United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.R., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISIONS, Fort Dix, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1613
Issued: February 7, 2017

Case Submitted on the Record

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

JURISDICTION
On August 5, 2016 appellant, through counsel, filed a timely appeal from an April 29,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to a schedule award for an additional
impairment of the lower extremities.
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.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances from the
prior decision are incorporated herein by reference. The facts relevant to the instant appeal will
be set forth.
On April 1, 2005 appellant, then a 35-year-old legal instruments examiner, filed a
traumatic injury claim (Form CA-1) alleging that on March 2, 2005 she injured her knees when
she fell on ice. OWCP accepted the claim for bilateral post-traumatic chondromalacia of the
knees, lumbar sprain, thoracic sprain, and lumbar radiculopathy.
On October 1, 2006 appellant filed a claim for a schedule award (Form CA-7). She
submitted a June 20, 2006 report from Dr. David Weiss, an osteopath Board-certified in family
practice. Dr. Weiss determined that appellant had 16 percent right lower extremity impairment
and 3 percent left lower extremity impairment using the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). An OWCP
medical adviser reviewed the evidence on July 7, 2007 and opined that she had three percent
permanent impairment of each leg due to pain.
OWCP determined that a conflict in medical opinion arose between Dr. Weiss and
OWCP’s medical adviser. It referred appellant to Dr. Roy Friedenthal, a Board-certified
orthopedic surgeon, for an impartial medical examination. In a September 20, 2007 report,
Dr. Friedenthal found that she had a soft tissue injury on March 2, 2005 and that she had fully
recovered. He diagnosed chondromalacia patellae, degenerative disc disease, a minor knee
contusion, and possible early patellofemoral arthritis. Dr. Friedenthal opined that appellant’s
preexisting degenerative knee condition resulted in no permanent impairment.
An OWCP medical adviser reviewed Dr. Friedenthal’s report on November 26, 2007 and
concluded that appellant had three percent permanent impairment of each leg due to pain.
By decision dated January 25, 2008, OWCP granted appellant a schedule award for three
percent permanent impairment of each lower extremity. On January 31, 2008 appellant
requested an oral hearing. In a decision dated July 30, 2008, an OWCP hearing representative
affirmed the January 25, 2008 decision.
Appellant appealed to the Board. In a decision dated August 24, 2009, the Board set
aside the January 25 and July 30, 2008 decisions.4 The Board found that Dr. Friedenthal’s
opinion was not entitled to special weight as his findings were outside the statement of accepted
facts (SOAF). The Board noted that the physician determined that appellant did not experience
the accepted condition of chondromalacia. The Board further found that Dr. Friedenthal did not
properly evaluate the impairment due to chondromalacia by using x-rays to measure cartilage
interval. The Board remanded the case for OWCP to resolve the medical conflict by obtaining a

3

Docket No. 09-0227 (issued August 24, 2009).

4

Id.

2

medical report regarding the extent of any impairment of the legs in accordance with the A.M.A.,
Guides.
Counsel on December 3, 2009 advised that appellant had relocated from New Jersey to
Gaithersburg, Maryland.
OWCP referred appellant to Dr. William A. McNamara, a Board-certified orthopedic
surgeon, for a new impartial medical examination. Dr. McNamara provided reports dated
May 13, 2010 and July 25, 2012. Based on his opinion, by decision dated October 22, 2012,
OWCP found that appellant had no more impairment than the previously awarded three percent
permanent impairment of each lower extremity.
On October 31, 2012 appellant, through counsel, requested an oral hearing. Following a
preliminary review, on December 12, 2012 an OWCP hearing representative vacated the
October 22, 2012 decision.
He found that OWCP improperly referred appellant to
Dr. McNamara without first attempting to obtain clarification from Dr. Friedenthal. The hearing
representative advised that Dr. McNamara’s opinion should be excluded from the record.
OWCP referred appellant again to Dr. Friedenthal for a new impartial medical examination. It
asked that he determine the extent of any permanent impairment due to chondromalacia using
x-rays to determine cartilage interval.
Based on Dr. Friedenthal’s report, in a decision dated August 27, 2013, OWCP granted
appellant a schedule award for an additional three percent permanent impairment of each leg.
On September 10, 2013 appellant, through counsel, requested an oral hearing.
A hearing was held on January 16, 2014. In a March 20, 2014 decision, an OWCP
hearing representative vacated the August 27, 2013 decision. She found that OWCP failed to
advise Dr. Friedenthal that Dr. McNamara’s report was excluded from the record and thus should
not be considered. The hearing representative determined that OWCP should refer appellant to a
new impartial medical examiner with an appropriate memorandum explaining that the reports of
Dr. McNamara and Dr. Friedenthal were excluded from consideration.
In an April 10, 2015 memorandum to the file, OWCP noted that appellant had been seen
by many physicians from the Physician’s Directory System (PDS). It related, “A random search
of Healthgrades physicians within the claimant’s community and surrounding area revealed
orthopedic physician, Stanley Askin, MD. Dr. Askin is in our PDS, but his name did [not] come
up in the rotation.” Accompanying the memorandum is a screen shot from the website
Healthgrades about Dr. Askin. The record also contains a few illegible screen shots.
By letter dated April 10, 2015, OWCP referred appellant, who lives in Gaithersburg, MD,
to Dr. Askin, a Board-certified orthopedic surgeon located in Elkins Park, PA, for an impartial
medical examination.

3

Counsel, on May 5, 2015, requested that OWCP reschedule appellant’s appointment with
a physician closer to Gaithersburg, MD.5 He enclosed a map showing that Elkins Park, PA was
151.66 miles from her home and a 2-hour and 40-minute drive. The highlighted driving route
indicated that appellant would need to drive from her home in Gaithersburg, MD, a suburb of
Washington, DC, through Baltimore, MD, Wilmington, DE, and Philadelphia, PA, to reach
Elkins Park, PA.
On July 21, 2015 counsel requested verification that OWCP properly selected Dr. Askin
in accordance with its procedures.
In a report dated July 29, 2015, Dr. Askin found no laxity, effusion, synovitis, reduced
motion, or other objective findings on examination. He determined that appellant had no
impairment of either lower extremity under the sixth edition of the A.M.A., Guides.
An OWCP medical adviser reviewed Dr. Askin’s report on August 20, 2015 and
concurred with his findings.
By decision dated November 19, 2015, OWCP found that appellant was not entitled to a
schedule award for an additional impairment of either lower extremity as the evidence
established that she had no impairment as a result of her accepted employment injury. It
determined that Dr. Askin’s report represented the special weight of the medical evidence and
noted that the prior schedule award might represent an overpayment of compensation.
On November 25, 2015 counsel requested an oral hearing. At the hearing, held on
March 4, 2016, he maintained that Dr. Askin was not properly selected as the impartial medical
examiner. Counsel noted that the record contained illegible screen shots. He advised that
contrary to OWCP’s finding, appellant had not been seen by a significant number of physicians
in the PDS in her geographical location, and noted that he had seen similar OWCP memorandum
in other files. Counsel also asserted that Dr. Askin did not review the x-ray evidence in finding
that appellant had no impairment of the knees.
In a decision dated April 29, 2016, an OWCP hearing representative affirmed the
November 19, 2015 decision. He found that Dr. Askin’s report represented the special weight of
the medical evidence and established that appellant did not have an additional impairment of the
lower extremities. The hearing representative further determined that counsel had not
demonstrated error by OWCP in selecting Dr. Askin as the impartial medical examiner.
On appeal counsel argues that OWCP did not properly select appellant using either the
PDS or Medical Management Application (MMA) system. He notes that OWCP acknowledged
on April 10, 2015 that it did not utilize the PDS system in selecting Dr. Askin. Counsel
maintains that OWCP “essentially handpicked” the physician and that his selection did not
preserve either the fact or appearance of impartiality. He also argues that Dr. Askin failed to

5

On May 5, 2015 appellant asked that the examination be rescheduled as she was traveling for work during that
time. She also questioned why she was being referred to a physician so far from her home. On July 9, 2015 OWCP
rescheduled appellant’s appointment with Dr. Askin.

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measure joint space narrowing in finding that appellant had no impairment, discuss her
preexisting knee condition, or refer to specific tables of the A.M.A., Guides.
LEGAL PRECEDENT
The schedule award provision of FECA,6 and its implementing federal regulations,7 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.8 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.9
Section 8123(a) 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.10 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.11
Congress did not address the manner by which an impartial medical referee is to be
selected. Rather, this was left to the expertise of the Director in administering the compensation
program created under FECA.12 Under FECA the Director has exercised discretion to implement
practices pertaining to the selection of the impartial medical referee. Unlike second opinion
physicians, the selection of referee physicians is made from a strict rotational system.13 OWCP
will select a physician who is qualified in the appropriate medical specialty and who has no prior
connection with the case.14

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
10

5 U.S.C. § 8123(a).

11

20 C.F.R. § 10.321.

12

See J.S., Docket No. 12-1343 (issued April 22, 2013).

13

Supra note 9 at Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b) (July 2011).

14

Id. at Chapter 3.500.4(b)(1).

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In turn, the Director has delegated authority to each OWCP district for selection of the
referee physician by use of the MMA within iFECS.15 This application contains the names of
physicians who are Board-certified in over 30 medical specialties for use as referees within
appropriate geographical areas.16 The MMA in iFECS replaces the prior PDS method of
appointment.17 It provides for a rotation among physicians from the American Board of Medical
Specialties, including the medical boards of the American Medical Association, and those
physicians Board-certified with the American Osteopathic Association.18
Selection of the referee physician is made through use of the application by a medical
scheduler. The claims examiner may not dictate the physician to serve as the referee examiner.19
The medical scheduler inputs the claim number into the application, from which the claimant’s
home zip code is loaded.20 The scheduler chooses the type of examination to be performed
(second opinion or impartial referee) and the applicable medical specialty.21 The next physician
in the roster appears on the screen and remains until an appointment is scheduled or the
physician is bypassed. If the physician agrees to the appointment, the date and time are entered
into the application. Upon entry of the appointment information, the application prompts the
medical scheduler to prepare a Form ME023, appointment notification report for imaging into
the case file.22 Once an appointment with a medical referee is scheduled the claimant and any
authorized representative is to be notified.23
A physician selected by OWCP to serve as an impartial medical specialist should be one
wholly free to make a completely independent evaluation and judgment. The procedures
contemplate that the impartial medical specialists will be selected on a strict rotating basis in
order to negate any appearance that preferential treatment exists between OWCP and a particular

15

Id. at Chapter 3.500.4(b)(6).

16

Id. at Chapter 3.500.4(b)(6)(a).

17

Id. at Chapter 3.500.5 (May 2013).

18

Id. at Chapter 3.500.5(a).

19

Id. at Chapter 3.500.5(b).

20

Id. at Chapter 3.500.5(c).

21

Id. The roster of physicians is not made visible to the medical scheduler under the application. The medical
scheduler may update information pertaining to whether the selected physician can schedule an appointment in a
timely manner and, if not, will enter an appropriate bypass code. Id. at Chapter 3.500.5(e-f). Upon entry of a
bypass code, the MMA will present the next physician based on specialty and zip code.
22

Id. at Chapter 3.500.5(g). The ME023 serves as documentary evidence that the referee appointment was
scheduled through the MMA rotational system. Should an issue arise concerning the selection of the referee
specialist, a copy of the ME023 may be reproduced and copied for the case record.
23

Id. at Chapter 3.500.4(d). Notice should include: the existence of a conflict in the medical evidence under
section 8123; the name and address of the referee physician with date and time of appointment; a warning of
suspension of benefits under section 8123(d); and information on how to claim travel expenses.

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physician.24 OWCP has an obligation to verify that it selected an impartial medical specialist in
a fair and unbiased manner. It maintains records for this very purpose.25
OWCP procedures indicate that the MMA uses zip code clusters to select an appropriate
physician. It begins with the claimant’s home zip code cluster. OWCP procedures state:
“If every physician in the initial zip cluster must be bypassed, the [MMA] will
then select physicians outside of the zip cluster that are within a 50-mile range of
the claimant’s home zip code. Physicians are presented in the same order as the
initial zip cluster (first those who have never previous had an appointment
scheduled within the [MMA], and then those that have had a previous
appointment scheduled).
“If every physician in the 50-mile range outside of the zip cluster must be
bypassed, the [MMA] then extends to a 75-mile range, and continues to expand in
25-mile increments until the 200-mile range is reached.”26
ANALYSIS
On prior appeal, the Board set aside OWCP decisions granting appellant a schedule
award for three percent permanent impairment of each lower extremity. It found that the opinion
of Dr. Friedenthal, the impartial medical examiner, was outside the SOAF and thus not entitled
to the special weight of the evidence. Following further development, OWCP referred appellant,
who lives in Gaithersburg, MD, to Dr. Askin, a Board-certified orthopedic surgeon located in
Elkins Park, PA, for an impartial medical examination.
The Board finds that the case is not in posture for decision. The evidence does not
establish that OWCP properly selected Dr. Askin as impartial medical examiner.
OWCP procedures provide that a referee physician should be selected only through the
use of the MMA in the absence of exceptional circumstances. It states:
“[W]here exceptional circumstances exist (such as when an esoteric specialty is
required, or the [MMA] does not contain any physicians of the required specialty
within a 200-mile radius of the claimant’s home zip code), scheduling outside of
the [MMA] may be appropriate. If this occurs, the scheduler should consult an
appropriate directory of Board-certified medical specialists to obtain names of
suitable physicians for referral. Documentation outlining the rationale for this
decision must be placed in the case file, and the decision must be approved by a
[s]upervisory [c]laims [e]xaminer or higher level authority.”27
24

See Raymond J. Brown, 52 ECAB 192 (2001).

25

M.A., Docket No. 07-1344 (issued February 19, 2008).

26

Supra note 13 at Chapter 3.500.5(e)(2) (May 2013).

27

Id. at Chapter 3.500.5(b).

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In an April 10, 2015 memorandum, OWCP indicated that appellant had been evaluated
by numerous physicians in her geographical area. It advised that it had conducted a random
search online for physicians and located Dr. Askin. OWCP noted that Dr. Askin was in the PDS
but that his name did not “come up in the rotation.” It did not provide any rationale for its failure
to utilize the MMA in its selection process other than an unsupported statement indicating that
appellant had been seen by many physicians in her area. As noted, it is not appropriate for a
claims examiner to dictate the physician who serves as the impartial medical examiner.28 Only if
exceptional circumstances exist should OWCP schedule appellant without using the MMA.29
OWCP has not demonstrated exceptional circumstances existed such that it needed to look for a
physician outside the MMA. It provided screen shots showing a few physicians were bypassed
but these are not fully legible and thus insufficient to show that OWCP properly bypassed these
physicians.30
OWCP further did not explain why it referred appellant to a physician 150 miles from her
residence. The Board notes that its procedures provide that the scheduler should use the MMA
first within her zip code cluster, and then extend the search by increments up to a distance of 200
miles.31
The Board has placed great importance on the appearance as well as the fact of
impartiality, and only if the selection procedures which were designed to achieve this result are
scrupulously followed may the selected physician carry the special weight accorded to an
impartial specialist.32 OWCP did not follow its procedures in selecting Dr. Askin as the
impartial medical examiner and thus the record contains an unresolved conflict in medical
opinion regarding the extent of appellant’s lower extremity impairment.
On remand, OWCP should select another impartial medical examiner in accordance with
its procedures to determine whether appellant is entitled to an increased schedule award. After
such further development as deemed necessary, it should issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

28

Id.

29

See id.

30

See L.M., Docket No. 15-0543 (issued June 5, 2015).

31

See supra note 26.

32

See J.O., Docket No. 14-0039 (issued April 2, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the April 29, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: February 7, 2017
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.J., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Albuquerque, NM, Employer
__________________________________________

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

Docket No. 15-1000
Issued: September 21, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 30, 2015 appellant filed a timely appeal from a January 21, 2015 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 the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury on June 5, 2014 while in the performance of duty.
FACTUAL HISTORY
On December 8, 2014 appellant, then a 21-year-old forestry aide, filed a traumatic injury
claim (Form CA-1), alleging that on June 5, 2014, he slipped and sprained his right ankle while

1

5 U.S.C. § 8101 et seq.

hiking to participate in a fire training exercise. The record indicates that he stopped work on
June 5, 2014 and returned on June 9, 2014.
In support of his claim, appellant submitted two June 5, 2014 medical billing forms from
Kootenai Medical Center, indicating that he received emergency medical treatment on
June 5, 2014. Portions of one form are illegible.
In a December 16, 2014 letter, OWCP informed appellant that the medical evidence of
record was insufficient to support his claim. It requested additional evidence, including a
medical report containing a diagnosis and a physician’s opinion supported by a medical
explanation as to how the reported work incident caused his condition. OWCP also requested
the employing establishment to submit treatment notes if appellant was treated in the employing
establishment medical facility. No additional evidence was received.
In a January 21, 2015 decision, OWCP denied appellant’s claim finding that he did not
submit medical evidence establishing a medical diagnosis in connection with the work incident.
It noted that the only medical information received were medical billing forms.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,2 including that he is an “employee” within the meaning of FECA and that he filed his
claim within the applicable time limitation.3 The employee must also establish that he sustained
an injury in the performance of duty as alleged and that his disability for work, if any, was
causally related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.5
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is generally required to establish causal relationship. The opinion of the physician must
be based on a complete factual and medical background, must be one of reasonable medical

2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

3

R.C., 59 ECAB 427 (2008).

4

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

T.H., 59 ECAB 388 (2008).

2

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.6
ANALYSIS
The record supports that he slipped on June 5, 2014 while hiking to participate in a fire
training exercise. The Board finds, however, that appellant did not submit medical evidence to
establish that a diagnosed medical condition is causally related to this incident.
The only evidence received by OWCP was two medical billing forms indicating that
appellant underwent an emergency medical examination on June 5, 2014. Portions of one form
are illegible. A physician did not sign the forms and there is no physician’s report accompanying
these forms. On December 16, 2014 OWCP advised appellant of his responsibility to provide a
comprehensive medical report from a physician addressing how the employment incident caused
his condition. Appellant did not submit any medical evidence in response to OWCP’s request.
As noted, part of his burden of proof includes submitting rationalized medical opinion evidence.
As there is no rationalized medical report containing a history of injury, diagnosis of appellant’s
condition and rationale addressing how his claimed injury was caused by his employment, the
Board finds that he did not establish that he sustained a traumatic injury in the performance of
duty on June 5, 2014.
On appeal, appellant asserts that he submitted medical evidence from a physician which
showed that he was injured on the job. As explained, the evidence of record at the time of
OWCP’s January 21, 2015 decision does not contain any medical evidence from a physician
which addresses causal relationship.7
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty on June 5, 2014.

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

Appellant submitted additional medical evidence on appeal. The record indicates that OWCP also received
additional evidence subsequent to its January 21, 2014 decision. However, the Board cannot consider such evidence
for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

3

ORDER
IT IS HEREBY ORDERED THAT the January 21, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 21, 2015
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Port Arthur, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 18-1507
Issued: June 21, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On August 1, 2018 appellant filed a timely appeal from a May 14, 2018 decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed this appeal as No. 18-1507.1
On March 28, 2018 appellant, then a 34-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed plantar fasciitis due to factors of her federal
employment.
By decision dated May 14, 2018, OWCP reviewed the merits of appellant’s claim and
found that the evidence of record was insufficient to establish that the employment events occurred
as alleged as she had not provided a detailed statement describing the employment duties she
claimed had caused her diagnosed medical condition.

1
The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for the first time on appeal. Id.

The Board has duly considered the matter and notes that, in the case of William A. Couch,2
it held that, when adjudicating a claim, OWCP is obligated to consider all evidence properly
submitted by a claimant and received by it before the final decision is issued. On April 19, 2018
OWCP received a narrative statement from appellant detailing her employment duties. Appellant
also submitted a March 7, 2018 report from Dr. Frederick E. Quirante, a specialist in podiatry.
In its May 14, 2018 decision, OWCP did not note receipt of appellant’s narrative statement
detailing her employment duties which she alleged had caused her plantar fasciitis.
While OWCP is not required to list every piece of evidence submitted to the record, the
record is clear that appellant’s narrative statement received on April 19, 2018 was not reviewed
before the issuance of its May 14, 2018 decision. Whether OWCP receives relevant evidence on
the date of the decision or days before, such evidence must be considered.3 As the Board’s
decisions are final as to the subject matter appealed, it is crucial that all evidence relevant to the
subject matter of the claim properly submitted to OWCP be reviewed and addressed.4
Accordingly, the case is remanded for proper review of the evidence. Following any
necessary further development, OWCP shall issue a de novo decision.
IT IS HEREBY ORDERED THAT the May 14, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this order of the Board.

2

41 ECAB 548 (1990).

3

T.J., Docket No. 14-1854 (issued February 3, 2015); J.J., Docket No. 12-1062 (issued December 12, 2012);
William McKennon, 51 ECAB 145 (1999).
4

T.J., id.; see Yvette N. Davis, 55 ECAB 475 (2004).

2

Issued: June 21, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, METROPOLITAN
DETENTION CENTER, Brooklyn, NY,
Employer
__________________________________________

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

Docket No. 21-1265
Issued: March 23, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 19, 2021 appellant, through counsel, filed a timely appeal from a July 2, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than eight
percent permanent impairment of his left small finger for which he previously received a schedule
award.
FACTUAL HISTORY
On March 7, 2017 appellant, then a 47-year-old material handler supervisor, filed a
traumatic injury claim (Form CA-1) alleging that on February 26, 2017 he injured the left side of
his body and broke his left small finger when attempting to move a loaded laundry cart which
tipped over causing him to fall while in the performance of duty. He stopped work on February 26,
2017 and returned to work on March 7, 2017. On October 15, 2018 OWCP accepted the claim for
nondisplaced closed fracture of the distal phalanx of the left little finger and mallet finger of the
left little finger.
On July 13, 2017 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In support of his claim, appellant provided an August 3, 2017 report from Dr. John C.
L’Insalata, a Board-certified orthopedic surgeon. Dr. L’Insalata described his history of injury on
February 26, 2017 and diagnosed fracture of the distal phalanx of the left small finger with a bony
mallet component. On physical examination he found prominence over the dorsal aspect of the
distal interphalangeal (DIP) joint of the left small finger, lacking about two degrees of full
extension of the DIP joint, and 75 degrees of flexion with full strength, and intact sensory and
motor examination.
Dr. L’Insalata referred to the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides)3 and utilized the diagnosis-based
impairment (DBI) rating method to find that, under Table 15-2 (Digit Regional Grid), page 392,
the class of diagnosis (CDX) for mallet injury including avulsion fracture was a class 1 impairment,
grade C, with a default value of six percent for the digit. He assigned a grade modifier for
functional history (GMFH) of 2 based on pain symptoms with daily activities per Table 15-7, page
406. Dr. L’Insalata assigned a grade modifier for physical examination (GMPE) of 1 due to mild
decreased range of motion (ROM) of the DIP joint, pursuant to Table 15-8, page 408. He assigned
a grade modifier for clinical studies (GMCS) of 2 for associated intra-articular fracture of the distal
phalanx, which healed with prominence and gapping at the articular surface pursuant to Table 159, page 410. Dr. L’Insalata utilized the net adjustment formula (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX) = (2-1) + (1-1) + (2-1) = +2, which resulted in a grade E or eight percent permanent
impairment of the left small finger, which he converted to one percent permanent impairment of
the left hand and one percent impairment of the left upper extremity, pursuant to Table 15-12, page
421.
On July 12, 2019 Dr. Nathan Hammel, a Board-certified orthopedic surgeon, serving as a
district medical adviser (DMA), reviewed a statement of accepted facts (SOAF) and the medical
3

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

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record, including Dr. L’Insalata’s August 3, 2017 findings. He concurred with Dr. L’Insalata’s
findings. Dr. Hammel indicated that the ROM method result could not be applied due to the lack
of triplicate measurements provided by Dr. L’Insalata. He found that the date of MMI was
August 3, 2017, the evaluation date by Dr. L’Insalata.
On October 28, 2020 OWCP requested that the DMA clarify whether the impairment rating
should be for the digit itself or extend into the adjoining area of the member, the hand or upper
extremity. In a November 17, 2020 report, the DMA found that appellant was entitled to eight
percent permanent impairment of his left small finger. He noted that consistent with OWCP
procedures the general loss of less than one digit should be computed in terms of impairments to
the digit itself and that the loss of two or more digits should be computed in terms of impairment
to the whole hand. 4 The DMA found as only one finger was involved the impairment was best
expressed as eight percent impairment of the left small finger.
By decision dated December 11, 2020, OWCP granted appellant a schedule award for eight
percent permanent impairment of his left small finger. The award ran for 1.2 weeks during the
period August 3 to 11, 2017.
On January 4, 2021 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which took place on April 21, 2021.
By decision dated July 2, 2021, the hearing representative affirmed OWCP’s December 11,
2020 decision. She found that the weight of the medical evidence established that appellant had
no greater than eight percent permanent impairment of his left finger for which he previously
received a schedule award.
LEGAL PRECEDENT
The schedule award provisions of FECA 5 and its implementing regulations 6 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 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.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses. 7 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).8 The Board has approved the use
4

Federal (FECA) Procedure Manual, Part 2--Claims, Schedule Award and Permanent Disability Claims, Chapter
2.808.5.e (March 2017); B.H., Docket No. 16-0252 (issued October 7, 2016); Charles B. Carey, 49 ECAB 528 (1998).
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. See also B.B., Docket No. 20-1187 (issued November 18, 2021); Ronald R. Kraynak, 53 ECAB 130 (2001).

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); id. at Chapter 2.808.5a. (March 2017).

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by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 9
In addressing upper extremity impairments, the sixth edition requires that the evaluator
identify the impairment CDX, which is then adjusted by a GMFH, GMPE, and GMCS. 10 The net
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).11
The A.M.A., Guides also provide that ROM impairment methodology is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
DBI sections are applicable. 12 If ROM is used as a stand-alone approach, the total of motion
impairment for all units of function must be calculated. All values for the joint are measured and
added.13 Adjustments for functional history may be made if the evaluator determines that the
resulting impairment does not adequately reflect functional loss and functional reports are
determined to be reliable. 14
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments.15 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluatio n, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM); and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing th e higher
rating should be used.” (Emphasis in the original.)16

9

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10

A.M.A., Guides 383-492.

11

Id. at 411.

12

Id. at 461.

13

Id. at 473.

14

Id. at 474.

15

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

16

A.M.A., Guides 477.

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The Bulletin further advises: “If the rating physician provided an assessment using the
ROM method and the [A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the
DMA should independently calculate impairment using both the ROM and DBI methods and
identify the higher rating for the CE [clams examiner].”17
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing
rationale for the percentage of impairment specified.18
ANALYSIS
The Board finds that this case is not in posture for decision.
In his August 3, 2017 report, Dr. L’Insalata provided one set of passive ROM
measurements for the left small finger. OWCP referred Dr. L’Insalata’s report to Dr. Hammel, its
DMA, who found that appellant had eight percent permanent impairment of the left small finger
under the DBI methodology. Dr. Hammel advised that Dr. L’Insalata’s report did not contain three
complete ROM measurements for the left small finger.
Pursuant to FECA Bulletin No. 17-06, if the ROM method of rating permanent impairment
is allowed, after review of the DBI rating, and the ROM findings are incomplete, the DMA should
advise as to the medical evidence necessary to complete the ROM method of rating if the medical
evidence of record is insufficient to rate appellant’s impairment using ROM. 19
Herein, OWCP did not follow the procedures outlined in FECA Bulletin No. 17-06 after
the DMA advised that the measurements for the left finger were incomplete and there was no
documentation to rate appellant’s permanent impairment utilizing the ROM methodology. 20
On remand OWCP shall obtain the necessary evidence as required under FECA Bulletin
No. 17-06 from Dr. L’Insalata.21 After it obtains the evidence necessary to complete the rating as
described above, the case shall be referred to a DMA to independently calculate impairment to the
left small finger using both ROM and DBI methods and identify the higher rating. 22 If
Dr. L’Insalata does not fully comply with the A.M.A., Guides, OWCP shall refer appellant to a
17

FECA Bulletin No. 17-06 (issued May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018); A.G.,
Docket No. 18-0329 (issued July 26, 2018).
18

See supra note 8 at Chapter 2.808.6f. (March 2017); see D.J., Docket No. 19-0352 (issued July 24, 2020).

19

J.L., Docket No. 19-1684 (issued November 20, 2020); R.L., Docket No. 19-1793 (issued August 7, 2020); E.P.,
Docket No. 19-1708 (issued April 15, 2020).
20

C.H., Docket No. 20-0529 (issued June 16, 2021); J.L., R.L., id.; C.T., Docket No. 18-1716 (issued
May 16, 2019).
21

J.L., id.; J.S., Docket No. 19-0483 (issued October 10, 2019).

22

See J.L., id.; J.V., Docket No. 18-1052 (issued November 8, 2018); M.C., Docket No. 18-0526 (issued
September 11, 2018).

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specialist in the appropriate field of medicine for a second opinion evaluation. Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 2, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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Appearances:
Charles Toliver, for the appellant
Office of Solicitor, for the Director

Docket No. 14-151
Issued: March 25, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 21, 20131 appellant, through her representative, filed a timely appeal of an
April 25, 2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
declining to reopen her claim for consideration of the merits as her request was untimely filed
and did not contain clear evidence of error. Because more than 180 days elapsed from the most
recent merit decision, of February 5, 2013, to the filing of this appeal the Board lacks jurisdiction
to review the merits of appellant’s case, pursuant to the Federal Employee’s Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, but has jurisdiction over the nonmerit issue.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. One hundred and eighty
days from April 25, 2013, the date of OWCP’s decision, was October 22, 2013. Since using October 28, 2013, the
date the appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date of the
postmark is considered the date of filing. The date of the U.S. Postal Service postmark is October 21, 2013, which
renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and failed to establish clear evidence of error.
On appeal, appellant argued that her request for reconsideration was timely filed as it was
mailed on January 31, 2013 via certified mail. She submitted a certified mail receipt stamped
February 6, 2013 to the Board.
FACTUAL HISTORY
On April 30, 2007 appellant, then a 38-year-old letter carrier, filed an occupational
disease claim alleging that she developed back pain and right knee chondromalacia. In support
of her claim, she submitted a magnetic resonance imaging (MRI) scan dated October 4, 2006
which demonstrated minimal L5-S1 disc bulge and an unremarkable cervical spine.
Dr. Fabian A. Proano, a Board-certified anesthesiologist, diagnosed degenerative lumbar spine
disease with right leg radicular pain. On August 18, September 20 and November 3, 2006
Dr. Bradley M. Thomas, a Board-certified orthopedic surgeon, stated that he treated appellant for
right knee traumatic chondromalacia following a dog bite. He stated that she developed
significant back pain and radicular pain in her right leg likely from limping on the right leg.
Dr. Thomas opined that appellant had a consequential injury.
In a letter dated May 15, 2007, OWCP noted that appellant’s right knee chondromalacia
had been accepted under a separate claim and that the medical evidence submitted was not
sufficient to establish a causal relationship between her accepted knee condition and her
diagnosed lumbar condition. It requested additional medical evidence in support of her claim
and allowed 30 days for a response. Dr. Thomas responded on May 31, 2007 and stated that it
was possible that appellant developed radicular pain due to prolonged limping causing her to
lean forward in her lumbar spine which resulted in excess stress in the lumbar spine and leading
to lumbar disc herniation. He stated that she walked even while on light duty and opined that it
was “quite probable” that her lumbar disc disease and right leg radicular pain was exacerbated by
her right knee chondromalacia.
OWCP denied appellant’s claim on July 23, 2007 finding that the medical evidence did
not establish a causal relationship between her diagnosed back condition and her employment.
Appellant requested reconsideration through submission of a form on July 26, 2007. By decision
dated August 21, 2007, OWCP declined to reopen her claim for consideration of the merits.
On August 31, 2004 Dr. Thomas stated that appellant had reached maximum medical
improvement in regard to her right knee injury. He stated that she had returned to modified duty
eight hours a day walking two hours at a time with 15-minute breaks. Dr. Thomas noted that
appellant walked without a limp.
Dr. Thomas completed a report on August 10, 2007 and noted appellant’s history of
injury including a dog bite on November 21, 2002 which resulted in continued knee pain,
catching in her knee, inability to straighten her knee and a limp. Appellant also reported back
pain, numbness and tingling in her lower leg and decreased sensation over the knee and lower

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right leg. Dr. Thomas opined that her back pain was directly related to her limp as a result of her
right knee injury.
OWCP reviewed appellant’s claim on November 30, 2007 and denied modification of its
prior decisions.
Appellant, through her representative, requested reconsideration on
August 14, 2008. Dr. Serge Obukhoff, a Board-certified neurosurgeon, completed a report on
March 21, 2008 and described her employment duties. He found diminished sensation in L5 and
S1 distributions on the right and reviewed her MRI scan. Dr. Obukhoff diagnosed back pain
syndrome, degenerative back disease with disc herniation and degeneration, facet joint disease
and sciatica. He attributed appellant’s back condition to carrying, pushing and pulling as well as
walking on uneven terrain and steps while in the performance of her job duties. Dr. Obukhoff
stated that her type of work produced significant stress to the vertebral column and resulted in
acceleration of the degenerative process. He opined that the work that appellant had been doing
for years was contributing to degeneration and development of her current symptoms.
OWCP denied modification of appellant’s prior decisions on November 18, 2008.
Appellant requested reconsideration on April 16, 2009. Dr. Obukhoff completed reports
on July 11, August 8, September 5, October 3 and 24, 2008 as well as November 14, 2008. He
listed appellant’s employment duties. Dr. Obukhoff diagnosed lumbar facet joint disease and
spondylosis as well as back pain syndrome. He opined that appellant should be managed
conservatively. On February 7 and 22, 2009 Dr. Obukhoff found significant facet joint disease
and spondylosis of the lumbar spine. He stated that appellant was experiencing increased
radiculopathy. Dr. Obukhoff diagnosed back pain syndrome and degenerative spondylosis. In a
note dated March 27, 2009, he noted that appellant walked with a cane and experienced
persistent back pain with leg radiation. Dr. Obukhoff recommended surgical treatment. He
corrected his prior reports regarding appellant’s work duties on April 24, 2009 and described her
periods of full duty, leave of absence and limited duty from 1997 through August 16, 2006.
Dr. Obukhoff stated that she was medically released to return to work with restrictions on
March 14, 2008, but that no appropriate light duty was available at the employing establishment.
In a separate note of the same date, he diagnosed back pain syndrome due to facet arthropathy.
Dr. Obukhoff found that appellant was totally disabled and requested authorization for surgery.
On June 8 and July 10, 2009 he diagnosed severe degenerative lower back disease, back pain
syndrome at L4-5 and L5-S1 with bilateral facet arthropathy.
By decision dated August 28, 2009, OWCP reviewed the merits of appellant’s claim, but
denied modification of its prior decisions.
Appellant requested reconsideration on August 27, 2010. Dr. Obukhoff submitted a
report dated April 30, 2010 continuing to diagnose severe degenerative low back disease, back
pain syndrome at L4-5 and L5-S1 as well as bilateral facet arthropathy. He no longer
recommended surgery, instead suggesting facet joint Luschka nerve rhizotomy at L4-5 and
L5-S1. On July 21, 2010 Dr. I. Grant Orlin, a general practitioner, provided appellant’s work
history. OWCP denied modification of its prior decisions on November 30, 2010 finding that
she had not submitted the necessary medical opinion evidence to establish a causal relationship
between her diagnosed condition and her accepted employment duties.

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Appellant underwent a lumbar MRI scan on February 11, 2011 which demonstrated a
broad-based disc protrusion at L5-S1 associated with mild narrowing of the left neural foramina
with no evidence of spinal canal stenosis. By decision dated August 5, 2011, OWCP denied
modification of its prior decisions finding that Dr. Orlin’s reports were not based on a proper
factual background and did not establish that appellant’s current back condition was causally
related to her employment.
Appellant requested reconsideration on December 22, 2011. She submitted a report from
Dr. Orlin describing her employment history dated December 22, 2011. This report contained
typographical errors indicating that appellant was off work in 2010 rather than 2001. Dr. Orlin
completed a form report on October 27, 2011 and indicated that she was capable of modified
work due to her right foot and ankle sprain and strain. He did not offer an opinion discussing the
cause of appellant’s back pain. By decision dated February 2, 2012, OWCP denied modification
of her claim noting the factual errors in Dr. Orlin’s December 22, 2011 report.
Appellant requested reconsideration through a form dated January 28, 2013 and received
by OWCP on February 6, 2013. In support of her request, she resubmitted Dr. Orlin’s
December 22, 2011 report and submitted a form report dated July 12, 2011 from Dr. Orlin
diagnosing severe lumbar degenerative disc disease with facet arthropathy at L4-5 and L5-S1
with right radiculopathy as well as lumbosacral strain. Dr. Orlin provided work restrictions.
In a decision dated April 25, 2013, OWCP found that appellant’s request for
reconsideration was not timely and did not establish clear evidence of error on the part of
OWCP.3
LEGAL PRECEDENT
Under section 8128(a) of FECA4 OWCP has the discretion to reopen a case for review on
the merits, on its own motion or on application by the claimant. It must exercise this discretion in
accordance with section 10.607 of the implementing federal regulations. Section 10.607 provides
that “[a]n application for reconsideration must be sent within one year of the date of OWCP’s
decision for which review is sought.”5 In Leon D. Faidley, Jr.,6 the Board held that the imposition
of the one-year time limitation for filing an application for review was not an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA. The one-year time
limitation period set forth in 20 C.F.R. § 10.607 does not restrict OWCP from performing a limited
review of any evidence submitted by a claimant with an untimely application for reconsideration.
3

Following the appeal to the Board on October 21, 2013, OWCP issued a decision dated November 5, 2013
denying appellant’s claim as untimely and finding that she did not establish clear evidence of error on the part of
OWCP. The Board and OWCP may not simultaneously have jurisdiction over the same case. Because OWCP must
review its prior decisions in order to determine whether appellant submitted clear evidence of error, it may not issue
a decision regarding the same issue on appeal before the Board. OWCP therefore did not have the authority to issue
its November 5, 2013 decision. Arlonia B. Taylor, 44 ECAB 591, 597 (1993).
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.607.

6

41 ECAB 104, 111 (1989).

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OWCP is required to perform a limited review of the evidence submitted with an untimely
application for review to determine whether a claimant has submitted clear evidence of error on the
part of OWCP thereby requiring merit review of the claimant’s case.
Thus, if the request for reconsideration is made after more than one year has elapsed from
the issuance of the decision, the claimant may only obtain a merit review if the application for
review demonstrates “clear evidence of error” on the part of OWCP.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.8 The evidence must be positive, precise and explicit and must be
manifest on its face that OWCP committed an error.9 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.12 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create a
conflict in medical opinion or establish a clear procedural error, but must be of sufficient probative
value to prima facie shift the weight of the evidence in favor of the claimant and raise a
fundamental question as to the correctness of OWCP’s decision.13 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the part
of OWCP such that it abused its discretion in denying merit review in the face of such evidence.14
ANALYSIS
The only decision before the Board on this appeal is that of OWCP dated April 25, 2013 in
which it declined to reopen appellant’s case on the merits because the request was not timely filed,
and did not show clear evidence of error. Since more than 180 days elapsed from the date of
issuance of OWCP’s February 2, 2012 merit decision to the date of the filing of appellant’s appeal,
on October 21, 2013, the Board lacks jurisdiction to review that decision.15

7

Supra note 5; Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

8

See Dean D. Beets, 43 ECAB 1153 (1992).

9

See Leona N. Travis, 43 ECAB 227 (1991).

10

See Jesus D. Sanchez, 41 ECAB 964 (1990).

11

See supra note 9.

12

See Nelson T. Thompson, 43 ECAB 919 (1992).

13

Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989).

14

Gregory Griffin, 41 ECAB 458, 466 (1990).

15

See 20 C.F.R. § 501.3(e).

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The Board finds that the September 16, 2013 refusal of OWCP to reopen appellant’s claim
for further consideration on the merits of the claim under 5 U.S.C. § 8128(a) on the basis that her
request for reconsideration was not timely filed within the one-year time limitation period set forth
in 20 C.F.R. § 10.607 and did not show clear evidence of error was proper and did not constitute
abuse of discretion.
Appellant requested reconsideration of the February 2, 2012 merit decision through a
form received by OWCP on February 6, 2012 and dated January 28, 2013. As the request for
reconsideration was not received by OWCP by Monday, February 4, 2013 within one calendar
year of the February 2, 2012 decision with allowances for the weekend of February 2 and 3,
2013, the request was not timely received by OWCP within the one-year time limitation period
set forth in 20 C.F.R. § 10.607.
The Board notes that on appeal, appellant submitted her certified mail receipt which
indicated that her request for reconsideration was mailed on Thursday, January 31, 2013 and
received by OWCP on February 6, 2013. As OWCP did not receive the request for reconsideration
by Monday, February 4, 2013, instead receiving it on February 6, 2013, the request for
reconsideration was untimely under OWCP’s regulations.
The Board further finds that the evidence submitted by appellant in support of her untimely
request for reconsideration did not establish clear evidence of error on the part of OWCP. In
support of her request, appellant submitted Dr. Orlin’s December 22, 2011 report attempting to
address deficits in her employment history. She also submitted a form report dated July 12, 2011
from him diagnosing severe lumbar degenerative disc disease with facet arthropathy at L4-5 and
L5-S1 with right radiculopathy as well as lumbosacral strain. Dr. Orlin provided work
restrictions.
The Board finds that these reports are not sufficiently detailed and well reasoned to
sufficient probative value to shift the weight of the evidence in favor of the claimant and raise a
fundamental question as to the correctness of OWCP’s decision. The medical reports submitted by
appellant are not based on an accurate factual background, do not provide detailed physical
findings or well-reasoned medical rationale explaining how and why her degenerative back
condition was caused or aggravated by her specific employment duties. As appellant has not
provided evidence establishing clear evidence of error on the part of OWCP, the Board finds that
OWCP properly declined to reopen her claim for consideration of the merits.
CONCLUSION
The Board finds that appellant’s February 6, 2012 request for reconsideration was not
timely filed within the one-year time limitation period and did not contain clear evidence of error
on the part of OWCP.

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ORDER
IT IS HEREBY ORDERED THAT the April 25, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 25, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Chicago, IL, Employer
__________________________________________

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

Docket No. 19-1761
Issued: April 15, 2020

Case Submitted on the Record

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

JURISDICTION
On August 19, 2019 appellant filed a timely appeal from a July 22, 2019 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated January 9, 2018, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 22, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 6, 2013 appellant, then a 27-year-old transportation security officer, filed an
occupational disease claim (Form CA-2) alleging that she injured her right upper arm due to factors
of her federal employment. She noted that she first became aware of her condition and realized
that it was caused or aggravated by her employment on May 30, 2013. On August 5, 2013 OWCP
accepted appellant’s claim for right shoulder rotator cuff strain. On June 24, 2014 it accepted
appellant’s recurrence claim for right shoulder rotator cuff and upper arm sprain. On August 19,
2014 OWCP expanded appellant’s acceptance of the claim to include right shoulder adhesive
capsulitis and right shoulder and upper arm subscapularis sprain.
In an October 31, 2016 letter, Dr. Harun Durudogan, D.O., a Board-certified orthopedic
surgeon, indicated that appellant was injured on May 30, 2013. He noted that she first required a
bursectomy, subacromial decompression, and distal clavicle resection. Appellant was then treated
with injections and occupational therapy for her pain, numbness, and tingling. Physical therapy
helped alleviate appellant’s numbness and tingling, but she continued to experience shoulder pain.
Dr. Durudogan indicated that appellant’s shoulder pain was caused by the diagnosis of complex
regional pain syndrome (CRPS), and that appellant had reached maximum medical improvement
(MMI).
In a November 1, 2016 report, Dr. Durudogan noted that appellant continued to experience
shoulder pain that radiated into her right arm. A physical examination of appellant’s right shoulder
revealed tenderness upon palpation of the glenohumeral joint region, the trapezius muscle, and the
rhomboid muscles. Appellant’s range of motion was abnormal and pain was elicited during a Neer
impingement test, a crossed arm impingement test, and a Hawkins-Kennedy impingement test. A
neurological examination revealed motor strength weakness in appellant’s right shoulder.
Dr. Durudogan diagnosed persistent neuropraxia right upper extremity CRPS.
On December 12, 2016 appellant filed a claim for a schedule award (Form CA-7).
In a January 18, 2017 report, Dr. Arthur Harris, a Board-certified orthopedic surgeon
serving as a district medical adviser (DMA), noted that he reviewed appellant’s medical records
and a statement of accepted facts (SOAF). He applied the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)3 and
determined that appellant had five percent right upper extremity permanent impairment due to
residual problems with her partial thickness rotator cuff tear, which resulted from her May 30,
2013 accepted employment injury. The DMA also noted that appellant reached MMI on
November 1, 2016, based on the opinion of Dr. Durudogan.

3

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

2

By decision dated February 13, 2017, OWCP granted appellant a schedule award for five
percent permanent impairment of her right upper extremity.
In a February 20, 2017 letter, Dr. Durudogan opined that the five percent right upper
extremity permanent impairment calculation was incorrect. He noted that a January 1, 2017
functional capacity evaluation (FCE) indicated that appellant’s right arm suffered a 60 percent loss
when lifting overhead, a 67 percent loss when lifting from desk or chair height, and a 60 percent
loss when carrying. Dr. Durudogan also noted that she was right-hand dominant and had difficulty
performing activities of daily living with the affected extremity secondary to intermittent pain, as
her flare ups were unpredictable and she was intolerably sensitive to cold temperatures. He also
noted that she could not alleviate her condition with traditional conservative methods.
On February 23, 2017 OWCP referred appellant for a second opinion examination by
Dr. Steven Chandler, D.O., a Board-certified orthopedic surgeon.
On February 27, 2017 appellant requested an oral hearing before an OWCP hearing
representative.
In a February 27, 2017 letter, appellant indicated that she disagreed with her award of five
percent permanent impairment of her right upper extremity because her FCE, which demonstrated
extreme loss of strength in her arm, was not taken into consideration. She also noted that it was
not mentioned that she was right-hand dominant or that she had unpredictable pain flare ups.
In a March 13, 2017 second opinion report, Dr. Chandler noted that appellant presented
with shoulder and neck pain. He reviewed her medical history and conducted a physical
examination of her right shoulder, which revealed anterior and lateral pain and tenderness in the
subacromial space, the supraspinatus tendons, the proximal biceps tendon, the glenohumeral joint,
and the trapezius muscle. It additionally revealed decreased range of motion in its forward flexion,
extension, abduction, and internal and external rotation. Dr. Chandler indicated that appellant’s
rotator cuff tendinitis and right upper extremity CRPS were due to her accepted May 30, 2013
employment injury. He noted that appellant still had residuals from her diagnoses, and that most
of which were from her CRPS. Dr. Chandler opined that she was possibly partially disabled, and
although she was still able to work, her limitations were permanent. He noted that appellant had
weakness and decreased range of motion in her right upper extremity and therefore limited use.
On March 31, 2017 OWCP expanded its acceptance of the claim to include additional
conditions of right shoulder CRPS, impingement syndrome, and tendinitis.
On August 2, 2017 OWCP conducted an oral hearing. By decision dated September 14,
2017, an OWCP hearing representative set aside the February 13, 2017 decision and remanded the
case for further development of the medical evidence.
OWCP referred appellant to Dr. Allan Brecher, a Board-certified orthopedic surgeon, for
a second opinion examination. In a November 28, 2017 second opinion report, Dr. Brecher
indicated that he reviewed appellant’s medical records and an updated SOAF. He conducted a
physical examination of appellant’s right shoulder which revealed a flexion of 130 degrees,
abduction of 100 degrees, internal rotation of 50 degrees, external rotation of 80 degrees, extension
of 50 degrees, and adduction of 40 degrees. Dr. Brecher indicated that he could not provide a
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permanent impairment rating for appellant’s CRPS because he found no physical findings which
would allow a rating pursuant to the sixth edition of the A.M.A., Guides definition of CRPS. He
applied the A.M.A., Guides and determined that appellant had eight percent permanent impairment
of the right upper extremity. Dr. Brecher noted that she had reached MMI on November 1, 2016.
In a December 21, 2017 report, OWCP’s DMA Dr. Michael Katz, a Board-certified
orthopedic surgeon, indicated that he reviewed the SOAF and appellant’s medical records. He
applied the A.M.A., Guides and determined that appellant had 11 percent right upper extremity
permanent impairment based upon loss of range of motion, which was greater than her diagnosisbased permanent impairment of 5 percent. Dr. Katz explained that his impairment rating was
higher than Dr. Brecher’s because he had failed to assign impairment for appellant’s right shoulder
extension loss. He found that appellant reached MMI on November 28, 2017, the date of
Dr. Brecher’s examination.
On January 9, 2018 OWCP granted appellant a schedule award for an additional six percent
permanent impairment of her right upper extremity.
Appellant continued to submit medical reports, work restrictions, and diagnostic test
results.
OWCP referred appellant to Dr. Theodore Suchy, D.O., a Board-certified orthopedic
surgeon, for another second opinion evaluation. In a report dated October 25, 2018, Dr. Suchy
noted appellant’s physical examination findings, including that she had normal range of motion of
the right shoulder and that her grip strength on the right was 11/8/9 compared to 56/42/55 on the
left. He concluded that appellant had sustained a right shoulder strain with rotator cuff tendinitis
which subsequently developed into a complex regional pain syndrome, which was chronic and
debilitating, as a result of her accepted employment injury.
On November 21, 2018 appellant requested reconsideration. In an accompanying
statement, she noted that Dr. Suchy’s report provided new medical information, specifically that
while her left grip strength measurements were greater than her right grip measurements.
Appellant stated that this was the first time her grip strength was ever tested, and that she had never
been compensated for her loss of strength.
In a letter dated March 27, 2019, appellant argued that, while Dr. Brecher’s report indicated
that she could not be rated for her CRPS, both Dr. Chandler and Dr. Suchy determined that
appellant had CRPS, and she should therefore be compensated for the permanent impairment due
to that condition. In an April 7, 2019 letter, she again argued that she should be compensated for
her CRPS, as it was an accepted medical condition.
By decision dated July 22, 2019, OWCP denied appellant’s reconsideration request,
finding that she failed to raise substantive legal questions or submit new and relevant evidence.

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LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 6 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 7 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.8
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
The Board has held that the reopening of a case may be predicated solely on a legal premise
not previously considered, where the legal contention has a reasonable color of validity. 9
In a letter accompanying her November 21, 2018 reconsideration request, appellant argued
that the October 25, 2017 report from Dr. Suchy, OWCP’s second opinion physician, supported a
finding that she had loss of right hand grip strength, which had not been taken into consideration
when determining her schedule award. She also noted that Dr. Suchy supported a finding that she
had permanent residuals of her accepted CRPS condition for which she had not received a schedule
award. As Dr. Suchy was OWCP’s second opinion physician, it was necessary for OWCP to

4

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
5

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
6

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness
is determined by the document receipt date of the request for reconsideration as indicated by the received date in the
Integrated Federal Employees’ Compensation System (iFECS). Chapter 2.1602.4b.
7

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

9

E.R., Docket No. 18-0446 (issued November 6, 2019).

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resolve all issues presented by his evaluation. 10 Therefore, appellant has advanced a new and
relevant legal argument not previously considered by OWCP.
As appellant has advanced a new and relevant legal argument not previously considered
by OWCP, she is entitled to a review of the merits of the claim under section 10.606(b)(3) of
OWCP’s regulations.11 Following such further development as deemed necessary, OWCP shall
issue an appropriate merit decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 22, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: April 15, 2020
Washington, DC
Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

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

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

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As OWCP undertook development of the evidence by referring appellant to the second opinion examiner it had
the duty to secure an appropriate report addressing the relevant issues. D.M., Docket No. 17-1832 (issued March 14,
2018); Peter C. Belkind, 56 ECAB 580 (2005).
11
See T.P., Docket No. 18-0608 (issued August 2, 2018); see also L.K., Docket No. 15-0659 (issued September 15,
2016); see also T.L., Docket No. 16-0536 (issued July 6, 2016).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dallas, TX, Employer
__________________________________________

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

Docket No. 08-2109
Issued: June 2, 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 July 28, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ July 16, 2008 schedule award decision. 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 three percent impairment of her right
lower extremity, for which she received a schedule award.
FACTUAL HISTORY
On June 14, 2000 appellant, then a 54-year-old distribution clerk filed a traumatic injury
claim alleging that, on June 11, 2000, she slipped and injured her right leg in the performance of
duty. She stopped work on June 12, 2000 and returned to work on June 16, 2000. The Office

accepted appellant’s claim for lumbar strain and right knee contusion.
appropriate compensation benefits.1

Appellant received

In a report dated August 12, 2003, Dr. George W. Wharton, a Board-certified orthopedic
surgeon, noted appellant’s history of injury and treatment. He opined that she had an impairment
of 32 percent to the right leg or 13 percent whole person impairment. In a separate report, also
dated August 12, 2003, Dr. Wharton opined that appellant was entitled to a whole person
impairment of five percent based upon the diagnostic-related estimates (DRE) lumbar
category II.
On January 26, 2004 the Office received appellant’s claim for a schedule award On
August 12, 2004 it requested that an Office medical adviser review Dr. Wharton’s impairment
rating and provide an opinion regarding the extent of appellant’s impairment in accordance with
the American Medical Association, Guides to the Evaluation of Permanent Impairment,
(A.M.A., Guides) (5th ed. 2001).
In an August 19, 2004 report, the Office medical adviser explained that the rating of
Dr. Wharton was not probative for a schedule award determination because it was lacking in
clarity and an adequate description of the impairment. He recommended that the Office obtain
another impairment rating.2
In an October 11, 2006 report, Dr. E. Kano Mayer, a Board-certified physiatrist, reviewed
electromyography (EMG) studies, which revealed normal right extremity sensory responses.
Motor responses showed decreased amplitude on both tibial and peroneal sensory responses with
normal latency and normal conduction velocity. Dr. E. Kano Mayer also indicated that the
needle EMG revealed increased amplitude, increased duration and increased polyphasic
responses in the right gastrocs, right peroneus longus and right gluteus medius. He determined
that appellant’s examination was abnormal and advised that there was evidence of chronic right
lower extremity S1 lumbosacral neuritis without evidence of other mononeuropathy or
polyneuropathy.
In an October 13, 2006 report, Dr. Tom Mayer, a Board certified orthopedic surgeon and
an associate of Dr. E. Kano Mayer, noted appellant’s history of injury and treatment. He noted
that appellant requested that he provide an impairment rating using the A.M.A., Guides.
Dr. Tom Mayer advised that appellant did not undergo surgery due to the injury and that she had
some radicular complaints. The EMG demonstrated that appellant had right S1 nerve chronic
radiculopathy. Dr. Tom Mayer advised that appellant met the criteria for DRE category III for
the lumbar region or a 10 percent whole person impairment rating.
In an April 22, 2008 report, the Office medical adviser noted appellant’s history of injury
and treatment. He determined that the evaluation of Dr. Tom Mayer indicated that appellant had
reached maximum medical improvement on October 13, 2006. The Office medical adviser
1

The Office also accepted appellant’s claim for a recurrence on April 13, 2003.

2

It appears that the Office was in the process of obtaining an opinion from a second opinion physician. It
apparently halted this process when appellant submitted a report from one of her treating physicians.

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advised that appellant’s lumbar pain was treated conservatively and noted that the EMG study
revealed decreased sensation to pin prick in the S1 dermatome, but no weakness. He referred to
Table 15-18, for unilateral spinal nerve root impairment affecting the lower extremity and noted
that the maximum impairment for sensory deficit or pain of the S1 nerve root was five percent.3
The Office medical adviser referred to Table 15-15 and explained that appellant should receive a
Grade 3 or a 60 percent sensory deficit. Under the procedure in Table 15-15, he multiplied the
60 percent deficit by the 5 percent maximum impairment value for sensory deficit of the S1
nerve root to find that appellant had an impairment of 3 percent to the right lower extremity.
On July 16, 2008 the Office granted appellant a schedule award for three percent
permanent impairment of the right lower extremity. The award covered a period of 8.64 weeks
from October 13 to December 12, 2006.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.6
The Board notes that the fifth edition of the A.M.A., Guides was adopted by the Office
effective February 1, 2001.7 Additionally, the fifth edition of the A.M.A., Guides provides a
method for calculating nerve root and/or spinal cord impairment for the lumbosacral spine,
which affects the lower extremities, specifically Tables 15-15, 15-16 and 15-18.8
ANALYSIS
The Office accepted appellant’s claim for lumbar strain and right knee contusion.
In a report dated October 3, 2006, Dr. Tom Mayer, appellant’s treating physician,
referred to the DRE III for the lumbar region and opined that she had 10 percent whole person
impairment rating. However, neither the Act nor its regulations provide for a schedule award for
3

A.M.A., Guides 424.

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5 U.S.C. § 8107.

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20 C.F.R. § 10.404 (1999).

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Id.

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See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(June 2003); Joseph Lawrence, Jr., 53 ECAB 331 (2002).
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A.M.A., Guides 424, Table 15-15, 15-16, 15-18.

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impairment to the back or to the body as a whole. The back is specifically excluded from the
definition of organ under the Act.9 Therefore, the impairment rating for appellant’s lumbar spine
is not probative.
An Office medical adviser referred to Dr. Tom Mayer’s October 13, 2006 report and
applied the relevant standards of the A.M.A., Guides to determine the impairment of her right
leg. He noted that diagnostic testing revealed that appellant had decreased sensation in the S1
dermatome affecting the right leg. The medical adviser noted that the maximum lower extremity
impairment for sensory deficit in the distribution of the S1 nerve root was five percent under
Table 15-18.10 The Office medical adviser classified appellant as a Grade 3, or a 60 percent
sensory deficit, based on her decreased sensation to pin prick in the S1 dermatome under Table
15-15.11 The Office medical adviser then followed the procedure in Table 15-15 and multiplied
the 60 percent deficit by the 5 percent maximum allowed for the S1 nerve root to total arrive at
3 percent impairment. The Board finds that the Office medical adviser properly applied to the
A.M.A., Guides in calculating appellant’s permanent impairment.
As the April 22, 2008 report of the Office medical adviser provides the only evaluation
which conforms to the A.M.A., Guides, it constitutes the weight of the medical evidence and
establishes that appellant has no more than a three percent permanent impairment of the right
lower extremity.12
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she has
more than a three percent impairment of her right lower extremity, for which she received a
schedule award.

9

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

10

See supra note 3.

11

Id.

12

Following issuance of the Office’s July 16, 2008 decision, appellant submitted additional evidence to the
Office. However, the Board may not consider such evidence for the first time on appeal as its review is limited to
the evidence that was before the Office at the time of its decision. See 20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 16, 2008 is affirmed.
Issued: June 2, 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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