustained a traumatic injury in
the performance of a duty; and (2) whether the Office properly denied her request for
reconsideration.

FACTUAL HISTORY
On June 23, 2005 appellant, then a 58-year-old screening manager, filed a traumatic
injury claim alleging that on June 20, 2005 she sustained an injury to her right foot when a
camera tripod fell on it. Medical documents were received in the form of emergency department
records, radiology report and discharge report. The emergency department record dated June 20,
2005, contained a diagnosis of pain in right toes with status post trauma and was signed by
Maureen Walden, a nurse practitioner. In the radiology report, dated June 20, 2005, Dr. James
Lawrason, Board-certified in diagnostic radiology, stated that there was no evidence of acute
fracture or dislocation. In the June 20, 2005 discharge report, Ms. Walden diagnosed pain in the
right toes with status post trauma.
In a December 13, 2005 letter, the Office requested additional information from appellant
specifically a physician’s opinion containing an explanation as to how the work incident caused
the claimed injury.
In a December 19, 2005 letter, appellant provided additional factual information about
the work incident.
By February 23, 2006 decision, the Office denied appellant’s claim on the grounds that
there was no medical evidence as none of the reports were signed by a physician.
In a March 2, 2006 letter, appellant requested reconsideration. Accompanying the
request were copies of the radiology report and discharge report. Also submitted was a work
note signed by Ms. Walden and a CA-20 form dated March 29, 2006 signed by Dr. John
Nagurney, Board-certified in internal medicine, who diagnosed pain in right toes, status post
trauma.
By decision dated June 29, 2006, after the Office denied modification of the prior
decision on the grounds that the medical notes submitted did not provide a diagnosis.
By appeal request form dated July 13, 2006, appellant requested reconsideration of her
case. Subsequent to the request the Office received a letter dated September 28, 2006 from
Geoff Allard, insurance recovery analyst from claim assistant. Also submitted was an
October 11, 2006 CA-20 form signed by Dr. Nagurney who diagnosed “injury, other, knee, leg,
ankle [and] foot.”
By November 13, 2006 nonmerit decision, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was insufficient to warrant merit
review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim by the weight of the reliable,
probative and substantial evidence, including the fact that the individual is an “employee of the
United States” within the meaning of the Act and that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
2

duty as alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.1
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident that is alleged to have occurred.2 The second
component is whether the employment incident caused a personal injury.3 Causal relationship is
a medical question that can generally be resolved only by rationalized medical opinion
evidence.4
ANALYSIS -- ISSUE 1
Appellant alleged that she sustained a foot injury on June 20, 2005 in the performance of
her duties when a camera tripod fell on her right foot. The Office accepted that the employment
incident occurred as alleged. The case depends on whether the employment incident caused a
personal injury, specifically whether appellant sustained an injury. The Board holds that the
medical evidence does not establish that appellant had a diagnosed condition.
The medical reports submitted failed to provide a diagnosis. The June 20, 2005
emergency report diagnosed “pain in right toes with status post trauma” and was signed by
Ms. Walden, a nurse practitioner. A nurse is not a physician under the Act,5 therefore, the report
is of no probative value in regards to the diagnosis. Ms. Walden’s factual observations can be
considered part of the factual history. However, her observations do not support the finding of
an injury as she noted there was “no rash, no lesions of significance” and “no edema [swelling].”
In the March 29, 2006 CA-20, Dr. Nagurney diagnosed “pain in right toes, status post trauma.”
A physician’s mere diagnosis of pain does not constitute a basis for payment of compensation.6

1

Anthony P. Silva, 55 ECAB 179 (2003).

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

See Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of causal relationship must be
based on a complete factual and medical background of the claimant. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale, explaining the nature of the
relationship between the diagnosed condition and claimant’s specific employment factors. Id.
5

Under 5 U.S.C. § 8101(2), physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors and osteopathic practitioners within the scope of their practice as defined by State law.
6

Robert Broome, 55 ECAB 0493 (2004).

3

LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,
the Office’s regulation provides that the application for reconsideration, including all supporting
documents, must set forth arguments and contain evidence that either: (1) shows that the Office
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by the Office; or (3) constitutes relevant and pertinent new evidence
not previously considered by the Office.7
ANALYSIS -- ISSUE 2
Appellant did not make any argument that the Office erroneously applied or interpreted a
specific point of law or advance a legal argument not previously considered by the Office. The
two documents submitted on reconsideration were the September 28, 2006 letter from Mr. Allard
and the October 11, 2006 CA-20 form from Dr. Nagurney. Mr. Allard is not a physician under
the Act,8 therefore, his opinion has no probative value and does not constitute relevant new
evidence. The October 11, 2006 CA-20 form from Dr. Nagurney diagnosed “injury, other, knee,
ankle and foot.” This is not a diagnosis as it merely states that there was an injury. The CA-20
form is repetitive as the rest of the information contained in the form is a restatement of
previously considered evidence and even states “see medical record sent previously.” The Board
has held that the submission of evidence which repeats or duplicates evidence already in the case
record does not constitute a basis for reopening a case.9
CONCLUSION
The Board finds that appellant failed to establish that she sustained a traumatic injury in
the performance of duty.
Additionally, the Office properly denied her request for
reconsideration.

7

20 C.F.R. § 10.606(b)(2)(iii) (2004).

8

See supra note 5.

9

David J. McDonald, 50 ECAB 185,190 (1998); Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg,
32 ECAB 31, 33 (1980).

4

ORDER
IT IS HEREBY ORDERED THAT the November 13, June 29 and February 23, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 19, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
EDWARD HINES, JR. VA HOSPITAL,
Hines, IL, Employer
__________________________________________

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

Docket No. 20-1465
Issued: March 1, 2021

Case Submitted on the Record

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

JURISDICTION
On July 31, 2020 appellant filed a timely appeal from an April 13, 2020 merit decision and
a June 5, 2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award; and
(2) whether OWCP properly denied appellant’s request for an oral hearing as untimely filed
pursuant to 5 U.S.C. § 8124(b).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 23, 2019 appellant, then a 56-year-old program support assistant, filed a
traumatic injury claim (Form CA-1) alleging that on January 22, 2019 she injured her left kneecap
when she slipped and fell on ice on the pavement while walking to a vehicle at work. She stopped
work on January 23, 2019. On February 28, 2019 OWCP accepted appellant’s claim for sprain of
the medial collateral ligament of the left knee, initial encounter.
On February 7, 2020 appellant filed a claim for a schedule award (Form CA-7).
OWCP, in a development letter dated February 18, 2020, requested that appellant submit
a report from her attending physician, which addressed whether she had reached maximum
medical improvement (MMI) and, if so, to evaluate permanent impairment in accordance with the
standards of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).2 It afforded her 30 days to submit the requested
information. No additional evidence was received.
By decision dated April 13, 2020, OWCP denied appellant’s claim for a schedule award,
finding that she had not established permanent impairment of a scheduled member or function of
the body in accordance with the A.M.A., Guides. It noted that she had not responded to its
February 18, 2020 request for medical evidence, including an impairment evaluation. OWCP
concluded, therefore, that the requirements had not been met to establish entitlement to a schedule
award.
On an appeal request form dated and received by OWCP on May 22, 2020 appellant
requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review. She
submitted additional medical evidence along with her request.
By decision dated June 5, 2020, OWCP denied appellant’s hearing request. It found that
the request was untimely filed as it was received via the Employees’ Compensation Operations &
Management Portal on May 22, 2020, more than 30 days after its April 13, 2020 merit decision.
After exercising its discretion, OWCP further found that the issue in the case could equally well
be addressed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. For consistent
results and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A.,
2

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

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

2

Guides as the uniform standard applicable to all claimants and the Board has concurred in such
adoption.5 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used
to calculate schedule awards.6
It is the claimant’s burden of proof to establish permanent impairment of the scheduled
member or function of the body as a result of an employment injury.7 OWCP’s procedures provide
that, to support a schedule award, the file must contain competent medical evidence, which shows
that the impairment has reached a permanent and fixed state and indicates the date on which this
occurred (date of MMI), describes the impairment in sufficient detail so that it can be visualized
on review, and computes the percentage of impairment in accordance with the A.M.A., Guides.8
Its procedures further provide that, if a claimant has not submitted a permanent impairment
evaluation, it should request a detailed report that includes a discussion of how the impairment
rating was calculated.9 If the claimant does not provide an impairment evaluation and there is no
indication of permanent impairment in the medical evidence of file, the claims examiner may
proceed with a formal denial of the award.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
In a development letter dated February 18, 2020, OWCP informed appellant of the type of
evidence necessary to establish her schedule award claim and specifically requested that she
submit a report which included a permanent impairment evaluation from her attending physician
in accordance with the sixth edition of the A.M.A., Guides. It afforded her 30 days to submit an
impairment evaluation.
Appellant did not respond to the February 18, 2020 development letter prior to issuance of
OWCP’s April 13, 2020 decision. As previously noted, she has the burden of proof to establish
permanent impairment of a scheduled member or function of the body.11 The medical evidence
must include a description of any permanent impairment in sufficient detail that the claims
examiner and others reviewing the file will be able to clearly visualize the impairment with its
5

Id. at § 10.404(a); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
and Exhibit 1 (January 2010).
7

T.K., Docket No. 19-1222 (issued December 2, 2019); J.D., Docket No. 18-0034 (issued May 22, 2018); Edward
Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).
8

Supra note 6 at Chapter 2.808.5 (March 2017).

9

Id. at Chapter 2.808.6(a) (March 2017).

10

Id. at Chapter 2.808.6(c) (March 2017).

11

See supra note 7.

3

resulting restrictions and limitations.12 Appellant failed to provide such evidence and thus has not
met her burden of proof.13
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his [or her] claim before a representative of the Secretary.”14
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA provide
that a claimant shall be afforded a choice of an oral hearing or a review of the written record by a
representative of the Secretary.15 A claimant is entitled to a hearing or review of the written record
as a matter of right only if the request is filed within the requisite 30 days as determined by
postmark or other carrier’s date marking and before the claimant has requested reconsideration.16
Although there is no right to a review of the written record or an oral hearing, if not requested
within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion.
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for an oral hearing as
untimely filed pursuant to 5 U.S.C. § 8124(b).
OWCP’s regulations provide that the request for an oral hearing must be made within 30
days of the date of the decision for which a review is sought.17 On an appeal request form dated
May 22, 2020, appellant requested an oral hearing regarding OWCP’s April 13, 2020 denial
decision. As the request form was received by OWCP’s Branch of Hearings and Review more
than 30 days after the issuance of the April 13, 2020 decision, the Board finds that appellant’s
request for a hearing was not timely filed. Therefore, OWCP properly found in its June 5, 2020

12

See supra note 6; see also D.P., Docket No. 19-0964 (issued October 2, 2019); D.T., Docket No. 17-0102
(issued April 13, 2017).
13

See D.P., id.; J.D., supra note 7; P.L., Docket No. 13-1592 (issued January 7, 2014).

14

5 U.S.C. § 8124(b)(1).

15

20 C.F.R. §§ 10.616, 10.617.

16

Id. at § 10.616(a).

17

Id.

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decision that appellant was not entitled to an oral hearing as a matter of right because her request
was not made within 30 days of its April 13, 2020 decision.18
Although appellant’s May 22, 2020 request for a hearing was untimely, OWCP has the
discretionary authority to grant the request and it must exercise such discretion.19 The Board finds
that OWCP properly exercised its discretion in the June 5, 2020 decision by determining that the
issue in the case could be equally well addressed by a request for reconsideration before OWCP
along with the submission of new evidence relevant to the issue at hand.
The Board has held that the only limitation on OWCP’s authority is reasonableness. An
abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deductions
from established facts.20 The Board finds that OWCP did not abuse its discretion by denying
appellant’s request for an oral hearing and thus it properly denied his oral hearing request as
untimely filed pursuant to 5 U.S.C. § 8124(b).21
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award. The
Board further finds that OWCP properly denied appellant’s request for an oral hearing as untimely
filed pursuant to 5 U.S.C. § 8124(b).

18
B.H., Docket No. 20-0777 (issued October 21, 2020); R.W., Docket No. 13-0044 (issued February 22, 2013);
A.L., Docket No. 09-1851 (issued March 9, 2010); F.W., Docket No. 08-0722 (issued August 7, 2008).
19

R.H., Docket No. 19-1488 (issued February 20, 2020).

20

Id.

21

See J.O., Docket No. 17-0789 (issued May 15, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the June 5 and April 13, 2020 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: March 1, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6