United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.P., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Safford, AZ, Employer
__________________________________________

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

Docket No. 15-276
Issued: March 23, 2015

Case Submitted on the Record

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

JURISDICTION
On November 19, 2014 appellant, through counsel, filed a timely appeal from an
August 5, 2014 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 met his burden of proof to establish a medical condition in
the performance of his federal duties.
FACTUAL HISTORY
On September 19, 2013 appellant, then a 48-year-old materials handler supervisor, filed a
traumatic injury claim alleging that he was injured on September 18, 2013 at 12:45 p.m. when
the commercial washer overflowed out of drain pit and flooded the floor. He slipped while
1

5 U.S.C. § 8101 et seq.

unplugging the drain. Most of appellant’s weight was supported on the right side of his body,
causing injury, and he injured his right wrist, right shoulder, and his lower back.
Appellant submitted a September 24, 2013 report of injury which noted the history of
injury as slip and fall while kneeling down to unplug drain injuring his right shoulder, right wrist,
and lower back. He also submitted the following: a September 24, 2013 medical history form; a
February 26, 2013 magnetic resonance imaging (MRI) scan of the right wrist;2 a September 23,
2013 CA-16 form authorizing treatment by Dr. Andrew Mark Braunstein, an orthopedic surgeon
specializing in hand surgery; and a request for authorization to repair/revise wrist joint.
In a September 24, 2013 report, Dr. Braunstein indicated that appellant was a new patient
who presented to the office with complaints of right shoulder and wrist pain after a slip and fall
at work on September 18, 2013. He noted that appellant had a previous history of right wrist and
shoulder pain and had been seen by other physicians. Appellant advised that a February 2013
MRI scan of his right wrist and right shoulder revealed a ligament injury to his wrist and a labral
injury to his shoulder. He stated that physical therapy had improved his symptoms, but they
worsened after his recent fall at work. Dr. Braunstein presented examination findings of the
upper extremities and right wrist. He noted that the x-ray of the right shoulder showed no signs
of fracture, dislocation, or abnormality. An assessment of right subacromial impingement,
possible labral pathology, and right wrist pain were provided. Appellant received a cortisone
injection in the right subacromial space.
In a November 6, 2013 letter, OWCP advised appellant of the deficiencies in his claim
and requested additional factual and medical evidence. Also, in a letter dated November 6, 2013,
it denied authorization for any medical treatment/testing as it was currently under development.
In an October 21, 2013 report, Dr. Braunstein noted the history of the September 18,
2013 slip and fall and that appellant had brought the MRI scan of his right wrist for review.
Appellant’s shoulder pain had improved greatly since the subacromial injection, but he still had
concerns about his right wrist. Dr. Braunstein diagnosed resolving right subacromial
impingement and scaphalunate (SL) ligament dissociation with dorsal intercalculated segment
instability (DISI). Surgery for the right wrist was discussed.
By decision dated December 13, 2013, OWCP denied the claim because the medical
evidence failed to establish that the diagnosed conditions were caused or aggravated by the work
injury and as appellant had failed to provide treatment information regarding the preexisting
write condition.
On May 6, 2014 appellant, through counsel, requested reconsideration and submitted new
medical evidence. In a March 19, 2014 report, Dr. Caryl Brailsford-Gorman, an orthopedic
surgeon also in practice with Dr. Braunstein, noted that appellant reported a twisting injury.
“[Appellant] had his keys in a heavy prison door and he was moving quickly to the left and
twisted his back. He had immediate onset of pain and was seen at the medical clinic at the prison
that day.” Dr. Brailsford-Gorman noted that appellant was seen December 9, 2013 and that he
2

The MRI scan revealed dorsal chip fractures of the lunate and triquetrum and chronic post-traumatic changes of
the triquetrum and hamate.

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had delayed seeking further treatment in hopes that it would go away. She noted that he had a
service-connected injury at T12-14 due to a burst fracture. Dr. Brailsford-Gorman also noted
that appellant had obtained an MRI scan from the Veterans Administration Medical Center
which showed diffuse disc degenerative changes with no herniated discs or stenosis. She opined
that appellant had a lumbar sprain/strain.
In a June 24, 2014 report, Dr. Braunstein noted the history of right shoulder and wrist
pain began after he slipped and fell at work on September 18, 2013. Appellant noted
improvement following his injection on October 21, 2013 but that his pain had returned.
Dr. Braunstein recommended another injection, further physical therapy, and an MRI scan of the
shoulder.
By decision dated August 5, 2014, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee who claims 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.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence providing a diagnosis or opinion as to
causal relationship. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on whether there is a causal relationship between the
employee’s diagnosed condition and the specified employment factors or incident. The opinion
of the physician must be based on a complete factual and medical background of the employee,
must be one of reasonable medical certainty, and must be supported by medical rationale
3

C.S., Docket No. 08-1585 (issued March 3, 2009).

4

S.P., 59 ECAB 184 (2007).

5

Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

6

See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

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explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the employee.7
ANALYSIS
OWCP accepted that the employment incident of September 18, 2013 occurred at the
time, place, and in the manner alleged. Appellant alleged that on September 18, 2013 he slipped
and fell while attempting to unplug drain when a commercial washer overflowed. The
employing establishment issued a CA-16 and authorized treatment from Dr. Braunstein for
alleged injuries to the right shoulder, right wrist, and lower back.8 The issue is whether appellant
sustained any injury in connection to the accepted employment incident. The Board finds that
appellant did not meet his burden of proof to establish that this incident caused an injury.
In reports dated September 24 and October 21, 2013, and June 24, 2014, Dr. Braunstein
noted complaints of right shoulder and wrist pain after the slip and fall at work on
September 18, 2013. He also noted that appellant had preexisting conditions to his right wrist
and right shoulder. While Dr. Braunstein diagnosed right shoulder subacromial impingement
and SL dissociation with DISI deformity and opined that surgery was needed for the right wrist,
he did not provide any opinion as to whether appellant’s conditions were caused or aggravated
by the work injury. Medical evidence which does not offer any opinion regarding the cause of
an employee’s condition is of limited probative value on the issue of causal relationship.9
The March 19, 2014 report from Dr. Brailsford-Gorman described a different injury:
“appellant had his keys in a heavy prison door and he was moving quickly to the left and twisted
his back.” There is also no mention of any specific injury date or right wrist and right shoulder
conditions/injuries. As noted, the question for determination is whether the established work
activity caused an injury. As Dr. Brailsford-Gorman’s report is based on different employment
factors than those described by appellant and accepted by OWCP as occurring on September 18,
2013, it is of no probative value.10
On appeal, counsel contends that OWCP’s decision was contrary to fact and law. Based
on the findings and reasons stated above, his argument is not substantiated.
7

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

The Board has held that where an employing establishment properly executes a Form CA-16, which authorizes
medical treatment as a result of an employee’s claim for an employment-related injury, it creates a contractual
obligation, which does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim. See D.M., Docket No. 13-535 (issued June 6, 2013). See also 20 C.F.R. §§ 10.300,
10.304. Although OWCP denied appellant’s claim for an injury, it did not address whether he is entitled to
reimbursement of medical expenses pursuant to the Form CA-16. Upon return of the case record, OWCP should
further address this issue.
9

A.D., 58 ECAB 149 (2006).

10

See E.J., Docket No. 09-1481 (issued February 19, 2010). The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical 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.

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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 to establish a medical
condition as a result of the established September 18, 2013 work incident.
ORDER
IT IS HEREBY ORDERED THAT the August 5, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 23, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.N., Appellant
and
DEPARTMENT OF ENERGY, OFFICE OF
HUMAN CAPITAL MANAGEMENT,
Washington, DC, Employer
__________________________________________

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Appearances:
Alane Tempchin, Esq., for the appellant
No appearance, for the Director

Docket No. 09-1710
Issued: December 4, 2009

Oral Argument October 7, 2009

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 25, 2009 appellant filed a timely appeal from a February 13, 2009 decision of
the Office of Workers’ Compensation Programs affirming an overpayment. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received a
$46,325.69 overpayment of compensation for the period April 5, 1992 to August 10, 2002; and
(2) whether the Office properly found appellant at fault in creation of the overpayment, thereby,
precluding waiver.
On appeal appellant, through her attorney, contends that the Office did not meet its
burden of proof in establishing the fact or amount of the overpayment and that the Office
violated its procedures by failing to provide the calculations used to determine the fact and
amount of the overpayment. The Office relied on a May 2008 spreadsheet prepared by the
employing establishment, which used unexplained column headings and inaccurate time and

attendance data. For various dates between November 29, 1993 and February 28, 2000, the
employing establishment entered work hours although it did not have time and attendance data.
Further, in its decisions from 2002 through 2008, the Office had found variously that appellant
was overpaid for 7,729 hours, 7,714 hours and 7,712 hours, demonstrating inconsistent
calculations.
FACTUAL HISTORY
On January 20, 1984 appellant, then a 29-year-old position classification specialist,
sustained a lumbosacral strain with two herniated discs requiring surgery in November 1985 and
May 1990 for special fusions. She returned to work for four hours a day on February 10, 1992.
On August 25, 1992 the Office issued a wag-earning capacity determination based on appellant’s
actual earnings working four hours a day. Appellant remained in the position until she retired
effective September 30, 2005.
By preliminary determination dated November 25, 2002, the Office found a $46,325.69
overpayment as appellant worked more than four hours a day for intermittent periods from
April 5, 1992 to August 10, 2002, while receiving compensation for four hours a day. It set aside
this determination on December 22, 2003 as there was insufficient information regarding fact
and amount of the overpayment. In a January 12, 2004 letter, the Office requested that the
employing establishment provide its payroll records. There was no response.
On June 23, 2004 the Office made a preliminary determination of a $1,178.76
overpayment for the period April 5 to June 8, 1992 as appellant received compensation for four
hours a day while working more than four hours a day. Following additional development, it
issued a November 13, 2007 decision setting aside the June 23, 2004 preliminary decision and
remanding the case for clarification of the fact and amount of the overpayment. In response, the
employing establishment submitted a 300-page spreadsheet summarizing appellant’s work hours,
salary and compensation from April 1992 through August 2002. Column headings included
“061,” “Total Proof” and “Gross Proof.” The employing establishment stated that it did not have
time and attendance information for the following dates: November 29, 1993; May 2, 1994;
May 15, 1995; March 16 and 30, 1998; March 29, April 26, May 24, October 11 and
December 20, 1999; January 17 and 31 and February 28, 2000. The employing establishment
entered estimated work hours for those dates. Several pages contain scattered dollar amounts
and other entries with no column headings or other explanatory information.
On July 15, 2008 the Office issued a preliminary determination of a $46,325.69
overpayment of compensation from April 5, 1992 to August 10, 2002 as appellant received
disability compensation for 4 hours a day while working more than 4 hours a day, an excess of
7,729 hours. It found that she was at fault in creation of the overpayment. The Office did not
provide the calculations on which it based its preliminary finding of overpayment.
By decision dated February 13, 2009, the Office finalized the July 15, 2008
determinations of fact, amount and fault.

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LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act1 provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal
injury sustained while in the performance of her duty.2 Section 8129(a) of the Act provides, in
pertinent part, that when “an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations prescribed by the
Secretary of Labor by decreasing later payments to which an individual is entitled.”3
Office procedures state that the preliminary notice of overpayment must clearly set forth
the reason why the overpayment occurred and contain a clearly written explanation as to how the
overpayment was calculated.4
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a lumbar injury in 1984 requiring two fusion
surgeries. On February 10, 1992 appellant returned to work for four hours a day and received
wage-loss compensation for four hours a day. She continued to work this schedule through
August 2005.
In a July 15, 2008 preliminary notice finalized on February 13, 2009, the Office found
that, from April 5, 1992 to August 10, 2002, appellant worked more than four hours a day for
intermittent periods. Based on a May 2008 employing establishment spreadsheet, it found that
she worked a total of 7,729 hours over her four-hour schedule, creating a $46,325.69
overpayment of compensation for which she was at fault.
The Boards finds that the Office did not follow its procedures when it released the
July 15, 2008 preliminary notice of overpayment as it did not provide a clearly written
explanation of how the overpayment was calculated.5 It merely repeated the 7,729-hour total
from the May 2008 spreadsheet. However, the spreadsheet is problematic as the employing
establishment used nonstandard column headings, such as “061,” “Gross Proof” and “Total
Proof.” There is no explanation of these terms. Therefore, the meaning of the information listed
in those columns is unclear.
Moreover, several pages of the spreadsheet contain dollar amounts and other entries with
no column headings or explanation. The significance of this data cannot be ascertained from the
record. The Office did not provide any independent review of the employing establishment’s
1

5 U.S.C. §§ 8101-8193.

2

Id. at § 8102(a).

3

Id. at § 8129(a).

4

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.4a
(June 2009).
5

Federal (FECA) Procedure Manual, supra note 4. See also G.M., (Docket No. 06-1892, issued January 18,
2007); D.M., (Docket No. 07-1434, issued December 14, 2007).

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accounting methods or explain how it could accurately determine the amount of the overpayment
based on unexplained, uncategorized spreadsheet entries.
Moreover, the spreadsheet also shows missing time and attendance information for dates
between November 29, 1993 and February 28, 2000. The employing establishment provided
estimated hours for these dates. The Office based its findings of fact and amount of
overpayment, in part, on this estimated information rather than on accurate timekeeping records.
The Board finds that the information of record relied on by the Office is incomplete as to the
period or amount of the overpayment. The Board notes that on January 12, 2004 the Office
requested that the employing establishment submit detailed records as to appellant’s work. The
employing establishment has not provided either the requested calculation or the payroll records.
On appeal, appellant, through her attorney, contends that the Office did not meet its
burden of proof in establishing the fact or amount of the overpayment as the May 2008
spreadsheet was not fully explained and based on estimated or inaccurate time and attendance
information. As noted, the Office failed to follow its procedures in calculating the overpayment
and did not provide a clear explanation to appellant. The Board will reverse the February 13,
2009 decision regarding the fact and amount of overpayment. As the Office has not established
an overpayment of compensation, the issue regarding fault is rendered moot.
CONCLUSION
The Board finds that the Office failed to establish the fact or amount of overpayment. It
did not comply with its procedures by providing a detailed calculation of the amount of the
overpayment.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated and finalized February 13, 2009 is reversed.
Issued: December 4, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SOUTH TEXAS HEALTH CARE SYSTEM,
San Antonio, TX, Employer
__________________________________________

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Appearances:
Dr. Anthony Rogers, for the appellant
Office of Solicitor, for the Director

Docket No. 12-200
Issued: October 18, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On November 3, 2011 appellant, through her representative, filed a timely appeal from an
October 27, 2011 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 terminated appellant’s compensation, effective
April 5, 2011, on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
On February 12, 2008 appellant, then a 49-year-old diagnostic radiological technician,
filed a traumatic injury claim alleging that on that day she sustained a right arm and shoulder
1

5 U.S.C. § 8101 et seq.

blade injury as a result of lifting water to the sink from the portable air conditioner. OWCP
accepted the claim for right arm and upper shoulder strain, which was subsequently expanded to
include complete right rotator cuff rupture.2
On May 28, 2009 appellant filed an occupational disease claim alleging that on
March 31, 2009 she first became aware of left arm sprain due to overuse and its connection to
her employment duties. OWCP accepted the claim for left shoulder and upper arm sprain, left
rotator cuff tear and other affections of the left shoulder region not classified elsewhere.3
In a June 18, 2010 work restriction (Form OWCP-5c), Dr. Sanjay Misra, a treating
Board-certified orthopedic surgeon, provided permanent work restrictions for appellant. The
restrictions included up to eight hours of sitting, walking, reaching, reaching above the shoulder,
pushing and pulling up to 20 pounds and lifting up to 10 pounds.
On December 21, 2010 the employing establishment offered appellant the modified
position of medical support assistant with pay retention. It noted that she was unable to perform
the essential functions of her date-of-injury position so another position within her restrictions
was found. The salary of the position was $52,192.00 per year based on pay retention. The
physical requirements of the position were mostly sedentary with occasional/intermittent
walking, bending and standing, no pushing or pulling more than 20 pounds and no lifting more
than 10 pounds.
On February 14, 2011 OWCP advised appellant that the medical support assistant job
offer from the employing establishment constituted suitable work. It informed her that she had
30 days to accept the job or provide reasons for refusing it; otherwise, he risked termination of
his compensation benefits pursuant to 5 U.S.C. § 8106(c).
In a March 2, 2011 letter, appellant’s representative stated that appellant did not refuse
the offered job and that they tried to schedule a meeting with the employing establishment to
discuss the ramifications of the offered job.
On March 11, 2011 appellant’s representative informed OWCP that the employing
establishment had withdrawn the offered job.
In a March 24, 2011 letter, the employing establishment denied withdrawing the offered
position. It noted that appellant had been formally assigned to the position offered on
January 16, 2011 even though he refused to sign the job offer.
On March 24, 2011 appellant filed a traumatic injury claim alleging that on March 16,
2011 she sustained pain and swelling in her forearm when she hit it on the doorway going to her
space. OWCP accepted the claim for right forearm and elbow sprain.4
2

OWCP assigned claim number xxxxxx798.

3

OWCP assigned claim number xxxxxx341.

4

OWCP assigned claim number xxxxxx103. It combined claim numbers xxxxxx103, xxxxxx341 and xxxxxx798
with xxxxxx798 as listed as the master file number.

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In a March 30, 2011 letter, OWCP advised appellant that the position offered by the
employing establishment was suitable work and she was given an additional 15 days to accept
the job offer.
In an April 4, 2011 letter, appellant’s representative contended that appellant has not
refused an offer of suitable work as she is waiting to discuss the position details with the
employing establishment.
In an April 7, 2011 letter, appellant’s representative set forth the issues he wished to
discuss with the employing establishment concerning the offered position in order to determine
its suitability.
By letter dated April 15, 2011, appellant’s representative argued that she had not refused
an offer of suitable work. He argued that the offered job was a reclassification of appellant’s
current position and that the offered job had not been properly developed by the employing
establishment.
By decision dated April 18, 2011, OWCP terminated appellant’ wage-loss compensation
effective April 15, 2011 based on her refusal of an offer of suitable work.
On April 25, 2011 appellant and her representative requested a telephonic hearing before
an OWCP hearing representative, which was held on August 11, 2011.
On May 23, 2011 the employing establishment informed appellant that her duty station
had been temporarily changed to her home address effective that day. Appellant was advised
that this change was to remain in effect until June 23, 2011.
On July 11, 2011 the employing establishment removed appellant from federal
employment effective July 22, 2011 based on her failure to accept a directed assignment.
In a September 2, 2011 letter, Arlen B. Rubin, an employing establishment Workers’
Compensation Coordinator, responded to the hearing transcript testimony. She stated that
appellant continued to be employed by the employing establishment despite her refusal to sign an
acceptance of the offered position. Ms. Rubin noted that no disciplinary action was taken against
appellant until OWCP’s suitability determination was completed. Following the April 18, 2011
decision terminating appellant’s wage-loss compensation pursuant to 5 U.S.C. § 8106(c), a
proposed removal letter was issued on May 19, 2011 for her failure to accept a suitable job. On
July 11, 2011 appellant was removed from service with the employing establishment. In
concluding, Ms. Rubin noted that, although the offered job involved a reassignment to a lower
grade, appellant was offered pay retention with no loss in salary.
By decision dated October 27, 2011, OWCP’s hearing representative affirmed the
termination of appellant’s benefits pursuant to 5 U.S.C. § 8106(c).
LEGAL PRECEDENT
Section 8106(c)(2) of FECA states that a partially disabled employee who refuses to seek
suitable work or refuses or neglects to work after suitable work is offered to, procured by or
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secured for him or her is not entitled to compensation.5 Once OWCP accepts a claim, it has the
burden of justifying termination or modification of compensation benefits under section 8106(c)
for refusing to accept or neglecting to perform suitable work.6 The Board has recognized that
section 8106(c) serves as a penalty provision as it may bar an employee’s entitlement to future
compensation and, for this reason, will be narrowly construed.7 To justify termination, OWCP
must show that the work offered was suitable and that appellant was informed of the
consequences of her refusal to accept such employment.8 If it is aware that appellant has actual
earnings, it must determine whether such earnings represent appellant’s wage-earning capacity
before it can invoke the penalty provision of section 8106(c) of FECA.9 Section 10.516 of the
Code of Federal Regulations10 provides that an employee who refuses or neglects to work after
suitable work has been offered or secured for the employee has the burden of showing that such
refusal or failure to work was reasonable or justified and shall be provided with the opportunity
to make such showing before a determination is made with respect to termination of entitlement
to compensation.11
ANALYSIS
OWCP accepted the claim for right arm and upper shoulder strain and complete right
rotator cuff rupture. The employing establishment offered appellant the modified position of
medical support assistant with pay retention. At the time of the job offer, the record shows that
she was performing the job. The employing establishment stated that a written job offer had
been sent to appellant for an official job assignment with a change to a lower grade with no
change in pay. Appellant refused to sign a formal acceptance of the job offer, but continued to
work in the position on which the job offer was based. The record reveals that she continued to
work for the employing establishment in that position until July 11, 2011. On July 11, 2011 the
employing establishment removed appellant from federal employment based on her failure to
accept a directed assignment.
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation for refusing suitable work. The record establishes that she had actual earnings at
the employing establishment since she was performing the duties of the offered position. In
correspondence to OWCP, the employing establishment acknowledged that appellant was
working in the offered position, but that she refused to sign the form accepting the offered job.
OWCP did not consider whether her actual earnings in the offered position fairly and reasonably

5

5 U.S.C. § 8106(c)(2).

6

Howard Y. Miyashiro, 51 ECAB 253 (1999).

7

H. Adrian Osborne, 48 ECAB 556 (1997).

8

T.S., 59 ECAB 490 (2008); Ronald M. Jones, 52 ECAB 190 (2000).

9

Michael E. Moravec, 46 ECAB 492 (1995).

10

20 C.F.R. § 10.516.

11

See Camillo R. DeArcangelis, 42 ECAB 941 (1991).

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represented her wage-earning capacity. Such a determination must be made before invoking the
penalty provision of section 8106(c) of FECA.12
CONCLUSION
OWCP did not meet its burden of proof to terminate appellant’s compensation for
refusing suitable work, as it did not consider whether her actual earnings in the offered position
represented her wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 27, 2011 is reversed.
Issued: October 18, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning
Capacity, Chapter 2.814.5(a) (July 1993). See also Mary E. Woodard, 57 ECAB 211 (2005); Joyce M. Doll, 53
ECAB 790 (2002).

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

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

Docket No. 16-0930
Issued: August 4, 2016

Case Submitted on the Record

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

JURISDICTION
On April 1, 2016 appellant filed a timely appeal from a January 7, 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 33 percent permanent impairment of the left
lower extremity and 3 percent permanent impairment of the right lower extremity.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated May 17, 2005, the
Board set aside OWCP’s April 6 and September 14, 2004 decisions granting appellant a schedule

1

5 U.S.C. § 8101 et seq.

award for 15 percent permanent impairment of the left lower extremity.2 It noted that his
treating physician diagnosed mild polyneuropathy of the lower extremity by electromyogram
(EMG) study, but OWCP’s medical adviser had found that appellant was not entitled to an
impairment rating for polyneuropathy as it was not an accepted condition. The Board remanded
the case for OWCP to determine whether polyneuropathy should be included when calculating
the left lower extremity impairment.
On June 22, 2015 an OWCP medical adviser found that appellant had 15 percent
permanent impairment due to left ankle arthritis and 12 percent permanent impairment due to
polyneuropathy, which he combined to find 25 percent left lower extremity impairment.
In a decision dated July 13, 2005, OWCP granted appellant a schedule award for an
additional 10 percent permanent impairment of the left leg, for a total 25 percent impairment.
Appellant, on August 28, 2012, underwent an anterior lumbar fusion at L3-4. He filed a
Form CA-7 claim for an increased schedule award on April 25, 2013. Appellant submitted an
April 2, 2013 impairment evaluation from Dr. Austin Gleason, III, a Board-certified orthopedic
surgeon, finding that he had 12 percent whole person impairment due to his back condition, 20
percent left lower extremity impairment due to patellofemoral arthritis of the knees bilaterally,
and 16 percent impairment of the left lower extremity due to problems with his left ankle joint.
On May 13, 2013 an OWCP medical adviser reviewed Dr. Gleason’s report and found
that appellant was not entitled to a permanent impairment of the spine as it was not a scheduled
member. He further determined that Dr. Gleason did not discuss the x-ray findings that he used
to evaluate appellant’s ankle arthritis and patellofemoral arthritis. The medical adviser
recommended that OWCP refer him for a second opinion examination.
On July 29, 2013 OWCP referred appellant to Dr. Jenness D. Courtney, a Board-certified
physiatrist, for a second opinion examination. In a report dated August 14, 2013, Dr. Courtney
found that appellant had no radiculopathy on examination and thus no impairment of the
peripheral nerves of the lower extremity. Citing the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), he opined
that appellant had 20 percent impairment due to ankle arthrodesis and a bilateral 3 percent
impairment due to patellofemoral arthritis, which he combined to find 22 percent left lower
extremity impairment. Dr. Courtney further found three percent right lower extremity
impairment.
Electrodiagnostic studies of the lower extremities performed on November 25, 2013
revealed primarily axonal polyneuropathy.
In an addendum dated December 11, 2013, Dr. Courtney related that nerve conduction
studies showed generalized axonal polyneuropathy, but not tarsal tunnel syndrome. He found,
2

Docket No. 05-473 (issued May 17, 2005). OWCP accepted that on May 22, 2003 appellant, then a 38-year-old
automation clerk, sustained an aggravation of lumbar strain, an aggravation of a lumbar herniated disc, an
aggravation of bilateral knee osteoarthritis, an aggravation of osteoarthritis of the left ankle, tarsal syndrome of the
left ankle, and heterotopic calcification of the left ankle in the performance of duty.

2

consequently, that appellant did not have additional impairment based on electrodiagnostic
studies.
An OWCP medical adviser reviewed Dr. Courtney’s report on January 27, 2014 and
concurred with his findings.
By decision dated May 15, 2014, OWCP granted appellant a schedule award for 3
percent right lower extremity impairment and an additional 8 percent left lower extremity
impairment for a total 33 percent left lower extremity impairment. Appellant appealed to the
Board.
By decision dated December 18, 2014, the Board set aside the May 15, 2014 decision.3
The Board found that the opinion of Dr. Courtney was insufficient to establish the extent of
appellant’s permanent impairment as he did not identify the x-ray studies used in diagnosing
patellofemoral arthritis. The Board further determined that, while Dr. Courtney noted that a
nerve conduction study showed sensory and motor axonal polyneuropathy, he did not address
whether it caused impairment.4 The Board remanded the case for OWCP to obtain an opinion
regarding the extent of appellant’s permanent impairment in accordance with the A.M.A.,
Guides.
OWCP referred appellant on June 2, 2015 to Dr. Douglas C. Brown, a Board-certified
orthopedic surgeon, for a second opinion examination.
In a report dated July 7, 2015, Dr. Brown reviewed appellant’s history of injury and the
medical reports of record. He noted that a nerve conduction showed mild or tarsal tunnel
syndrome and polyneuropathy. On examination Dr. Brown found no ankle reflexes and a
positive Tinel’s sign at the left ankle tarsal tunnel. He further found patellofemoral crepitus of
both knees with range of motion of 0 to 135 degrees. Dr. Brown advised that x-rays of the left
ankle showed osteoarthritis with joint space narrowing. He diagnosed spondylolisthesis and a
surgically repaired herniated disc at L3-4, mild bilateral patellofemoral chondromalacia, a
ganglion cyst of the right knee, moderate left ankle arthritis with reduced motion, and left tarsal
tunnel syndrome. Citing the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides), Dr. Brown found 3 percent impairment
of each knee, 20 percent impairment of the left ankle due to arthritis, 1 percent impairment due
to tarsal tunnel syndrome, and 12 percent whole person impairment arising from a spinal
condition.
Dr. Brown provided an addendum report dated August 3, 2015. For the left ankle, he
identified the diagnosis as class 2 osteoarthritis using Table 16-2 on page 506, which yielded a
default value of 20 percent. Dr. Brown found that appellant had a grade modifier of two for
functional history, clinical studies, and physical examination, and thus no adjustment from the
default value. For the bilateral knees, he identified the diagnosis as class 1 patellofemoral
3

Docket No. 14-1437 (issued December 18, 2014).

4

The Board additionally noted that OWCP medical adviser should have subtracted the total prior left lower
extremity impairment in determining the extent of impairment.

3

chondromalacia using Table 16-3 on page 511, with a default value of three percent. Dr. Brown
applied grade modifiers of one for functional history, physical examination, and clinical studies,
which yielded no adjustment. He additionally used Table 16-12 on page 536 to find three
percent left lower extremity impairment due to peripheral nerve impairment from tarsal tunnel
syndrome of the medial plantar nerve. Dr. Brown further determined that appellant had 12
percent whole person impairment using Table 17-4 on page 571, relevant to determining
impairments of the spine. He concluded that he had 25 percent lower extremity impairment or
10 percent whole person impairment.
In a supplemental report dated November 18, 2015, Dr. Brown advised that appellant’s
“ankle had no modifier, the spine had no modifier, [and] the knees also had no modifier.” He
confirmed the findings from his prior report.
On December 15, 2015 an OWCP medical adviser applied the tables and provisions of
the A.M.A., Guides to Dr. Brown’s clinical findings.5 He diagnosed status postlumbar fusion at
L3-4, bilateral patellofemoral chondromalacia, and left ankle degenerative joint disease. Using
Table 16-3 on page 511 of the A.M.A., Guides, the medical adviser found that appellant had
three percent impairment of each lower extremity due to the identified diagnosis of class 1
patellofemoral chondromalacia. For the left lower extremity, he found an additional impairment
of 20 percent due to class 2 degenerative joint disease of the ankle with joint space narrowing,
for a combined 22 percent left lower extremity impairment according to the Combined Values
Chart. The medical adviser opined that appellant had no neurological deficits bilaterally due to
radiculopathy. He noted that FECA did not provide an award for the back or spine. The medical
adviser disagreed with Dr. Brown’s finding that appellant had one percent impairment due to
tarsal tunnel syndrome as he did not “demonstrate any neurologic deficit consistent with tarsal
tunnel syndrome….” He concluded that appellant had no more than the previously awarded 33
percent permanent impairment of the left lower extremity and 3 percent permanent impairment
of the right lower extremity.
By decision dated January 7, 2016, OWCP denied appellant’s claim for an increased
schedule award.
On appeal appellant contends that OWCP did not consider whether he had impairment
due to polyneuropathy as previously instructed by the Board.
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,
5

An OWCP medical adviser reviewed Dr. Brown’s opinion on September 25, 2015 and found that it was
insufficient to support an impairment rating as he did not provide grade modifiers or explain his conclusions. It
appears that the medical adviser did not review Dr. Brown’s August 3, 2015 addendum report.
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

4

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
The sixth edition requires identifying the impairment Class of Diagnosis condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE), and Clinical Studies (GMCS).10 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
ANALYSIS
OWCP accepted appellant’s claim for an aggravation of lumbar strain, an aggravation of
a herniated lumbar disc, an aggravation of bilateral knee osteoarthritis, an aggravation of
osteoarthritis of the left ankle, tarsal tunnel syndrome of the left ankle, and a heterotopic
calcification of the left ankle as the result of a May 22, 2003 employment injury.
On prior appeal the Board set aside an OWCP schedule award decision granting appellant
15 percent permanent impairment of the left lower extremity. It remanded the case for OWCP to
consider whether polyneuropathy of the lower extremity should be included in the impairment
rating as either employment related or a preexisting condition.11
OWCP, on remand, determined that the medical evidence established that appellant had
15 percent lower extremity impairment due to left ankle arthritis and 12 percent impairment due
to polyneuropathy. It granted him a schedule award for an additional 10 percent left lower
extremity impairment.
On August 14, 2013 Dr. Courtney, an OWCP referral physician, found that appellant had
no peripheral nerve impairment due to his back condition, but had an impairment due to left
ankle arthrodesis and bilateral patellofemoral arthritis. An OWCP medical adviser concurred
with his findings. Based on Dr. Courtney’s opinion, by decision dated May 15, 2014, OWCP
granted appellant a schedule award for an additional eight percent left lower extremity
impairment and three percent right lower extremity impairment.
On appeal for the second time, the Board found that the opinion of Dr. Courtney was
insufficient to support an impairment rating as the physician did not identify the x-rays relied
upon or address whether he had an impairment due to polyneuropathy.
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); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
10

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

11

Preexisting impairments are included in determining the amount of a schedule award for a member of the body
that sustained an employment-related impairment. See Mike E. Reid, 51 ECAB 543 (2000).

5

On remand OWCP referred appellant to Dr. Brown for a second opinion examination.
Dr. Brown provided a report dated July 7, 2015 and addendum dated August 3, 2015. He
reviewed appellant’s history of schedule awards for a left ankle and right knee condition as well
as polyneuropathy. Dr. Brown noted that a nerve conduction study showed tarsal tunnel
syndrome and polyneuropathy and that x-rays revealed osteoarthritis of the left ankle with
narrowing of the joint spacing. He diagnosed spondylolisthesis and a repaired herniated disc at
L3-4, mild bilateral patellofemoral chondromalacia, a right knee ganglion cyst, moderate left
ankle arthritis with loss of motion, and left ankle tarsal tunnel syndrome. Citing the A.M.A.,
Guides, Dr. Brown identified the diagnosis as class 2 osteoarthritis of the ankle using Table 16-2,
which yielded a default impairment of 20 percent. He applied grade modifiers of two for
functional history, clinical studies, and physical examination, which after using the net
adjustment formula yielded no change from the default value.12 Dr. Brown further identified the
diagnosis of bilateral patellofemoral chondromalacia, class 1, which yielded a default value of
three percent under Table 16-3. He applied a grade modifier of one for all categories which
yielded no adjustment.13 Dr. Brown found that appellant had three percent impairment left tarsal
tunnel syndrome under Table 16-12. He combined the percentages to find 25 percent left lower
extremity impairment.
Dr. Brown additionally determined that appellant had 12 percent whole person
impairment due to an impairment of the spine under Table 17-4. FECA, however, specifically
excludes the back as an organ and, therefore, the back does not come under the provisions for
payment of a schedule award.14 Additionally, FECA does not provide for impairment of the
whole person.15
An OWCP medical adviser reviewed Dr. Brown’s opinion on December 15, 2015 and
concurred with his finding of 3 percent bilateral impairment due to chondromalacia of the knees
and 20 percent impairment due to degenerative joint disease of the left ankle, for a total of 3
percent permanent impairment of the right lower extremity and 22 percent permanent
impairment of the left lower extremity. He noted that there was no evidence of a neurological
deficit of the lower extremity due to radiculopathy. The medical adviser further found that there
was no objective evidence to support tarsal tunnel syndrome. The Board notes, however, that
Dr. Brown found a positive Tinel’s sign of the left ankle at the tarsal tunnel. Even with the
additional three percent impairment found by Dr. Brown for tarsal tunnel syndrome, however,
appellant would not be entitled to an additional schedule award beyond the 33 percent previously
awarded for the left lower extremity.
Appellant has not submitted any evidence in accordance with the A.M.A., Guides
showing more than 33 percent permanent impairment of the left lower extremity and 3 percent

12

Utilizing the net adjustment formula discussed above, (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), or (22) + (2-2) + (2-2) = 0, yielded a zero adjustment.
13

(1-1) + (1-1) + (1-1) = 0.

14

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

15

N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).

6

impairment of the right lower extremity. Consequently, he has not met his burden to establish an
increased schedule award.
On appeal appellant contends that OWCP failed to consider whether he had impairment
due to polyneuropathy. OWCP, however, previously awarded him 12 percent lower extremity
impairment due to polyneuropathy. Appellant has the burden to establish an increased
impairment.16
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 33 percent permanent impairment of the
left lower extremity and 3 percent permanent impairment of the right lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the January 7, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 4, 2016
Washington, DC

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

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

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

16

See D.H., 58 ECAB 358 (2007); Annette M. Dent, 44 ECAB 403 (1993).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.B., Appellant
and
DEPARTMENT OF THE ARMY,
Redstone Arsenal, AL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 10-1382
Issued: April 13, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On April 16, 2010 appellant filed an application for review of an October 20, 2009 merit
decision of the Office of Workers’ Compensation Programs denying her request for a schedule
award. The appeal was docketed as number 10-1382.
The Office accepted appellant’s February 5, 2008 traumatic injury claim for sprain of the
neck, back, lumbar region, right ankle sprain, right knee sprain, lateral collateral ligament and
contusion of the right hip and thigh. Appellant requested a schedule award on October 8, 2008.
The Office denied appellant’s schedule award claim in a January 15, 2009 decision. After
appellant requested a hearing, an Office hearing representative, in an August 11, 2009 decision,
set aside the schedule award decision and remanded the case for the Office to refer appellant to a
qualified physician for an opinion on permanent impairment of appellant’s right leg based upon
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment.1

1

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

On September 4, 2009 the Office referred appellant to Dr. Steven Fuller, an osteopath
and Board-certified orthopedic surgeon. An August 21, 2009 Office letter containing questions
for Dr. Fuller noted that appellant was being referred to determine the extent of her work-related
disability and permanent impairment of the right leg. The list of questions posed to Dr. Fuller
did not specifically ask that he address whether appellant had permanent impairment of the right
leg pursuant to the sixth edition of the A.M.A., Guides. Instead, the questions posed to
Dr. Fuller pertained to whether appellant had objective findings, whether her current condition
was causally related to her work injury, whether her accepted conditions resolved and the current
status of her right knee. In a September 23, 2009 report, Dr. Fuller noted findings and addressed
the Office’s August 21, 2009 questions. He did not address whether appellant had permanent
impairment of the right leg under the sixth edition of the A.M.A., Guides. On October 20, 2009
the Office denied appellant’s claim for a schedule award.
The Board has duly considered the matter and finds that the case is not in posture for a
decision as the Office did not conduct the medical development directed by the hearing
representative in her August 11, 2009 decision. The hearing representative directed the Office to
refer appellant to an appropriate physician for an opinion on permanent impairment under the
sixth edition of the A.M.A., Guides.2 While the Office referred appellant to Dr. Fuller, it did not
request that he render an opinion on permanent impairment under the sixth edition of the
A.M.A., Guides. The Board has held that, once the Office begins to development of the medical
evidence, it has the responsibility to obtain an evaluation which will resolve the issue involved in
the case.3 The case must be remanded for the Office to refer appellant to an appropriate Boardcertified specialist for an opinion regarding whether appellant has a permanent impairment of the
right leg, due to her work injury, pursuant to the sixth edition of the A.M.A., Guides. Following
this and such other development as deemed necessary, the Office shall issue an appropriate merit
decision regarding appellant’s entitlement to a schedule award for the right leg.

2

See FECA Bulletin No. 09-03 (issued March 15, 2008) (effective May 1, 2009, the Office is required to use the
sixth edition of the A.M.A., Guides in calculating schedule awards).
3

Mae Z. Hackett, 34 ECAB 1421 (1983).

2

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
October 20, 2009 decision be set aside, and the case is remanded for further development
consistent with this order.
Issued: April 13, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, CLEVELAND
PROCESSING & DISTRIBUTION CENTER,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 19-0495
Issued: February 5, 2020

Case Submitted on the Record

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

JURISDICTION
On January 8, 2019 appellant filed a timely appeal from a November 13, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 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.3

1
Appellant timely requested oral argument before the Board. By order dated December 11, 2019, the Board
exercised its discretion and denied the request as the matter could be adequately addressed based on a review of the
case record. Order Denying Request for Oral Argument, Docket No. 19-0495 (issued December 11, 2019).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that following the November 13, 2018 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
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish greater than 12
percent permanent impairment of the left upper extremity, for which she previously received
schedule award compensation.
FACTUAL HISTORY
This case has previously been before the Board.4 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 19, 2012 appellant, then a 48-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on January 18, 2012 her right shoulder “popped” while in
the performance of duty. OWCP accepted her traumatic injury claim for right shoulder sprain and
right shoulder impingement syndrome.5 It authorized payment of intermittent wage-loss
compensation as of March 6, 2012. Appellant worked limited duty until October 2013, when she
stopped work due to a left shoulder condition.6
On February 28, 2017 appellant underwent authorized left shoulder arthroscopy with
debridement, arthroscopic acromioplasty, limited distal clavicle resection, limited open repair of
the left rotator cuff, and proximal biceps tenodesis with application of sling.
On May 31, 2017 OWCP expanded acceptance of the claim to include right shoulder
algoneurodystrophy, unspecified rotator cuff tear or rupture of left shoulder (not specified as
traumatic), incomplete rotator cuff tear or rupture of left shoulder (not specified as traumatic),
impingement syndrome of left shoulder, right shoulder and upper arm sprain, other affections of
right shoulder region, not elsewhere classified, and old disruption of posterior cruciate ligament.
On June 8, 2018 appellant filed a claim for an additional schedule award (Form CA-7).
In a May 8, 2018 report, Dr. Robert R. Reppy, an osteopath and family medicine specialist,
indicated that appellant reached maximum medical improvement (MMI) on May 4, 2018. He
provided impairment ratings for accepted diagnoses of left rotator cuff tear, rupture of left
shoulder, left impingement syndrome under the sixth edition of the American Medical Association,

4

Docket No. 15-1311 (issued July 21, 2017).

5

By decision dated May 23, 2014, OWCP granted appellant a schedule award for five percent permanent
impairment of the right upper extremity. By decision dated March 19, 2015, an OWCP hearing representative affirmed
the May 23, 2014 schedule award decision. Appellant appealed the March 19, 2015 decision to the Board. By decision
dated July 21, 2017, the Board set aside the hearing representative’s March 19, 2015 schedule award decision of the
right upper extremity. The Board remanded the case for OWCP to utilize a consistent method for calculating the
permanent impairment for the upper extremities. Following further development, by decision dated September 18,
2017, OWCP awarded appellant an additional 11 percent permanent impairment of the right upper extremity, for a
total of 16 percent permanent impairment of the right upper extremity.
6

Appellant ultimately retired on disability, effective August 8, 2014.

2

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).7 Using the diagnosis-based
impairment (DBI) method for the left upper extremity, Dr. Reppy found that appellant had seven
percent permanent impairment for a grade E, class 1 full-thickness tear of the supraspinatus under
the Shoulder Regional Grid, Table 15-5 page 403, and five percent permanent impairment for a
grade E, class 1 impingement syndrome under Table 15-5, page 402. He set forth his calculations
under the A.M.A., Guides. Under the range of motion (ROM) impairment rating method,
following three repetitions and using the most restrictive measurements, Dr. Reppy found that
appellant had 13 percent permanent impairment of the left upper extremity. The three
measurements provided were: forward flexion, 91, 110, and 100 degrees; abduction, 85, 90, and
80 degrees; internal rotation, 80, 75, and 80 degrees; external rotation, 65, 70, and 73 degrees;
adduction, 75, 70, and 77 degrees; and extension, 35, 30, and 25 degrees. This amounted to three
percent impairment for 90 degrees flexion, six percent impairment for 80 degrees abduction, two
percent impairment for 75 degrees internal rotation, zero percent impairment for 65 degrees
external rotation, zero percent impairment for 70 degrees adduction, and two percent impairment
for 25 degrees extension. For the right upper extremity, Dr. Reppy found that appellant had one
percent permanent impairment for grade C, class 1 nonspecific shoulder pain under Table 15-5,
page 401 under the DBI methodology. He also noted that the ROM methodology yielded 13
percent permanent impairment. Dr. Reppy concluded that, under the Combined Values Chart on
page 604, that appellant had 23 percent total left upper extremity impairment.
On July 10, 2018 OWCP forwarded appellant’s case record to an OWCP district medical
adviser (DMA) to determine appellant’s permanent impairment.
In a July 14, 2018 report, Dr. Herbert White, Jr., Board-certified in physical medicine and
rehabilitation serving as a DMA, reviewed the medical evidence of file and indicated that appellant
had reached MMI on May 8, 2018. He utilized Dr. Reppy’s May 8, 2018 evaluation findings and
set forth impairment ratings for the right and left upper extremity. For the left upper extremity,
under the DBI methodology, the DMA found that appellant had 12 percent permanent impairment
for the left shoulder distal clavicle resection, pursuant to Table 15-5, page 403, as opposed to
Dr. Reppy’s 7 percent permanent impairment rating for the full-thickness rotator cuff tear. Under
Table 2.1, page 20 and page 389 of the A.M.A., Guides, he explained that as appellant had more
than one diagnosis, this diagnosis yielded the highest impairment rating. Under Table 15-5, page
405, the DMA found class 1 class of diagnosis (CDX) distal clavicle resection was 10 percent
impairment. Under Table 15-7, page 406, he found a grade modifier functional history (GMFH)
was grade 2, under Table 15-8, page 408, a grade modifier physical evaluation (GMPE) was grade
1, and under Table 15-9, page 410, a grade modifier clinical studies (GMCS) was grade 4.
Utilizing the net adjustment formula calculation, the DMA found a net adjustment of 4,8 which
resulted in a grade E or 12 percent permanent impairment for left shoulder distal clavicle resection.
Under the ROM methodology for the left upper extremity, the DMA indicated that he
obtained an upper extremity permanent impairment rating of 7 percent as opposed to Dr. Reppy’s
upper extremity impairment rating of 13 percent. He indicated that Dr. Reppy properly recorded
three separate ROM motion efforts, but that the maximum observed measurement should have
7

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

8

(GMFH-CDX)(2-1) + (GMPE-CDX)(1-1) + (CMCS–CDX)(4-1) = 4.

3

been used to determine ROM impairment as opposed to the restrictive measurement Dr. Reppy
had utilized. Using Dr. Reppy’s ROM findings and rounding to the nearest number ending in 0,
the DMA calculated under Table 15-34, page 475: 110 degrees flexion equaled three percent
impairment; 40 (35) degrees extension equaled one percent impairment; 90 degrees abduction
equaled three percent impairment; 80 degrees adduction equaled zero percent impairment; 80
degrees internal rotation equaled zero percent impairment; and 70 degrees external rotation
equaled zero percent impairment, for a total upper extremity impairment of seven percent.9 Under
Table 15-35, page 477, and Table 15-7, page 406, he assigned a grade 1 ROM modifier, and a
grade 2 functional history modifier. The DMA then used Table 16-17, page 545, to find a ROM
modifier adjustment of .35 percent (5 percent times 7 percent), which yielded a total permanent
impairment of 7.35 percent rounded down to 7 percent. He concluded that the DBI methodology
of 12 percent impairment represented appellant’s left upper extremity impairment as it produced
the higher rating over the 7 percent ROM methodology.
By decision dated July 18, 2018, OWCP granted appellant a schedule award for 12 percent
permanent impairment of the left upper extremity. The period of the award ran from May 8, 2018
to January 25, 2019. The weight of the medical evidence was accorded to the DMA.
On July 30, 2018 appellant requested a review of the written record by an OWCP hearing
representative. She set forth arguments in a July 29, 2018 statement.
By decision dated November 13, 2018, an OWCP hearing representative affirmed OWCP’s
July 18, 2018 decision with regard to whether appellant has established permanent impairment of
her left upper extremity.10
LEGAL PRECEDENT
The schedule award provisions of FECA11 and its implementing regulations12 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. For consistent
results and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A.,
Guides as the uniform standard applicable to all claimants and the Board has concurred in such

9
The Board notes that Dr. Reppy recorded adduction of 75, 70, and 77 degrees. The DMA’s notation of 80 degrees
of adduction is harmless error as adduction greater than 40 degrees equals zero percent impairment under Table 15-34.
10

The hearing representative remanded the case for a formal decision regarding permanent impairment of the right
upper extremity and the possibility of an overpayment of compensation.
11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404.

4

adoption.13 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used
to calculate schedule awards.14
In addressing impairment for the upper extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity
to be rated.15 After a CDX is determined (including identification of a default grade value), the
impairment class is then adjusted by grade modifiers based on GMFH, GMPE, and GMCS.16 The
net adjustment formula is (GMFH CDX) + (GMPE CDX) + (GMCS CDX).17
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s DMA for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the
percentage of impairment specified.18
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides: “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 evaluation, 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 the higher rating should be used.”19
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

13

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

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
15

T.T., Docket No. 18-1622 (issued May 14, 2019).

16

A.M.A., Guides 383-492; see M.P., Docket No. 13-2087 (issued April 8, 2014).

17

Id. at 411.12. See supra note 13 at Chapter 2.808.6 (March 2017). R.M., Docket No. 18-1313 (issued April 11,
2019); C.K., Docket No. 09-2371 (issued August 18, 2010).
18

FECA Bulletin No. 17-06 (May 8, 2017); M.S., Docket No. 19-1011 (issued October 29, 2019); V.L., Docket No.
18-0760 (issued November 13, 2018); A.G., Docket No. 18-0329 (issued July 26, 2018).
19

FECA Bulletin id.; V.L., id.; A.G., id.

5

should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”20
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish greater than 12
percent permanent impairment of the left upper extremity, for which she previously received
schedule award compensation.
OWCP received a May 8, 2018 report from Dr. Reppy who opined that, for the left upper
extremity, appellant had seven percent permanent partial impairment for a grade E, class 1 fullthickness tear of the supraspinatus and five percent permanent partial impairment for a grade E,
class 1 impingement syndrome under the DBI methodology. However, if a claimant has two
significant diagnoses, the examiner should use the diagnosis with the highest causally related
impairment rating for the impairment calculation.21 Dr. Reppy also reported that appellant had 13
percent permanent impairment of the left upper extremity under the ROM methodology. While
he provided three sets of ROM measurements, he used the most restrictive as opposed to the
greatest measurement as provided in FECA Bulletin No. 17-06.22 As a result, Dr. Reppy’s
impairment ratings did not comply with the A.M.A., Guides and are of limited probative value.23
The Board finds that Dr. White, OWCP’s DMA, properly determined that appellant had no
more than 12 percent permanent impairment of her left upper extremity. Utilizing the ROM
methodology found in Table 15-34, page 475 of the A.M.A., Guides, the DMA used the greatest
ROM measurement and found that appellant had seven percent upper extremity impairment. He
calculated: 110 degrees flexion equaled three percent impairment; 40 (35) degrees extension
equaled one percent impairment; 90 degrees abduction equaled three percent impairment; 80
degrees adduction equaled zero percent impairment; 80 degrees internal rotation equaled zero
percent impairment; and 70 degrees external rotation equaled zero percent impairment. Under
Table 15-35, page 477, and Table 15-7, page 406, the DMA assigned a grade 1 ROM modifier,
and a grade 2 functional history modifier. Pursuant to the ROM modifier adjustment for the upper
extremities under Table 15-36, page 477, a modifier adjustment of .35 (total ROM impairment
times five percent) would result. The DMA therefore concluded that the ROM methodology would
yield a total left upper extremity permanent impairment of 7.35 rounded down to 7 percent.24
The DMA properly noted that appellant had more than one diagnosis of the left upper
extremity and found that the diagnosis of distal clavicle resection yielded the highest impairment
rating. Under Table 15-5, page 405, a class 1 (CDX) distal clavicle resection has a default
20

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

21

A.M.A., Guides 387.

22

Supra note 19.

23

See S.R., Docket No. 18-1307 (issued March 27, 2019).

24
The DMA provided the proper calculation but cited Table 16-17, page 545, instead of Table 15-36, page 477.
This constitutes harmless error.

6

impairment value of 10 percent impairment. The DMA assigned, under Table 15-7, page 406,
GMFH 2; under Table 15-8, page 408, GMPE 1; and under Table 15-9, page 410, GMCS 4. He
properly calculated a net adjustment of 4 from the net adjustment formula,25 which resulted in a
grade E or 12 percent permanent impairment for left shoulder distal clavicle resection. The DMA
explained that as the DBI rating resulted in the greater percentage of impairment than the ROM
rating and, under the A.M.A., Guides, the method producing the highest rating should be used. He
concluded that this resulted in 12 percent left upper extremity permanent impairment based upon
the DBI rating method. The DMA’s report constitutes the weight of the medical evidence.
The Board thus finds that appellant has not established more than 12 percent permanent
impairment of her left upper extremity, for which she previously received a schedule award.26
On appeal appellant contends that Dr. Reppy’s report found 23 percent permanent
impairment of her left shoulder, therefore, she should be entitled to a greater impairment than that
previously awarded. As explained above, there is no probative medical evidence of record, in
conformance with the sixth edition of the A.M.A., Guides, establishing that appellant has more
than 12 percent permanent impairment of the left upper extremity.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish greater than 12
percent permanent impairment of the left upper extremity, for which she previously received
schedule award compensation.

25

(GMFH-CDX)(2-1) + (GMPE-CDX)(1-1) + (CMCS–CDX)(4-1) = 4.

26

See M.H., Docket No. 19-0290 (issued June 18, 2019).

7

ORDER
IT IS HEREBY ORDERED THAT the November 13, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 5, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tustin, CA, Employer
__________________________________________

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

Docket No. 08-339
Issued: June 10, 2008

Case Submitted on the Record

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

JURISDICTION
On November 9, 2007 appellant filed a timely appeal from the September 21, 2007 merit
decision of the Office of Workers’ Compensation Programs, which denied modification of an
earlier decision terminating compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation on the
grounds that she refused suitable work.
FACTUAL HISTORY
On June 12, 2001 appellant, then a 41-year-old rural letter carrier, filed a claim alleging
that her back condition was a result of her federal employment. The Office accepted her claim
for herniated lumbar discs and authorized surgery. Appellant received compensation for
temporary total disability on the periodic rolls.

On June 25, 2004 Dr. E. Richard Dorsey, a psychiatrist and Office referral physician,
diagnosed depressive disorder not otherwise specified. He explained that this condition was a
result of appellant’s work-related lumbar condition. But Dr. Dorsey reported that appellant was
off work due to her physical and not her mental condition. Appellant’s residual mental
impairment secondary to her occupational back pain was slight, and she was mentally able to
resume her usual and customary occupation or engage in any other occupation for which she was
physically suited, subject to the preclusion of a high level of stress in the form of an unusually
high pace, volume or pressure of work. The Office accepted appellant’s claim for depressive
disorder.
On January 20, 2005 Dr. Don R. DeFeo, appellant’s neurosurgeon, reported that
appellant was permanent and stationary. He stated that she could return to light duty with a
maximum lifting, pulling or pushing restriction of 15 pounds frequently and 20 pounds
occasionally. Dr. DeFeo stated that appellant should alternate her sitting, standing and walking
as tolerated, parenthetically adding “every 20 minutes.”
On March 4, 2005 the employer offered appellant a modified carrier position that limited
lifting, pulling and pushing to no more than 15 pounds. The employer added: “You will be
allowed to alternate your sitting, standing, and walking as per your doctor’s medically defined
work restrictions.”
On March 16, 2005 appellant rejected the offer. She indicated she still had pain and that
part of the job required bending, stooping and uncomfortable chairs. Appellant stated that both
her feet were affected and that she could not wear closed-toe shoes for long periods. She also
noted that she had depression due to the ridiculing and sexual harassment she experienced from
her job performance. On April 12, 2005 appellant explained that she suffered depression, she
was sexually violated by a 204b supervisor and the employer did nothing about it, she suffered
harassment even after filing an Equal Employment Opportunity complaint, and she was subject
to ridicule and mocked just because she could not perform her job. She added that she still had
issues with her feet due to her back injury and that she could hardly wear closed-toe shoes, “so
this is my explanation that this workplace is not safe for me physically and mentally.”
On April 1, 2005 Dr. DeFeo approved the job offer with the following notation:
“Neurosurgically [appellant] should be able to perform this job. However, I feel there are other
areas that should be addressed prior to starting this position, such as her severe depression and
the issue of not being able to wear closed-toe shoes due to possible dysesthesia in the left legfoot.”
On April 25, 2006 the Office notified appellant that the offered position was suitable and
within the medical restrictions her physician reported on January 20, 2005. It confirmed that the
position remained available and allowed appellant 30 days to accept the offer and report for duty
or to explain her reasons for refusing the offer. The Office notified appellant that her right to
compensation would be terminated if she failed to report without justification. On May 5, 2006
she responded that her mental and physical condition was no better and that she could not
perform the job offered.

2

On June 23, 2006 the Office notified appellant that it had considered her reasons for
refusing the offered position and found those reasons to be invalid. It noted that she submitted
no medical evidence to support her claim that she was unable to perform the job. The Office
allowed appellant another 15 days to accept and arrange for a report-to-work date and advised
that it would terminate her compensation if she did not do so.
The Office received a disability slip from Dr. Norman J. Rosen, appellant’s family
physician, dated July 5, 2006, which indicated that appellant could return to work on October 5,
2006 with restrictions. Appellant requested and received authorization to see a psychiatrist,
Dr. Ted R. Greenzang.
In a decision dated July 11, 2006, the Office terminated appellant’s compensation under
5 U.S.C. § 8106(c)(2). The Office found that she failed to accept suitable employment without
justification.
On July 13, 2006 Dr. Greenzang diagnosed appellant with depressive disorder not
otherwise specified, together with depression and anxiety impacting upon her recurrent
headaches. He reported that appellant became partially temporarily disabled psychiatrically
beginning approximately June 2001. Dr. Greenzang stated that she was now permanent and
stationary and remained partially temporarily disabled psychiatrically in regard to her ability to
compete in the open labor market. He reported that appellant was unable from a psychiatric
standpoint to return to her usual and customary employment due to ongoing dysphoric symptoms
and the emotional handicap precipitated by physical symptoms referable to her lower back and
lower extremity. Dr. Greenzang described her disability as slight to slight-to-moderate.
Appellant requested reconsideration.
In a decision dated September 21, 2007, the Office reviewed the merits of appellant’s
case and denied modification of its prior decision.
LEGAL PRECEDENT
Section 8106(c)(2) of the Federal Employees’ Compensation Act states that a partially
disabled employee who refuses to seek suitable work, or refuses or neglects to work after
suitable work is offered to, procured by or secured for him is not entitled to compensation.1 The
Office has authority under this section to terminate compensation for any partially disabled
employee who refuses or neglects suitable work when it is offered. Before compensation can be
terminated, however, the Office has the burden of demonstrating that the employee can work,
setting forth the specific restrictions, if any, on the employee’s ability to work, and has the
burden of establishing that a position has been offered within the employee’s work restrictions,
setting forth the specific job requirements of the position.2 In other words, to justify termination
of compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision, the Office has the

1

5 U.S.C. § 8106(c)(2).

2

Frank J. Sell, Jr., 34 ECAB 547 (1983).

3

burden of showing that the work offered to and refused or neglected by the employee was
suitable.3
ANALYSIS
On January 20, 2005 Dr. DeFeo, the attending neurosurgeon, reported that appellant
could return to work with restrictions. Shortly thereafter, the employer offered her a modified
carrier position strictly tailored to those restrictions. Appellant rejected the offer, but Dr. DeFeo
reviewed the position and approved it. “Neurologically,” he stated, “[appellant] should be able
to perform this job.”
Appellant’s complaints to the contrary carry little weight. Her capacity to perform the
job is a medical question that must be determined by the medical evidence. Dr. DeFeo was
appellant’s attending neurosurgeon for years and he provided persuasive evidence that the
offered position was suitable from a neurological standpoint. The disability slip from Dr. Rosen,
appellant’s family practitioner, also carries little weight. The slip offers no medical rationale and
does not indicate whether Dr. Rosen ever reviewed appellant’s job offer. The Board therefore
finds that the medical evidence does not support appellant’s contention that she was physically
unable to perform the offered position.
Dr. Dorsey, a psychiatrist and Office referral physician, reported on June 25, 2004 that
appellant was off work due to her physical and not her mental condition. He explained that the
residual mental impairment secondary to her occupational back pain was slight. Just after the
Office terminated compensation, Dr. Greenzang, a psychiatrist, reported that appellant’s
disability was slight to slight-to-moderate. He stated that she remained partially temporarily
disabled psychiatrically in her ability to compete in the open labor market and was unable to
return to her usual and customary employment. But the issue is not whether appellant could
return to her date-of-injury position as a rural letter carrier. The issue is whether she could
perform the offered position of a modified carrier. Like Dr. Rosen, Dr. Greenzang gave no
indication that he ever reviewed the job offer. He never directly addressed whether appellant
was mentally capable of performing the job. The Board therefore finds that the medical evidence
does not support appellant’s contention that she was mentally unable to perform the offered
position.
The Office has met its burden of proof. The evidence establishes that appellant was no
longer totally disabled for all work. She was partially disabled and could return to work within
certain restrictions. The employer offered appellant a modified position within those restrictions
and with the approval of her neurosurgeon. Although she argues that she was mentally unable to
perform this job, the psychiatric evidence does not back her up. The Office followed proper
procedure and provided appellant due process. Because she, a partially disabled employee,
refused suitable work after suitable work was offered to her, she is not entitled to compensation
as a matter of law. The Board will affirm the Office’s September 21, 2007 decision terminating
appellant’s compensation under 5 U.S.C. § 8106(c)(2).

3

Glen L. Sinclair, 36 ECAB 664 (1985).

4

CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation on the
grounds that she refused suitable work.
ORDER
IT IS HEREBY ORDERED THAT the September 21, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 10, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Fort Belvoir, VA,
Employer
__________________________________________

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

Docket No. 13-862
Issued: August 21, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 28, 2013 appellant filed a timely appeal from a February 1, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his 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 met his burden of proof to establish bilateral hearing loss
causally related to factors of his federal employment.
FACTUAL HISTORY
On July 25, 2002 appellant, then a 53-year-old quality assurance specialist, filed an
occupational disease claim (Form CA-2) alleging bilateral hearing loss due to exposure to
1

5 U.S.C. § 8101 et seq.

electrical and air equipment in his federal employment.2 The employing establishment stated
that he worked mainly in an office environment and was only occasionally required to go into
buildings, for an average of 30 minutes per week, where air wrenches and other power tools were
used. Appellant was provided with earplugs when working in a noisy area.
OWCP referred appellant to Dr. Charles E. Hollingsworth, II, a Board-certified
otolaryngologist, for a second opinion examination.
In a January 15, 2003 report,
Dr. Hollingsworth reviewed a statement of accepted facts, appellant’s medical records and
history and conducted a physical examination. He stated that the earliest available audiogram
from May 1969 and several audiograms from the 1970s showed an already established bilateral
severe high frequency hearing loss between 50 and 60 decibels, left slightly worse than the right.
A January 15, 2003 audiogram performed on his behalf, showed the following decibel losses at
frequencies of 500, 1,000, 2,000 and 3,000 hertz (Hz): 10, 5, 10 and 65 for the right ear and 10,
15, 10 and 75 for the left ear. Dr. Hollingsworth stated that the hearing loss was 20 decibels
worse than appellant’s initial audiogram in 1969 and that his low and mid-frequency hearing was
normal. He derived appellant’s percent of hearing loss according to the American Medical
Association, Guides to the Evaluation of Permanent Impairment, (A.M.A., Guides), as zero right
ear, zero left ear and zero binaurally. Dr. Hollingsworth concluded that appellant had bilateral
severe high frequency neurosensory hearing loss, left worse than right, unrelated to his federal
employment. Dr. Hollingsworth opined: “I do not think this hearing loss is due to prolonged
noise exposure” and that it was “most probably a gradual deterioration of an already established
loss.” He noted that appellant was not a hearing aid candidate.
On October 22, 2003 Dr. H. Mobley, an OWCP medical adviser, reviewed
Dr. Hollingsworth’s report and the audiometric test of January 15, 2003. He determined that
appellant’s high frequency hearing loss was not related to noise exposure in his federal
employment as it was present at the time of entry into federal service. The amount of worsening
was compatible with presbycusis. Dr. Mobley concluded that, in accordance with the fifth
edition of the A.M.A., Guides (5th ed. 2001), appellant had a four percent monaural hearing loss
in the left ear. He further opined that hearing aids should not be authorized.
By decision dated February 1, 2013, OWCP denied the claim finding that the medical
evidence of record failed to establish a causal relationship between appellant’s hearing loss and
factors of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 timely filed within the applicable time
limitation period of FECA, and that an injury4 was sustained in the performance of duty. These
2

On June 12, 2003 appellant filed a claim for a schedule award.

3

5 U.S.C. §§ 8101-8193.

4

OWCP regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).

2

are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. The opinion of the physician must
be based on a complete factual and medical background of the employee, must be one of
reasonable medical 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 employee.7
ANALYSIS
The Board finds that this case is not in posture for decision.
The Board notes that Dr. Hollingsworth’s report was prepared on January 15, 2003 and
the medical adviser’s report was prepared on October 22, 2003 and were over 10 years old at the
time OWCP issued its February 1, 2013 decision. There is no explanation in the record as to
why the case lay dormant for over 10 years. The Board has held that stale medical evidence
cannot form the basis for current evaluation of residual symptomatology or disability
determination.8 The Board finds that Dr. Hollingsworth’s January 15, 2003 report and OWCP’s
medical adviser’s October 22, 2003 report were stale medical evidence and a referral to another
OWCP physician is warranted.
Accordingly, OWCP shall further develop the medical evidence and obtain a more
current second opinion evaluation of appellant’s hearing loss to determine whether he developed
bilateral hearing loss in the performance of duty, causally related to factors of his federal
employment. Following this and such other development as OWCP deems necessary, it shall
issue a de novo decision.

5

See J.C., Docket No. 09-1630 (issued April 14, 2010). See also Ellen L. Noble, 55 ECAB 530 (2004).

6

Id. See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

See I.J., 59 ECAB 408 (2008). See also Victor J. Woodhams, 41 ECAB 345 (1989).

8

See Keith Hanselman, 42 ECAB 680 (1991); Ellen G. Trimmer, 32 ECAB 1878 (1981) (reports almost two
years old deemed invalid basis for disability determination and loss of wage-earning capacity).

3

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
development consistent with this decision of the Board.
Issued: August 21, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4