United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Memphis, TN, Employer
__________________________________________

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

Docket No. 18-1580
Issued: January 23, 2020

Case Submitted on the Record

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

JURISDICTION
On August 13, 2018 appellant, through counsel, filed a timely appeal from a June 19, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a bilateral knee
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On January 22, 2016 appellant, then a 52-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that on or before November 25, 2014 she developed
chondromalacia and an effusion of the right knee, left meniscal tear, patellar tendinitis, and
osteoarthritis of both knees due to prolonged walking, standing, and climbing while casing and
delivering mail. She stopped work on or about August 8, 2014 and did not return.
In support of her claim, appellant provided a report dated February 4, 2015 from
Dr. Marilyn Watts, an attending retired Board-certified pediatrician, who opined that prolonged
standing, walking, and climbing at work had aggravated preexisting degenerative and
osteoarthritic changes of both knees.
By decision dated March 17, 2016, OWCP accepted that appellant performed prolonged
standing, walking, and climbing in the performance of duty as alleged, but denied the claim finding
that causal relationship had not been established.
On September 12 and October 14, 2016 appellant requested reconsideration. She
submitted reports from Dr. Watts dated from April 14 to June 14, 2016, which noted a history of
bilateral meniscal repairs on July 24, 2013 and increased bilateral knee symptoms with repetitive
work activities on August 7, 2014. Dr. Watts diagnosed knee strains and sprains, and a torn left
medial meniscus.
By decision dated November 17, 2016, OWCP denied modification of its March 17, 2016
decision finding that the additional medical evidence appellant had submitted did not differentiate
between work-related and preexisting conditions and, therefore, did not establish that her knee
conditions were causally related to the accepted federal employment factors. Appellant, through
counsel, appealed to the Board.
By decision and order issued July 7, 2017,4 the Board affirmed the November 17, 2016
OWCP decision, finding that Dr. Watts had not explained how and why the accepted employment
factors would cause the claimed bilateral knee conditions. Dr. Watts’ opinion was, therefore,
insufficient to meet appellant’s burden of proof to establish causal relationship.

3

Docket No. 17-0808 (issued July 7, 2017).

4

Id.

2

On May 18, 2018 appellant, through counsel, requested reconsideration. In support of her
request, appellant submitted a May 2, 2018 report from Dr. Neil Allen, a Board-certified internist
and neurologist, retained by counsel to provide an opinion on causal relationship following a
medical record review. Dr. Allen reviewed knee x-rays performed on July 23, 2012,
November 12, 2013, and July 8, 2014, which showed bilateral osteoarthritis and chondromalacia.
He opined that walking several miles per day, constant standing, climbing and descending several
thousand stairs and curbs, and lifting while in the performance of duty had aggravated primary
osteoarthritis of both knees as imaging studies demonstrated “repetitive wear” greater than
expected from aging. Dr. Allen noted that a medical reference book and a published study on knee
osteoarthritis supported this mechanism of causation. He concluded that appellant’s bilateral knee
condition was directly aggravated by the physical demands of her position as a letter carrier.
Dr. Allen noted that his medical opinion was supported by, but not based upon the medical
literature he cited in his report.
By decision dated June 19, 2018, OWCP reviewed the merits of appellant’s claim and
denied modification of the July 7, 2017 decision, finding that the medical evidence of record did
not establish that her diagnosed condition of bilateral osteoarthritis of the knees was causally
related to her accepted employment duties. It specifically found that the opinion of Dr. Allen was
insufficient to establish an acceleration of appellant’s underlying condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty, as alleged, and that any disability
or specific condition for which compensation is claimed is causally related to the employment
injury.6 These are the essential elements of every compensation claim regardless of whether the
claim is predicated on a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or existence
of the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally
related to the identified employment factors.8

5

Supra note 2.

6

M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn Haggerty, 45 ECAB 383, 388 (1994).

7

M.E., id.; K.B., Docket No. 17-1997 (issued July 27, 2018).

8

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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Causal relationship is a medical question, which requires rationalized medical opinion
evidence to resolve the issue.9 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background.10 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors.11
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish bilateral knee
conditions causally related to the accepted factors of her federal employment.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s November 17, 2016 decision because the
Board considered that evidence in its July 7, 2017 decision and found it insufficient for purposes
of establishing causal relationship. Findings made in prior Board decisions are res judicata absent
any further review by OWCP under section 8128 of FECA.13
The record contains a report dated May 2, 2018 from Dr. Allen attributing an aggravation
of appellant’s bilateral knee osteoarthritis to her employment duties. Dr. Allen opined that walking
several miles per day, constant standing, climbing and descending several thousand stairs and
curbs, and lifting while in the performance of duty had aggravated the arthritic changes in her
knees bilaterally. He noted that these physical demands of her position directly caused her
diagnosed conditions.
The Board finds that, while Dr. Allen provided an affirmative opinion on causal
relationship, his opinion is insufficiently rationalized. Dr. Allen failed to provide an explanation
pertaining to the mechanism of injury to establish that appellant’s bilateral knee osteoarthritis had
been aggravated or accelerated by the accepted work factors. Without explaining how
physiologically the movements involved in appellant’s employment duties caused or contributed
to the arthritic process, his opinion on causal relationship is equivocal in nature and of limited
9

See Robert G. Morris, 48 ECAB 238 (1996).

10

Supra note 8.

11

Id.

12

See P.J., Docket No. 18-1738 (issued May 17, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3e (January 2013).
13

See B.R., Docket No. 17-0294 (issued May 11, 2018).

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probative value.14 Although Dr. Allen opined that her preexisting bilateral knee osteoarthritis had
progressed beyond what might be expected from the natural progression of that condition, he did
not describe the pathophysiologic mechanism responsible for such acceleration.15 While he noted
the physical activities performed by appellant as a letter carrier, he did not explain why those
accepted factors of employment were sufficient to have caused her preexisting injury to have
progressed beyond what might be expected from the natural progression of that condition.16 A
well-rationalized opinion is particularly warranted when there is a history of preexisting condition,
as in this case.17 As such, Dr. Allen’s report lacks the specificity and detail needed to establish
that appellant’s bilateral knee conditions are a result of a work-related occupational exposure.18
The Board finds that the evidence of record lacks sufficient rationalized medical evidence
establishing a causal relationship between the accepted factors of appellant’s federal employment
and her diagnosed aggravation of bilateral knee osteoarthritis. Thus, appellant has not met her
burden of proof.
On appeal counsel contends that OWCP should have accepted the claim based on
Dr. Allen’s report. As noted above, Dr. Allen did not provide sufficient medical rationale to meet
appellant’s burden of proof.
Appellant may submit new evidence with a written request for reconsideration to OWCP
within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605
through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a bilateral knee
condition causally related to the accepted factors of her federal employment.

14

See J.B., Docket No. 17-1870 (issued April 11, 2018).

15

M.E., supra note 6.

16

R.E., Docket No. 14-0868 (issued September 24, 2014).

17

M.E., supra note 6; T.M., Docket No. 08-0975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

18

Id.

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ORDER
IT IS HEREBY ORDERED THAT the June 19, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 23, 2020
Washington, DC

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

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

Alec J. Koromilas, Alternate Judge, concurring:
I concur with the denial of the claim as appellant has failed to meet her burden of proof,
however, I disagree with giving any weight to Dr. Neil Allen, a Board-certified internist and
neurologist, as he did not conduct an in person physician examination.1

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

1

See S.M., Docket No. 18-1195 (issued January 6, 2020). (Alec J. Koromilas, dissenting).

6


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

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

Docket No. 12-593
Issued: August 13, 2012

Case Submitted on the Record

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

JURISDICTION
On January 24, 2012 appellant, through her attorney, timely appealed a November 2,
2011 merit decision of the Office of Workers’ Compensation Programs regarding her schedule
award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant sustained permanent impairment due to her August 31,
2005 employment injury.
FACTUAL HISTORY
This case was previously before the Board. By decision dated May 3, 2010, the Board
affirmed an April 17, 2009 OWCP decision terminating appellant’s compensation benefits.2 The
1

5 U.S.C. § 8101 et seq.

2

Docket No. 09-2029 (issued May 3, 2010).

Board found that OWCP met its burden of proof to terminate appellant’s medical and wage-loss
benefits effective April 13, 2008 on the grounds that the accepted left wrist condition of
tenosynovitis had resolved. Determinative weight was accorded to the opinion of the second
opinion specialist, Dr. Robert A. Smith, a Board-certified orthopedist. The Board further found
that the evidence did not establish that any other conditions, including a ligament tear, bilateral
median neuropathy, left radial neuropathy, left and vascular long thoracic neuritis and repetitive
strain injury of both upper extremities, were related to appellant’s federal employment. The facts
and history contained in the prior appeal are incorporated by reference.
In an August 13, 2010 report, Dr. Arthur F. Becan, an orthopedic surgeon, noted the
history of injury, presented examination findings and diagnosed cumulative and repetitive trauma
disorder, right carpal tunnel syndrome, left carpal tunnel syndrome, bilateral ulnar nerve
entrapment at elbows and right brachial plexus neuropathy. He opined that the August 31, 2005
work injury was the competent producing factor for appellant’s subjective and objective
findings.
Dr. Becan opined that maximum medical improvement was reached on
August 13, 2010. Under the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter A.M.A., Guides), Dr. Becan opined that
appellant had 16 percent impairment of the right upper extremity and five percent impairment of
the left upper extremity. Right arm impairment was comprised of 13 percent impairment of the
right brachial plexus and five percent impairment of the right ulnar nerve at elbow. Left arm
impairment was comprised of five percent impairment of ulnar nerve entrapment neuropathy at
the elbow.
On March 7, 2011 appellant claimed schedule award compensation.
In an April 3, 2011 report, an OWCP medical adviser noted the history of injury and his
review of the medical records. He noted deficiencies in Dr. Becan’s findings compared to other
examinations of record and concluded that there did not appear to be a clinical basis for ulnar
nerve entrapment in either arm as neither Dr. Becan’s examination nor Dr. Smith’s examination
indicated decreased sensation over the ulnar nerve distribution. The medical adviser also found
no evidence clinically or from the electromyogram (EMG) that there was brachial plexus
involvement. He stated that there was no basis to conclude this brachial plexus involvement was
based on mechanism of injury since repetitive activity would not be expected to result in brachial
plexus injury. The medical adviser noted that, while repetitive activity could result in ulnar or
median nerve compression, there was no evidence for those conditions based on the evaluation.
He opined that maximum medical improvement was reached on August 18, 2010 and that, based
on his evaluation, appellant had no impairment of the left arm based on the accepted condition of
left tenosynovitis of the wrist. The medical adviser noted that Dr. Becan did not recommend any
impairment for tenosynovitis of the wrist impairment in his August 13, 2010 evaluation. He
further noted that, as Dr. Becan’s evaluation took place four and a half years after Dr. Smith’s
examination, he would recommend appellant undergo another second opinion examination and
additional EMG/nerve conduction studies be obtained.
By decision dated April 8, 2011, OWCP denied appellant’s schedule award claim.
In an April 14, 2011 letter, appellant’s attorney requested an oral hearing, which was held
by video on August 17, 2011. Following the hearing, appellant submitted an August 26, 2011

2

report from Dr. Becan which amended his August 13, 2010 report to include one percent rating
for the accepted left wrist condition in addition to the five percent left ulnar rating, for a total left
upper extremity impairment rating of six percent. In a September 25, 2011 statement, appellant
indicated that prior to her work injury she had the same pain in both hands as she did on the date
of injury.
By decision November 2, 2011, an OWCP hearing representative affirmed the denial of
appellant’s schedule award claim.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations3 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 shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.4 For
consistent results and to ensure equal justice under the law to all claimants, good administrative
practice necessitates the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
The claimant has the burden of proving that the condition for which a schedule award is
sought is causally related to his or her employment.7 The Board notes that, before applying the
A.M.A., Guides, OWCP must determine whether the claimed impairment of a scheduled
member is causally related to the accepted work injury.8
ANALYSIS
OWCP accepted that appellant sustained left wrist tenosynovitis. The Board previously
affirmed OWCP’s termination of appellant’s compensation benefits effective April 13, 2008 on
the grounds that the weight of the medical evidence, as represented by the second opinion
examiner, Dr. Smith, reflected that the accepted left wrist tenosynvovitis condition had resolved.
The Board further found that appellant’s other nonaccepted upper extremity conditions were not
causally related to her federal employment.
3

20 C.F.R. § 10.404; 5 U.S.C. § 8017.

4

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

5

Ronald R. Kraynak, 53 ECAB 130 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

7

Veronica Williams, 56 ECAB 367, 370 (2005).

8

Michael S. Mina, 57 ECAB 379, 385 (2006).

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Appellant requested schedule award compensation. She has the burden of proof to
establish that the condition for which a schedule award is being sought is causally related to her
employment.9
The Board finds that the medical evidence is not sufficient to establish permanent
impairment to appellant’s upper extremities due to her accepted left wrist tenosynvovitis
condition. Dr. Becan examined appellant on August 13, 2010. He noted that appellant’s current
conditions of cumulative and repetitive trauma disorder, right carpal tunnel syndrome, left carpal
tunnel syndrome, bilateral ulnar nerve entrapment at elbows, and right brachial plexus
neuropathy were due to the August 31, 2005 work injury. Dr. Becan provided insufficient
explanation or medical rationale as to how any of these conditions were causally related to the
employment injury.10 His subsequent report of August 26, 2011 failed to offer any additional
rationale or explanation as to why the accepted left wrist tenosynovitis persisted and caused
permanent impairment or how any of the other diagnosed conditions, which were not accepted,
were employment related. Dr. Becan’s subsequent report was based on his August 13, 2010
examination findings. His reports are insufficient to establish that the accepted left wrist
tenosynovitis, which was found to have resolved on April 13, 2008, caused any permanent
impairment. It is not established that the rated impairment is causally related to an accepted
work injury.
An OWCP medical adviser reviewed the medical evidence of record and found there was
no basis on which to issue a schedule award as the accepted conditions had resolved. He did not
find that there was any schedule impairment causally related to appellant’s accepted conditions.
Appellant did not submit any other medical evidence sufficient to establish a work-related
condition that caused physical impairment to a scheduled body member. She indicated in her
September 25, 2011 statement that she had similar pain in both upper extremities prior to
August 31, 2005. Counsel asserted that this should be considered to be a preexisting condition.
However, the Board has held that, where the claimant has not shown any permanent impairment
caused by the accepted occupational exposure, the claim is not ripe for consideration of any
preexisting impairment.11
On appeal, appellant’s attorney argues that Dr. Becan’s reports are sufficient to create a
conflict in medical evidence with the medical adviser. As discussed, Dr. Becan’s impairment
evaluations are of diminished probative value as he failed to provide a fully-rationalized medical
opinion explaining the issue of causal relationship of the diagnosed conditions to the August 31,
2005 employment injury. The injury was accepted for left wrist tenosynovitis that was found to
have resolved. Dr. Becan did not sufficiently explain how the claimed impairment arose from
the accepted work injury and his opinion is not sufficient to create a conflict in medical evidence
with the medical adviser. The need for detailed medical rationale is particularly important in a
9

Veronica Williams, supra note 7.

10

Where a claimant claims that a condition not accepted or approved by OWCP was due to an employment
injury, the claimant bears the burden of proof to establish that the condition is causally related to the employment
injury through the submission of rationalized medical evidence.
T.M., Docket No. 08-975 (issued
February 6, 2009).
11

Thomas P. Lavin, 57 ECAB 353 (2006).

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situation such as this where OWCP found, and the Board previously affirmed, that all residuals
of the accepted conditions had ceased.
The medical evidence does not establish that appellant has permanent impairment to a
scheduled member of the body causally related to her accepted injury. Consequently appellant
has not established entitlement to a schedule award.
Appellant may request a schedule award or an increased schedule award based on
evidence of a new exposure or medical evidence showing a progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established entitlement to a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated November 2, 2011 is affirmed.
Issued: August 13, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, 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
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birmingham, AL, Employer
__________________________________________

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

Docket No. 13-1884
Issued: January 10, 2014

Case Submitted on the Record

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

JURISDICTION
On August 13, 2013 appellant filed a timely appeal from a July 19, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his occupational disease
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established a right foot condition in the performance of
duty.
On appeal, appellant contends that OWCP did not properly develop the medical evidence
and that a second opinion physician did not perform a thorough examination. He asserts that he
meant to file a claim for back and leg injuries, not a claim for hammertoe deformities.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 30, 2010 appellant, then a 59-year-old supervisor, filed a traumatic injury
claim for a sharp pain in his right foot which he attributed to walking at work. In a November 8,
2010 report, Dr. Maurice Wainwright, an attending podiatrist, noted a history of hammertoes
since 2002, with surgery for hammertoe corrections and surgical amputation of the second toe of
the right foot. He noted that “walking aggravates pain.” In a December 13, 2010 report,
Dr. Wainwright noted that a December 1, 2010 nerve conduction velocity (NCV) study showed
mild-to-moderate sensorimotor polyneuropathy of both lower extremities. He diagnosed
hammertoes, foot pain, neuropathy and status postsurgical amputation of the right second toe at
the interphalangeal joint. OWCP developed this as claim number xxxxxx474.
OWCP initially denied the claim by decision dated December 30, 2010.2 Following
additional development, it issued a July 25, 2011 decision remanding the case to obtain a second
opinion. OWCP also found that the claim was properly one for an occupational disease and not a
traumatic injury.3
On remand of the case, OWCP obtained a second opinion from Dr. H. Leslie Fowler, a
Board-certified orthopedic surgeon. In an August 23, 2011 report, Dr. Fowler reviewed the
medical record and a statement of accepted facts. He performed a detailed orthopedic
examination of the lower extremities, noting hammertoe deformities in both feet, partial surgical
amputation of the second right toe and bilateral foot pain. Dr. Fowler diagnosed hammertoe
deformity of the right foot and status postsurgical amputation of the second toe of the right foot.
He opined that the hammertoe deformity was caused by a preexisting muscle/tendon imbalance
and not caused or aggravated by walking or standing at work.
In an October 6, 2011 report, Dr. Wainwright opined that appellant’s hammertoes could
have been caused by a muscle/tendon imbalance or by trauma. He characterized appellant’s
bilateral foot neuropathy as a gradual onset condition that became fully symptomatic by
November 3, 2010. Dr. Wainwright acknowledged that he could not “say for certain if the
excessive walking and standing contributed to the actual neuropathy” but it did cause pain and
discomfort.
By decision dated November 1, 2011, OWCP denied appellant’s traumatic claim finding
that causal relationship was not established. Dr. Fowler’s opinion constituted the weight of the
medical evidence. It found that Dr. Wainwright did not adequately explain how walking or
standing at work caused the claimed hammertoe deformities.
In a November 21, 2011 letter, appellant requested a hearing held on March 14, 2012. At
the hearing, he asserted that walking at work accelerated the development of his hammertoe
condition.

2

Appellant retired from the employing establishment effective December 31, 2010.

3

On March 28, 2011 appellant filed an occupational disease claim (Form CA-2) for a right foot condition, noting
that he mistakenly filed a traumatic injury claim in October 2010.

2

On December 9, 2011 appellant filed an occupational disease claim for a right foot
condition which he attributed to prolonged walking at work while delivering mail from 2000 to
2007, then standing at work when he was promoted to supervisor. OWCP assigned the claim
File No. xxxxxx537. Appellant submitted an October 2, 2002 report from Dr. Wainwright
diagnosing hammertoes in both feet. He also submitted July 29, 2005 and November 23, 2007
notes of surgical arthroplasties of the joints in the right second, third, fourth and fifth toes.
Appellant contracted postoperative osteomyelitis of the second toe, necessitating amputation at
the interphalangeal joint.
In a December 22, 2011 letter, OWCP advised appellant of the evidence needed to
establish his claim. It requested a report from his attending physician explaining how and why
walking and standing at work would cause the claimed hammertoe deformities.
By decision dated January 31, 2012, under File No. xxxxxx537, OWCP denied
appellant’s claim. It found that the medical evidence was insufficient to establish causal
relationship.
Appellant requested a hearing, held on May 15, 2013. He submitted April 4 and 10, 2012
letters asserting that Dr. Wainwright’s reports were sufficient to establish causal relationship.
Appellant also provided an October 13, 2005 report from Dr. Howard Masuoka, an attending
Board-certified gastroenterologist, who attributed appellant’s hammertoe deformities to
degenerative joint disease in both feet with possible soft tissue injuries. A May 16, 2011 report
from Dr. Wainwright opined that, because walking and standing at work caused pain, they also
contributed to the development of hammertoes. In a December 16, 2011 report, Dr. Wainwright
stated that appellant’s hammertoes could be caused by a muscle imbalance possibly due to
lumbar radiculopathy as observed on a January 5, 2011 magnetic resonance imaging (MRI)
scan.4
By decision dated June 26, 2012, under File No. xxxxxx474, an OWCP hearing
representative affirmed the November 1, 2011 decision. She found that the evidence submitted
did not provide sufficient medical rationale to establish that walking or standing at work caused
or aggravated a foot condition.
In an August 25, 2012 letter, appellant requested
5
reconsideration.
By decision dated and finalized August 1, 2012, under File No. xxxxxx537, an OWCP
hearing representative affirmed the January 31, 2012 decision on the grounds that the evidence
was insufficient to establish causal relationship. In an August 30, 2012 letter,6 appellant
requested reconsideration. By decision dated November 5, 2012, OWCP denied modification on
4

A January 5, 2011 lumbar MRI scan showed mild to moderate multilevel degenerative disc disease.

5

Appellant submitted an August 15, 2012 letter from Dr. David J. Aarons, an attending internist, relating
appellant’s complaints of bilateral foot pain, and sensorimotor polyneuropathy in both feet demonstrated by a
December 6, 2010 electromyogram (EMG). Dr. Aarons did not address the claimed causal relationship to work
factors.
6

On its face, the letter was dated May 30, 2012. However, the letter contains several specific references to
OWCP’s August 1, 2012 decision and was received by OWCP on September 5, 2012.

3

the grounds that the medical evidence under File Nos. xxxxxx537 and xxxxxx474 did not
establish that work factors caused or aggravated the claimed hammertoe deformities.
Appellant appealed to the Board. In an April 12, 2013 order remanding case, the Board
set aside the August 1 and November 5, 2012 decisions. The case was returned for doubling of
the two right foot claims.7 OWCP doubled File No. xxxxxx537 with File No. xxxxxx474.8
Appellant submitted a January 22, 2010 report from Dr. Wainwright stating that he advised
appellant to “refrain from those activities that aggravate his foot deformities and cause pain”
such as walking, standing and carrying more than 25 pounds.
By decision dated July 19, 2013, OWCP denied modification on the grounds that the
medical evidence did not establish causal relationship. It found that none of the medical reports
submitted under either claim contained sufficient rationale explaining how or why walking and
standing at work caused or contributed to the claimed hammertoe condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.9 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.10
An occupational disease is defined as a condition produced by the work environment
over a period longer than a single workday or shift.11 To establish that an injury was sustained in
the performance of duty in an occupational disease claim, a claimant must submit the following:
(1) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; (2) factual statement identifying employment factors alleged to have
caused or contributed to the presence or occurrence of the disease or condition; and (3) medical
evidence establishing that the employment factors identified by the claimant were the proximate
cause of the condition for which compensation is claimed or, stated differently, medical evidence
establishing that the diagnosed condition is causally related to the employment factors identified
by the claimant. The medical evidence required to establish causal relationship is generally
rationalized medical opinion evidence. Rationalized medical opinion evidence is medical
evidence which includes a physician’s rationalized opinion on the issue of whether there is a
7

Docket No. 13-314 (issued April 12, 2013).

8

On April 30, 2013 appellant filed a duplicate claim for occupational disease, assigned File No. xxxxxx407.
OWCP deleted the claim on June 27, 2013 as a duplicate of File No. xxxxxx537.
9

Joe D. Cameron, 41 ECAB 153 (1989).

10

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

11

20 C.F.R. § 10.5(q).

4

causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medial certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the claimant.12
An award of compensation may not be based on appellant’s belief of causal
relationship.13 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish a causal relationship.14 Simple
exposure to a workplace hazard does not constitute a work-related injury entitling an employee
to medical treatment under the FECA.15
ANALYSIS
It is not disputed that appellant’s job entails walking and standing. He was diagnosed
with several right foot conditions. The Board finds that appellant has not established that
walking and standing at work caused or contributed to his hammertoe condition or need for
surgery.
Appellant claimed that he sustained hammertoe deformities of the right foot due to
prolonged walking and standing at work. He submitted reports dated October 2, 2002 to
December 16, 2011 from Dr. Wainwright, an attending podiatrist, who performed hammertoe
corrections in 2005 and 2007, resulting in the partial amputation of the right second toe. In
January 22, 2010 and November 8, 2010 reports, Dr. Wainwright stated generally that walking
and standing at work caused bilateral foot pain. He opined on May 16, 2012 that because
walking and standing caused foot pain, the activities contributed to the development of
hammertoes. The Board finds that Dr. Wainwright’s opinion is of limited probative value as he
did not sufficiently explain how walking and standing at work caused or aggravated the
diagnosed hammertoe condition. Dr. Wainwright advised on October 6, 2011 that he could not
“say for certain if the excessive walking and standing contributed to the actual neuropathy” but
did cause pain and discomfort. In a December 16, 2011 report, he added that hammertoes could
possibly be caused by a muscle imbalance possibly related to lumbar radiculopathy. The
speculative nature of Dr. Wainwright’s opinion on causal relationship diminishes its probative
value.16
Appellant also provided the October 13, 2005 opinion of Dr. Masuoka, an attending
Board-certified gastroenterologist, who opined that appellant’s hammertoe deformities were due
12

Solomon Polen, 51 ECAB 341 (2000).

13

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

14

Id.

15

20 C.F.R. § 10.303(a).

16

Frank Luis Rembisz, 52 ECAB 147 (2000).

5

to degenerative joint disease in both feet. However, he did not provide adequate medical
rationale explaining how or why walking and standing at work caused or aggravated the claimed
condition. Dr. Masuoka’s report is insufficiently rationalized to meet appellant’s burden of proof
in establishing causal relationship.17
Furthermore, on August 23, 2011 Dr. Fowler, an OWCP referral physician, reviewed the
record for claim number xxxxxx474. He found no basis on which to attribute appellant’s
hammertoe deformities to walking or standing at work.
On appeal, appellant contends that OWCP did not properly develop the medical evidence
and that Dr. Fowler did not perform a thorough examination. The Board notes, however, that
OWCP considered both medical records. There is no evidence that Dr. Fowler’s examination
was deficient in any way. Appellant also asserted that he meant to file a claim for back and leg
injuries, not a claim for hammertoe deformities. The evidence of record, however, clearly
reflects his claim of right foot conditions.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he sustained a right foot condition
in the performance of duty.

17

See Frank D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 19, 2013 is affirmed.
Issued: January 10, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE NAVY, NAVAL
)
MEDICAL CENTER, Portsmouth, VA, Employer )
__________________________________________ )
A.S., Appellant

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

Docket No. 09-1004
Issued: November 3, 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 March 6, 2009 appellant filed a timely appeal from the October 24, 2008 merit
decision of the Office of Workers’ Compensation Programs, which denied her claim of an
emotional injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of the case. The Board also has jurisdiction to review the Office’s January 22,
2009 nonmerit decision denying reconsideration.
ISSUES
The issues are: (1) whether appellant sustained an emotional injury in the performance of
duty around August and September 2007; and (2) whether the Office properly denied appellant’s
December 4, 2008 request for reconsideration.
FACTUAL HISTORY
On December 22, 2007 appellant, then a 55-year-old bed management coordinator, filed
a claim for compensation alleging that she sustained an emotional injury in the performance of
duty during August and September 2007. She came to work on July 3, 2007 and found one of

her Snowbabies turned around so that its bare bottom faced her work space entrance. Appellant
faced it forward and thought nothing of it. But when it happened a third time, “I knew that
someone was trying to send me a message.” There was already an investigation underway into
the defacement of her computer screen,1 so she believed the “Snowbaby ordeal” was somebody
trying to send a message. Appellant did not mention the Snowbaby ordeal for months, until
someone came into her work space and grammatically corrected a note by adding the word “are.”
She awaited the results of the Navy investigation. She called the investigator, left messages and
e-mailed but could not get a response. On August 10, 2007 the investigator called appellant and
she related:
“[The investigator] nonchalantly said, they found nothing. I know my blood
pressure went sky high. Just by his nonchalant attitude. After discussing this
with him and he said the case was closed, I was extremely upset and left with a
headache (terrible). I could not get an appointment with [my psychiatrist] but I
called her and she called me later and got me to explain what happened and she
tried to calm me down. I really felt unprotected, afraid, more paranoid, confused,
hurt and betrayed that we had the best Navy investigative team in the world. This
was a Friday and I left work around midday….”
In September 2007 appellant e-mailed the investigator to come back to her office. She
showed him the grammatical correction on her desk, and she finally told him about the
Snowbabies incident. Appellant asked about the status: “He nonchalantly said again ‘oh we
didn’t find anything.’ I felt they only interviewed people to please me but I don’t feel they have
much documented. From then on I just have gotten worse healthwise and started having
headaches daily and stomach nervousness.”
In a decision dated October 24, 2008, the Office denied appellant’s claim for
compensation.
On December 4, 2008 appellant requested reconsideration. She clarified what had caused
her to become upset:
“It wasn’t the snow babies that upset me. … My upset after returning to work
weren’t the snowbabies. The doctor had asked how were things at work and I told
her weekly what was going on but that wasn’t what upset me and I have reiterated
to you all time after time and it seems that you all will not go to the source of the
matter and that is the INVESTIGATOR who never fed information back to my
supervisor, never did a proper investigation and the more I asked about the same
case I was working on xxxxxx954 which was still continuing to cause problems.
I kept getting nonchalant answers. He was the one upsetting me who was
working on my case that never seemed to have done a proper investigation as I
have previously have told you all and I don’t see anywhere whereas you all have
any other findings involving all of the questions I was asked again on this new
case all these questions about the investigation and the results. Well that is what
upset me relating case xxxxxx954 when I asked him about the case findings and
1

This was the subject of a prior claim under OWCP File No. xxxxxx954.

2

he said it was closed and I went off, felt sick and felt my [blood] pressure was sky
rocketing and went home.”
Appellant submitted two medical reports related to her prior claim from May 2007.
In a decision dated January 22, 2009, the Office denied appellant’s request for
reconsideration. It found that the request presented no new relevant and pertinent evidence to
warrant further review of her case on the merits.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.2 A
claimant seeking compensation under the Act has the burden of establishing the essential elements
of her claim by the weight of the reliable, probative and substantial evidence.3
Workers’ compensation does not cover each and every illness that is somehow related to
the employment. When an employee experiences emotional stress in carrying out her
employment duties or has fear and anxiety regarding her ability to carry out her duties, and the
medical evidence establishes that the disability resulted from her emotional reaction to such
situation, the disability is generally regarded as due to an injury arising out of and in the course
of employment. By contrast, there are disabilities having some kind of causal connection with
the employment that are not covered under workers’ compensation because they are not found to
have arisen out of employment.4
Workers’ compensation does not cover an emotional reaction to an administrative or
personnel action unless the evidence shows error or abuse on the part of the employing
establishment.5 As an investigation is generally related to the performance of an administrative
function of the employer and not to the employee’s regular or specially assigned work duties, it
is not a compensable factor of employment, unless there is affirmative evidence that the
employer either erred or acted abusively in the administration of the matter.6
As a general rule, allegations alone by a claimant are insufficient to establish a factual
basis for an emotional condition claim.7 The claimant must substantiate such allegations with
2

5 U.S.C. § 8102(a).

3

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

4

Lillian Cutler, 28 ECAB 125 (1976).

5

Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566, 572-73 (1991).

6

Sandra F. Powell, 45 ECAB 877 (1994). See also Parley A. Clement, 48 ECAB 302 (1997) (investigations are
administrative matters, and absent sufficient showing of error or abuse, do not constitute compensable employment
factors).
7

See Arthur F. Hougens, 42 ECAB 455 (1991); Ruthie M. Evans, 41 ECAB 416 (1990) (in each case the Board
looked beyond the claimant’s allegations of unfair treatment to determine if the evidence corroborated such
allegations).

3

probative and reliable evidence.8 The primary reason for requiring factual evidence from the
claimant in support of her allegations of stress in the workplace is to establish a basis in fact for
the contentions made, as opposed to mere perceptions of the claimant, which in turn may be fully
examined and evaluated by the Office and the Board.9
ANALYSIS -- ISSUE 1
On appeal, appellant contends that she became upset because the Navy Investigative
Service did not properly perform an investigation. “The snow babies didn’t set me off. … It was
the investigator who did not do his job.” Appellant explained that she felt this all stemmed from
her original injury in May 2007, which is under a different OWCP claim number.
Although appellant contends that the investigator did not do his job properly, any
emotional reaction she had arising from his investigation is not compensable under the Act. The
Act does not cover everything that happens at work. The Board has held that it does not cover an
emotional reaction to an investigation, which is by its nature an administrative function unrelated
to appellant’s duties as a bad management coordinator.
The Board has recognized an exception where the evidence proves error or abuse in the
administrative matter, but appellant has submitted no such proof. Appellant’s perception that the
investigator did not adequately do his job is not sufficient to establish error in the investigation of
her complaints. There is no independent or reliable evidence to support that the investigator
committed any administrative error. Even accepting appellant’s description of his demeanor as
nonchalance, this does not support a finding of abuse.
Because appellant attributes her emotional reaction around August and September 2007
to a matter that is not compensable under the Act, the Board finds that she has not met her
burden of proof to establish that she sustained an injury in the performance of her duties. The
Board will therefore affirm the Office’s October 24, 2008 decision denying her claim for
workers’ compensation benefits.
The reason the Office assigned a different OWCP claim number to appellant’s
December 22, 2007 claim for compensation was that she was alleging an emotional reaction to a
new incident or exposure at work. Appellant was not alleging some spontaneous worsening of
her May 2007 emotional condition without intervention from any other factors. She was alleging
that she became upset as a result of her interaction (or lack thereof) with the investigator around
August and September 2007. That would be considered a new injury directly attributable not to
what happened in May 2007, but to what happened later that summer. A new injury, and thus a
new OWCP claim number.

8

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990); Pamela R. Rice, 38
ECAB 838 (1987).
9

Paul Trotman-Hall, 45 ECAB 229 (1993) (concurring opinion of Michael E. Groom, Alternate Member).

4

LEGAL PRECEDENT -- ISSUE 2
The Office may review an award for or against payment of compensation at any time on
its own motion or upon application.10 The employee shall exercise this right through a request to
the district Office.11
An employee (or representative) seeking reconsideration should send the request for
reconsideration to the address as instructed by the Office in the final decision. The request for
reconsideration, including all supporting documents, must be in writing and 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.12
A request for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.13 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the request for reconsideration without reopening the case for a review on the merits.14
ANALYSIS -- ISSUE 2
Appellant filed her December 4, 2008 request for reconsideration within one year of the
Office’s October 24, 2008 merit decision denying her claim for compensation. The request is
therefore timely. The question for determination is whether the request met any of the standards
for obtaining a merit review of her case.
Appellant’s December 4, 2008 request for reconsideration did not show that the Office
erroneously applied or interpreted any specific point of law. She did not advance a relevant legal
argument not previously considered by the Office, nor provide relevant and pertinent new
evidence not previously considered by the Office. Appellant discussed her prior claim from
May 2007 and again explained what it was that upset her later that summer. The medical
evidence she submitted did not prove that the investigator’s conduct constituted administrative
error or abuse. It did not address her emotional reaction to the investigator around August and
September 2007. Because appellant’s request did not meet one of the standards for obtaining a
merit review of her case, the Board will affirm the Office’s January 22, 2009 decision to deny
that request.
10

5 U.S.C. § 8128(a).

11

20 C.F.R. § 10.605.

12

Id. at § 10.606.

13

Id. at § 10.607(a).

14

Id. at § 10.608.

5

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional injury in the performance of duty around August and September 2007.
The Board also finds that the Office properly denied appellant’s December 4, 2008 request for
reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the January 22, 2009 and October 24, 2008
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 3, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Merrillville, IN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0987
Issued: September 8, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 8, 2016 appellant filed a timely appeal from a February 24, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than three percent permanent impairment of the
right lower extremity, for which he received a schedule award.
FACTUAL HISTORY
On July 10, 2015 appellant, then a 59-year-old custodian, filed a traumatic injury claim
(Form CA-1) alleging that on January 20, 2015 he sustained low back strain and a herniated disc

1

5 U.S.C. § 8101 et seq.

in the performance of duty. OWCP accepted the claim for right sciatica and a right herniated
lumbar disc at L4-5.2 Appellant worked in a limited-duty capacity beginning June 15, 2015.
A March 26, 2015 magnetic resonance imaging (MRI) scan study revealed a right
paracentral L4-5 disc herniation “with encroachment on the right L4 nerve root in the lateral
recess and neural foramen.”
In a progress report dated September 23, 2015, Dr. Dwight Tyndall, a Board-certified
orthopedic surgeon, diagnosed a herniated disc on the right at L4-5. On examination he found a
“slightly positive straight leg raise on the right.” Dr. Tyndall indicated that appellant had
continued symptoms of his disc herniation and discharged him to return as needed. He opined
that he had reached maximum medical improvement.
On October 8, 2015 appellant filed a claim for a schedule award (Form CA-7). In an
October 15, 2015 response, OWCP requested that he submit an impairment evaluation from his
attending physician in accordance with the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).
Appellant advised OWCP on October 26, 2015 that his physician did not provide
workers’ compensation evaluations.
On November 17, 2015 OWCP referred him to
Dr. Allan M. Brecher, a Board-certified orthopedic surgeon, for a second opinion examination to
determine the extent of any employment-related permanent impairment.
Dr. Brecher evaluated appellant on December 9, 2015. He reviewed the history of injury
and medical reports of record.
Dr. Brecher noted that appellant had undergone an
electromyogram (EMG) on October 30, 2015, but that the report was not in the record. On
examination, he found full strength of the lower extremities with symmetrical reflexes, no pain
on straight leg raise, and “some decreased sensibility in the medial arch of his foot and to his
heel….” Dr. Brecher determined that appellant had a right herniated disc at L4-5 “pushing on
the nerve with symptoms consistent with L4 radiculopathy with decreased sensibility.”
Referencing The Guides Newsletter (July/August 2009), he identified the diagnosis as a class 1
moderate sensory deficit at L4, which yielded a default impairment of three percent. Dr. Brecher
found no adjustment for physical examination findings and noted that he did not use clinical
studies as he did not have the EMG results. He applied a grade modifier of one for functional
history, which did not alter the default value. Dr. Brecher concluded that appellant had three
percent permanent impairment of the right lower extremity. He further indicated that appellant
had reached maximum medical improvement in September 2015 as found by Dr. Tyndall.
On February 1, 2016 an OWCP medical adviser reviewed the evidence and concurred
with Dr. Brecher’s finding of three percent right lower extremity impairment. He determined
that appellant had a class 1 sensory impairment due to radiculopathy at L4, which under
Proposed Table 2 of The Guides Newsletter yielded a default value of three percent. The
medical adviser applied no modifier for physical examination and a grade modifier of one for
functional history and clinical studies, noting that the MRI scan study found mild pathology. He
2

By decision dated August 28, 2015, OWCP denied appellant’s claim for continuation of pay from January 21 to
March 6, 2015 as he did not report his injury on an approved form within 30 days.

2

utilized the net adjustment formula and found no change from the default impairment. The
medical adviser opined that appellant reached maximum medical improvement on September 23,
2015, the date that Dr. Tyndall released him from care.
By decision dated February 24, 2016, OWCP granted appellant a schedule award for
three percent permanent impairment of the right lower extremity. The period of the award ran
for 8.64 weeks from September 23, 2015, the date of maximum medical improvement, to
November 22, 2015.
On appeal appellant argues that Dr. Brecher evaluated his whole body instead of his back,
leg, and foot. He contends that he reached maximum medical improvement earlier than found by
Dr. Tyndall. Appellant notes that he has significant pain.
LEGAL PRECEDENT
The schedule award provision of FECA,3 and its implementing federal regulations,4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
The sixth edition requires identifying the impairment Class of Diagnosis (CDX)
condition, which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE), and Clinical Studies (GMCS).7 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP’s procedures instruct the examiner to
apply The Guides Newsletter, Rating Spinal Nerve Impairment Using the Sixth Edition
(July/August 2009).8

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5 (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
7

A.M.A., Guides 494-531.

8

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, supra
note 6 at Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is included as Exhibit 4.

3

OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.9
ANALYSIS
OWCP accepted that appellant sustained a right herniated lumbar disc at L4-5 and right
sciatica due to a January 20, 2015 employment injury. On September 23, 2015 Dr. Tyndall
found that he had a mild positive straight leg raise on the right and diagnosed a right L4-5
herniated disc. He determined that appellant had obtained maximum medical improvement and
released him from treatment.
On October 8, 2015 appellant filed a claim for a schedule award (Form CA-7). He
advised OWCP that his attending physician did not perform impairment evaluations for workers’
compensation. OWCP, on November 17, 2015, referred appellant to Dr. Brecher for a second
opinion examination to determine the extent of any permanent impairment.
In a report dated December 9, 2015, Dr. Brecher diagnosed a herniated disc at L4-5
causing radiculopathy with loss of sensation. He found full lower extremity strength and normal
reflexes, no pain on straight leg raise, and a loss of sensation in the medial arch of the foot
extending to the heel. Dr. Brecher properly identified the diagnosis as a class 1 moderate
sensory deficit at L4, which he found yielded a default value of three percent under The Guides
Newsletter. He determined that appellant had no adjustment for physical examination and a
grade modifier of one for functional history, which did not alter the default value of three
percent. Dr. Brecher further found that a grade modifier for clinical studies was inapplicable
explaining that he did not have the EMG results. The Board finds that he properly calculated
three percent right lower extremity impairment.
An OWCP medical adviser reviewed Dr. Brecher’s report and concurred with his finding
of three percent right lower extremity impairment. He identified the diagnosis as a class 1
moderate sensory deficit due to radiculopathy at L4 which under Proposed Table 2 of The
Guides Newsletter yielded three percent default impairment value. The medical adviser applied
a grade modifier of one for functional history and clinical studies, noting that the MRI scan study
confirmed the diagnosis.10 Utilizing the net adjustment formula, the medical adviser found no
change from the default value of three percent.11 The Board finds no evidence demonstrating a
greater percentage of impairment using the A.M.A., Guides.
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013); see also L.R., Docket No. 14-0674 (issued August 13, 2014).
10

The A.M.A., Guides provides that clinical studies are not applicable if used to confirm the diagnostic severity.
See A.M.A., Guides 520-21 (if a particular criterion was used to determine impairment class, it may not be used
again to determine the grade); see also B.M., Docket No. 12-1665 (issued February 13, 2013). However, applying
the grade modifier of one for clinical studies does not affect the determination of the extent of permanent
impairment.
11

Utilizing the net adjustment formula discussed above, (GMFH-CDX) + (GMCS-CDX), or (1-1) + (1-1) = 0,
yielded a zero adjustment.

4

On appeal appellant contends that he reached maximum medical improvement earlier
than found by OWCP. Maximum medical improvement means that the physical condition of the
injured member of the body has stabilized and will not improve further.12 The period covered by
a schedule award generally commences on the date that the employee reaches maximum medical
improvement from the residuals of the employment injury.13 The Board has noted a reluctance
to find a date of maximum medical improvement which is retroactive to the date of the award as
that often results in the payment of less compensation.14 A retroactive date of maximum medical
improvement is not necessarily erroneous, however, if the medical evidence establishes that the
claimant did reach maximum medical improvement by such date.15 OWCP properly relied on
the opinion of Dr. Tyndall, Dr. Brecher, and OWCP’s medical adviser in finding that appellant
had reached maximum medical improvement on September 23, 2015.
Appellant also alleges that Dr. Brecher evaluated his whole body rather than his back,
leg, and foot. A schedule award is not payable under FECA for an injury to the back.16 A
schedule award is payable, however, for a permanent impairment of the extremities that is due to
a work-related back condition.17 For peripheral nerve impairments to the upper or lower
extremities resulting from spinal injuries, OWCP procedures indicate that the examiner should
apply The Guides Newsletter.18 Dr. Brecher properly applied The Guides Newsletter in
evaluating the extent of appellant’s right lower extremity impairment as a result of his accepted
work injury.
Appellant additionally relates that he experiences pain as a result of his injury. He has
the burden, however, to submit medical evidence showing that he has a greater permanent
impairment.19
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than three percent permanent impairment of
the right lower extremity for which he received a schedule award.
12

See C.W., Docket No. 13-1501 (issued November 15, 2013).

13

See D.H., Docket No. 14-0518 (issued August 4, 2014); Adela Hernandez-Piris, 35 ECAB 839 (1984).

14

See D.H., id.

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.7b (February 2013).
16

5 U.S.C. § 8101(19); Francesco C. Veneziani, 48 ECAB 572 (1997).

17

Denise D. Cason, 48 ECAB 530 (1997).

18

See supra note 8; see also M.C., Docket No. 15-1932 (issued March 7, 2016).

19

See M.H., Docket No. 13-0421 (issued April 17, 2013).

5

ORDER
IT IS HEREBY ORDERED THAT the February 24, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 8, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 13-236
Issued: April 11, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 15, 2012 appellant filed a timely appeal from a September 4, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation effective
September 4, 2012, based on her capacity to perform the duties of a receptionist.
FACTUAL HISTORY
On October 8, 2005 appellant, then a 49-year-old letter carrier, filed a traumatic injury
claim alleging that on October 8, 2005 she injured her waist and back when she was hit on the

1

5 U.S.C. § 8101 et seq.

right side by a gurney that was pushed by another employee. She stopped work.2 OWCP
accepted appellant’s claim for lumbar strain. Appellant returned to modified duty on
November 14, 2005. On September 2, 2009 she stopped work after the employing establishment
withdrew her modified position under the National Reassessment Process (NRP). Appellant
filed a recurrence claim due to the withdrawal of modified-duty work. OWCP accepted the
claim and paid compensation for temporary total disability. Appellant was placed on the
periodic rolls.
In an August 10, 2009 report, Dr. Arnold Bunyaviroch, Board-certified in occupational
medicine, noted that he last examined appellant in March 2009 for an October 8, 2005
employment injury. Examination of the lumbar spine revealed mild tenderness to palpation over
the L3-5 paraspinal levels. Manual muscle testing was 5/5 and sensation was normal to light
touch. Dr. Bunyaviroch diagnosed right lumbar back strain and herniation of intervertebral disc.
In a work status report, he noted that appellant could return to modified duty with restrictions
limited to occasional bending, limited twisting, no lifting over 15 pounds, no sitting for more
than 1 hour, no standing for more than 1 hour and no walking more than 30 to 45 minutes.
OWCP referred appellant for a second-opinion examination. In an October 14, 2009
report, Dr. Michael G. Klassen, a Board-certified orthopedic surgeon, reviewed appellant’s
history, including the statement of accepted facts and provided an accurate history of injury.
Upon examination of the lumbar spine, he observed normal gait and no tenderness to palpation.
Flexion and extension were also normal. Straight leg raise and Lasegue’s tests were negative.
Dr. Klassen diagnosed lumbago and cervicalgia. He opined that appellant’s condition was an
aggravation to her lumbar spine. Dr. Klassen explained that her neck and shoulder problems
were not at issue and her bilateral foot plantar fasciitis had resolved. He stated that the lumbar
aggravation was permanent and manageable with work restrictions. Dr. Klassen found that
appellant was able to work with restrictions of walking 30 to 45 minutes, standing for 1 hour at a
time, lifting less than 50 pounds, pushing and pulling less than 15 pounds, and occasional
bending and stooping.
In May 26 and October 15, 2010 reports, Dr. Bunyaviroch agreed with Dr. Klassen’s
findings except for appellant’s work restrictions. He limited appellant to occasional bending,
limited twisting, no lifting over 15 pounds, no sitting more than 1 hour at a time, no standing
more than 1 hour at a time and no walking more than 30 to 45 minutes at a time.
On July 13, 2010 OWCP referred appellant for vocational rehabilitation services, based
on Dr. Bunyaviroch’s reports.
In reports dated October 5, November 15 and December 23, 2010, a vocational
rehabilitation counselor discussed appellant’s education and work history and noted that she had
received a clerical certificate for completion of a Regional Occupational Program (ROP). The
rehabilitation counselor summarized efforts to find vocational training or suitable alternate
employment for appellant within her physical restrictions.

2

The record reveals that appellant has a previously accepted February 10, 1995 traumatic injury claim for plantar
fasciitis and evans calcaneal osteotomies (File No. xxxxxx760).

2

On December 21, 2010 the rehabilitation counselor recommended that OWCP approve
training for appellant at a ROP and an adult school studying computer training classes in order to
improve her computer application skills. She identified two positions for appellant listed in the
Department of Labor’s Dictionary of Occupational Titles (DOT) for receptionist, DOT
#237.367-038, or medical voucher clerk, DOT #214.482-018. The rehabilitation counselor
identified the occupation requirements for a receptionist and medical voucher clerk and provided
job descriptions. The positions were noted to be sedentary and found to be within appellant’s
restrictions, her vocational and work history, education, skills and training so as to reflect her
capacity to earn wages. The vocational counselor contacted the Bureau of Labor Statistics for
that region and determined that the jobs for receptionist and medical voucher clerk were being
performed in sufficient numbers so as to make them reasonably available to the claimant within
her commuting area and there was a positive labor market for the receptionist job. The weekly
wages were $440.00 for a receptionist and $400.00 for a medical voucher clerk. OWCP
approved a 12-week training program.
Appellant completed Medical Insurance Billing and Coding and Medical Assisting
coursework at a ROP and a computer application coursework at an adult school. On October 18,
2011 OWCP authorized 150 days of job placement assistance.
On March 8, 2012 appellant accepted a job offer as a receptionist at a local removal
service. She earned $10.00 an hour for a 40-hour workweek or $400.00 per week. Appellant’s
daily duties included answering telephones, scheduling appointments, responding to e-mails,
transferring calls, filing and confirming appointments.
On March 30, 2012 OWCP adjusted appellant’s disability compensation to reflect her
actual wages.
In a March 23, 2012 report, Dr. Bunyaviroch stated that on March 19, 2012 appellant
started a new job as a call service representative, which was essentially a desk or sedentary job.
He related that on March 21, 2012 she noticed tingling over the back of her left leg to her entire
left foot and tingling in the inside of the right leg to the foot. The tingling lasted approximately
four to five hours and that getting up and walking around did not make a difference. Appellant
stated that her work duties did not follow her work restrictions because she was sitting for more
than one hour at a time. Upon examination, Dr. Bunyaviroch observed mild and moderate
tenderness to palpation over the L4-5 level. Appellant had normal sensation to light touch except
over the bilateral lower legs. Straight leg raise testing was negative. Dr. Bunyaviroch diagnosed
right lumbar back strain and small right-sided disc herniation. He authorized appellant to return
to modified duty with restrictions of occasional bending, limited twisting, no lifting more than 15
pounds, no sitting more than 1 hour, no standing more than 1 hour and no walking more than 30
to 45 minutes.
On April 3, 2012 appellant resigned from her job as a receptionist because she felt she
was too disabled to work.
In an April 13, 2012 report, the rehabilitation counselor submitted updated job
descriptions and labor market surveys for the receptionist position. She noted that the position
was primarily sedentary. The rehabilitation counselor contacted the Bureau of Labor Statistics

3

for that region and found the position to be in sufficient numbers so as to make it reasonably
available to appellant within her commuting area. The weekly wages were $400.00 to $520.00.
On May 15, 2012 OWCP informed the rehabilitation counselor that the labor market
surveys were insufficient because she failed to document whether the positions required more
than 1 hour of sitting or standing and more than 45 minutes of walking.
In a May 17, 2012 report, the rehabilitation counselor conducted another labor market
survey for the receptionist and medical voucher positions and found that appellant was
vocationally qualified for such work. She reviewed Dr. Bunyaviroch’s medical restrictions and
noted that each contact, with a few exceptions, in the labor market survey indicated that they
were able to accommodate appellant’s restrictions of no sitting or standing for more than 1 hour
and no walking for more than 45 minutes at a time. The report related that 10 potential
employers were contacted. Of these 10, two did not respond to a request for clarification of the
physical requirements of the position. Of the remaining eight, seven responded that the
receptionist could sit or stand at will, or did not have to sit for more than an hour at a time, or
walk for more than 45 minutes at a time.
In a June 4, 2012 report, the rehabilitation counselor stated that both targeted positions
remained vocationally and medically appropriate because appellant was qualified to perform
both positions, and both positions were sedentary and within her work limitations. The salary
ranged from $10.00 to $15.00 an hour. Based on the labor market surveys, the rehabilitation
counselor reported that both targeted positions existed in sufficient numbers within the
reasonable commuting area.
OWCP referred appellant for a second-opinion examination. In a June 7, 2012 report,
Dr. Bruce R. Huffer, a Board-certified orthopedic surgeon, related appellant’s complaints of low
back pain and symptoms, intermittent neck and shoulder pain and a bilateral foot condition. He
reviewed appellant’s medical records, including the statement of accepted facts, and provided an
accurate history of appellant’s injury and vocational rehabilitation efforts. Upon examination,
Dr. Huffer observed full range of motion of appellant’s cervical spine without pain and full range
of motion to both shoulders without pain. He noted mild tenderness in the midline of the
cervical spine at the mid aspect down to the thoracolumbar junction, slight tenderness in the
bilateral paravertebral muscles and pain down the right side. Extension was normal. Straight leg
raise testing was negative. Dr. Huffer found that appellant continued to have residuals of her
back injury and noted that it was not likely that there would be any change in her back
symptoms. He opined that appellant was capable of returning to work as a receptionist or
medical voucher clerk as the positions were sedentary-type work that did not require any lifting.
Dr. Huffer stated that appellant should be allowed to periodically take breaks to get up and move
around if her job duties were 100 percent sitting. He limited appellant to sitting for 2 hours with
a 5-minute break, walking for 30 minutes with a 5-minute break, and standing for 1 hour with a
5-minute break, 4 hours a day.
By notice of proposed reduction dated July 3, 2012, OWCP advised appellant of its
proposal to reduce her wage-loss compensation as the factual and medical evidence established
that she was no longer totally disabled. Appellant had the capacity to earn wages as a
receptionist, DOT #237.367-038 at the rate of $400.00 per week, in accordance with the factors

4

outlined in 5 U.S.C. § 8115.3 It calculated that appellant’s compensation rate should be adjusted
to $2,048.00 each four weeks. The vocational rehabilitation counselor found that the receptionist
position to be suitable for appellant, given her work restrictions and was available in her
commuting area. OWCP allowed appellant 30 days in which to submit any contrary evidence.
In a July 26, 2012 statement, appellant requested that her compensation be reinstated.
She stated that her rehabilitation counselor informed her not to tell prospective employers about
her medical issues and explained that her removal services employer did not know of her
restrictions until after she started work. Although the rehabilitation counselor was willing to
accommodate her medical limitations, he was concerned about how his other employees might
react to her being given special treatment. The private employer also told appellant’s
rehabilitation counselor that her job entailed sitting all day because the telephones needed to be
manned constantly. Appellant stated that she had too much pain at the end of the day to continue
working at Junk King.
In a September 4, 2012 decision, OWCP reduced appellant’s compensation to reflect
wage-earning capacity as receptionist effective September 4, 2012.
LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of proving that the
disability has ceased or lessened in order to justify termination or modification of compensation
benefits.4 Its burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.5
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent wage-earning
capacity or if the employee has no actual earnings, her wage-earning capacity is determined with
due regards to the nature of the injury, her degree of physical impairment, her usual employment,
her age, her qualifications for other employment, the availability of suitable employment and
other factors and circumstances which may affect her wage-earning capacity in her disabled
condition.6
OWCP procedure instructs that, in cases where a claimant has undergone vocational
rehabilitation, the vocational rehabilitation counselor will submit a final report to the vocational
rehabilitation specialist summarizing why vocational rehabilitation was unsuccessful and listing
two or three jobs which are medically and vocationally suitable for the claimant. Where no
vocational rehabilitation services were provided, the vocational rehabilitation specialist will have
3

5 U.S.C. § 8115.

4

Bettye F. Wade, 37 ECAB 556 (1986); Ella M. Gardner, 36 ECAB 238 (1984).

5

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

6

5 U.S.C. § 8115(a); see Pope D. Cox, 39 ECAB 143 (1988).

5

provided this report. Included will be the corresponding job numbers from DOT (or OWCP
specified equivalent) and pay ranges in the relevant geographical area.7 Once this selection is
made, a determination of wage rate and availability in the open labor market should be made
through contact with the state employment service or other applicable service. Finally,
application of the principles set forth in the Shadrick8 decision will result in the percentage of the
employee’s loss of wage-earning capacity.
In determining an employee’s wage-earning capacity based on a position defined suitable
but not actually held, OWCP must consider the degree of physical impairment, including
impairments resulting from both injury-related and preexisting conditions, but not impairments
resulting from postinjury or subsequently acquired conditions. Any incapacity to perform the
duties of the selected position resulting from subsequently acquired conditions is immaterial to
the loss of wage-earning capacity that can be attributed to the accepted employment injury and
for which appellant may receive compensation.9 Additionally, the job selected for determining
wage-earning capacity must be a job reasonably available in the general labor market in the
commuting area in which the employee lives.10
ANALYSIS
The Board finds that OWCP properly reduced appellant’s disability compensation
benefits based upon the selected position of receptionist.
Dr. Bunyaviroch provided an accurate history of injury and conducted a thorough
examination. He authorized appellant to return to limited duty with restrictions of occasional
bending, limited twisting, no lifting over 15 pounds, no sitting or standing more than 1 hour and
no walking more than 30 to 45 minutes at a time. Based on Dr. Bunyaviroch’s finding that
appellant could work limited duty with restrictions, OWCP referred her for vocational
rehabilitation. The Board finds that OWCP properly relied upon the medical evidence in
referring her for vocational rehabilitation as she was no longer totally disabled due to residuals of
her employment injury. The rehabilitation counselor determined that appellant could perform
the duties of a receptionist.
The Board finds that the evidence establishes that the physical demands of the position of
receptionist were within appellant’s medical restrictions. In a March 23, 2012 report,
Dr. Bunyaviroch determined that appellant was restricted from sitting or standing more than 1
hour at a time or walking more than 45 minutes at a time. In a June 7, 2012 report, Dr. Huffer, a
second-opinion examiner, opined that appellant was capable of returning to work as a
receptionist or medical voucher clerk as long as she was allowed to periodically take breaks to
get up and move around if her job duties were 100 percent sitting. He limited appellant to sitting
7

Federal (FECA) Procedure manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8 (October 2009).
8

Albert C. Shadrick, 5 ECAB 376 (1953).

9

James Henderson, Jr., 51 ECAB 268 (2000).

10

Albert L. Poe, 37 ECAB 684 (1986); David Smith, 34 ECAB 409 (1982).

6

for 2 hours with a 5-minute break, walking for 30 minutes with a 5-minute break and standing
for 1 hour with a 5-minute break, 4 hours a day.
The Department of Labor’s Dictionary of Occupational Titles description of the duties of
the selected position of receptionist does not address whether the position required sitting more
than one or two hours. Pursuant to DOT, sedentary work involves sitting most of the time, but
may involve walking or standing for brief periods of time.
On April 23, 2012 OWCP informed the rehabilitation counselor that the labor market
surveys for the positions of receptionist and medical voucher clerk were insufficient because
they failed to demonstrate whether the job duties were within appellant’s restrictions of no sitting
or standing more than 1 hour and no walking more than 45 minutes. In a May 17, 2012 report,
the rehabilitation counselor stated that she had contacted 10 potential employers and that with
few exceptions, the employers who responded to the specific question related that they were able
to accommodate appellant’s restrictions of no sitting or standing for more than 1 hour and no
walking for more than 45 minutes at a time. In fact, seven out of the eight employers who
responded to questions regarding physical requirements of the position, related requirements of
sitting and standing which were within appellant’s restrictions.
The Board finds that OWCP considered the proper factors, such as vocational training
and availability of the receptionist position, to determine that the position represented appellant’s
wage-earning capacity. The record reflects that appellant had completed a Medical Insurance
Billing and Coding and Medical Assisting coursework at a ROP and a computer application
coursework at an adult school. Appellant has not alleged that she was vocationally unable to
perform the requirements of a receptionist. The rehabilitation counselor indicated that she
contacted the Bureau of Labor Statistics for that region and found the position to be in sufficient
numbers so as to make it reasonably available to appellant within her commuting area. Also,
OWCP followed the established procedures under the Shadrick decision in calculating
appellant’s employment-related loss of wage-earning capacity. Appellant does not contend that
OWCP erred in its mathematical calculations of her wage-earning capacity. The Board finds that
OWCP properly determined that appellant was medically and vocationally capable of working
eight hours a day as a receptionist.
CONCLUSION
The Board finds that OWCP met its burden of proof in reducing appellant’s
compensation.

7

ORDER
IT IS HEREBY ORDERED THAT the September 4, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 11, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

8