United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
C.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CLEMENT J. ZABLOCKI VETERANS
AFFAIRS MEDICAL CENTER, Milwaukee, WI,
Employer
__________________________________________

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

Docket No. 19-1896
Issued: January 27, 2021

Case Submitted on the Record

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

JURISDICTION
On September 14, 2019 appellant filed a timely appeal from April 24 and July 9, 2019
merit decisions and a September 10, 2019 nonmerit decision of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss and compensation and entitlement to a schedule award effective April 4, 2018 because she
refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2); and (2) OWCP properly denied
appellant’s request for reconsideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a).
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 6, 2010 appellant, then a 47-year-old former licensed practical nurse, filed a
traumatic injury claim (Form CA-1) alleging that on February 10, 2010 she experienced panic
attacks and nightmares while in the performance of duty. She related that a patient had grabbed
her, pulled her into a room, and made sexual references. Appellant indicated that she had a past
history of sexual trauma while serving in the military, and that this event “triggered panic attacks
and nightmares.” She stopped work on February 11, 2010. Appellant resigned from employment
effective March 24, 2010. OWCP accepted the claim for an aggravation of depression and an
aggravation of post-traumatic stress disorder (PTSD).2 It paid appellant wage-loss compensation
on the supplemental rolls beginning March 10, 2010 and on the periodic rolls effective
February 8, 2015.
On January 27, 2016 OWCP referred appellant to Dr. Ilva Van Valkenburgh, a Boardcertified psychiatrist, for a second opinion examination.3
In a report dated February 11, 2016, Dr. Van Valkenburgh recounted appellant’s history of
an employment injury on February 11, 2010. She opined that appellant had continued symptoms
of the aggravation of PTSD and depression based on her ongoing symptoms. Dr. Valkenburgh
found that appellant’s condition had been inadequately treated and that the failure of the employing
establishment to rehire appellant in a modified capacity had contributed to her feeling worthless.
She noted that appellant had a relapse into alcohol abuse following the February 11, 2010
employment injury after 10 years of sobriety. Dr. Van Valkenburgh related, “Despite [appellant’s]
frequent relapses, I would consider this to be a temporary aggravation due to [appellant’s] poorly
treated emotional conditions, and would expect her to achieve complete sobriety once her PTSD
and depressive symptoms are better controlled.” She opined that appellant had continued
symptoms of “work[-]related disability” but that it was “possible for appellant’s condition to
improve with more aggressive treatment, and that would enable her to resume gainful employment
as an LPN [licensed practical nurse] at the [employing establishment] with the only permanent
restriction being that she never gets placed to work on a psychiatric unit.”
On September 28, 2016 Dr. Susan Powers, a Board-certified psychiatrist, advised that she
had been treating appellant for acute PTSD resulting from a work injury that had aggravated
preexisting chronic PTSD resulting from an assault in the military. She opined, “This acute
2

By decision dated May 21, 2010, OWCP denied appellant’s traumatic injury claim. It found that she had failed
to factually establish that the event occurred as alleged. By decision dated June 17, 2011, OWCP denied modification
of the May 21, 2010 decision. By decision dated September 26, 2011, it vacated its May 21, 2010 decision and
accepted the claim for an aggravation of PTSD and an aggravation of depression. In a separate decision of even date,
OWCP found that appellant was not entitled to continuation of pay as the injury had not been reported on an approved
form within 30 days.
3

In a May 20, 2015 report, Dr. Edgar B. Jackson, a Board-certified psychiatrist and OWCP referral physician,
advised that appellant’s traumatic injury had “caused stimulation to the amygdala which eventuated in the current
PTSD. However, the effects of stimulation were increased by the previous trauma which had remained on an
unconscious level. As a result, the final PTSD condition is the total of the effect of the first and second injuries.”
Dr. Jackson opined that appellant would not return to baseline and should not work in the environment where she had
experienced the trauma. He found that she could work in a nonpsychiatric unit.

2

exacerbation of [appellant’s] PTSD, caused by her work-related trauma, is currently resolved.
Dr. Powers is stable and doing very well, responding to her current psychiatric medication, with
no current symptoms of depression and acute PTSD at this time….” She advised that appellant
could work up to 20 hours per week without restrictions.
An electromyogram dated November 16, 2016 showed “bilateral distal median
neuropathies at the wrists such as may be seen in carpal tunnel syndrome.”
On March 12, 2017 appellant contended that she had sustained carpal tunnel syndrome due
to her February 11, 2010 employment injury. She advised that her depression and PTSD caused
her to rub her fingers against her clothing. Appellant also noted that she had incurred dental
expense from grinding her teeth.
On September 6, 2017 the employing establishment offered appellant a modified position
as a health technician (home health aide). It noted that her physician had found that she could
work up to 20 hours per week without restrictions. The employing establishment indicated that
appellant would have a tour schedule of either 3:00 p.m. to 11:30 p.m. or 2:00 p.m. to 10:30 p.m.
with rotation.
By letter dated September 7, 2017, OWCP advised appellant that it had determined that the
offered position was suitable, pursuant to 5 U.S.C. § 8106 (c)(2), and afforded her 30 days to
accept the position or provide reasons for his refusal. It informed her that an employee who refused
an offer of suitable work without cause was not entitled to wage-loss or schedule award
compensation. OWCP further notified appellant that she would receive any difference in pay
between the offered position and the current pay rate of the position held at the time of injury.
In a September 7, 2017 letter to the employing establishment, appellant maintained that
she should have been returned to work earlier and questioned why the salary offered was less than
she was making previously.
On September 14, 2017 appellant declined the offered position, asserting that she was
unable to currently work.
On September 18 and October 10, 2017 the employing establishment advised OWCP that
the offered position remained available.
In a report dated October 3, 2017, Dr. Maribeth Sadie, a psychologist, diagnosed
employment-related PTSD with continued symptoms. She found that appellant had not recovered
and that appellant occasionally had scattered thoughts and difficulty leaving her house. Dr. Sadie
opined that appellant was totally disabled from employment.
In an October 18, 2017 e-mail, the employing establishment advised that it had offered
appellant a position in one of its Greenhouses, which was not a mental health facility. It forwarded
a July 27, 2017 e-mail from her expressing interesting in applying for a part-time positon as a
health technician in one of the Greenhouses.
On November 28, 2017 OWCP again found that the position of health technician was
suitable. It informed appellant that an employee who refused an offer of suitable work without
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cause was not entitled to wage-loss or schedule award compensation. OWCP further notified her
that she would receive any difference in pay between the offered position and the current pay rate
of the positon held at the time of injury. It afforded appellant 30 days to accept the position or
provide a written explanation for her refusal.
In a December 5, 2017 response, appellant indicated that she had refused the position
because she continued to experience depression and was angry about the salary offered and
characterized it as tantamount to being discriminatory.
By letter dated January 19, 2018, OWCP notified appellant that her reasons for refusing
the position were not valid and provided her 15 days to accept the position or have her entitlement
to wage-loss compensation benefits terminated. It advised her that the offered position remained
available.
On January 24, 2018 Dr. Patricia Jens, a Board-certified psychiatrist, related that she was
treating appellant for PTSD and bipolar affective disorder. She noted that appellant currently
received workers’ compensation benefits after a February 11, 2010 sexual assault at work.
Dr. Jens found that appellant’s mood swings had worsened since being offered a part-time
position. She related, “No medication combinations have been found yet which provide the
clinical stability necessary for [appellant] to return to work even part time.” In an office visit note
of even date, Dr. Jens noted that appellant had chronic PTSD from sexual trauma while in the
military and a subsequent assault while working.
On March 27, 2018 the employing establishment confirmed that the offered position
remained available.
By decision dated April 4, 2018, OWCP terminated appellant’s wage-loss compensation
and entitlement to a schedule award effective April 4, 2018 as she had refused an offer of suitable
work pursuant to 5 U.S.C. § 8106(c)(2). It noted that she had not accepted the offered position
and resumed work following its 15-day letter. OWCP determined that the opinion of Dr. Powers
constituted the weight of the evidence and established that appellant could perform the duties of
the offered position.
On April 17, 2018 appellant requested reconsideration.
Thereafter, OWCP received a report dated July 26, 2018 from Dr. Ronald Rubin, a
psychiatrist, who diagnosed PTSD and bipolar disorder.4 Dr. Rubin recommended that appellant
receive treatment from providers unaffiliated with the employing establishment. He noted that she
had been injured at work on a psychiatric unit and discussed her mental condition before the injury.
On July 27, 2018 appellant contended that Dr. Powers had released appellant to resume
work on September 28, 2016 but four days later had referred appellant to a mental health program
and indicated that her Global Assessment of Functioning (GAF) score was under 50.

4

OWCP also received a January 11, 2018 treatment notes from Dr. Jens.

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In an August 18, 2018 letter, appellant questioned Dr. Powers’ finding that appellant could
resume work given that a week later she had found that appellant had a GAF score below 50, which
meant that she was disabled from employment. Dr. Powers also contended that appellant had
developed an anxiety disorder.
Appellant submitted two September 28, 2016 letters from Dr. Powers finding that appellant
could return to part-time employment.
On October 4, 2016 Dr. Powers referred appellant for to a psychosocial rehabilitation
program for veterans with “severe mental illness.” She diagnosed major depression or bipolar
affective disorder and advised that appellant had a GAF score of 50 or lower.
Appellant submitted literature providing an explanation of GAF scores. A GAF score
under 50 was applicable for individuals with serious symptoms or serious impairment in social,
occupational, or school functioning.
By decision dated December 10, 2018, OWCP denied modification of its April 4, 2018
decision. It noted Dr. Powers had referred appellant to a treatment center and diagnosed major
depression or bipolar affective disorder, but had not found a change in work restrictions. OWCP
further indicated that bipolar disorder was a preexisting condition.
On January 25, 2019 appellant requested reconsideration. In support of her request for
reconsideration, she submitted medical management notes from Dr. Jens dated January 24, 2018.
Appellant further submitted an October 3, 2017 report from Dr. Sadie, a psychologist, who
diagnosed PTSD from a sexual assault and found that appellant was totally disabled.
In an undated report received by OWCP on January 25, 2019, Dr. Holenarasipura Rajanna,
a psychiatrist, diagnosed PTSD and recurrent major depression due to appellant’s employment
injury. She advised that appellant’s employment-related condition had worsened due to inadequate
treatment and that appellant was unable to work in an inpatient unit. Dr. Rajanna opined that
appellant could work at a desk in a different building from where the incident occurred. She noted
that during an inpatient stay appellant had been stabilized with medication.
By decision dated April 24, 2019, OWCP denied modification of its December 10, 2018
decision.
On May 6, 2019 appellant requested reconsideration. She advised that she had contact the
employing establishment and that the job offer was for 16 hours one week and 24 hours the
following week, which would violate the restrictions set forth by Dr. Powers.
In an e-mail dated June 26, 2019, the employing establishment indicated that it had
extended the job offer based on the 20-hour per week restrictions and that it had intended to
schedule appellant for two days per week.
By decision dated July 9, 2019, OWCP denied modification of the April 24, 2019 decision.
On September 3, 2019 appellant requested reconsideration. She advised that the offered
position was not within her work schedule limitations.

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By decision dated September 10, 2019, OWCP denied appellant’s request for
reconsideration of the merits of her claim, finding that she had not raised an argument or submitted
evidence sufficient to warrant reopening her case under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
Under FECA5 once OWCP accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.6 Section 8106(c)(2) of FECA provides that a partially
disabled employee who refuses or neglects to work after suitable work is offered to, procured by
or secured for the employee is not entitled to compensation.7
Section 10.517(a) of FECA’s implementing regulations provides that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee, has
the burden of showing that such refusal or failure to work was reasonable or justified.8 Pursuant
to section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.9
To justify termination of compensation, it must show that the work offered was suitable,
that appellant was informed of the consequences of his or her refusal to accept such employment,
and that he or she was allowed a reasonable period to accept or reject the positon and submit
evidence or provide reasons why the position is not suitable.10 Section 8106(c)(2) will be narrowly
construed as it serves as a penalty provision, which may bar an employee’s entitlement to
compensation based on a refusal to accept a suitable offer of employment.11
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss and compensation and entitlement to a schedule award effective April 4, 2018 because she
refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
OWCP failed to establish that appellant was capable of performing the offered position of
modified health technician. The issue of whether a claimant is able to perform the duties of an
offered position is a medical question that must be resolved by probative medical evidence.12 In
5

Supra note 1.

6

D.M., Docket No. 19-0686 (issued November 13, 2019); T.M., Docket No. 18-1368 (issued February 21, 2019).

7

5 U.S.C. § 8106(c)(2); see also M.J., Docket No. 18-0799 (issued December 3, 2018).

8

20 C.F.R. § 10.517(a).

9

Id. at § 10.516.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4
(June 2013). See also R.A., Docket No. 19-0065 (issued M ay 14, 2019).
11

C.M., Docket No. 19-1160 (issued January 10, 2020); L.L., Docket No. 17-1247 (issued April 12, 2018).

12

See R.M., Docket No. 19-1236 (issued January 24, 2020).

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finding the offered position suitable, OWCP relied upon the September 28, 2016 report of
Dr. Powers. Dr. Powers opined that appellant’s employment-related acute exacerbation of PTSD
had resolved and that appellant was stable, responding to medication, and could work up to 20
hours per week without restriction. However, on October 4, 2016 she advised that appellant had
a serious mental illness with a GAF score below 50 and referred her to a treatment program.
Dr. Powers diagnosed major depression or bipolar affective disorder. While OWCP noted that
bipolar disorder was a preexisting condition, in evaluating the suitability of a particular position,
OWCP must consider the employment-related condition as well as preexisting and subsequentlyacquired medical conditions.13 The Board finds that, given the inconsistencies in Dr. Powers’
findings on September 28 and October 4, 2016, her opinion is insufficient to support that appellant
could work as a modified health technician.
The Board has held that, for OWCP to meet its burden of proof in a suitable work
termination, the medical evidence should be clear and unequivocal that the claimant could perform
the offered position.14 As a penalty provision, section 8106(c)(2) must be narrowly construed.15
OWCP did not secure a medical report that reviewed the job offered and provide a clear, reasoned
opinion as to its suitability.16 Consequently, it has not met its burden of proof.17
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss and compensation and entitlement to a schedule award effective April 4, 2018 because she
refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).18

13

R.M., id.; L.D., Docket No. 16-1169 (issued September 20, 2017); Gayle Harris, 52 ECAB 319 (2001).

14

E.G., Docket No. 18-0710 (issued February 12, 2019); Annette Quimby, 49 ECAB 304 (1998).

15

See D.G., Docket No. 16-1492 (issued January 3, 2017); Stephen A. Pasquale, 57 ECAB 396 (2006).

16

See D.M., Docket No. 17-1668 (issued April 9, 2018).

17

E.G., supra note 14.

18

In view of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

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ORDER
IT IS HEREBY ORDERED THAT the September 10, July 9, and April 24, 2019
decisions of the Office of Workers’ Compensation Programs are reversed.
Issued: January 27, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISRIBUTION CENTER, Flushing, NY,
Employer
__________________________________________

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

Docket No. 09-2286
Issued: May 21, 2010

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 15, 2009 appellant filed a timely appeal from an August 14, 2009 merit
decision of the Office of Workers’ Compensation Programs reducing her compensation benefits.
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 the Office properly reduced appellant’s compensation effective
December 21, 2008 based on its finding that she had the capacity to work as a data entry clerk.
FACTUAL HISTORY
On June 23, 1997 appellant, then a 39-year-old mail handler, filed a claim alleging that
she sustained an injury to her low back on that date while lifting a bag in the performance of
duty. She stopped work on June 24, 1997. The Office accepted the claim for lumbar sprain.
Appellant returned to limited-duty work on August 9, 1997 but sustained recurrences of

disability in August and September 1997. She stopped work on September 14, 1997 and did not
return.1
On July 26, 2007 the Office referred appellant to Dr. William A. Somers, a Boardcertified orthopedic surgeon, for a second opinion examination. In a report dated August 15,
2007, Dr. Somers described appellant’s work history, reviewed the results of diagnostic studies
and listed detailed findings on physical examination. He found that her lumbar sprain had
resolved but that she also sustained herniated lumbar discs and an aggravation of lumbar
degenerative disc disease due to her June 23, 2007 work injury. Dr. Somers explained that
appellant’s initial diagnosis was correct but not complete and that her work injury caused
“herniated discs superimposed on degenerative disc disease.”
He recommended an
electromyogram (EMG) and a back rehabilitation program. In an accompanying work restriction
evaluation, Dr. Somers found that appellant could work 8 hours a day with restrictions on sitting
up to 4 hours a day in 20-minute increments, walking up to 2 hours a day in 20-minute
increments and standing up to 2 hours a day in 20-minute increments. He further found that she
could not twist, bend, squat, knee or climb but could lift 10 pounds and push and pull up to 20
pounds for one hour a day.
On November 19, 2007 the Office accepted that appellant sustained an employmentrelated herniated lumbar disc and an aggravation of degenerative lumbar disc disease. On
November 27, 2007 it referred her to a rehabilitation counselor for vocational rehabilitation.
In an initial evaluation dated November 20, 2007, Dr. Paul B. Shu, a Board-certified
orthopedic surgeon, discussed appellant’s history of injury. He diagnosed lumbar and cervical
degenerative disc disease and lumbar spinal stenosis.2
In a vocational assessment dated December 14, 2007, the rehabilitation counselor
discussed appellant’s work history as a seasonal retail salesperson earlier that year and as a
general office clerk in 1980. He noted that Dr. Somers found that appellant could sit, stand and
walk for 20 minutes at a time with a total of 4 hours of sitting and 2 hours of standing and
walking in an 8-hour day. The rehabilitation counselor referred her for a vocational analysis
with a psychologist.3
In a vocational report dated April 17, 2008, the rehabilitation counselor identified the
positions of retail sales association, office assistant and data entry operator as within appellant’s
capabilities. He recommended a 90-day direct placement plan with a new employer. The

1

By decision dated May 1, 2002, the Office terminated appellant’s compensation effective May 1, 2002 based on
its finding that the weight of the evidence, as represented by the impartial medical examiner, established that her
work-related disability ceased. On November 25, 2002 a hearing representative vacated the May 1, 2002 decision
after finding that there was insufficient evidence that the impartial medical examiner was properly selected.
2

Dr. Shu submitted a progress report dated July 8, 2008.

3

Appellant underwent vocational testing on January 23, 2008.

2

Department of Labor’s Dictionary of Occupational Titles (DOT) describes the duties of a data
entry clerk as follows:
“Operates keyboard or other data entry device to enter data into computer or onto
magnetic tape or disc for subsequent entry: Enters alphabetic, numeric, or
symbolic data from source documents into computer, using data entry device,
such as keyboard or optical scanner and following format displayed on screen.
Compares data entered with source documents, or reenters data in verification
format on screen to detect errors. Deletes incorrectly entered data, and reenters
correct data. May compile, sort, and verify accuracy of data to be entered. May
keep record of work completed.”
In a July 25, 2008 vocational rehabilitation report, the rehabilitation counselor discussed
appellant’s prior work experience as an office clerk and in data entry before she began working
for the employing establishment. He noted that she wanted to relocate and recommended closure
of vocational rehabilitation services.
In a job classification dated August 9, 2008, the rehabilitation counselor advised that the
position of data entry clerk was sedentary and reasonably available within appellant’s
commuting area at a weekly wage of $440.00. The specific vocational preparation required for
the position was three to six months.
On October 30, 2008 the Office notified appellant that it proposed to reduce her wageloss compensation based on its finding that she had the capacity to earn wages as a data entry
clerk. It determined that Dr. Somer’s opinion established that she had the physical capacity and
vocational skills necessary to work as a data entry clerk.
In a duty status report dated October 27, 2008, Dr. Shu found that appellant could work
sitting, standing and walking two to four hours a day and lifting up to 10 pounds continuously
and 20 pounds intermittently.4 In a letter to the Office dated October 30, 2008, he diagnosed
disabling lumbar degenerative disc disease. Dr. Shu found that appellant could work within the
limitations listed on prior forms.
By decision dated December 16, 2008, the Office reduced appellant’s compensation
effective October 30, 2008 finding that the constructed position of data entry clerk represented
her wage-earning capacity.
In a report dated December 30, 2008, Dr. Shu reviewed the Office’s reduction of
appellant’s compensation. He reviewed her sitting and standing limitations of two to four hours
and advised that she could not sit or stand for eight hours continuously during a workday but
could sit and stand with breaks. In a January 5, 2009 work restriction evaluation, Dr. Shu
indicated that appellant could work eight hours per day with restrictions on sitting, walking and

4

In a progress report dated November 12, 2008, Dr. Lawrence J. Yenni, a Board-certified orthopedic surgeon,
diagnosed bilateral shoulder pain with a possible injury to the biceps labral complex on the right and bilateral
impingement signs. He recommended physical therapy and injections.

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standing of two to four hours, limited twisting, bending and stooping and intermittent lifting
under 20 pounds.5
On January 7, 2009 appellant requested an oral hearing.6 At the hearing, held on May 20,
2009, she alleged that she had cervical problems from her work injury. Appellant also
questioned whether she was qualified to work as a data entry operator. She asserted that there
were few jobs that could accommodate her sitting and standing requirements.
By decision dated August 14, 2009, the hearing representative affirmed the December 16,
2008 wage-earning capacity determination.
On appeal appellant contends that she lacks the vocational training to perform the duties
of a data entry clerk. She noted that she last worked in the field 23 years earlier when computers
had black and white screens. Appellant contends that the rehabilitation counselor did not
consider the results of her achievement testing in January 2008 and failed to provide her with
retraining in accordance with Office regulations.
LEGAL PRECEDENT
Once the Office has made a determination that a claimant is totally disabled as a result of
an employment injury and pays compensation benefits, it has the burden of justifying a
subsequent reduction of benefits.7 Under section 8115(a), wage-earning capacity is determined
by the actual wages received by an employee if the earnings fairly and reasonably represent his
or her wage-earning capacity. If the actual earnings do not fairly and reasonably represent his or
her wage-earning capacity, or if the employee has no actual earnings, his or her wage-earning
capacity is determined with due regard to the nature of the injury, the degree of physical
impairment, his or her usual employment, age, qualifications for other employment, the
availability of suitable employment and other factors or circumstances which may affect wageearning capacity in his or her disabled condition.8
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist for
selection of a position listed in the DOT or otherwise available in the open market, that fits the
employee’s capabilities with regard to his or her physical limitations, education, age and prior
experience.9 Once this selection is made, a determination of wage rate and availability in the
open labor market should be made through contact with the state employment service or other
5

The record contains progress reports from Dr. Shu dated May 26, 2009.

6

In a report dated June 9, 2009, Dr. Christopher Lin, a Board-certified physiatrist, treated appellant for
complaints of pain in her low back, left buttock, legs, neck, right arm and right hand subsequent to a 1997 work
injury. He diagnosed lumbar and cervical pain with radiculopathy. In a report dated June 30, 2009, Dr. Shu noted
that appellant had an EMG study with essentially normal findings.
7

T.O., 58 ECAB 377 (2007).

8

Harley Sims, Jr., 56 ECAB 320 (2005); Karen L. Lonon-Jones, 50 ECAB 293 (1999).

9

Mary E. Marshall, 56 ECAB 420 (2005); James A. Birt, 51 ECAB 291 (2000).

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applicable service. Finally, application of the principles set forth in Albert C. Shadrick10 will
result in the percentage of the employee’s loss of wage-earning capacity.
ANALYSIS
The Office accepted that appellant sustained lumbar sprain, a herniated lumbar disc and
an aggravation of degenerative lumbar disc disease due to a June 23, 1997 employment injury.
The medical evidence from both her attending physician, Dr. Shu and the Office referral
physician, Dr. Somers, established that she was no longer totally disabled; consequently, the
Office properly referred her for vocational rehabilitation. The rehabilitation counselor identified
the position of data entry clerk as within appellant’s physical and vocational capacity.
The medical evidence is insufficient to support a finding that the position of data entry
clerk is within appellant’s physical limitations. The issue of whether an employee has the
physical ability to perform a selected position is primarily a medical question that must be
resolved by the medical evidence.11 The Office referred appellant to Dr. Somers for a second
opinion examination. In a report dated August 15, 2007, Dr. Somers diagnosed herniated lumbar
discs and an aggravation of lumbar degenerative disc disease due to her employment injury. He
found that appellant could work eight hours a day with restrictions on sitting up to four hours a
day for 20 minutes at a time and walking and standing up to 2 hours a day for 20 minutes at a
time. Dr. Somers additionally asserted that appellant could lift 10 pounds and push and pull 20
pounds for one hour a day but could not twist, bend, squat, knee or climb.
The Office based its finding that appellant could perform the duties of a data entry clerk
primarily on the opinion of Dr. Somers, the second opinion specialist. As noted, however,
Dr. Somers found that she could only sit up to a maximum of four hours a day. The DOT
describes the duties of the data entry clerk position as entering data into a computer or onto a
disc and deleting, compiling and verifying the accuracy of data. The rehabilitation counselor did
not explain how appellant could perform the sedentary duties of a data entry clerk outlined in the
DOT in view of Dr. Somers’ finding that she could sit up no more than four hours a day.
Additionally, there is insufficient medical evidence addressing whether appellant could
perform the duties of the position. Dr. Shu found that she could work full time with limitations
on sitting, walking and standing of two to four hours a day. On December 30, 2008 he explained
that appellant could not perform continuous sitting or standing but could work full time with
breaks. Dr. Shu did not identify the duration of the breaks or provide a specific opinion
regarding whether she could work as a data entry clerk. The rehabilitation counselor failed to
explain how appellant could work as a data entry clerk in view of her sitting limitations and the
medical evidence does not sufficiently establish that she can perform the duties of the position.
The Board finds that appellant’s capacity to work as a full-time data entry clerk is not
established. The Office did not meet its burden of proof to reduce her compensation benefits
based on the selected position of data entry clerk.

10

5 ECAB 376 (1953); codified by regulation at 20 C.F.R. § 10.403.

11

See Maurissa Mack, 50 ECAB 498 (1999); Robert Dickinson, 46 ECAB 1002 (1995).

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CONCLUSION
The Board finds that the Office improperly reduced appellant’s compensation effective
December 21, 2008 based on its finding that she had the capacity to work as a data entry clerk.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 14, 2009 is reversed.
Issued: May 21, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES, Pearl City, HI, Employer
__________________________________________

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

Docket No. 16-1824
Issued: June 2, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 15, 2016 appellant filed a timely appeal from a March 31, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established a recurrence of disability commencing July 10,
2015 due to the accepted September 2, 2014 employment injury.
FACTUAL HISTORY
On September 9, 2014 appellant, then a 40-year-old waste water treatment plant operator,
filed a traumatic injury claim (Form CA-1) alleging that he felt sharp pain in his lower back on
September 2, 2014 while moving a metal locker onto a truck. On November 4, 2014 OWCP
1

5 U.S.C. § 8101 et seq.

accepted his claim for lumbar sprain. Appellant stopped work on September 2, 2014, but
returned to limited duty with restrictions on November 12, 2014.
On December 29, 2014 appellant filed claims for compensation CA-7 forms for
intermittent leave without pay for November 21, 2014, from November 24 through
November 26, 2014, on November 28, 2014, from December 1 through December 5, 2014, and
from December 8, 2014 through 9, 2014. He submitted a note dated December 8, 2014 from
Dr. Daniel W. Wu, a Board-certified internist, in which he stated that appellant was under his
professional care and was unable to perform his duties from November 25 through
December 9, 2014.
By letter dated January 9, 2015, OWCP notified appellant that, although he had filed
claims for compensation, it believed that the case would more appropriately be handled as a
recurrence of disability, as it appeared that disability was due to a material change or worsening
of the accepted work condition. OWCP advised appellant that he had not submitted sufficient
evidence to establish a recurrence of disability commencing November 21, 2014. It noted that
appellant had returned to work on November 18, 2014 in a full-time light-duty capacity, and
continued working until November 21, 2014 when he stopped work. OWCP requested that
appellant submit a narrative medical report from his physician, and afforded appellant 30 days to
submit the requested information.
On January 30, 2015 appellant filed additional claims for compensation (Form CA-7) for
intermittent leave without pay due to physical therapy on January 8, 12, 13, 15, and 23, 2015 and
for leave without pay due to visits to a physician on January 2 and 16, 2015. For each of these
dates, appellant claimed eight hours of compensation.
By note dated January 2, 2015, Dr. Craig stated that appellant could return to work on
that date with restrictions of no lifting, pulling, bending, climbing, squatting, kneeling, or use of
tools.
By letter dated February 6, 2015, OWCP informed appellant that it was only able to
medically verify the claimed dates of January 2, 8, and 12, 2015. It further noted that for these
dates, appellant was entitled only to four hours of compensation for each medical appointment.
OWCP declined to pay compensation for the rest of the dates claimed due to lack of medical
evidence. It afforded appellant 30 days in which to submit medical evidence in support of his
claims.
Appellant returned to full-time limited duty on December 9, 2014, but continued to claim
wage-loss benefits for intermittent medical appointments.
By decision dated May 15, 2015, OWCP denied appellant’s claimed intermittent periods
of disability (recurrence) for the period November 21 through December 9, 2014 because the
medical evidence was insufficient to establish disability due to the accepted lumbar sprain.
On July 31, 2015 appellant filed additional claims for compensation (Form CA-7) for
eight hours of intermittent leave without pay on July 10, 2015 due to being under his physician’s
care, and for temporary total disability from July 12 through 25, 2015.

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A report from Dr. Craig, dated July 6, 2015, released appellant to work on July 7, 2015
with limitations of no bending, no lifting of over 20 pounds, and no sitting longer than 30
minutes at a given time.
In notes dated July 10 and 20, 2015, however, Dr. Craig found appellant totally disabled
and unable to return to gainful employment. By an undated letter, received on July 28, 2015,
Dr. Craig noted that appellant had been put on temporary disability until further notice. He
stated that, upon returning to work, appellant’s therapy sessions had stopped. Dr. Craig noted
that appellant complained of his pain levels worsening. He recommended that appellant return to
massage and physical therapy, and that he could return to work with limitations after a period of
two through four months.
By letter dated August 7, 2015, OWCP informed appellant that he had submitted
insufficient evidence to establish a recurrence of disability on July 10, 2015. It noted that
Dr. Craig’s recommendation that appellant was temporarily totally disabled was based upon
complaints of pain, and that such complaints were not sufficient in themselves to constitute
objective evidence of disability. OWCP provided a questionnaire for appellant to complete and
afforded appellant 30 days to submit additional evidence.
On August 12, 2015 OWCP scheduled an appointment with a diagnostic second opinion
physician for a magnetic resonance imaging (MRI) scan and an electromyogram/nerve
conduction study (EMG/NCV) of his lumbar spine. By letter dated August 26, 2015, it was
advised that appellant failed to undergo the MRI scan because he was too claustrophobic and
unwilling to be sedated. Attached to the letter was a June 23, 2015 report from Dr. Richard Y.
Kimura, a Board-certified orthopedic surgeon. Dr. Kimura diagnosed appellant with lumbar
radiculopathy. He stated that the objective evidence to support disability was the weakness of
the right big toe and decreased sensation on the right big toe indicating the lumbar radiculopathy.
Dr. Kimura further noted that appellant was in need of further physical therapy over the next
three months. In attached work restrictions dated August 26, 2015, Dr. Kimura stated that
appellant could return to work on light duty, with restrictions of: no twisting, bending, stopping,
pushing, pulling, squatting, kneeling, or climbing; no lifting over 20 pounds; and no sitting over
35 minutes without getting up to stretch.
By decision dated September 11, 2015, OWCP denied appellant’s claim for recurrence
beginning July 10, 2015. It noted that, while Dr. Kimura had diagnosed appellant with
“‘probable’ lumbar radiculopathy,” there was no diagnostic testing used to establish this
diagnosis. OWCP further noted that there was no objective evidence of record to indicate that
appellant was temporarily totally disabled or that he was unable to work with restrictions after
July 10, 2015.
On October 20, 2015 Dr. Thomas Williams, a diagnostic radiologist, examined the results
of an MRI scan of appellant’s lumbar spine. He noted impressions of mild degenerative changes
of the lumbar spine, including a focal right central disc protrusion at T12-L1 causing narrowing
of the right lateral recess.
By letter dated November 30, 2015, Dr. Craig stated that appellant sustained his injury
“pushing the back end of an extremely heavy metal locker while one coworker carried left front

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and another held the right front/middle onto the bed of the truck that became suddenly lodged,
creating acute inertia resulting in significant damage of his lower back.” He noted that the MRI
scan report contained evidence of a T12-L1 focal right central disc protrusion with narrowing of
the right lateral recess, an L2-3 shallow disc bulge asymmetric to the right, and mild
degenerative change of the lumbar spine. Dr. Craig diagnosed appellant with intervertebral disc
disorder, stenosis of the lateral recess of the lumbar spine, and lumbar sprain.
On November 30, 2015 appellant replied to OWCP’s questionnaire. He noted that his
injury was not a recurrence, as his back pain, muscle spasms, and numbness had persisted since
the date of injury. Appellant stated that he returned to work for financial reasons despite the
persistence of his symptoms. He continued to submit claims for compensation for temporary
total disability subsequent to July 10, 2015.
In a report dated December 22, 2015, Dr. Jeffrey J.K. Lee, a Board-certified orthopedic
surgeon, provided results on examination. He diagnosed right T12-L1 disc herniation and
obesity. Dr. Lee noted, “The T12 [herniated nucleus pulposus] is the likely provenance of his
back and right leg pain and weakness.… Since [appellant] is over [one] year post injury, it is
unlikely that he will be able to return to work which requires repetitive heavy lifting or bending
or twisting.”
On January 12, 2016 appellant requested reconsideration of OWCP’s September 11, 2015
decision.
By decision dated March 31, 2016, OWCP denied modification of its decision of
September 11, 2015. It explained that none of the medical reports of record provided an
explanation of how the T12-L1 herniation was related to the employment injury of
September 2, 2014.
LEGAL PRECEDENT
Where an employee, who is disabled from the job he or she held when injured due to
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that the employee can perform the light-duty position, the employee has the burden of proof to
establish by the weight of the reliable, probative, and substantial evidence a recurrence of total
disability. As part of this burden, the employee must show a change in the nature and extent of
the injury-related condition or a change in the nature and extent of the light-duty job
requirements.2
OWCP regulations provide that a recurrence of disability means an inability to work after
an employee has returned to work, caused by a spontaneous change in a medical condition which
had resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment that caused the illness.3 This term also means an inability to work that
2

Richard A. Neidert, 57 ECAB 474 (2006); Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB
222 (1986).
3

20 C.F.R. § 10.5(x).

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takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn, (except when
such withdrawal occurs for reasons of misconduct, nonperformance of job duties, or a reductionin-force) or when the physical requirements of such an assignment are altered so that they exceed
his or her established physical limitations.4
An employee who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of proof to establish by the weight of the substantial, reliable, and
probative evidence that the disability for which he or she claims compensation is causally related
to the accepted injury. This burden of proof requires that a claimant furnish medical evidence
from a physician who, on the basis of a complete and accurate factual and medical history,
concludes that, for each period of disability claimed, the disabling condition is causally related to
the employment injury and supports that conclusion with medical reasoning.5 Where no such
rationale is present, the medical evidence is of diminished probative value.6
ANALYSIS
OWCP accepted appellant’s claim for lumbar strain on November 4, 2014. It paid for
intermittent periods of disability. On July 31, 2015 appellant filed a claim for compensation
commencing July 10, 2015. OWCP adjudicated appellant’s claim as a claim for recurrence of
disability commencing July 10, 2015, following a return to work at light duty.
The Board finds that appellant has failed to submit sufficient evidence to establish a
recurrence of total disability on July 10, 2015 causally related to the September 2, 2014
employment injury.
The Board notes that appellant had been working full-time light duty since
December 9, 2014. It is therefore appellant’s burden of proof to establish total disability causally
related to the accepted employment injury. The only physician of record who opined that
appellant was totally disabled after July 10, 2015 due to the accepted injury was Dr. Craig, in a
July 10, 2015 report. Yet, in a report four days prior, dated July 6, 2015, he found that appellant
could return to work with limitations, in two to four months. Dr. Craig offered no explanation as
to how appellant’s accepted condition had worsened sufficiently in those four days to have
caused total disability, other than to relate that appellant’s pain levels were worsening.7
Subjective complaints are insufficient to establish a recurrence of disability.8 The Board further
notes that Dr. Kimura and Dr. Lee both found that appellant could return to light duty.

4

Id.

5

Ronald A. Eldridge, 53 ECAB 218, 221 (2001).

6

Mary A. Ceglia, Docket No. 04-113 (issued July 22, 2004).

7

E.B., Docket No. 16-1468 (issued December 7, 2016).

8

See P.P., Docket No. 16-1232 (issued December 23, 2016).

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The Board finds that the evidence of record, therefore, is insufficient to establish total
disability beginning July 10, 2015 due to the accepted conditions.
Appellant has also neither alleged nor established that light-duty work was no longer
available for him after July 10, 2015.9
The Board further notes that there is no medical opinion evidence of record linking the
diagnoses of lumbar radiculopathy or a right T12-L1 disc herniation to the traumatic event of
September 2, 2014. The only accepted condition in this case is lumbar strain.
In a June 23, 2015 report, OWCP’s second opinion physician, Dr. Kimura, diagnosed
lumbar radiculopathy. He stated that the evidence that supported disability was the weakness of
the right big toe and decreased sensation on the right big toe indicating the lumbar radiculopathy.
In a report dated December 22, 2015, Dr. Lee diagnosed right T12-L1 disc herniation and
obesity. He noted, “The T12 [herniated nucleus pulposus] is the likely provenance of his back
and right leg pain and weakness.… Since he is over [one] year post injury, it is unlikely that he
will be able to return to work which requires repetitive heavy lifting or bending or twisting.”
OWCP’s procedures state that a recurrence of disability includes a work stoppage caused
by a spontaneous material change in the medical condition demonstrated by objective findings.
That change must result from a previous injury or occupational illness rather than 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.10
Therefore, in order to support a claim for recurrence, appellant must submit medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
history, concludes that, for each period of disability claimed, the disabling condition is causally
related to the employment injury and supports that conclusion with medical reasoning.11
Because the record is devoid of such a statement of causation between his accepted injury on
September 2, 2014 and the diagnosed conditions of lumbar radiculopathy and right T12-L1 disc
herniation which disable him from work, appellant has not submitted sufficient evidence to
support a recurrence of disability.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.

9

See supra note 2.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(c)(5) (October 2009).

11

Id.

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CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of disability commencing July 10, 2015 due to the accepted September 2, 2014 employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the March 31, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 2, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fairfield, AL, Employer
__________________________________________

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

Docket No. 14-1897
Issued: January 9, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 25, 2014 appellant filed a timely appeal from a July 21, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an occupational
disease in the performance of duty.
FACTUAL HISTORY
On May 19, 2014 appellant, then a 56-year-old letter carrier, filed an occupational disease
claim alleging that she developed two herniated discs on the right side of her lower back due to
her employment duties. She alleged that casing mail, loading trays, and handling heavy
1

5 U.S.C. § 8101 et seq.

packages caused her condition. Appellant became aware of her condition and its relation to her
federal employment on January 7, 2014. She did not stop work.
In a March 28, 2014 report, Dr. William Craig, a Board-certified physiatrist, noted that
appellant complained of low back pain and numbness in the lower limbs. He also noted that she
related to him that her pain disrupted her sleep at night and that it was aggravated by climbing
stairs. Upon physical examination, Dr. Craig found that there was tenderness in the lower
lumbar spine. He advised that x-rays of the back were taken and he diagnosed right lumbar
radiculopathy, and herniated lumbar disc. Dr. Craig also advised that he treated appellant with a
transforaminal epidural steroid injection to relieve her pain.
In a May 19, 2014 statement, Ed Young, a postmaster, advised that he was not at the
Fairfield office when appellant was injured. He stated that he asked a fellow employee whether
appellant reported her injury to him and he replied “no.” Mr. Young also stated that appellant
submitted a blank Form CA-2 to him on April 2, 2014.
By letter dated June 11, 2014, OWCP informed appellant that the evidence was
insufficient to establish her claim and advised her of the type of evidence needed to establish her
claim. It particularly requested that she provide a physician’s opinion supported by a medical
explanation as to whether specific work exposures contributed to a diagnosed condition. OWCP
informed appellant that this evidence was crucial to her claim.
By decision dated July 21, 2014, OWCP denied appellant’s claim because the medical
evidence was insufficient to establish that factors of her employment caused her diagnosed
conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden to establish the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation, that an injury was sustained in the performance of duty as alleged, and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established. To establish an occupational disease
claim, an employee must submit: (1) a factual statement identifying employment factors alleged
to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

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compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.4
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is generally required to establish causal relationship. The opinion of the physician must
be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.5
The weight of medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.6
ANALYSIS
Appellant claimed that she sustained a low back injury due to factors of her employment.
There is no dispute that her job includes casing mail, loading trays, and handling packages.
However, the medical evidence is insufficient to establish that appellant’s claimed back injury is
causally related to such employment factors.
The only medical evidence submitted was the March 28, 2014 report from Dr. Craig. In
his report, Dr. Craig noted that appellant complained of low back pain, numbness in the lower
limbs, and found that there was tenderness in the lower lumbar spine. He diagnosed right lumbar
radiculopathy and herniated lumbar disc, and advised that he treated appellant with a steroid
injection for pain relief. This report is insufficient to discharge appellant’s burden of proof.
Dr. Craig failed to relate any knowledge of appellant’s federal work duties and did not explain
how those duties caused or aggravated appellant’s diagnosed conditions. Additionally,
Dr. Craig’s report does not provide any history of the injury or any opinion regarding causal
relationship. The Board has held that reports that lack an opinion on causal relationship are of
little probative value.7
Consequently, appellant has submitted insufficient medical evidence to establish her
claim.
On appeal, appellant described her job duties and her symptoms. However, the factual
aspect of the claim is not in dispute. Appellant has failed to provide any medical evidence
establishing that her particular job duties caused or aggravated an injury.

4

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

5

I.J., 59 ECAB 408 (2008); supra note 3.

6

James Mack, 43 ECAB 321 (1991).

7

See Jaja K. Asaramo, 55 ECAB 200 (2004).

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Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish an occupational disease caused by workrelated events.
ORDER
IT IS HEREBY ORDERED THAT the July 21, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 9, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Harrington, IL, Employer
__________________________________________

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Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1085
Issued: December 1, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 24, 2016 appellant, through counsel, filed a timely appeal from an October 27,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly terminated compensation for wage-loss and
medical benefits effective December 13, 2015; and (2) whether appellant met his burden of proof
1

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

5 U.S.C. § 8101 et seq.

to establish residuals or continuing disability causally related to the accepted injury after the
termination of his compensation benefits.
FACTUAL HISTORY
On November 13, 2012 appellant, then a 40-year-old letter carrier, filed a traumatic
injury claim (Form CA-1) asserting that he injured his left shoulder and lower back while
carrying a mailbag on November 10, 2012. He stopped work on the date of injury. OWCP
accepted that appellant sustained a left shoulder sprain and lumbar sprain and later expanded the
claim to include herniated disc at L5-S1. It paid wage-loss compensation.
Appellant came under the treatment of Dr. Mark N. Levin, a Board-certified orthopedist,
from January 17 to April 15, 2013, for left shoulder and low back pain. He reported working as
a letter carrier and that on November 10, 2012 he injured his left shoulder when lifting a
mailbag. Dr. Levin initially placed appellant on light duty, but later took him off work on
February 19, 2013. He prescribed physical therapy and referend him for a functional capacity
evaluation (FCE).3 A February 19, 2013 magnetic resonance imaging (MRI) scan of the left
shoulder ordered by Dr. Levin revealed mild rotator cuff tendinopathy, no full thickness tear, and
mild marrow edema in the humeral head.
Appellant began treatment with Dr. Mohammad Ahsan, a Board-certified
anesthesiologist, on February 19, 2013, for left shoulder and lower back pain which began on
November 10, 2012 while carrying 50 pounds of mail at work. He underwent physical therapy
with no improvement. Dr. Ahsan recommended a left shoulder intra-articular joint injection. A
February 22, 2013 MRI scan of the lumbar spine, ordered by him, revealed mild spondylosis and
disc protrusion at L5-S1. In reports dated April 10 and May 14, 2013, Dr. Ahsan noted that
appellant presented with low back pain bilaterally. He opined that appellant’s low back pain was
due to a disc protrusion at L5-S1 and mild spinal stenosis at L5-S1. Dr. Ahsan performed
bilateral transforaminal epidural steroid injections on April 10 and May 14, 2013.
On May 20, 2013 Dr. Levin noted that appellant had full range of motion of his left
shoulder, intact strength, normal lumbar motion, and intact lumbar strength with diffuse pain
over the right lumbar paraspinal muscles. He opined that appellant had obtained maximum
medical improvement and was capable of full work from an orthopedic standpoint. Dr. Levin
referred appellant to Dr. Ahsan for restrictions based on pain management treatment.
On June 13, 2013 OWCP proposed to terminate all benefits finding that Dr. Levin’s
May 20, 2013 report established no continuing residuals of his work-related conditions.
Appellant submitted a June 25, 2013 report from Dr. Ahsan who noted that appellant had
reported minimal improvement from the lumbar paraspinal injections. He complained of
persistent pain with difficulty sitting or standing for prolonged periods of time. Dr. Ahsan
diagnosed low back pain due to herniated nucleus pulposus at L5-S1 and mild stenosis at L5-S1
3

A February 28, 2013 FCE revealed that appellant was able to perform at the medium to heavy level of physical
demand. It was noted that he was able to meet all requirements of the target job of mail carrier, but had pain with
lifting, pushing/pulling, and carrying.

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based on appellant’s physical examination, and a review of the MRI scan of the lumbar spine.
He recommended a transforaminal lumbar epidural injection at L5-S1 and L4-5. Dr. Ahsan
returned appellant to light-duty work on July 1, 2013.
On July 16, 2013 OWCP terminated appellant’s wage-loss compensation and medical
benefits, effective July 16, 2013.
On December 2, 2013 appellant filed a claim for recurrence of disability (Form CA-2a)
on November 20, 2013 causally related to his accepted work injury. He noted that at the time of
the recurrence he was on restricted duty.
On December 4, 2013 appellant requested reconsideration. He submitted reports from
Dr. Ahsan dated July 17 to December 19, 2013 who treated him with lumbar facet injections and
lumbar radiofrequency ablation. Dr. Ahsan diagnosed joint pain of the left shoulder,
osteoarthritis of the shoulder, myofascial pain/fibromyalgia, lumbar lumbago, lumbar
spondylosis, lumbar herniated disc, and lumbar spinal stenosis. He noted that appellant reported
50 percent improvement with the right-sided lumbar radiofrequency ablation, but complained of
increased left shoulder pain and limited range of motion. Dr. Ahsan recommended a repeat
intra-articular cortisone injection. He indicated that appellant was not currently working.
By decision dated February 21, 2014, OWCP vacated the July 16, 2013 termination
decision. It found that the evidence of record was insufficient to support that appellant was
capable of working full duty with no restrictions due to the accepted conditions.
On March 27, 2014 OWCP referred appellant to Dr. Theodore J. Suchy, a Board-certified
orthopedist and second opinion physician, to determine if the accepted conditions had resolved.
In an April 28, 2014 report, Dr. Suchy provided results on examination and indicated that he had
reviewed the records provided. A lumbar spine examination revealed normal range of motion
and negative straight leg raising test. Muscle strength was intact and symmetrical, reflexes were
equal and symmetrical, there was no pain with hyperextension of the back, and no objective
findings regarding appellant’s lumbar spine or lower extremities. Examination of the shoulders
revealed full range of motion of the cervical spine, negative Spurling’s test, no evidence of
muscle atrophy, full range of motion, intact muscle strength, and intact two point discrimination.
Dr. Suchy diagnosed lumbar myositis, rotator cuff tendinitis, and strain of the left shoulder, all
resolved. He opined, based on a reasonable degree of medical certainty as well as review of the
objective findings, appellant had traumatic lumbar myositis and rotator cuff tendinitis, both
which had resolved since there were no objective findings on examination to produce pathology
in either area. Dr. Suchy opined that there was total resolution of the conditions related to the
work injury of November 10, 2012 and any exacerbation thereof subsequent to that time. He
further indicated that appellant could perform his regular activities without restriction and was
able to return to his date-of-injury job.
Appellant submitted reports from Dr. Ahsan dated March 14 and 31, April 10, and
June 5, 2014 who noted that physical examination remained essentially unchanged. He
diagnosed joint pain, shoulder osteoarthritis, myofascial pain/fibromyalgia, lumbar lumbago,
lumbar spondylosis, lumbar herniated disc, and lumbar spinal stenosis. Appellant reported
improvement after a left shoulder injection.

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On June 11, 2014 OWCP requested that Dr. Ahsan review the report from Dr. Suchy
advise whether he concurred and to provide rationale for any differences of opinion.
Appellant submitted reports from Dr. Ahsan dated July 16, 2014 to May 26, 2015 who
noted appellant’s complaints of lower back pain bilaterally and left shoulder pain. Dr. Ahsan
noted findings of limited range of motion of the left shoulder with findings consistent with
bursitis and rotator cuff tendinitis. On July 16, 2014 he noted reviewing Dr. Suchy’s report and
disagreed with his finding that appellant could return to full-duty work, noting that appellant had
ongoing left shoulder and back pain. Dr. Ahsan diagnosed joint pain, osteoarthritis of the
shoulder, myofascial pain/fibromyalgia, lumbar lumbago, lumbar spondylosis, lumbar herniated
disc, and lumbar spinal stenosis.
OWCP determined that there was a conflict in medical opinion between the treating
physician, Dr. Ahsan, who indicated that appellant continued to have residuals of the workrelated injury, and OWCP’s second opinion physician, Dr. Suchy, who opined that appellant no
longer had residuals of the work-related injury of November 10, 2012 and could return to work
full time regular.
An MRI scan of the cervical spine dated February 16, 2015 revealed disc degeneration in
the lower cervical spine, disc bulges and protrusion at C5-6 and C6-7, and hemangioma within
the T2 vertebral body.
On June 29, 2015 OWCP scheduled an impartial medical examination with Dr. David A.
Fetter, a Board-certified orthopedic surgeon. It provided him with a statement of accepted facts
(SOAF) dated June 11, 2014 which noted that appellant’s claim was accepted for left shoulder
strain, low back strain, and lumbar disc herniation at L5-S1. In an August 3, 2014 report,
Dr. Fetter detailed the history of the injury and appellant’s treatment. He reviewed the
SOAF and found that examination of the cervical spine revealed a normal gait. Dr. Fetter noted
that appellant could get on and off the examination table without assistance. There was no
tenderness to palpation of the cervical spine, no paravertebral muscle tightness. Appellant had a
negative bilateral Spurling’s sign, no atrophy, fasciculations, or clonus of the arms, and no
winging of the scapulae. Deep tendon reflexes were intact, motor examination was normal, and
sensory examination was intact to light touch.
For the shoulders, there was no tenderness to palpation, no muscle tightness, and no
fasciculations or atrophy. There was no instability of either shoulder, range of motion was
normal, and motor strength and sensation to light touch was intact. With regard to the lumbar
spine, there was tenderness of the low back to light palpation without muscle tightness on
palpation. There was no atrophy, fasciculations, or clonus of the lower extremities. Range of
motion was normal, heel to toe walking was intact, strength was intact, and reflexes were
normal.
Dr. Fetter diagnosed chronic pain and degenerative lumbar spine, preexistent to reported
work injury. He noted that the accepted conditions of left shoulder strain and a lumbar strain
were resolved. Dr. Fetter noted that the lumbar disc herniation at L5-S1 was not caused or
related to the reported work injury of November 10, 2012. He indicated that the herniated
nucleus pulposus at L5-S1 was a preexistent lumbar spine condition for which no treatment was

4

required. Dr. Fetter opined that the accepted conditions had long since resolved. However, he
indicated that a psychosocial evaluation may further elucidate contributing etiologies to his
chronic pain diagnosis. Dr. Fetter further noted that there were no residuals attributable to the
reported work injury and appellant was capable of returning to his date-of-injury job as described
in the SOAF without restrictions.
On September 3, 2015 OWCP proposed to terminate all benefits finding that Dr. Fetter’s
August 3, 2015 report established no continuing residuals of his work-related conditions.
On September 30, 2015 counsel asserted that Dr. Fetter’s report was of diminished
probative value and insufficient to terminate appellant’s benefits. She indicated that he
concluded that the left shoulder strain and lumbar strain were resolved and continued to state that
“the later accepted condition, a lumbar disc herniation at L5-S1, was not caused or related to the
reported work injury of 11/10/2012.” Counsel asserted that a referee physician may not dispute
the occurrence of a work incident leading to an injury that OWCP has already accepted as factual
and, in connection with such injury, had approved cervical spine surgery. Appellant further
asserted that Dr. Fetter did not use the SOAF as the framework in forming his opinion and,
therefore, appellant’s opinion was seriously diminished or negated. Additionally, counsel argued
that Dr. Fetter and Dr. Suchy’s reports should be dismissed as they did not state well-rationalized
medical reasons for their conclusions, but simply stated conclusions.
Appellant submitted a report from Dr. Ahsan dated March 31, 2014, previously of record.
Also submitted were operative reports from Dr. Ahsan dated June 19, 2015 in which appellant
underwent cervical epidural steroid injection and was diagnosed with cervicalgia.
On October 22, 2015 OWCP issued an amended notice of proposal to terminate all
benefits finding that Dr. Fetter’s August 3, 2015 report established no continuing residuals of his
work-related conditions.
Appellant through counsel submitted a statement dated November 2, 2015 and reiterated
the assertions made in the September 2, 2015 statement. He submitted operative reports from
Dr. Ahsan dated April 25 to October 6, 2015 in which appellant underwent lumbar and cervical
epidural steroid injections and was diagnosed with L5-S1 disc herniation, cervicalgia, and right
lumbar facet joint. In an October 6, 2015 report, Dr. Ahsan treated appellant for lower back pain
radiating down the buttocks and calves. He noted findings of positive straight leg raises on the
left and restricted range of motion of the lumbar spine. Dr. Ahsan diagnosed spinal stenosis
lumbar region, osteoarthritis, and low back pain. He performed a left lumbar steroid injection at
L5-S1.
In a decision dated December 14, 2015, OWCP terminated appellant’s compensation
benefits, effective December 13, 2015. It based its decision on the report of Dr. Fetter, the
referee physician, who opined that appellant’s accepted work-related conditions resolved and he
did not have any residuals.
On January 6, 2016 counsel requested a telephonic oral hearing which was held on
August 31, 2016. In a statement dated September 27, 2016, appellant through counsel, asserted
that the termination of all benefits was improper as appellant continued to have residuals of his

5

work injury. Counsel indicated that Dr. Fetter’s report could not carry the weight of the evidence
to terminate appellant’s benefits. She argued that Dr. Fetter had concluded that the left shoulder
strain and lumbar strain were resolved, but continued to state that “the later accepted condition, a
lumbar disc herniation at L5-S1, was not caused or related to the reported work injury of
11/10/2012.” Counsel asserted that a referee may not dispute the occurrence of a work incident
leading to an injury that OWCP has already accepted as factual and, in connection with such
injury, had approved cervical spine surgery. She contended that Dr. Fetter did not use the SOAF
as the framework in forming his opinion and therefore the value of his opinion was seriously
diminished.
Appellant also provided evidence from Dr. Ahsan, from December 10, 2015 to March 17,
2016 noting continuing symptoms, treatment, and disability. A lumbar spine MRI scan dated
October 9, 2015 revealed moderate L5-S1 stenosis, left-sided asymmetric disc protrusion with
partial annual tear, scattered degenerative, and bony spondylotic changes in the lumbar spine.
Appellant also submitted medical evidence previously of record.
In a decision dated October 27, 2016, an OWCP hearing representative affirmed the
December 14, 2015 decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to
justifying modification or termination of an employee’s benefits. After it has determined that an
employee has disability causally related to his or her federal employment, it may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.4 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability. To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition,
which require further medical treatment.5
FECA 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 shall appoint
a third physician who shall make the examination.6 The implementing regulations state that if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee or impartial examination and OWCP
will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.7

4

Kenneth R. Burrow, 55 ECAB 157 (2003).

5

Furman G. Peake, 41 ECAB 361 (1990).

6

5 U.S.C. § 8123(a).

7

20 C.F.R. § 10.321.

6

It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual, and medical background, must be given special weight.8
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for left shoulder sprain, lumbar sprain, and herniated
disc at L5-S1. It found a conflict in the medical opinion evidence between appellant’s physician,
Dr. Ahsan and the second opinion physician, Dr. Suchy, regarding the nature of her condition,
whether it was employment related and the extent of his disability. OWCP referred appellant to
Dr. Fetter, a Board-certified orthopedic surgeon, for an impartial medical examination to resolve
this conflict.
In his August 3, 2015 report, Dr. Fetter reviewed appellant’s medical history, the history
of injury, and SOAF. He examined her and diagnosed chronic pain and degenerative lumbar
spine, preexistent to reported work injury. Dr. Fetter noted that the accepted conditions of left
shoulder and lumbar strain were resolved. He noted that the lumbar disc herniation at L5-S1 was
not caused or related to the reported work injury of November 10, 2012. Dr. Fetter indicated that
the herniated nucleus pulposus at L5-S1 was a preexisting condition for which no treatment was
required. He opined that the accepted conditions had long since resolved, but that a psychosocial
evaluation might elucidate contributing etiologies to his diagnosis of chronic pain. Dr. Fetter
further noted that there were no residuals attributable to his reported work injury and appellant
was capable of returning to his date-of-injury job without restrictions.
Dr. Fetter disregarded the SOAF provided for his review by disputing that the accepted
condition of herniated disc at L5-S1 was employment related. As such, the Board finds that his
report is of diminished probative value as his opinion disregarded critical elements of the SOAF
and is therefore flawed.9 The Board notes that it is the function of a medical expert to give an
opinion only on medical questions, not to find facts.10 OWCP’s procedure manual states that,
when the impartial physician does not use the SOAF as the framework in forming his or her
opinion, the probative value of the opinion is seriously diminished or negated altogether.11
Dr. Fetter’s report is not based on an accurate history and is, therefore, insufficient to resolve the
issue of whether appellant is entitled to wage-loss compensation for the periods in questions.
For these reasons, the Board finds that OWCP did not meet its burden of proof to
terminate appellant’s compensation benefits.

8

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

9

See J.H., Docket No. 16-0590 (issued September 12, 2016).

10

Id.

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600(6)
(October 1990).

7

CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
medical and compensation benefits.12
ORDER
IT IS HEREBY ORDERED THAT the October 27, 2016 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 1, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

The Board finds that it is unnecessary to address the second issue in this case in view of the Board’s disposition
of the first issue.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.W., Appellant
and
DEFENSE LOGISTICS AGENCY,
Fort Belvoir, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1898
Issued: February 7, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 12, 2013 appellant filed a timely appeal from a June 11, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant established that she has more than three percent right leg
impairment, for which she received a schedule award.
FACTUAL HISTORY
On October 21, 2010 appellant, then a 60-year-old distribution process worker, filed an
occupational disease claim alleging that her lumbosacral neuralgia was due to her employment
duties. She first became aware of her condition on August 17, 2010 and realized that it was
1

5 U.S.C. § 8101 et seq.

caused or aggravated by her employment on October 14, 2010. OWCP accepted lumbago and
paid benefits. Appellant returned to limited-duty work on July 23, 2011.
On June 5, 2012 appellant filed a Form CA-7, claim for a schedule award. In a
March 19, 2012 report, Dr. Jagdish A. Patel, a family practitioner, noted that appellant developed
pain in the low back on August 17, 2010 at work and that her job required pushing and pulling a
cart weighing 100 plus pounds and lifting boxes. Appellant was first seen on August 30, 2010
and there was nothing suggestive of a preexisting condition.
She last worked on
January 26, 2012. Dr. Patel presented examination findings, a review of diagnostic studies and
diagnosed lumbago and right S1 radiculopathy secondary to spinal and foraminal stenosis. He
opined that appellant had reached maximum medical improvement as of February 21, 2012.
Under the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides), Dr. Patel rated 10 percent whole person impairment
by utilizing the spinal tables in Chapter 17.
In a May 10, 2013 report, an OWCP medical adviser noted the history of injury and
reviewed the medical records, including Dr. Patel’s March 19, 2012 report. He noted that
Dr. Patel found no clinical sensory deficit. The medical adviser opined that appellant reached
maximum medical improvement on February 21, 2012. As FECA did not provide for whole
person impairment ratings, he referenced the July/August 2009 The Guides Newsletter for Rating
Spinal Nerve Extremity Impairment. Using Dr. Patel’s examination findings, the medical
adviser opined that appellant had three percent impairment of the right lower extremity.
Utilizing the tables in Chapter 16, the medical adviser identified S1 sensory radiculopathy as a
class 1 impairment with two percent default rating for moderate sensory deficit/pain involving
the right S1 nerve root. Dr. Patel assigned a grade modifier 2 for functional history; a grade
modifier 2 for clinical studies and noted a modifier for physical examination was considered to
be nonapplicable. Utilizing the net adjustment formula, the medical adviser found a net
adjustment of two which moved the impairment into a class 1, category E or three percent of the
right lower extremity impairment. Dr. Patel noted that the records did not document motor
atrophy or weakness of either lower extremity and there were no left lower extremity symptoms
or findings for rating impairment to the left leg.
By decision dated June 11, 2013, OWCP granted appellant a schedule award for three
percent impairment of the right leg. The award ran for 8.64 weeks from February 21 to
April 21, 2012.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
2

5 U.S.C. § 8107.

2

tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides
has been adopted by OWCP for evaluating schedule losses and the Board has concurred in such
adoption.3
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.4 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.5
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides
Newsletter, Rating Spinal Nerve Extremity Impairment using the sixth edition
(July/August 2009) is to be applied.6
In addressing lower extremity impairments, due to peripheral or spinal nerve root
involvement, the sixth edition requires identifying the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on Functional History
(GMFH) and if electrodiagnostic testing were done, Clinical Studies (GMCS).7 The net
adjustment formula is (GMFH - CDX) + (GMCS - CDX).8
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides with an OWCP medical
adviser providing rationale for the percentage of impairment specified.9

3

See 20 C.F.R. § 10.404; Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

4

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

5

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

6

A.M.A., Guides 533.

7

Id.

8

Id. at 521.

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

3

ANALYSIS
OWCP accepted that appellant sustained lumbago and paid benefits. By decision dated
June 11, 2013, it granted her a schedule award for three percent impairment of the right leg and
paid 8.64 weeks of compensation.
In a March 19, 2012 report, Dr. Patel rated 10 percent whole person impairment of her
lumbar spine under Chapter 17 of the A.M.A., Guides. FECA, however, specifically excludes
the back or spine as an organ and, therefore, it does not come under the provisions for payment
of a schedule award.10 FECA further does not provide for an impairment of the whole person.11
Dr. Patel’s rating is of diminished probative value as it does not conform to the protocols for
rating impairment under FECA.
The medical adviser reviewed Dr. Patel’s report on May 10, 2013. He found that
appellant had ratable impairment of the right leg for motor and sensory deficits under the sixth
edition of the A.M.A., Guides. The medical adviser determined that Dr. Patel failed to utilize
The Guides Newsletter, July/August 2009, to apply neurologic examination findings to the
sensory and motor severity tables for each affected nerve root, adjust for functional history and
clinical studies and then combine the motor and sensory impairments. In rating appellant’s
impairment, the records did not document any left lower extremity symptoms or basis for an
impairment of the left leg. Relying on Proposed Table 2 of The Guides Newsletter, Spinal Nerve
Impairment, he properly rated class 1 impairment for moderate sensory deficit of right S1 nerve
root with a default impairment rating of two percent. The medical adviser found under Table 166, page 516 of the A.M.A., Guides, that appellant had a grade modifier 2 for functional history;
and, under Table 16-8, page 519, a grade modifier 2 for clinical studies. He properly noted that
grade modifier for physical examination was not utilized for this method. Utilizing the net
adjustment formula of (GMFH - CDX) (2-1)+ (GMCS - CDX) (2-1), the medical adviser found
the net adjustment of two compared to the diagnostic class resulted in a plus 2 or grade E
impairment, which yielded S1 sensory deficit of three percent. The medical adviser noted that
the medical records failed to document any motor atrophy or weakness of either lower extremity.
The Board finds that OWCP’s medical adviser properly applied the A.M.A., Guides to
rate appellant’s right lower extremity impairment and that his report constitutes the weight of
medical opinion. As noted above, for peripheral nerve impairments to the upper or lower
extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides
Newsletter, Rating Spinal Nerve Extremity Impairment using the sixth edition
(July/August 2009) is to be applied.12 The medical adviser relied on the July/August 2009
edition of The Guides Newsletter and provided a thorough, well-rationalized report in
conformance with the applicable tables and protocols of the A.M.A., Guides in rendering his
impairment rating. The report from Dr. Patel, in contrast, did not meet the standards for rating
10

Francesco C. Veneziani, 48 ECAB 572 (1997). A schedule award is payable for a permanent impairment of
the extremities that is due to a work-related back condition; see Denise D. Cason, 48 ECAB 530 (1997).
11

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

12

See supra note 6.

4

lower extremity impairment for appellant’s condition set forth in the sixth edition of the A.M.A.,
Guides and the July/August 2009 edition of The Guides Newsletter.
On appeal, appellant contends that the schedule award is not sufficient. However, for the
reasons set forth above, there is no evidence which establishes greater than the three percent right
lower extremity impairment awarded.
Appellant may request an 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 at any time.
CONCLUSION
The Board finds that appellant has not established that she sustained greater than three
percent right lower extremity impairment.
ORDER
IT IS HEREBY ORDERED THAT the June 11, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 7, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5