United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kechi, KS, Employer
__________________________________________

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

Docket No. 07-2373 & 08-581
Issued: October 7, 2008

Case Submitted on the Record

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

JURISDICTION
On September 18, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated August 31, 2007 regarding an overpayment of
compensation. On October 31, 2007 appellant filed an appeal of an Office decision dated
September 13, 2007 on the overpayment.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

The August 31 and September 13, 2007 decisions involve the same overpayment. Both of these decisions find
an overpayment of $21,639.71, deny waiver and require repayment at $300.00 every 28 days from continuing
compensation. The only difference in the decisions is that the September 13, 2007 decision requested appellant
submit a payment for the entire overpayment amount, and if a payment was not received, then $300.00 would be
deducted from continuing compensation. The Board will issue a single decision reviewing both the August 31 and
September 13, 2007 Office decisions.

ISSUES
The issues are: (1) whether the Office properly found that an overpayment of $21,639.71
was created due to an incorrect pay rate; (2) whether the Office properly denied waiver of the
overpayment; and (3) whether the Office properly found the overpayment should be recovered
by deducting $300.00 from continuing compensation.
FACTUAL HISTORY
The Office accepted that appellant sustained bilateral carpal tunnel syndrome, bilateral
ulnar nerve lesions left arm tendinitis and right trigger finger causally related to her federal
employment. In a June 20, 2003 statement, appellant indicated that she generally worked six
days a week on a part-time basis. She stopped working on July 29, 2003. According to an
employing establishment letter dated December 5, 2003, appellant averaged 34.99 hours per
week in the year prior to July 29, 2003, and worked 1,819.73 hours. The Office determined that
the pay rate for compensation purposes was $556.50 per week, based on an hourly rate of $15.90
at 35 hours per week. Appellant began receiving compensation for temporary total disability.
She was paid compensation from July 29 to November 4, 2003 and December 11, 2003 to
June 9, 2007 at a pay rate of $556.50 per week.
In correspondence dated May 17, 2007, the employing establishment indicated that
appellant earned $21,033.19 from July 29, 2002 to July 28, 2003. By decision dated July 9,
2007, the Office issued a wage-earning capacity determination based on the selected position of
receptionist.2 On July 27, 2007 the Office issued a preliminary determination that an
overpayment of $21,639.71 occurred from July 29 to November 4, 2003 and December 11, 2003
to June 9, 2007 due to an incorrect pay rate. It included a worksheet showing appellant’s pay
rate at $404.48 per week. According to the Office, appellant was paid $79,210.46 during the
relevant period, but should have been paid $57,570.75, resulting in an overpayment of
$21,639.71. With respect to fault, it found appellant was not at fault in creating the
overpayment.
Appellant completed an overpayment recovery questionnaire on August 17, 2007. She
reported income of approximately $3,224.00 per month and expenses of $2,930.00, with assets
of over $69,000.00.3
By decisions dated August 31 and September 13, 2007, the Office finalized the
overpayment determination. It found that an overpayment of $21,639.71 occurred, and waiver
was denied as appellant had assets exceeding the minimum resource base. The Office found
appellant could repay the overpayment by deducting $300.00 from continuing compensation.

2

Appellant did not request review of this decision.

3

The reported income included $1,330.00 in compensation benefits. By decision dated July 9, 2007, the Office
had reduced appellant’s compensation to $599.00 every 28 days based on her wage-earning capacity. Appellant did
not request that the Board review this decision.

2

LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides that monthly pay means the
monthly pay at the time of injury, or the time disability begins, or the time compensable
disability recurs, if the recurrence begins more than six months after the injured employee
resumes regular full-time employment, whichever is greater.4 Section 8114(d) of the Act
provides:
“Average annual earnings are determined as follows:
“(1) If the employee worked in the employment in which he was employed at the
time of his injury during substantially the whole year immediately preceding the
injury and the employment was in a position for which an annual rate of pay -“(A) was fixed, the average annual earnings are the annual rate of pay; or
“(B) was not fixed, the average annual earnings are the product obtained
by multiplying his daily wage for particular employment, or the average
thereof if the daily wage has fluctuated, by 300 if he was employed on the
basis of a 6-day workweek, 280 if employed on the basis of a 5½-day
week, and 260 if employed on the basis of a 5-day week.”
ANALYSIS
The Office found an overpayment in this case on the grounds that appellant had received
compensation based on an incorrect pay rate. The initial pay rate used by the Office, as of the
date disability began July 29, 2003, was $556.50 per week. This was based on an hourly wage of
$15.90 per hour at 35 hours per week.
While the Office advised appellant that this pay rate was incorrect, neither the
preliminary determination nor the final decision offer a clear explanation as to the correct pay
rate. The Office did not clearly explain how the new pay rate was calculated. Based on a
worksheet provided, it appears the Office found the correct pay rate was $404.48 per week. This
amount was apparently based on the employing establishment’s May 17, 2007 letter that
appellant earned $21,033.19 in the year prior to July 29, 2003. $404.48 represents 5½ of the
reported total amount earned.
A pay rate determination must be made in accord with the specific provisions of 5 U.S.C.
§ 8114. The record indicated that appellant worked in the date-of-injury job during substantially
the whole year preceding the injury. It appears that appellant was paid an hourly wage, and she
worked a varying number of hours per week. If her average annual earnings were not fixed, then
the Office must determine pay rate under 5 U.S.C. § 8114(d)(1)(B). As noted, this requires
determining the average daily wage and multiplying by the appropriate number. The Office must
secure sufficient evidence to determine appellant’s average daily wage, and whether she was
employed on the basis of a 6, 5½, or 5-day workweek.
4

5 U.S.C. § 8101(4).

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The case will be remanded for a proper determination as to the correct pay rate for
compensation purposes. Once this issue is resolved, the Office may properly determine the
amount of any overpayment and issue an appropriate decision. The Board will not address the
remaining overpayment issues. If the Office finds an overpayment and establishes recovery from
continuing compensation payments, the Office must consider the relevant factors.5
CONCLUSION
The case will be remanded to the Office to properly determine appellant’s pay rate for
compensation purposes under 5 U.S.C. § 8114 and issue an appropriate decision regarding any
overpayment of compensation.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 13 and August 31, 2007 are set aside and the case
remanded for further action consistent with this decision of the Board.
Issued: October 7, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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“When an overpayment has been made to an individual who is entitled to further payments, the individual shall
refund to [the Office] the amount of the overpayment as soon as the error is discovered or his or her attention is
called to the same. If no refund is made, [the Office] shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the financial circumstances of the
individual and any other relevant factors, so as to minimize hardship.” 2 0 C.F.R. § 10.441.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Dallas, TX, Employer
__________________________________________

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

Docket No. 08-1500
Issued: December 5, 2008

Case Submitted on the Record

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

JURISDICTION
On April 23, 2008 appellant filed a timely appeal from an April 25, 2007 merit decision
of the Office of Workers’ Compensation Programs granting a schedule award. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award decision.
ISSUES
The issues are: (1) whether appellant has more than a two percent permanent impairment
of each lower extremity; and (2) whether the Office properly denied her request for a subpoena.
FACTUAL HISTORY
This case is before the Board for the second time. On July 25, 2005 the Board affirmed
December 31, 2003 and March 2, June 20, August 11, November 5 and December 7, 2004 Office
decisions finding that appellant did not establish a recurrence of disability on April 1, 2003
causally related to her June 13, 2001 employment injury and denying her request for a hearing

under 5 U.S.C. § 8124.1 The findings of fact and conclusions of law from the Board’s decision
are hereby incorporated by reference.
On July 14, 2004 appellant filed an occupational disease claim alleging that she sustained
a back condition causally related to factors of her federal employment. The Office assigned the
claim file number xxxxxx140. By decision dated September 15, 2004, it denied the claim after
finding that appellant did not establish fact of injury. On September 21, 2005 an Office hearing
representative set aside the September 15, 2004 decision and remanded the case for further
medical development on the issue of whether appellant sustained a low back condition due to
employment factors. The hearing representative instructed the Office to combine the case record
with file number xxxxxx680. Following further development, the Office accepted that appellant
sustained a lumbar intervertebral disc and bilateral thoracic and lumbar neuritis and radiculitis.
On May 11, 2006 appellant filed a claim for a schedule award. By letter dated June 5,
2006, the Office requested that she submit a medical report addressing the extent of any
permanent impairment in accordance with the American Medical Association, Guides to the
Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A., Guides). Appellant submitted an
impairment evaluation dated May 31, 2006 from Dr. Huntly G. Chapman, a Board-certified
orthopedic surgeon, who found bilateral stocking numbness of the lower extremities to pinprick
without atrophy. Dr. Chapman measured Grade 4 power of the ankle dorsiflexors and great toe
extensors. He found that appellant had a 15 percent whole person impairment of the common
peroneal nerve pursuant to Tables 17-37 on page 552 of the A.M.A., Guides. Dr. Chapman
multiplied the 15 percent whole person impairment by a graded 25 percent motor deficit under
Table 13-24 on page 348 to find a four percent whole person impairment. He then applied Table
13-23 and Table 17-37 to find one percent whole person impairment due to a sensory
impairment.2 Dr. Chapman combined the 4 percent and the 1 percent whole person impairment
to find 5 percent whole person impairment on each side, or a 10 percent whole person
impairment.
An Office medical adviser reviewed Dr. Chapman’s report on August 8, 2006. He found
that the physician did not properly apply the provisions of the A.M.A., Guides for an extremity
impairment rating secondary to a lumbar disorder. The Office medical adviser opined that
Tables 15-17 and 15-18 on page 424 of the A.M.A., Guides should be used to evaluate nerve
root impairments originating in the back. He recommended that the Office refer appellant for a
second opinion examination on the issue of the extent of any permanent impairment.
On August 21, 2006 the Office referred appellant to Dr. John A. Sklar, a Board-certified
physiatrist, for a second opinion examination. In an impairment evaluation dated September 15,
2006, Dr. Sklar found intact sensation and good strength in the lower extremities with no

1

Docket No. 05-477 (issued July 25, 2005). On June 13, 2001 appellant, then a 54-year-old licensed vocational
nurse, sustained cervical, thoracic and lumbar strain when she caught a falling patient. The Office assigned the case,
file number xxxxxx680.
Appellant sustained intermittent periods of total disability from June 13 to
October 17, 2001. She retired on disability effective April 19, 2005.
2

A.M.A., Guides 348, 552

2

evidence of weakness. He diagnosed chronic upper and lower back pain without radiculopathy.
Dr. Sklar stated:
“In regard to an impairment rating for this claimant there is clearly no evidence of
radiculopathy of peripheral neuropathy involving the lower or upper extremities.
There is no evidence of radiculopathy on physical examination nor is there any
evidence of lower extremity radiculopathy on EMG [electromyogram] testing. As
such, then there is no basis to grant a neurological impairment involving the upper
or lower extremities in this case. The claimant does have pain in her legs. The
[A.M.A., Guides] do allow for rating pain and according to [Office] procedures an
impairment up to three percent can be assigned for pain. In this case, I will assign
a two percent lower extremity impairment for the right lower extremity secondary
to complaints of pain. I will also assign a two percent lower extremity
impairment for the left lower extremity due to complaints of pain. This is the
only ratable impairment I find.”
In an accompanying form report relevant to lower extremity impairments, Dr. Sklar
indicated that appellant did not have neurological involvement but did have moderate pain
without weakness. He indicated that she reached maximum medical improvement on
May 31, 2005.
On October 5, 2006 an Office medical adviser reviewed Dr. Sklar’s report. He noted that
the physician utilized page 573 of the A.M.A., Guides in finding that appellant had a two percent
impairment of the each lower extremity. The Office medical adviser concurred with Dr. Sklar’s
determination and found that appellant reached maximum medical improvement on
May 31, 2006.
By decision dated October 13, 2006, the Office granted appellant a schedule award for a
two percent permanent impairment to each lower extremity. The period of the award ran for
11.52 weeks from May 31 to August 19, 2006.
On October 14, 2006 appellant requested an oral hearing. By letter dated November 12,
2006, she requested a subpoena of the report of the Office medical adviser who reviewed
Dr. Chapman’s evaluation and recommended a second opinion examination. Appellant also
requested a copy of the statement of accepted facts and questions for the second opinion
physician. She asserted that she had asked for the report three times without success.3 On
November 15, 2006 the Office sent appellant a copy of her medical records in file numbers
xxxxxx680 and xxxxxx140. On December 29, 2006 an Office hearing representative denied her
request for a subpoena of Dr. Mosely’s report. The hearing representative noted that the Office
sent appellant a copy of the medical evidence in both of her case files. Further, appellant did not
explain why she wanted the information or how it would assist her in showing that she had a
greater permanent impairment.

3

Appellant requested a copy of her medical records on May 10 and 25, June 23 and September 16, 2006. On
August 25 and September 13, 2006 she requested the report of the Office medical adviser.

3

A hearing was held on February 15, 2007. In a decision dated April 25, 2007, a hearing
representative affirmed the October 13, 2006 decision. She noted that appellant could appeal the
denial of her subpoena request.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act,4 and its
implementing federal regulation,5 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.6 Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in
2001, for all decisions made after February 1, 2001.7
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained strains of the cervical, thoracic and lumbar
spine due to a June 13, 2001 employment injury. It also accepted that she sustained a lumbar
intervertebral disc and bilateral thoracic and lumbar neuritis and radiculitis casually related to
factors of her federal employment. On May 11, 2006 appellant filed a claim for a schedule
award. In a report dated May 31, 2006, Dr. Chapman found bilateral stocking numbness of the
lower extremities to pinprick without atrophy and Grade 4 power of the ankle dorsiflexors and
great toe extensors. He determined the extent of her permanent impairment by using Tables 1323 and 13-24 on pages 346 and 347 of the A.M.A., Guides, which are relevant to determining
peripheral nerve impairments for “sensory and motor impairments from individual nerve lesions
or multiple nerve disorders, such as polyneuropathy or monomeuritis multiplex.” Dr. Chapman
concluded that appellant had a “10 percent whole person impairment.”8 An Office medical
adviser reviewed his report and found that it was not in accordance with the A.M.A., Guides.
There is no evidence that appellant has a nerve lesion or multiple nerve disorders. Additionally,
the Act does not provide for impairment of the whole person.9 As Dr. Chapman’s report does
not conform to the A.M.A., Guides, it is of diminished probative value.10
The Office referred appellant to Dr. Sklar for an impairment evaluation.
On
September 16, 2006 Dr. Sklar found good sensation and strength in the lower extremities. He
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

20 C.F.R. § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

8

A.M.A., Guides 347.

9

Tania R. Keka, 55 ECAB 354 (2004).

10

Mary L. Henninger, 52 ECAB 408 (2001).

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diagnosed chronic pain in both the upper and lower back with no radiculopathy. Dr. Sklar found
that she had no evidence of radicuopathy or peripheral neuropathy on physical examination or
diagnostic testing. He advised that appellant had a two percent impairment of the right and left
lower extremities due to moderate pain. Dr. Sklar found that the impairment due to pain was the
only ratable employment as that she had no neurological impairment. He opined that appellant
reached maximum medical improvement on May 31, 2005. The Office medical adviser
reviewed Dr. Sklar’s report and found that he utilized page 573 in Chapter 18 of the A.M.A.,
Guides in determining that appellant had a two percent impairment of each lower extremity. He
agreed that she had a two percent left lower extremity impairment. Chapter 18 provides that an
impairment percentage determined according to the body or organ rating system in other
chapters may be increased by up to three percent based on an informal pain assessment.11 In
order to provide an impairment due to pain not associated with a ratable impairment from other
chapters, a formal assessment of the pain-related impairment must be performed under Chapter
18.12 Dr. Sklar did not find that appellant had any impairment based on other chapters of the
A.M.A., Guides and did not provide a formal assessment of appellant’s pain; consequently, there
is no basis for awarding appellant a schedule award for an impairment due to pain. The Board
finds that there is no probative medical evidence in accordance with the A.M.A., Guides
establishing greater than a two percent permanent impairment of each lower extremity.
LEGAL PRECEDENT -- ISSUE 2
Section 8126 of the Act provides that the Secretary of Labor, on any matter within her
jurisdiction under this subchapter, may issue subpoenas for and compel the attendance of
witnesses within a radius of 100 miles.13 The implementing regulation provides that a claimant
may request a subpoena, but the decision to grant or deny such a request is within the discretion
of the hearing representative, who may issue subpoenas for the attendance and testimony of
witnesses and for the production of books, records, correspondence, papers or other relevant
documents. Subpoenas are issued for documents only if they are relevant and cannot be obtained
by other means and for witnesses only where oral testimony is the best way to ascertain the
facts.14
In requesting a subpoena, a claimant must explain why the testimony is relevant to the
issues in the case and why a subpoena is the best method or opportunity to obtain such evidence
because there is no other means by which the testimony could have been obtained.15 Section
10.619(a)(1) of the implementing regulation provides that a claimant may request a subpoena
only as a part of the hearings process and no subpoena will be issued under any other part of the
claims process. To request a subpoena, the requestor must submit the request in writing and send
it to the hearing representative as early as possible, but no later than 60 days (as evidenced by
11

A.M.A. Guides 573.

12

Id.

13

5 U.S.C. § 8126(1).

14

20 C.F.R. § 10.619; Gregorio E. Conde, 52 ECAB 410 (2001).

15

Id.

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postmark, electronic marker or other objective date mark) after the date of the original hearing
request.16
The Office hearing representative retains discretion on whether to issue a subpoena. The
function of the Board on appeal is to determine whether there has been an abuse of discretion.17
Abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable
exercise of judgment or actions taken which are clearly contrary to logic and probable deduction
from established facts.18
ANALYSIS -- ISSUE 2
On October 14, 2006 appellant requested an oral hearing. By letter dated November 12,
2006, she requested a subpoena for the report of the Office medical adviser who reviewed
Dr. Chapman’s evaluation and recommended a second opinion examination. Appellant also
requested a copy of the statement of accepted facts and questions for the second opinion
physician. On November 15, 2006 the Office sent her a copy of her medical records in file
numbers xxxxxx680 and xxxxxx140. On December 29, 2006 an Office hearing representative
denied appellant’s request for a subpoena for Dr. Mosely’s report. She noted that the Office had
provided her with a copy of the medical evidence in both of her case files. Additionally,
appellant did not explain why she wanted the information or how it would show that she was
entitled to a greater impairment rating.
The Board finds that the hearing representative properly denied appellant’s request
because she did not provide any explanation of why a subpoena was the best method to obtain
the evidence in question and why there was no other means by which the testimony could have
been obtained. An abuse of discretion is generally shown through proof of manifest error,
clearly unreasonable exercise of judgment or actions taken which are contrary to both logic and
probable deduction from established facts.19 The mere showing that the evidence would support
a contrary conclusion is insufficient to prove an abuse of discretion. The Board finds that the
hearing representative did not abuse her discretion in denying appellant’s request for a subpoena.
CONCLUSION
The Board finds that appellant has no more than a two percent permanent impairment of
each lower extremity. The Board further finds that the Office properly denied her request for a
subpoena.

16

20 C.F.R. § 10.619(a)(1).

17

See Gregorio E. Conde, supra note 14.

18

Claudio Vazquez, 52 ECAB 496 (2001).

19

V.T., 58 ECAB ___ (Docket No. 06-1347, issued October 19, 2006).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 25, 2007 is affirmed.
Issued: December 5, 2008
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.T., Appellant
and
DEPARTMENT OF THE AIR FORCE,
TINKER AIR FORCE BASE, OK, Employer
__________________________________________

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

Docket No. 10-773
Issued: November 10, 2010

Case Submitted on the Record

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

JURISDICTION
On January 27, 2010 appellant timely appealed the August 5, 2009 nonmerit decision of
the Office of Workers’ Compensation Programs. The last merit decision of record is dated
November 13, 2007, which is more than 180 days prior to the filing of the current appeal.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction of the August 5, 2009
nonmerit decision but not the November 13, 2007 merit decision.1
ISSUE
The issue is whether the Office properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.

1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

FACTUAL HISTORY
This case was previously before the Board.2 Appellant, a 58-year-old former tool and
parts attendant, filed a claim (Form CA-2) for job-related stress, anxiety and depression, which
allegedly arose on or about August 11, 2003.3 She attributed her emotional condition, diagnosed
as severe major depression and acute stress disorder, to alleged verbal and physical abuse from
coworkers. Appellant also claimed that a hostile work environment and improper supervision
contributed to her condition. Another alleged incident involved her being duct taped to an office
chair and pushed through the aisles of the shop while coworkers watched and laughed. She
claimed that one coworker in particular repeatedly kicked the chair as she rolled up and down the
aisle.
The Office issued merit decisions on August 31, 2004 and September 16, 2005, both of
which denied the claim for failure to establish a compensable employment factor. It also issued
a November 17, 2006 nonmerit decision denying appellant’s September 13, 2006 request for
reconsideration. When the case was previously on appeal, the Board found that appellant
submitted relevant and pertinent new evidence with her September 13, 2006 request for
reconsideration, thereby warranting further merit review. The evidence in question pertained to
the alleged duct tape incident. The Board set aside the Office’s November 17, 2006 decision and
remanded the case for further consideration of the merits of the claim. The Board’s August 3,
2007 decision is incorporated herein by reference.
On remand, the Office reviewed the merits of the claim and issued the November 13,
2007 decision, finding that appellant failed to establish a compensable employment factor. With
respect to the alleged duct tape incident, it found that it had not been factually established. The
Office, therefore, denied modification of the hearing representative’s September 16, 2005
decision.
On April 29, 2009 appellant requested reconsideration. She utilized the appeal request
form that accompanied the Office’s November 13, 2007 decision.4 The Office received
appellant’s request for reconsideration on May 11, 2009. Apart from submitting the appeal
request form, appellant did not provide any additional evidence or argument relevant to the issue
upon which her claim had been denied.
In an August 5, 2009 decision, the Office denied appellant’s reconsideration request
without further merit review. It found the request untimely filed and did not establish clear
evidence of error.

2

Docket No. 07-936 (issued August 3, 2007).

3

Appellant last worked on August 12, 2003. She received a disability retirement annuity from the Office of
Personnel Management effective December 9, 2003.
4

On April 3, 2009 the Office provided appellant an electronic copy of her imaged case record pursuant to a
March 18, 2009 written request. Appellant reportedly had not received the original November 13, 2007 Office
decision.

2

LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act does not entitle a claimant
to a review of an Office decision as a matter of right.5 The Office has discretionary authority in
this regard and it has imposed certain limitations in exercising its authority.6 One such limitation
is that the application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.7 When a request for reconsideration is untimely, the Office
will undertake a limited review to determine whether the application presents “clear evidence of
error” on the part of the Office in its “most recent merit decision.”8
ANALYSIS
Appellant’s request for reconsideration was dated April 29, 2009, which is more than a
year after the Office’s November 13, 2007 merit decision. However, appellant claimed not to
have received the decision when it was initially issued. The record establishes that the Office
sent copies of the November 13, 2007 decision to both appellant and her representative of record.
Appellant’s representative had previously represented her at the May 25, 2005 oral hearing
before the Branch of Hearings and Review. However, when the Office issued the November 13,
2007 decision, she was reportedly no longer employed.
In the absence of evidence to the contrary, it is presumed that a notice mailed in the
ordinary course of business was received in due course by the intended recipient.9 This
presumption is commonly referred to as the “mailbox rule.”10 It arises when the record reflects
that the notice was properly addressed and duly mailed.11 In this instance, the record reflects that
the Office sent a copy of the November 13, 2007 decision to appellant’s address of record, which
is the same address she identified with respect to the current appeal. There is no evidence that
the November 13, 2007 decision was returned to the Office as undeliverable. Accordingly, it is
presumed that appellant received the Office’s November 13, 2007 decision in due course.
Appellant’s request for reconsideration postdated the November 13, 2007 merit decision by more

5

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a) (2006).
6

20 C.F.R. § 10.607 (2009).

7

Id. at § 10.607(a).

8

Id. at § 10.607(b).

9

Kenneth E. Harris, 54 ECAB 502, 505 (2003).

10

Id.

11

Id.

3

than a year. Because her April 29, 2009 request was untimely she must demonstrate “clear
evidence of error” on the part of the Office in denying her claim for job-related stress, anxiety
and depression.12
The Office denied appellant’s claim because she did not establish a compensable
employment factor as the reputed cause of her diagnosed emotional condition. The April 29,
2009 request for reconsideration was merely an appeal request form that accompanied the
November 13, 2007 decision. Appellant did not submit any additional evidence or argument
relevant to the issue upon which her claim had been denied. In particular, she did not submit
additional evidence to substantiate any of the previously alleged employment incidents. The
Board finds that appellant has not demonstrated clear evidence of error. As such, there is no
justification for further merit review. Accordingly, the Office properly declined to reopen
appellant’s case under 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that appellant’s April 29, 2009 request was untimely and she failed to
demonstrate clear evidence of error. Therefore, she is not entitled to further merit review.

12

20 C.F.R. § 10.607(b). To establish clear evidence of error, a claimant must submit evidence relevant to the
issue that was decided by the Office. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive,
precise and explicit and it must be apparent on its face that the Office committed an error. See Leona N. Travis, 43
ECAB 227 (1991). It is not enough to merely show that the evidence could be construed to produce a contrary
conclusion. Id. Evidence that does not raise a substantial question concerning the correctness of the Office’s
decision is insufficient to establish clear evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). The
evidence submitted must not only be of sufficient probative value to create a conflict in medical opinion or establish
a clear procedural error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of the Office decision. Thankamma Mathews, 44
ECAB 765, 770 (1993).

4

ORDER
IT IS HEREBY ORDERED THAT the August 5, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 10, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Greensboro, NC, Employer
__________________________________________

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

Docket No. 16-0221
Issued: March 25, 2016

Case Submitted on the Record

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

JURISDICTION
On November 16, 2015 appellant filed an appeal of a May 28, 2015 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction
to consider the merits of this case.
ISSUE
The issue is whether appellant has established more than five percent permanent
impairment of her left upper extremity.
FACTUAL HISTORY
Appellant, a 55-year-old mail carrier, filed an occupational disease claim (Form CA-2) on
September 13, 2013 alleging that she developed a left shoulder condition causally related to

1

5 U.S.C. § 8101 et seq.

employment factors. OWCP accepted the claim for disorder of bursae and tendons in the left
shoulder.
On November 1, 2013 appellant underwent arthroscopic surgery on her left shoulder to
ameliorate the following conditions: impingement with high grade partial thickness or possibly
full-thickness damage to the supraspinatus and biceps tendinopathy; and full thickness
supraspinatus tear at the tuberosity. The procedure was performed by Dr. Donald A. Campbell,
Board-certified in orthopedic surgery.
On December 8, 2014 appellant filed a claim for a schedule award (Form CA-7) based on
a partial loss of use of her left upper extremity.
In a December 3, 2014 report, Dr. Campbell related findings from a functional capacity
evaluation. He thereafter concluded that appellant had 10 percent permanent of the left shoulder
and left arm. Dr. Campbell offered no explanation as to how he calculated appellant’s degree of
permanent impairment. He did not indicate that this rating was made in conformance with the
American Medical Association, Guides to the Evaluation of Permanent Impairment (sixth
edition) (A.M.A., Guides).2
In an April 3, 2015 report, an OWCP medical adviser reviewed Dr. Campbell’s
November 1, 2013 surgical report and December 3, 2014 report and found that appellant had a
five percent left upper extremity impairment under the A.M.A., Guides. He calculated this rating
by finding that she had a class 1 impairment for rotator cuff injury, full thickness tear at Table 155, page 403 of the A.M.A., Guides,3 the shoulder regional grid for rating upper extremity
impairments. The medical adviser found that appellant had a grade C impairment which
corresponded to five percent permanent impairment, for residual loss, functional with normal
motion.
By decision dated May 28, 2015, OWCP granted appellant a schedule award for five
percent permanent impairment of the left upper extremity for the period December 13, 2014 to
April 1, 2015, for a total of 15.6 weeks of compensation.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
2

A.M.A., Guides (6th ed. 2nd prtg. 2009).

3

A.M.A., Guides at 403.

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

2

all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 Effective May 1, 2009, the Office began
using the A.M.A., Guides (6th ed. 2009).7
It is the claimant’s burden to establish that she has sustained a permanent impairment of
the scheduled member or function as a result of any employment injury.8 Before an award may
be made, it must be medically determined that no further improvement can be anticipated and the
impairment must reach a fixed and permanent state, which is known as maximum medical
improvement.9 OWCP procedures provide that, to support a schedule award, the file must
contain competent medical evidence which describes the impairment in sufficient detail so that it
can be visualized on review, and computes the percentage of impairment in accordance with the
A.M.A., Guides.10
The sixth edition of the A.M.A., Guides requires identifying the impairment class for the
Class of Diagnosis (CDX) condition, which is then adjusted by grade modifiers based on
Functional History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS). The
net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).11
ANALYSIS
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP medical adviser for an opinion concerning the nature and percent of
impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale
for the percentage of impairment specified.12
OWCP accepted appellant’s September 13, 2013 occupational disease claim for disorder
of bursae and tendons of the left shoulder and authorized surgery for full-thickness supraspinatus
tear. Dr. Campbell, appellant’s treating physician, rated 10 percent permanent impairment of
appellant’s left arm and left shoulder. He, however, did not render this rating in accordance with
the A.M.A., Guides, and OWCP procedures. Dr. Campbell’s report did not provide sufficient
objective medical findings which would allow the visualization of appellant’s permanent
6

Id.

7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); see also Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a
(February 2013).
8

Tammy L. Meehan, 53 ECAB 229 (2001).

9

Supra note 7 at Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(a)(1) (January 2010).

10

Id. at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.7 (February 2013).
See A.A., Docket No. 16-0041 (issued February 11, 2016).
11

Supra note 2 at 411.

12

See supra note 7 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(f)
February 2013).

3

impairment.13 Furthermore, he offered no explanation as to how he rated appellant’s impairment
under the A.M.A., Guides.
OWCP’s medical adviser calculated a five percent upper extremity impairment for the left
shoulder by relying on Table 15-5 on page 403 of the A.M.A., Guides. He found that appellant
had a class 1 impairment for rotator cuff injury, full thickness tear at Table 15-5, page 403 of the
A.M.A., Guides. The medical adviser found that appellant had a grade C impairment which
corresponded to a five percent impairment rating, for residual loss, functional with normal motion.
The Board finds that the April 3, 2015 impairment rating of OWCP’s medical adviser was
rendered in conformance with the sixth edition of the A.M.A., Guides. Accordingly, as OWCP’s
medical adviser provided the only impairment rating of record rendered in accordance with the
applicable protocols and tables of the A.M.A., Guides, OWCP properly found that appellant was
not entitled to a schedule award greater than five percent impairment in its May 28, 2015
decision.
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 not established that she has more than five percent
permanent impairment of her left upper extremity.

13

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the May 28, 2015 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: March 25, 2016
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Raleigh, NC,
Employer
__________________________________________

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)
)

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

Docket No. 19-1465
Issued: January 28, 2020

Case Submitted on the Record

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

JURISDICTION
On June 26, 2019 appellant filed a timely appeal from a June 4, 2019 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.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the June 4, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly suspended appellant’s schedule award compensation
pursuant to 20 C.F.R. § 10.528.
FACTUAL HISTORY
On February 4, 2010 appellant, then a 37-year-old mail processing clerk, injured his right
knee when sweeping mail on a delivery bar code sorter machine when his right knee gave out
while in the performance of duty. On April 7, 2010 OWCP accepted his traumatic injury claim
for right knee lateral meniscus tear. On May 3, 2010 he underwent OWCP-approved right knee
arthroscopic surgery. OWCP paid wage-loss compensation for temporary total disability
beginning May 1, 2010 and placed appellant on the periodic rolls effective June 6, 2010.
Appellant resumed work in a light-duty capacity effective June 11, 2010.
On February 2, 2011 OWCP granted appellant a schedule award for 30 percent permanent
impairment of the right lower extremity, which covered an 86.4-week period September 8, 2010
through May 4, 2012.
On May 15, 2012 appellant underwent additional OWCP-approved right knee arthroscopic
surgery. He received wage-loss compensation for temporary total disability from May 19, 2012
until his return to work on June 28, 2012.
On December 3, 2012 OWCP granted a schedule award for an additional two percent
permanent impairment of the right lower extremity. The award covered a period of 5.76 weeks
from July 1 through August 10, 2012.
Appellant stopped work on March 13, 2013 and underwent an OWCP-authorized total right
knee arthroplasty on March 14, 2013. He received wage-loss compensation for temporary total
disability beginning March 13, 2013, and OWCP placed him on the periodic rolls effective
April 7, 2013. Appellant continued to receive wage-loss compensation for temporary total
disability through August 26, 2014.
Appellant stopped work again on October 8, 2014 and received wage-loss compensation
for temporary total disability until returning to full-time modified duty on November 26, 2014.
On April 25, 2016 appellant underwent OWCP-approved surgical revision of his right total
knee arthroplasty. OWCP paid him wage-loss compensation for temporary total disability
beginning April 4, 2016 and placed him on the periodic rolls effective May 29, 2016. Appellant
continued to receive wage-loss compensation for temporary total disability through March 10,
2017, at which time he resumed work in a full-time limited-duty capacity. Thereafter, he received
compensation on the supplemental rolls for periods of intermittent wage loss through June 9, 2017.
By decision dated December 4, 2018, OWCP granted a schedule award for an additional
27 percent permanent impairment of the right lower extremity, for a total impairment of 59 percent.

2

The award covered a 77.76-week period October 12, 2018 through April 8, 2020.3 OWCP placed
appellant on the periodic rolls, effective November 11, 2018, and he continued to receive his
schedule award benefits every 28 days.
By Form CA-1032 dated April 8, 2019, OWCP informed appellant that he “must” report
to OWCP any improvement in his medical condition, any employment, any change in the status
of claimed dependents, any third-party settlement, and any income or change in income from
federally assisted disability or benefit programs. It further advised that he must completely answer
all questions on the enclosed EN1032 and return the statement within 30 days of the date of the
request, otherwise his benefits would be suspended in accordance with 20 C.F.R. § 10.528. The
letter was mailed to appellant’s last known address of record. However, no response was received.
By decision dated June 4, 2019, OWCP suspended appellant’s schedule award
compensation effective June 22, 2019.
LEGAL PRECEDENT
OWCP periodically requires each employee who is receiving compensation benefits to
complete an affidavit as to any work, or activity indicating an ability to work, which the employee
has performed for the prior 15 months.4 If an employee who is required to file such a report fails
to do so within 30 days of the date of the request, his or her right to compensation for wage loss
under 5 U.S.C. §§ 8105 (total disability) or 8106 (partial disability) is suspended until OWCP
receives the requested report.5 At that time, OWCP will reinstate compensation retroactive to the
date of suspension if the employee remains entitled to compensation.6
ANALYSIS
The Board finds that OWCP improperly suspended appellant’s schedule award
compensation pursuant to 20 C.F.R. § 10.528.
Section 10.528 provides that “compensation for wage loss” for either partial or total
disability will be suspended until OWCP receives the requested EN1032. In this instance,
appellant was not in receipt of wage-loss compensation for either partial or total disability, but was
instead receiving compensation for a schedule award pursuant to 5 U.S.C. § 8107 when OWCP
suspended his compensation effective June 22, 2019. The December 4, 2018 schedule award
covered the period October 12, 2018 through April 8, 2020, and OWCP’s fiscal records reflect that
appellant was receiving schedule award compensation in June 2019. OWCP’s procedures
3

OWCP paid schedule award compensation at the augmented rate (75 percent) based on appellant’s dependent
spouse. Both appellant’s May 17, 2018 claim for a schedule award (Form CA-7) and his latest EN1032, dated May 16,
2017, identified his spouse and minor daughter as dependents.
4

20 C.F.R. § 10.528.

5

Id.

6
Id.; see also M.S., Docket No. 18-1107 (issued December 28, 2018); C.C., Docket No. 17-0043 (issued June 15,
2018); A.H., Docket No. 15-0241 (issued April 3, 2015).

3

specifically precludes suspension of schedule award compensation pursuant to 20 C.F.R.
§ 10.528.7
Accordingly, the Board finds that OWCP improperly suspended all schedule award
compensation effective June 22, 2019.
CONCLUSION
The Board finds that OWCP improperly suspended appellant’s schedule award
compensation pursuant to 20 C.F.R. § 10.528.
ORDER
IT IS HEREBY ORDERED THAT the June 4, 2019 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: January 28, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7
Federal (FECA) Procedure Manual, Part 2 -- Claims, Periodic Review of Disability Claims, Chapter 2.812.14
(May 2012).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Spokane, WA, Employer
__________________________________________

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)

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

Docket No. 10-1122
Issued: March 22, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 10, 2010 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated December 28, 2009. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this schedule award decision.
ISSUE
The issue is whether appellant has more than six percent permanent impairment to his
right index finger.
FACTUAL HISTORY
Appellant, a 54-year-old mail carrier, was bitten by two pit bulls in his right and left hand
while entering a house on July 15, 2008. He filed a claim for benefits, which the Office accepted
for right hand laceration due to dog bite with tendon involvement.
On July 18, 2008 Dr. Bradley K. Coots, a Board-certified plastic surgeon, performed
surgery to repair appellant’s right index finger. He stated that appellant sustained a laceration in
the dorsal section of his right index finger and a likely extensor tendon laceration, with a

significant amount of laceration to the interossei muscle from a dog bite. Dr. Coots detected
damage to the extensor tendon but advised that he was unable to repair it. He found that
appellant was not able to completely extend his right index finger and had approximately 20 to
25 percent degrees of extension lag. Appellant did not have any numbness in any of the fingers
except over the proximal dorsum of the right index finger. Dr. Coots stated that appellant had
full flexion and near full extension except for approximately 20 percent lag in the right index
finger.
Dr. Coots advised appellant that he might have injured one of his interosseous muscles,
or possibly partially the extensor tendon. He stated, however, that there was no guarantee that
appellant would recover full extension of the affected areas.
On October 31, 2008 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of his right hand.
In a report dated June 30, 2009, Dr. William H. Shanks, Board-certified in orthopedic
surgery and a treating physician, found that appellant had 24 percent impairment of the right
hand, or 21 percent of the right arm based on the American Medical Association, Guides to the
Evaluation of Permanent Impairment. On examination appellant sustained a loss of range of
motion due to loss of extension in his right index and ring fingers and a mild loss of extension of
the ring finger. Dr. Shanks found a defect within the first dorsal interosseous muscle in the web
space area from the dog bite. He calculated range of motion impairment for the right hand by
utilizing the Upper Extremity Range of Motion Tables at Figure 15-13, page 462-63 of the
A.M.A., Guides. Figure 15-13 outlines the method for calculating an impairment rating for the
hand by measuring and totaling range of motion in each of the five digits. Dr. Shanks first rated
the right thumb, noting 50 degrees flexion in the interphalangeal IP joint for a one percent
impairment; 45 degrees flexion in the metacarpophalangeal (MCP) joint for a two percent
impairment; and 45 degrees radial abduction for a one percent impairment in the
carpometacarpal (CMC) joint. He combined the IP, MCP and CMC impairments for a total four
percent digit impairment or one percent upper extremity impairment for the right thumb.
As to the right index finger, Dr. Shanks found 40 degrees flexion in the distal
interphalangeal (DIP) joint of the right index finger, which yielded a 30 percent impairment for
that finger; 90 degrees flexion in the proximal interphalangeal (PIP) joint of the right index
finger, for a 10 percent impairment; a 10 degree lag in extension and a 10 percent impairment for
loss of extension, which he subtracted from the 90 degrees of flexion to total an 80 degree
combined loss of motion and a 20 percent (10 plus 10) combined flexion/extension impairment
of the PIP joint. There was 45 degrees of flexion and 45 percent impairment in the MCP joint in
the right index finger, plus a 20 degree lag in extension and 40 percent impairment for loss of
extension. Dr. Shanks subtracted the 20 degrees deficit from the 45 degrees of flexion to
produce 25 degrees of combined flexion/extension, and added the 45 percent impairment for
flexion and the 40 percent extension for an 85 percent MCP impairment. He combined the DIP,
PIP and MCP impairments to rate 5 percent digit impairment or 11 percent impairment to the
right hand.
For the right middle finger, Dr. Shanks found 60 degrees flexion in the DIP joint, which
yielded 10 percent impairment; 90 degrees of flexion in the PIP joint, for 10 percent impairment;

2

60 degrees flexion and zero degrees extension in the MCP joint, for a combined
flexion/extension impairment of 50 percent. He combined the DIP and PIP impairments for a
total 33 percent digital impairment or 7 percent right hand impairment. The right ring finger
revealed 60 degrees flexion in the DIP joint, which yielded 10 percent impairment; 95 degrees
flexion in the PIP joint for 5 percent digital impairment and a 10 degree lag in extension for 10
percent impairment. There was 60 degrees flexion and 30 percent impairment in the MCP joint
in the right ring finger, plus a 15 degree lag and 35 percent impairment in extension. Dr. Shanks
subtracted the 15 degrees deficit from the 60 degrees of flexion to produce 45 degrees of
combined flexion/extension, and added the 30 percent impairment for flexion and the 35 percent
extension for a 65 percent MCP impairment. He combined the DIP, PIP and MCP impairments
for a total 36 percent digital impairment and 3 percent impairment to the right hand. The little
finger exhibited 100 degrees flexion and a 5 degree lag in extension for two percent impairment
in the PIP joint; 60 degrees flexion and 10 degrees flexion in the MCP joint. Dr. Shanks
combined the PIP and MCP impairments for a total 25 percent digit impairment and 2 percent
impairment to the right hand.
Dr. Shanks concluded:
“I have completed the ‘Upper Extremity Range of Motion Record’ [pursuant to]
the American Medical Association, Guides to the Evaluation of Permanent
Impairment (sixth edition).... This is part of the grade modifier for the physical
exam[ination]. The grade modifier for functional history would take into account
his feeling of weakness in the right hand and the cold intolerance. He completed
the ‘Pain Disability Questionnaire’ and appears to fall into Class I as a result of
this. Taking the limitations of motion in the hand, which would probably account
for the weakness he has, total for all digits 24 percent of the hand, which would
convert to 21 percent of the upper extremity.”
In a report dated August 4, 2009, Dr. Morley Slutsky, a specialist in occupational
medicine and an Office medical adviser, found that appellant had a six percent impairment of his
right arm based on loss of range of motion in the right index finger pursuant to the sixth edition
of the A.M.A., Guides. In rating the range of motion impairment, the Office medical adviser
stated that Dr. Shanks should have only presented ratings for the right index finger since this was
the only digit affected by the work-related injury.
In an August 18, 2009 report, Dr. Shanks reviewed Dr. Slutsky’s report and reiterated his
previous findings and impairment ratings. He stated that he measured range of motion for all
five fingers in his examination findings as directed by the A.M.A., Guides and that the Office’s
request for examination did not instruct him to make findings regarding the right index finger
alone. Dr. Shanks noted that the injury to appellant’s right index finger affected strength to the
entire hand and involved the other fingers of the hand due to loss of strength.
On September 4, 2009 Dr. Slutsky reiterated that since only one digit was involved,
appellant’s impairment for the right index finger was six percent at the digit impairment level,
not of the upper extremity. Although Dr. Shanks completed the upper extremity range of motion
record at Figure 15-13 of the A.M.A., Guides, he did not document performing the range of
motion measurements in compliance with section 15.7. The Office medical adviser did not

3

accept the ratings of Dr. Shanks since he did not provide any explanation of how the range of
motion to the uninvolved fingers was affected by the accepted injury.
On September 8, 2009 the Office granted appellant a schedule award for a six percent
permanent impairment of the right index finger for the period June 30 to July 19, 2009, for a total
of 19.32 days of compensation.
On September 25, 2009 appellant requested a review of the written record.
By decision dated December 28, 2009, an Office hearing representative affirmed the
September 8, 2009 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.3 The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.4
ANALYSIS
The Board finds that a conflict in medical opinion exists between Dr. Shanks and
Dr. Slutsky concerning the nature and the extent of permanent impairment caused by the
accepted laceration injury.
Dr. Shanks rated 21 percent impairment to the right upper extremity pursuant to the sixth
edition of the A.M.A., Guides based on range of motion impairments to all five digits of the right
hand. This contrasted with the opinion of Dr. Slutsky, who found that in his August 4, 2009
report that appellant had six percent impairment to the right index finger alone, pursuant to Table
15-2 of the A.M.A., Guides.
The Board notes that Dr. Shanks examined appellant and based his 21 percent rating on
range of motion measurements derived from all five digits pursuant to Upper Extremity Range of
Motion tables at Figure 15-13, page 462-63 of the A.M.A., Guides. Dr. Shanks presented a
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404. Effective May 1, 2009, the Office began using the A.M.A., Guides (6th ed. 2009).

3

Id.

4

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

4

probative, well-supported method for calculating an impairment of the right hand and the right
upper extremity, which was in conformance with the applicable protocols of the A.M.A., Guides.
He asserted in his August 18, 2009 report that he measured range of motion for all five fingers in
his examination findings as indicated by the A.M.A., Guides and that the injury to appellant’s
right index finger caused impairment to the entire hand. Dr. Shanks advised that appellant’s
surgery and his accepted condition involved the entire right hand, not merely the index finger.
He examined appellant and he provided his calculations in accordance with Figure 15-13, the
applicable section of the A.M.A., Guides for measuring upper extremity range of motion
impairments.
Dr. Slutsky documented measurements and findings for each digit, but concluded that the
injury only caused impairment to the right index finger. Therefore a conflict exists in the
medical opinion evidence as to whether appellant’s accepted injury caused impairment of the
right index finger, or of the entire hand.
Accordingly, the Board set aside the December 28, 2009 Office decision and remands for
referral of appellant, the case record and a statement of accepted facts to an appropriate
independent medical specialist to determine the nature and the degree of appellant’s permanent
impairment to his accepted right hand laceration due to dog bite with tendon involvement. On
remand, the Office should instruct the impartial medical specialist to resolve the conflict as to
whether appellant had impairment of the right upper extremity or merely of the right index finger
and to clearly indicate the specific background and protocols of the A.M.A., Guides upon which
he based his opinion. After such further development of the record as it deems necessary, it shall
issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision. The case is remanded for
further development of the medical evidence.

5

ORDER
IT IS HEREBY ORDERED THAT the December 28, 2009 decision of the Office of
Workers’ Compensation Programs be set aside and the case is remanded to the Office for further
action consistent with this decision of the Board.
Issued: March 22, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, CANTON
PROCESSING & DISTRIBUTION CENTER,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 08-1663
Issued: December 15, 2008

Case Submitted on the Record

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

JURISDICTION
On May 27, 2008 appellant, through her attorney, filed a timely appeal from October 5,
2007 and May 1, 2008 merit decisions of the Office of Workers’ Compensation Programs
finding that she did not sustain a recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained a recurrence of disability
on July 7, 2007 causally related to her February 3, 2006 employment injury.
FACTUAL HISTORY
On February 3, 2006 appellant, then a 41-year-old mail processing clerk, filed a traumatic
injury claim alleging that on that date she pulled a muscle in her upper right arm. She did not

stop work.1 On February 7, 2007 the Office accepted the claim for right shoulder sprain and
right shoulder impingement syndrome.2
By letter dated February 7, 2007, the Office noted that appellant informed the Office on
February 6, 2007 that she had a right shoulder tear and required surgery. It indicated that she
was “currently off work under another filing, which pertains to the lower back.” The Office
requested that appellant submit a reasoned medical report addressing how the diagnosed
conditions of bursitis and a rotator cuff tear were employment related and an opinion regarding
any request for surgery.
On July 25, 2007 Dr. Jeffrey S. Dulik, an osteopath, reviewed appellant’s complaints of
right arm pain along the biceps and numbness and tingling in the right hand. Appellant related
that she “picked up something yesterday at work and she felt as through the shoulder popped out
of [the] socket.” Dr. Dulik noted that she currently performed her full employment duties. He
diagnosed peripheral enthesopathies and allied syndromes of the right shoulder and a sprain and
strain of the acromioclavicular (AC) joint of the right shoulder and upper arm. Dr. Dulik opined
that appellant could work with restrictions on repetitive use of the right shoulder and overhead
use of the right arm. He opined that she “has aggravated the shoulder to what she has had
before.”
On July 26, 2007 appellant filed a recurrence of disability claim on July 5, 2007 causally
related to her February 2006 work injury. She contended that she was limited upon returning to
work after her original injury because occasionally she could not reach overhead. Appellant
stopped work on July 7, 2007.
By letter dated August 2, 2007, the Office noted that appellant performed her usual
employment following her work injury. It informed her of the definition of a recurrence of
disability and requested that she submit additional factual and medical information supporting
her alleged recurrence of disability.
In a letter to the Office dated August 27, 2007, Dr. Dulik noted that he had treated
appellant since February 7, 2006 for a shoulder injury sustained at work due to heavy lifting. He
last treated her on July 25, 2007 for complaints of numbness in her right hand and pain with
overhead activities. At that time appellant related that she had lifted something at work the
previous day and “felt as through her right shoulder popped out of socket. Dr. Dulik provided
findings on examination and concluded:
“It is my professional medical opinion within a reasonable degree of medical
certainty that [appellant] sustained an AC joint sprain … and impingement
syndrome … of the right shoulder as a result of her injury on February 3, 2006
and continues with symptoms from this injury.
1

A magnetic resonance imaging (MRI) scan study obtained on August 11, 2006 revealed a partial distal
supraspinatus tendon tear, mild impingement, mild bursitis and a small degenerative cyst.
2

In February 7, 2007 letters, the Office indicated that it had originally processed the claim as a minor injury with
no time lost and expenses not to exceed $1,500.00.

2

“[Appellant] was returned to work with light[-]duty restrictions of no overhead
activity and no repetitive motion of the right shoulder until she has the
recommended EMG [electromogram] of the right upper extremity.”
On August 29, 2007 Dr. Dulik discussed appellant’s complaints of increased right
shoulder pain radiating into her wrist and noted that she worked light duty without sufficient
assistance. He diagnosed right peripheral entheospathies, a partial, right nontraumatic rotator
cuff tear and right shoulder and upper arm sprains and strains. Dr. Dulik found that appellant
required activity modification. On September 14, 2007 he noted that the EMG showed carpal
tunnel syndrome unrelated to her workers’ compensation case. Dr. Dulik recommended
arthroscopic surgery on the shoulder.
By decision dated October 25, 2007, the Office found that appellant had not established
that she sustained an employment-related recurrence of disability beginning July 7, 2007. It
noted that she had not responded to its request for further factual information and also did not
submit rationalized medical evidence showing that she as unable to work as of July 7, 2007.
In a disability certificate dated September 26, 2007, received by the Office on
October 31, 2007, Dr. Dulik found that appellant could work with restrictions on reaching over
shoulder level, repetitive motion and lifting over 25 pounds. On November 5, 2007 Dr. Dulik
performed a right shoulder arthroscopic subacromial decompression and rotator cuff repair.
On November 23, 2007 appellant, through her attorney, requested an oral hearing. On
February 12, 2008 Dr. Dulik found that appellant could continue with work restrictions of no
right arm use for six weeks. He stated, “Discussed with [her] that after review of her previous
notes from February 2006 that her shoulder injury was related to the workers’ compensation
injury after she was lifting a heavy object at work.” In a letter dated February 13, 2008,
Dr. Dulik related that appellant’s rotator cuff tear, AC joint sprain and right shoulder
impingement syndrome resulted from the heavy lifting mechanism of injury sustained
February 3, 2006. On February 26, 2008 the Office issued appellant compensation for total
disability beginning November 5, 2007. Appellant returned to work with restrictions on
February 25, 2008.
At the hearing, held on March 11, 2008, appellant related that she performed her regular
job following her February 3, 2006 work injury. She experienced pain performing her duties. In
early 2007, appellant’s physician placed her on limited duty. She related that when she filed her
CA-2a form she was “back doing [her] normal job.” Appellant lifted a bag on July 24, 2007 and
felt her arm pop.
By decision dated May 1, 2008, the Office hearing representative affirmed the
October 25, 2007 decision. He found that the medical evidence did not establish that she was
disabled due to her work injury beginning July 7, 2007 and that the evidence did not show that
her light-duty employment changed such that she was unable to perform her duties. The hearing
representative recommended that the Office expand acceptance of the claim to include a right
rotator cuff tear.

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LEGAL PRECEDENT
When an appellant claims a recurrence of disability due to an accepted employmentrelated injury, she has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the recurrence of disability is causally related to the original injury.
This burden includes the necessity of furnishing evidence from a qualified physician, who on the
basis of a complete and accurate factual and medical history, concludes that the condition is
causally related to the employment injury and supports this conclusion with sound medical
reasoning.3
Section 10.5(x) of the Office’s regulations provides in pertinent part:
“Recurrence of disability means an inability to work after an employee has
returned to work caused by a spontaneous change in a medical condition which
had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness.”4
Office procedures state that a recurrence of disability includes a work stoppage caused by
a spontaneous material change, demonstrated by objective findings, in the medical condition that
resulted from a previous injury or occupational illness without an intervening injury or new
exposure to factors causing the original illness. It does not include a condition that results from a
new injury, even if it involves the same part of the body previously injured. Office procedures
further state: “If a new work-related injury or exposure occurs, Form CA-1 [notice of traumatic
injury] or Form CA-2 [notice of occupational disease or illness] should be completed
accordingly.”5
ANALYSIS
The Office accepted that appellant sustained right shoulder sprain and right shoulder
impingement syndrome due to a February 3, 2006 employment injury. Appellant continued
working at her usual employment following her injury. At the hearing, she related that she
worked limited duty in early 2007 but had resumed her usual employment at the time she filed
her notice of recurrence of disability in July 2007.6 Appellant alleged that she stopped work on
July 7, 2007 causally related to her February 3, 2006 employment injury.
The medical evidence is insufficient to establish that appellant was unable to work from
July 7 to November 5, 2007, due to her accepted February 3, 2006 employment injury.7
3

Ricky S. Storms, 52 ECAB 349 (2001).

4

20 C.F.R. § 10.5(x).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b)(2)(e) (May 1997).

6

On a notice of recurrence of disability, appellant indicated that she was occasionally restricted from reaching
overhead due to her work injury.
7

Appellant underwent arthroscopic surgery on November 5, 2007. The Office paid her compensation for total
disability beginning that date.

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Dr. Dulik evaluated appellant on July 25, 2007 for complaints of right arm pain and tingling in
the right hand. Appellant related that the day before at work she picked up an item and “felt as
though the shoulder popped out of [the] socket.” Dr. Dulik diagnosed peripheral enthesopathies
and allied syndromes of the right shoulder and a sprain and strain of the AC joint of the right
shoulder and upper arm. He found that she could work if she did not use her right shoulder for
repetitive and overhead use. Dr. Dulik opined that appellant “has aggravated the shoulder to
what she has had before.” A recurrence of disability, however, is a spontaneous material change
in a claimant’s injury-related condition without intervening injury.8 Dr. Dulik’s description of
appellant experiencing a pop in her arm after lifting at work on July 24, 2007 and his subsequent
finding that she aggravated her shoulder condition implicates a possible new injury rather than
supporting that she sustained a recurrence of disability. As he attributed her condition to a
possible new injury rather than a “spontaneous change” in her accepted condition, his opinion is
insufficient to meet her burden of proof.
On August 27, 2007 Dr. Dulik noted that he had treated appellant since February 7, 2006
for a shoulder injury sustained at work due to heavy lifting. He evaluated her on July 25, 2007
for complaints of pain after picking something up the day prior at work. Appellant “felt as
though her right shoulder popped out of socket.” Dr. Dulik attributed appellant’s AC joint sprain
and impingement syndrome to her February 3, 2006 work injury. He found that she could
perform limited-duty work pending diagnostic studies. As noted, however, appellant must show
a “spontaneous material change demonstrated by objective findings in the medical condition that
resulted from a previous injury or occupational illness without an intervening injury or exposure
to new factors causing the original illness.”9 Dr. Dulik described a possible new work injury on
July 24, 2007 rather than finding that appellant experienced a spontaneous worsening of her
accepted condition. Additionally, he did not provide any rationale for his finding that she was
unable to perform her usual employment.10 Consequently, Dr. Dulik’s opinion is of diminished
probative value.
On August 29, 2007 Dr. Dulik listed findings on examination and diagnosed right
peripheral entheospathies, a partial, right nontraumatic rotator cuff tear and right shoulder and
upper arm sprains and strains. In a September 26, 2007 progress report, he listed work
restrictions of no reaching over shoulder level, performing repetitive motion or lifting over
25 pounds.11 Dr. Dulik did not, however, specifically address the cause of the diagnosed
conditions and work restrictions. Medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of diminished probative value on the issue of causal
relationship.12
8

20 C.F.R. § 10.5(x).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b) (January 1995).

10

Richard A. Neidert, 57 ECAB 474 (2006) (medical reports not containing rationale on causal relation are
entitled to little probative value and are generally insufficient to meet an employee’s burden of proof).
11

The remaining reports from Dr. Dulik address appellant’s condition and disability after her November 5, 2007
shoulder surgery.
12

Conard Hightower, 54 ECAB 796 (2003).

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An award of compensation may not be based on a claimant’s own belief that there is
causal relationship between her claimed condition and her employment.13 Appellant has the
burden to furnish medical evidence from a physician who, on the basis of a complete and
accurate factual history, concludes that the condition is causally related to the employment injury
and supports that conclusion with sound medical rationale.14 She failed to submit such evidence
in this case and, therefore, has failed to discharge her burden of proof to establish that she
sustained a recurrence of disability on July 7, 2007 due to her February 3, 2006 employment
injury.
CONCLUSION
The Board finds that appellant has not established that she sustained a recurrence of
disability on July 7, 2007 causally related to her February 3, 2006 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 1, 2008 and October 5, 2007 are affirmed.
Issued: December 15, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

13

Robert A. Boyle, 54 ECAB 381 (2003); Patricia J. Glenn, 53 ECAB 159 (2001).

14

Mary A. Ceglia, 55 ECAB 626 (2004).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Flushing, NY, Employer
__________________________________________

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

Docket No. 09-1699
Issued: May 3, 2010

Case Submitted on the Record

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

JURISDICTION
On June 15, 2009 appellant filed a timely appeal from a May 12, 2009 merit decision of
the Office of Workers’ Compensation Programs terminating her compensation benefits.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether the Office properly terminated appellant’s medical and wage-loss
benefits effective December 9, 2008 on the grounds that her accepted conditions had resolved.
On appeal, appellant contends that Dr. Monette G. Basson, an impartial medical specialist
and Board-certified neurologist and psychiatrist, did not consider her most recent 2009 magnetic
resonance imaging (MRI) scan results revealing a disc herniation at L4-5 and L5-S1.
FACTUAL HISTORY
On July 4, 2007 appellant, then a 44-year-old clerk, experienced back pain while lifting a
tray of Netflix DVDs. The Office accepted the traumatic injury claim for a thoracic back sprain

and a sprain of the lumbosacral joint. Appellant stopped work that day. She received wage-loss
compensation and on October 24, 2007 was placed on the periodic rolls.
On October 31, 2007 appellant’s treating physician, Dr. Leo Batash, released appellant to
part-time, light duty with physical restrictions. He provided updated medical reports advising
that she was partially disabled and could only work light duty, four hours a day due to the
diagnosed conditions, including radiculopathy, lumbosacral spinal sprain, L4-5 disc bulge and
L5-S1 disc protrusion.
On December 8, 2007 appellant returned to part-time, light duty, working four hours a
day casing mail.1
On December 27, 2007 the Office referred appellant to a second opinion physician,
Dr. Andrew Weiss, a Board-certified orthopedic surgeon, for a determination of her current
disability. In a December 27, 2007 medical report, Dr. Weiss diagnosed a resolved work-related
thoracolumbosacral spinal sprain. Physical and neurological examinations were normal and
there were no objective findings of any current disability. Dr. Weiss opined that, despite
appellant’s subjective complaints of pain, the employment condition had completely resolved
and she was able to perform her regular clerk duties.
The Office determined that a conflict of medical opinion arose between Dr. Weiss and
Dr. Batash. It referred appellant to Dr. Norman Sveilich, an impartial medical specialist and
Board-certified orthopedic surgeon, to resolve the conflict. In April 7 and 14, 2008 medical
reports, Dr. Sveilich diagnosed hypertension and morbid obesity. No abnormalities were found
on physical examination of the thoracic and lumbar spine or on x-ray of the lumbosacral spine.
A neurological examination was also normal. Dr. Sveilich opined that appellant’s work-related
spinal condition had completely resolved and that she was able to return to regular duty.
On May 20, 2008 the Office notified appellant that it proposed to terminate her medical
benefits and wage-loss compensation based on Dr. Sveilich’s finding that she did not continue to
have residuals of her accepted employment-related conditions. It provided her 30 days to submit
additional evidence or argument.
Appellant submitted a June 18, 2008 medical report from Dr. Richard J. Radna, a Boardcertified neurological surgeon. On physical examination, Dr. Radna noted evidence of a severe
bilateral paravertebral spasm with severely diminished range of motion, discomfort with spurring
maneuvers and restricted straight leg raises. A neurological examination revealed positive
findings, including an antalgic gait and attenuated dorsi and plantar flexion of both feet.
Dr. Radna diagnosed lumbosacral radicular pain syndrome and opined that appellant was
partially disabled.
By decision dated June 26, 2008, the Office terminated appellant’s medical and wageloss benefits effective June 26, 2008. It found that the special weight of the medical evidence
rested with Dr. Sveilich, who determined that she did not continue to have any disability or
residuals of her accepted work-related condition.
1

Appellant continued to submit claims for partial wage-loss compensation (Form CA-7) after December 8, 2007.

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On July 8, 2008 appellant filed a request for an oral hearing before an Office hearing
representative.
By decision dated August 18, 2008, the Office hearing representative, after a preliminary
review, set aside the June 26, 2008 termination of benefits and remanded the case. He found that
Dr. Sveilich resolved the conflict between Drs. Batash and Weiss. However, a new conflict
existed between Drs. Sveilich and Radna regarding appellant’s current diagnosis and disability,
which required resolution by a new impartial medical specialist.
On remand, the Office referred appellant to Dr. Basson, a Board-certified neurologist and
psychiatrist, for an impartial medical examination. In an October 16, 2008 medical report,
Dr. Basson reviewed appellant’s medical and occupational history. She performed a full
physical examination revealing normal ranges of motion in appellant’s spine, no muscle spasm,
no focal tenderness, no sciatic notch tenderness, normal straight leg raises and intact sensation in
all extremities. Gait station was normal and cranial nerves II through XII were intact. An eye
examination was normal and motor examination showed good strength and tone in all
extremities. Appellant denied ever experiencing any radicular symptoms. The only abnormality
found on examination was a decrease in forward flexion of the lumbar spine, which Dr. Basson
found to be normal and voluntary. She opined that appellant had a resolved lumbar sprain with
no residual disability. Dr. Basson noted that appellant’s MRI scan findings revealed a disc
herniation of only one to two millimeters, which was miniscule and not clinically significant.
She further opined that appellant did not have a history of radicular symptoms and did not
require electromyogram (EMG) or nerve conduction tests. Dr. Basson found that the results of
such tests were not clinically valid and concluded that appellant’s lumbosacral sprain had
resolved with no neurological disability and no need for further neurological tests or treatment.
On November 5, 2008 the Office notified appellant of its proposal to terminate her
medical and wage-loss benefits based on Dr. Basson’s finding that she no longer had any
residuals or disability from her employment-related conditions. It advised her that she had
30 days to submit additional evidence.
Appellant submitted additional medical notes and reports dated June 4 through
October 27, 2008 from Dr. Batash, who opined that she could only work part-time, light duty.
By decision dated December 9, 2008, the Office terminated appellant’s medical and
wage-loss benefits effective that date. It found that the special weight of the medical evidence
rested with Dr. Basson, who found that appellant was no longer experiencing any residuals or
continuing disability from her employment-related condition.
On December 23, 2008 appellant filed a request for an oral hearing before an Office
hearing representative. An oral hearing took place on March 16, 2009.
In medical reports dated June 4, 2008 through April 15, 2009, Dr. Batash diagnosed
spinal sprain, radiculopathy, L4-5 disc bulge and L5-S1 disc herniation. He reported that
appellant experienced intermittent pain, tenderness of the spinal and paraspinal muscles and
muscle spasms. Dr. Batash opined that she was still partially disabled and only able to work
light duty, four hours a day, due to her employment injury. He stated that in comparing the

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October 24, 2007 MRI scan with the recent April 2, 2009 MRI scan, appellant’s condition had
worsened due to the continuous performance of her work duties, including regularly lifting trays
of mail. Dr. Batash stated that, since October 24, 2007, appellant experienced an interval
development of the L4-5 left posterior disc herniation and the subligamentous disc herniation at
L5-S1. He also submitted the April 2, 2009 MRI scan results revealing L4-5 left posterior disc
herniation, L5-S1 central and left paramedian posterior subligamentous disc herniation and an
interval development of L4-5 left posterior disc herniation and subligamentous disc herniation at
L5-S1.
Appellant provided a December 1, 2008 medical report from Dr. Radna, who essentially
reiterated her prior findings on examination. Dr. Radna diagnosed employment-related
lumbosacral, musculoskeletal and radicular pain and opined that she was still partially disabled.
By decision dated May 12, 2009, the Office hearing representative affirmed the
December 9, 2008 termination of benefits. He found that Dr. Basson’s medical report was well
rationalized and based on a proper factual background. Thus, it represented the special weight of
the medical evidence. The Office hearing representative further found that the subsequent
medical evidence from Dr. Batash was insufficient to outweigh Dr. Basson’s opinion as he was
on one side of a conflict resolved by an impartial medical examiner.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. The Office may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.2 The burden of proof on the Office includes the necessity of furnishing
rationalized medical opinion evidence which is based on a proper factual and medical history.3
Section 8123(a) of the Federal Employees’ Compensation Act4 provides that, if there is a
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary of Labor shall appoint a third physician who shall make
an examination.5 When the case is referred to an impartial medical specialist for the purpose of
resolving a conflict in medical evidence, the opinion of such specialist will be given special
weight when based on a proper factual and medical background and sufficiently well rationalized
on the issue presented.6

2

David W. Pickett, 54 ECAB 272 (2002); Gloria J. Godfrey, 52 ECAB 486 (2001).

3

Daniel F. O’Donnell, 54 ECAB 456 (2003); Gewin C. Hawkins, 52 ECAB 242 (2001).

4

5 U.S.C. §§ 8101-8193.

5

Id. at § 8123(a). See Elsie L. Price, 54 ECAB 734 (2003); Raymond J. Brown, 52 ECAB 192 (2001).

6

See Bernadine P. Taylor, 54 ECAB 342 (2003); Anna M. Delaney, 53 ECAB 384 (2002).

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ANALYSIS
The Office accepted that appellant sustained a thoracic back sprain and a sprain of the
lumbosacral joint in the performance of duty and authorized medical and wage-loss benefits.
The issue is whether it properly terminated her compensation benefits on December 9, 2008 on
the grounds that her accepted conditions had resolved. The Board finds that the Office met its
burden of proof.
Appellant’s treating physician, Dr. Batash released appellant to part-time light duty on
October 31, 2007. Appellant returned to part-time, light duty on December 8, 2007. The Office
subsequently determined that a second opinion was required to evaluate her current disability
and referred her to Dr. Weiss. In a December 27, 2007 medical report, Dr. Weiss opined that
appellant’s employment-related thoracolumbosacral spinal sprain had resolved and that she was
no longer disabled. The Office found that a conflict of medical opinion arose between
Drs. Batash and Weiss regarding appellant’s residuals and continuing disability. It properly
referred her to Dr. Sveilich for an impartial medical examination.7
In April 7 and14, 2008 medical reports, Dr. Sveilich found that appellant’s work-related
spinal condition had resolved and that she was able to return to regular duty. The Office
proposed termination of her compensation benefits based on Dr. Sveilich’s findings and provided
her 30 days to submit additional evidence. Thereafter, in a June 18, 2008 medical report,
Dr. Radna diagnosed lumbosacral radicular pain syndrome and opined that appellant was
partially disabled. The Office terminated her benefits effective June 26, 2008; however, an
Office hearing representative set aside the termination and remanded the case finding a new
conflict of medical opinion between Drs. Radna and Sveilich.
The Board finds that Drs. Radna and Sveilich provided differing opinions of equal weight
and rationale regarding appellant’s residuals and current disability. Specifically, the physicians
disagreed as to whether appellant had a work-related neurological condition that would prevent
her from working full duty. The Board finds that the Office properly referred appellant to a
second impartial medical examiner, Dr. Basson, for resolve the conflict.8
In an October 16, 2008 medical report, Dr. Basson reviewed appellant’s medical and
occupational history. A physical examination of appellant’s spine and extremities were
essentially normal, except for a decrease in forward flexion of the lumbar spine, which
Dr. Basson stated was minor and voluntary. Further, the results of a neurological examination
were normal and appellant denied any current or prior radicular symptoms. Dr. Basson noted
that appellant’s MRI scan findings, of a disc herniation of only one to two millimeters, was
miniscule and not clinically significant. She further found that, because appellant did not report
a history of radicular symptoms, nerve conduction and EMG studies were not required and,
therefore, the test results were not clinically valid. Dr. Basson opined that appellant’s
lumbosacral sprain had resolved with no residual neurological disability.

7

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

8

See M.B., 58 ECAB 588 (2007); id.

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The Board finds that Dr. Basson’s medical report is well rationalized and based on an
accurate factual and medical background. Dr. Basson found that appellant did not continue to
experience any residuals or disability from her accepted employment injuries. Her report is
entitled to the special weight accorded an impartial medical specialist.9
The Board further finds that appellant did not provide sufficient medical evidence of
disability to overcome the weight of Dr. Basson’s opinion. Appellant submitted medical reports
dated June 4, 2008 through April 15, 2009 from Dr. Batash, who continued to opine that she was
partially disabled. On April 15, 2009 Dr. Batash stated that, based on an April 2, 2009 MRI
scan, her condition had worsened since October 24, 2007 due to repetitive lifting at work and
that she experienced an interval development of the L4-5 and L5-S1 disc herniations. He
included a copy of the April 2, 2009 MRI scan results.
The Board has held that additional reports from a physician who was on one side of a
resolved conflict which essentially repeat earlier findings and conclusions are insufficient to
overcome the weight accorded an impartial medical specialist.10 Dr. Batash’s additional medical
reports essentially reiterate his earlier opinions on appellant’s disability. The only new findings
provided by him were that, based on an April 2, 2009 MRI scan, appellant’s disc herniation and
disc bulge had developed since October 24, 2007. However, these conditions are not accepted as
employment related as the Office only accepted appellant’s sprain of the thoracic back and
lumbosacral joint. Further, Dr. Batash did not relate these conditions to appellant’s July 4, 2007
employment injury, but rather opined that she sustained the conditions due to her continuous
performance of job duties including regularly lifting trays of mail.11 Thus, his findings of a
worsened disc herniation and bulge are not relevant to the issue of whether appellant was still
experiencing residuals from the July 4, 2007 employment injury.12 Therefore, the Board finds
that the Dr. Batash’s reports are insufficient to overcome or create a new conflict with the
well-rationalized opinion of Dr. Basson.13
Appellant further submitted a December 1, 2008 medical report from Dr. Radna finding
that she was still partially disabled. This report is also insufficient to overcome the weight of
Dr. Basson’s medical report or create a new conflict as Dr. Radna was on one side of the conflict
resolved by Dr. Basson and she did not provide any additional findings or rationale to support
her conclusions.14

9

See B.T., 60 ECAB ___ (Docket No. 08-1885, issued June 3, 2009).

10

See Michael Hughes, 52 ECAB 387 (2001).

11

The only issue on appeal is whether appellant continued to experience residuals and disability from her July 4,
2007 employment injury. If appellant believes that she is disabled due to other employment factors including
repetitive lifting, she may file a claim for an occupational disease using Office Form CA-2.
12

See T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009); Mary E. Jones, 40 ECAB 1125 (1989).

13

See Guiseppe Aversa, 55 ECAB 164 (2003); Howard Y. Miyashiro, 43 ECAB 1101 (1992).

14

See Roger G. Payne, 55 ECAB 535 (2004).

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The Board finds that Dr. Basson’s medical opinion, that appellant was no longer disabled
or experiencing residuals from her employment-related injury, represents the special weight of
the medical evidence accorded an impartial medical specialist. As such, the Office properly
terminated appellant’s compensation.15
On appeal, appellant contends that Dr. Basson did not consider her most recent
March 2009 MRI scan revealing a disc herniation at L4-5 and L5-S1. As noted, the Office only
accepted the conditions of thoracic and lumbosacral joint sprain as employment related. A disc
herniation is not an accepted condition. The March 2009 MRI scan is not relevant to the issue of
whether appellant continued to have residuals of her accepted employment-related condition.
CONCLUSION
The Board finds that the Office properly terminated appellant’s medical and wage-loss
benefits effective December 9, 2008 on the grounds that her accepted conditions had resolved.
ORDER
IT IS HEREBY ORDERED THAT the May 12, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 3, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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See Kathryn E. Demarsh, 56 ECAB 677 (2005).

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