United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

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

Docket No. 12-688
Issued: September 7, 2012

Case Submitted on the Record

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

JURISDICTION
On February 7, 2012 appellant filed a timely appeal from a November 1, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $960.84; and (2) whether OWCP properly found that appellant was at fault in the
creation of the overpayment and it was therefore not subject to waiver.
FACTUAL HISTORY
On May 21, 2010 appellant, then a 48-year-old mail handler, filed a claim for
occupational disease.
1

5 U.S.C. § 8101 et seq.

OWCP accepted appellant’s claim for a right shoulder and upper arm sprain on July 26,
2010 and informed appellant that compensation benefits for total disability were payable only
while she could not perform the duties of her regular job because of her accepted work injury. It
instructed appellant as follows: “Once you return to work, or obtain new employment, notify
this office immediately ... if you receive a compensation check which includes payment for a
period you have worked, return it to us immediately to prevent an overpayment of
compensation.”
Appellant began receiving compensation benefits on the periodic rolls beginning
August 27, 2010. She returned to full-time work on July 21, 2011 and OWCP was notified of
her return to work on that date. Appellant received compensation benefits for the period July 3
through 30, 2011 in the amount of $2,690.34. The amount of $2,690.34 was directly deposited
into appellant’s account on July 30, 2011.
On July 27, 2011 OWCP issued a preliminary overpayment decision. It determined that
appellant was overpaid $960.84 for the period July 21 through 30, 2011. Appellant was found to
be without fault in the creation of the overpayment.
Appellant disagreed with the decision on August 18, 2011 and requested that OWCP
review the written record. She stated that the overpayment occurred through no fault of her own
and requested a waiver of the overpayment. Appellant submitted a completed overpayment
recovery questionnaire and supporting documentation of income and expenses.
By decision dated September 1, 2011, OWCP found appellant was overpaid for the
period July 21 through 30, 2011 in the amount of $960.84. It also found that, while appellant
was without fault in creating the overpayment, she was not entitled to a waiver because the
information she provided was insufficient to justify waiver of the overpayment.
On November 1, 2011 OWCP issued another final overpayment decision and determined
that appellant was at fault in creating the overpayment. The decision noted that appellant had
submitted a completed overpayment questionnaire, with supporting documentation, but stated
that OWCP’s July 27, 2011 preliminary decision found appellant to be with fault in the creation
of the overpayment and that appellant had not provided information to refute the finding of fault.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) provides that the United States shall pay compensation for the disability
or death of an employee resulting from personal injury sustained while in the performance of
duty.2 When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.3 A claimant, however, is not entitled to
receive temporary total disability and actual earnings for the same period. OWCP procedures

2

5 U.S.C. § 8102(a).

3

Id. at § 8129(a).

2

provide that an overpayment in compensation is created when a claimant returns to work but
continues to receive wage-loss compensation.4
ANALYSIS -- ISSUE 1
The record indicates that appellant returned to work at the employing establishment on
July 21, 2011. Appellant received wage-loss compensation for total disability through
July 30, 2011. As noted above, she is not entitled to receive compensation for total disability
after she has returned to work. Thus, an overpayment occurred.
The record shows that appellant received compensation benefits for the period July 3
through 30, 2011 in the amount of $2,690.34; however, she should have been paid compensation
for the period July 3 through 20, 2011 in the amount of $1,729.50. OWCP calculated that, from
July 21 to 30, 2011, appellant received $960.84 in total disability compensation but was not
entitled to any compensation during this period. It explained how the overpayment occurred and
provided this information to appellant with the preliminary notice of overpayment. The Board
finds that OWCP properly determined that appellant received an overpayment of compensation
in the amount of $960.84 for the period July 21 to 30, 2011.5
LEGAL PRECEDENT -- ISSUE 2
Under OWCP regulations, waiver of the recovery of an overpayment may be considered
only if the individual to whom it was made was not at fault in accepting or creating the
overpayment.6 The fact that the overpayment was the result of error by OWCP or another
government agency does not by itself relieve the individual who received the overpayment of
liability for repayment if the individual also was at fault for receiving the overpayment.7 Each
recipient of compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she received from OWCP are proper. The recipient must show good faith
and exercise a high degree of care in reporting events that may affect entitlement to or the
amount of benefits. A recipient who has done any of the following will be found to be at fault
with respect to creating an overpayment: (1) made an incorrect statement as to a material fact
which he or she knew or should have known to be incorrect; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a payment which he
or she knew or should have known to be incorrect (this provision applies only to the overpaid
individual).8

4

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.2(a) (May 2004). L.S., 59 ECAB 350 (2008).
5

Appellant did not dispute the calculation of the overpayment.

6

20 C.F.R. § 10.433(a).

7

Id. at § 10.435(a).

8

Id. at § 10.433(a).

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Whether OWCP determines that an individual was at fault with respect to the creation of
an overpayment depends on the circumstances surrounding the overpayment. The degree of care
expected may vary with the complexity of those circumstances and the individual’s capacity to
realize that he or she is being overpaid.9
ANALYSIS -- ISSUE 2
OWCP applied the third standard in determining that appellant was at fault in creating the
overpayment. For it to establish that appellant was with fault in creating the overpayment of
compensation, OWCP must establish that, at the time appellant accepted the compensation
checks in question, she knew or should have known the payments were incorrect.10
OWCP requires that recipients of compensation benefits take all reasonable measures to
ensure that payments from OWCP are proper.11 However, the Board has held that an employee
who receives payments from OWCP in the form of direct deposit may not be at fault for the first
incorrect deposit into her account, as the acceptance of that resulting overpayment lacks the
requisite knowledge.12 Because the regulations define fault by what the claimant knew or should
have known at the time of acceptance, one of the consequences of electronic fund transfers is
that in many cases, but not necessarily all, the claimant will not be at fault for accepting the first
incorrect payment because the requisite knowledge is lacking at the time of deposit. A finding of
no fault does not mean, of course, that the claimant gets to keep the money, only that OWCP
must consider whether the claimant is eligible for waiver. In cases involving a series of incorrect
payments, where the requisite knowledge is established by a letter or telephone call from OWCP
or simply with the passage of time and a greater opportunity for discovery, the claimant will be
at fault for accepting the payments subsequently deposited.13 Each case must be judged on its
merits. Whether or not OWCP determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.14
The record establishes that, for the overpayment period July 3 to 30, 2011, appellant
received $2,690.34 by direct deposit payment. Appellant was entitled to $1,729.50 of this
amount as she did not return to work until July 21, 2011; the remaining amount of this payment,
$960.84 was an overpayment.
The Board finds that appellant was without fault for the direct deposit of the overpaid
amount into her account. The preliminary finding was issued and mailed out on July 27, 2011,
9

Id. at § 10.433(b).

10

See Claude T. Green, 42 ECAB 174, 278 (1990).

11

Supra note 7.

12

Tammy Craven, 57 ECAB 689 (2006).

13

J.W., Docket No. 10-1271 (issued February 3, 2011).

14

Supra note 8.

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while the actual electronic deposit took place merely three days later. It was unclear from the
record whether appellant actually received the July 27, 2011 letter before the deposit occurred.
The Board finds that, given the above-described circumstances, there is no evidence of record to
show that appellant knew or should have known that the July 30, 2011 deposit was incorrect at
the time that she accepted it.15
A finding of no fault does not mean, however, that the claimant may keep the $960.84
amount of the overpayment, only that OWCP must consider eligibility for waiver for this period,
and the case must be remanded for OWCP to determine whether she is entitled to waiver for this
portion of the overpayment. The Board notes that appellant did complete an overpayment
questionnaire on August 18, 2011 and did submit supporting documentation of both income and
expenses. The Board will set aside OWCP’s November 1, 2011 decision on the issue of fault
and remand the case for consideration of waiver based on appellant’s current financial
circumstances.16
CONCLUSION
The Board finds that OWCP properly determined that appellant received $960.84 in
overpayment. The Board finds that appellant was not at fault in the receipt of the overpayment.
The case is remanded to OWCP for further development in order to determine whether appellant
is entitled to waiver.

15

On appeal, appellant argued that the November 1, 2011 decision erroneously stated that she had not provided
information to refute the finding of fault in the July 27, 2011 preliminary decision, while the preliminary decision in
fact found that she was without fault. The Board agrees. The Board has previously held that, if OWCP informs
appellant in a preliminary determination that she was without fault, it is error for OWCP to subsequently change the
finding without providing her an opportunity to respond. See M.A., Docket No. 08-489 (issued July 22, 2008).
However, this issue is rendered moot as the Board has determined that she was without fault in creation of the
overpayment on other grounds.
16

C.K., Docket No. 12-746 (issued May 1, 2012); see also Ronald E. Smith, 36 ECAB 652 (1985).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
November 1, 2011 decision is affirmed in part and set side and remanded in part for further
action consistent with this decision.
Issued: September 7, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0422
Issued: March 16, 2022

Case Submitted on the Record

ORDER GRANTING REMAND
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On January 28, 2021 appellant filed a timely appeal from a December 16, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 By that decision, OWCP
denied his traumatic injury claim (Form CA-1) that he sustained COVID-19 on March 10, 2020
causally related to the accepted employment exposure. The Clerk of the Appellate Boards assigned
Docket No. 21-0422 to appellant’s appeal.2
On August 30, 2021, the Director of OWCP filed a motion to remand with the Clerk of the
Appellate Boards. The Director noted that OWCP has conceded that appellant is a covered
1

The Board notes that, following the December 16, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
2

The Board notes that OWCP subsequently issued a March 22, 2021 decision, which vacated the December 16,
2020 merit decision. However, appellant had already filed the current appeal to the Board on January 28, 2021. OWCP
may not simultaneously have jurisdiction over the same issue. Consequently, the March 22, 2021 decision is set aside
as null and void. See 20 C.F.R. § 10.626; see also A.C., Docket No. 18-1730 (issued July 23, 2019); M.C., Docket
No. 18-1278, n.1 (issued March 7, 2019); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB
880 (1990).

employee under the American Rescue Plan Act of 2021 (ARPA) and that he is entitled to
appropriate benefits under FECA. The Director requested that the December 16, 2020 decision be
set aside. The Director further advised that, upon remand, OWCP wou ld reissue its decision on
appellant’s entitlement to FECA benefits for exposure to COVID-19 while in the performance of
her federal duties, and authorize the payment of appropriate benefits as claimed.
The Clerk of the Appellate Boards served appellant with a copy of the Director’s motion
to remand. No reply was received.
The Board, having duly considered this matter, grants the Director’s motion. On remand
OWCP shall reissue its decision on appellant’s entitlement to FECA benefits for exposure to
COVID-19 while in the performance of his federal duties, and authorize the payment of
appropriate FECA benefits as claimed by appellant.
IT IS HEREBY ORDERED THAT the motion to remand is granted. The decision of
OWCP dated December 16, 2020 is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 16, 2022
Washington, DC

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

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
S.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Coleman, WI, Employer
_________________________________________

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Appearances:
Michael G. Perry, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1216
Issued: February 5, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 15, 2012 appellant, through her attorney, filed a timely appeal from the
December 14, 2011 decision of the Office of Workers’ Compensation Programs (OWCP), which
affirmed as modified OWCP’s denial of the claim. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury in the performance of duty on April 7, 2011.
FACTUAL HISTORY
On April 23, 2011 appellant, then a 59-year-old part-time flexible clerk, filed a traumatic
injury claim alleging that on April 7, 2011 she was hit in the lip by a parcel at work. She noted
neck pain and stopped work on April 18, 2011.
1

5 U.S.C. § 8101 et seq.

OWCP received medical records and work excuses. An April 18, 2011 treatment note
listed that appellant was treated for neck pain and cervical radiculopathy; however, the
provider’s name is illegible. She underwent a cervical fusion on April 28, 2011.
By letter dated May 5, 2011, OWCP advised appellant that additional factual and medical
evidence was needed. It explained that a physician’s opinion was crucial to her claim and
allotted her 30 days to submit the requested information.
In a claim addendum, received by OWCP on May 9, 2011, appellant noted that, on the
morning of Thursday, April 7, 2011, she was sorting parcels and was struck on the right side of
her mouth with such force that it jarred her head backwards. She explained that she continued
working the rest of the day and did not have immediate pain. Appellant noted that she had a
previously scheduled vacation for the following day, Friday and Saturday and Monday were her
regularly scheduled days off. After she returned home on Thursday, she began experiencing
upper left back but did not initially associate this with the work incident. Appellant indicated
that she also began to have cold symptoms prior to the incident and felt that her symptoms were
settling in the back. She developed a bruise on the right corner of her mouth. Appellant
explained that her back symptoms progressively worsened over the next several days as did her
cold symptoms with a steady cough. She noted that when she returned from her vacation she
sought treatment and was diagnosed with bronchitis. Her upper back pain did not improve
although her bronchitis improved. OWCP also received statements dated April 19, 23 and
May 2, 2011 from appellant’s husband corroborating appellant’s description of events.
OWCP received a statement from the employing establishment, which included a
narrative list of difficulty with appellant’s performance and leave since January 2011.2 It noted
that she called in sick with bronchitis on April 11, 2011 but came to work on April 12, 2011.
Appellant’s work performance was discussed and it was noted that no mention was made of
having sustained an injury on April 7, 2011. Furthermore, her husband called to indicate that she
was hospitalized on April 18, 2011. The supervisor advised that appellant did see the bruise on
her lip but she did not report how it happened.
By decision dated June 6, 2011, OWCP denied appellant’s claim finding that the medical
evidence did not demonstrate that the claimed medical condition was related to the accepted
work-related incident.
On June 7, 2011 OWCP received appellant’s June 2, 2011 response to the request for
additional information. Appellant described her injury and course of treatment. OWCP also
received a statement from appellant’s son, who explained that, on the weekend of April 8, 2011,
he witnessed her with a large bruise on her face. He noted that appellant informed him that a
large package hit her in the face at work on the previous day. For the rest of the weekend,
appellant utilized a heating pad and pain medication to remedy the pain in her upper back area.
In a May 19, 2011 report, Dr. Paul Baek, a Board-certified neurosurgeon, noted
appellant’s history of injury. Appellant had a work-related injury where she struck her head
along the facial area resulting in arm and shoulder pain. Dr. Baek indicated that she had
significant spondylosis resulting in arm symptoms on the left side, mainly due to C5-6, C6-7
2

It is not clear who compiled the narrative, as it was unsigned.

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central and foraminal stenosis. He explained that this was confirmed with magnetic resonance
image (MRI) scan and x-ray. Dr. Baek noted that appellant was currently recovering from her
anterior cervical fusion surgery at C5-6, C6-7.
On June 14, 2011 appellant requested a telephonic hearing, which was held on
October 12, 2011. In letters dated November 8, 2011, her representative submitted additional
medical evidence.
In reports dated November 1 and 8, 2011, Dr. Baek opined that appellant was involved in
a work-related injury, which was related to aggravation of her prior previous medical condition.
In a June 10, 2011 report, Dr. Diego Restrepo, a Board-certified family practitioner, explained
that he examined her on April 4, 2011 for her annual physical. At that time, appellant did not
have any complaints. Dr. Restrepo noted that on April 11, 2011 he examined her and she had a
cough, shortness of breath and achy neck pain. He diagnosed bronchitis. Dr. Restrepo also
noted the subsequent surgical procedure performed by Dr. Baek, which included the C5-6
anterior cervical discectomy and decompression and the C6-7 anterior cervical discectomy and
decompression of the spinal cord foramen.
By decision dated December 14, 2011, the hearing representative denied the claim
finding that she did not establish that the work incident occurred as alleged and because the
medical evidence did not establish that the incident, even if established, resulted in a cervical
condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA and that an injury was sustained in the performance of duty.3 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged.5 In some traumatic injury cases, this component can
be established by an employee’s uncontroverted statement on the Form CA-1.6 Second, the

3

James E. Chadden, Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyet, 41 ECAB 992 (1990).

5

T.H., 59 ECAB 388 (2008); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter
2.803.2a (June 1995).
6

John J. Carlone, 41 ECAB 354 (1989).

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employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7
An alleged work incident does not have to be confirmed by eyewitnesses in order to
establish that an employee sustained an injury in the performance of duty, but the employee’s
statement must be consistent with the surrounding facts and circumstances and his subsequent
course of action.8 A consistent history of the injury as reported on medical reports to appellant’s
supervisor and on the notice of injury can also be evidence of the occurrence of the incident.9
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury and failure to obtain medical
treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in
determining whether a prima facie case has been established.10 Although an employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence,11 an employee
has not met this burden when there are inconsistencies in the evidence such as to cast serious
doubt upon the validity of the claim.12
ANALYSIS
Appellant alleged that, on April 7, 2011, she was struck on the lip by a parcel in the
performance of duty. OWCP initially found that the evidence supported that the claimed
incident occurred.
The hearing representative modified the prior decision, finding
inconsistencies, the Board does not agree. The statement by appellant is consistent in that she
was sorting parcels and was struck on the lip and right side of her mouth by a parcel. The
statement from the employing establishment which questioned the incident was unsigned.
Furthermore, the Board notes that a bruise was confirmed on appellant’s lip. Although the
employing establishment suggested the claim was related to leave issues, there is no evidence to
suggest that the incident did not occur. Therefore, the Board finds that the first component of
fact of injury is established; the claimed incident -- that appellant was working on April 7, 2011
and was struck on the lip and right side of her mouth by a parcel.
The medical evidence however is insufficient to establish that the employment incident
caused an injury. The medical reports of record do not establish that being struck on the lip and
right side of her caused a personal injury on April 7, 2011. The medical evidence contains no

7

See id.

8

Rex A. Lenk, 35 ECAB 253, 255 (1983).

9

Id. at 255-56.

10

Dorothy M. Kelsey, 32 ECAB 998 (1981).

11

Id.

12

Joseph A. Fournier, 35 ECAB 1175 (1984).

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reasoned no explanation of how the employment incident of April 7, 2011 caused or aggravated
an injury.13
In a May 19, 2011 report, Dr. Baek noted that appellant reported a history of being struck
her head along the facial area resulting in arm and shoulder pain. He noted that she had
significant spondylosis resulting in arm symptoms on the left side, mainly due to C5-6, C6-7
central and foraminal stenosis. Dr. Baek also indicated that appellant anterior was recovering
from recent cervical fusion surgery. The Board notes that this report does not provide a
rationalized opinion on causal relation.14 Dr. Baek did not list the April 7, 2011 date of injury or
see appellant until some six weeks later. He did not provide a rationalized medical opinion on
the issue of causal relationship between the claimant’s diagnosed spinal condition and the
alleged incident.15 A physician’s opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the claimant.16 Dr. Baek’s reports of
November 1 and 8, 2011 contained a general opinion that appellant was involved in a
work-related injury, which was related to aggravation of her prior previous medical condition.
Without rationale to support the opinion, they are of limited probative value.
Appellant also included a June 10, 2011 report from Dr. Restrepo, who explained that he
examined her on April 4, 2011 for her annual physical and determined that there were no
preexisting complaints. On April 11, 2011 Dr. Restrepo examined her and she had a cough,
shortness of breath and achy neck pain. He diagnosed bronchitis. Dr. Restrepo stated that
appellant subsequently underwent C5-6 anterior cervical discectomy and decompression and the
C6-7 anterior cervical discectomy and decompression of the spinal cord foramen. He did not
address the April 17, 2011 incident or explain how it would be competent to cause appellant’s
cervical condition. The Board has held that an opinion that a condition is causally related to an
employment injury because the employee was asymptomatic before the injury, is insufficient,
without supporting rationale, to establish causal relation.17
The medical records submitted by appellant do not provide a physician’s opinion
addressing causal relationship. Appellant alleged that being struck on the lip by a parcel caused
neck pain and cervical radiculopathy. The medical reports submitted to the record do not
adequately address the cause of her neck condition. They are insufficient to establish that the
April 7, 2011 employment incident caused or aggravated a cervical injury.18

13

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
14

Elizabeth Stanislav, 49 ECAB 540, 541 (1998).

15

Duane B. Harris, 49 ECAB 170, 173 (1997).

16

Gary L. Fowler, 45 ECAB 365, 371 (1994).

17

Kimper Lee, 45 ECAB 565 (1994).

18

See Willie M. Miller, 53 ECAB 697 (2002).

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On appeal, appellant’s representative argued that the medical evidence had been
misconstrued as there is no dispute that appellant received a blow to her head while at work. He
also argued that her examination on April 4, 2011 did not reflect any cervical symptoms. The
Board notes that, while Dr. Restrepo stated that appellant had no prior symptoms, Dr. Baek
addressed a preexisting cervical condition. It is not apparent that Dr. Restrepo provided a full or
accurate medical history.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury in the performance of duty on April 7, 2011.
ORDER
IT IS HEREBY ORDERED THAT the December 14, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 5, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.F., Appellant
and
U.S. POSTAL SERVICE, PRINCETON POST
OFFICE, Princeton, NJ, Employer
__________________________________________

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

Docket No. 14-1326
Issued: April 26, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On May 19, 2014 appellant, through counsel, filed a timely appeal from January 29 and
March 13, 2014 merit decisions 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 appellant has more than 3 percent permanent impairment of
the right upper extremity and 24 percent permanent impairment of the left upper extremity, for

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.

which she received schedule awards; and (2) whether she established a recurrence of disability
causally related to her accepted aggravation of bilateral traumatic thoracic outlet syndrome.
On appeal, counsel contends that appellant submitted sufficient evidence to establish that
she was disabled from work due to her accepted employment injuries and that her limited-duty
work was withdrawn by the employing establishment. He further contends that the medical
report of an impartial medical specialist regarding the extent of appellant’s permanent
impairment is not entitled to the weight of medical opinion evidence as it was not rationalized
and he did not adequately explain how he arrived at the date of appellant’s maximum medical
improvement (MMI).
FACTUAL HISTORY
This case has previously been before the Board. In a May 4, 2007 decision3 under the
instant claim assigned File No. xxxxxx163, the Board affirmed an OWCP hearing
representative’s February 14, 2006 decision, finding that OWCP properly terminated appellant’s
wage-loss compensation and medical benefits, effective January 25, 2005, as she no longer had
any residuals or disability causally related to her accepted January 10, 2001 employment-related
injuries and that she failed to establish any continuing employment-related residuals or disability
after January 25, 2005. In a February 7, 2013 decision,4 the Board affirmed a May 1, 2012
OWCP decision denying modification of the prior termination decision. The facts and
circumstances outlined in the prior Board decisions are incorporated herein by reference. The
relevant facts are set forth below.
On April 15, 2000 appellant, then a 33-year-old part-time flexible carrier, filed a
traumatic injury claim (Form CA-1), assigned File No. xxxxxx523, alleging that she injured her
knees in a motor vehicle accident on that day. On May 10, 2000 OWCP accepted the claim for
neck and lumbar strains.
On January 16, 2001 appellant filed a traumatic injury claim (Form CA-1), assigned File
No. xxxxxx163, alleging that she sustained injuries to her cervical spine, back, upper extremities,
right eye, and both hips and legs as a result of a car accident on January 10, 2001. She stopped
work on January 11, 2001 and returned to limited-duty work on January 22, 2001. On
February 28, 2001 OWCP accepted her claim for contusions of the left hip and bilateral knees,
cervical and lumbar sprains, and a right knee meniscus tear. It authorized a right knee
arthroscopic partial medial meniscectomy performed on December 27, 2001. On July 7, 2003
and April 6, 2006 OWCP accepted that appellant sustained a recurrence of disability on May 24
and 29, 2001 due to her January 10, 2001 employment-related injuries. Appellant’s April 2000
and January 2011 claims have been administratively combined, with File No. xxxxxx523 serving
as the master file.
Dr. Leon N. Costa, an attending Board-certified orthopedic surgeon, advised that
appellant had continuing residuals of her accepted employment-related injuries.
3

Docket No. 06-1640 (issued May 4, 2007).

4

Docket No. 12-153 (issued February 7, 2013).

2

In a February 12, 2004 medical report and a February 9, 2004 work capacity evaluation,
Dr. David I. Rubinfeld, a Board-certified orthopedic surgeon and OWCP referral physician,
opined that appellant’s January 10, 2001 employment-related conditions had resolved and while
she could not perform her usual job, she could work eight hours a day with restrictions.
OWCP found a conflict in medical opinion between Dr. Costa and Dr. Rubinfeld
regarding whether appellant had any continuing employment-related residuals or disability
necessitating referral to an impartial medical examiner, pursuant to 5 U.S.C. § 8123(a). In a
May 27, 2004 report, Dr. Robert Dennis, a Board-certified orthopedic surgeon, selected as the
impartial medical examiner, opined that appellant no longer had any residuals of her accepted
January 10, 2001 employment injuries and that she could return to full-duty work with no
restrictions.
On March 5, 2009 appellant filed a claim for a schedule award (Form CA-7). In a
November 18, 2008 report, Dr. David Weiss, an attending osteopath Board-certified in
orthopedic surgery, advised that appellant had 28 percent permanent impairment of the left upper
extremity, 20 percent permanent impairment of the right upper extremity, 9 percent permanent
impairment of the right lower extremity, and 3 percent permanent impairment of the left lower
extremity based on the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides). He concluded that she reached MMI on
the date of his examination.
By letter dated September 24, 2009, OWCP requested an impairment rating from
Dr. Weiss based on the sixth edition of the A.M.A., Guides.
In a November 11, 2008 report, Dr. Weiss advised that appellant had 20 percent
permanent impairment of the left upper extremity, 16 percent permanent impairment of the right
upper extremity, and 3 percent permanent impairment of the right lower extremity under the
sixth edition of the A.M.A., Guides.
On January 22, 2010 an OWCP medical adviser reviewed the medical record, including
Dr. Weiss’ report. He determined that Dr. Weiss’ findings in his November 12, 2009 report were
in conflict with the 2004 reports of Dr. Rubinfeld and Dr. Dennis as they found that appellant’s
January 10, 2001 employment injuries had resolved and that she had no disability. The medical
adviser questioned how her extremities could have worsened by the date of Dr. Weiss’
November 2008 examination since he had not mentioned any further treatment for these
conditions or any new injuries after 2004. He advised that if Dr. Weiss’ findings were truly
normal and the sixth edition of the A.M.A., Guides was applied to these findings, then appellant
would have no permanent impairment to her extremities. The medical adviser recommended a
new impartial medical examination to resolve this conflict and to rate impairment of all involved
extremities under the sixth edition of the A.M.A., Guides.
By letter dated March 31, 2010, OWCP referred appellant, together with a statement of
accepted facts and the medical record, to Dr. Andrew M. Hutter, a Board-certified orthopedic
surgeon, for an impartial medical examination and impairment rating. In an April 17, 2010
report, Dr. Hutter advised that appellant had reached MMI, but he could not provide the date she
reached this status. He opined that she had no permanent impairment to the neck or lower back.

3

Dr. Hutter provided an impairment rating for the right knee and concluded that her shoulder pain
was probably related to thoracic outlet syndrome as there was no evidence of a rotator cuff tear.
On May 9, 2010 an OWCP medical adviser reviewed the medical record and Dr. Hutter’s
findings. The medical adviser noted that Dr. Hutter did not apply the sixth edition of the
A.M.A., Guides, did not provide any objective data upon which to base an impairment rating,
and reported no physical abnormalities.
By letter dated August 11, 2010, OWCP referred appellant to Dr. Dean L. Carlson, a
Board-certified orthopedic surgeon, for another impartial medical examination because
Dr. Hutter failed to respond to its requests for a supplemental report. In a September 9, 2010
report, Dr. Carlson reviewed a history of the accepted April 15, 2000 and January 10, 2001
employment injuries and appellant’s medical treatment, family, and social background. On
physical and neurological examination, he provided, among other findings, range of motion
(ROM) measurements for the cervical spine, and shoulders, elbows, forearms, hips, and knees.
On x-ray examination of the shoulders, Dr. Carlson reported normal glenohumeral and
acromioclavicular joints. There was no glenohumeral or acromioclavicular osteoarthritis.
Dr. Carlson diagnosed a motion deficit of the left shoulder, right and left brachial plexus
impairment of the lower trunk at C8-T1, chronic cervical and lumbar strain, and left intercostal
brachial sensory nerve postoperative anesthesia. He reported that appellant was, as of
March 2002, status post resection of the left axillary mass, status post release of the right first
and second dorsal wrist compartments for intersection syndrome and de Quervain’s disease, and
had chronic cervical and lumbar strain. Dr. Carlson further advised that there was no patellar
chondromalacia, right or left elbow humeral epicondylitis, or acromioclavicular arthropathy of
the left shoulder. The de Quervain’s disease and intersection syndrome of the right wrist and
forearm were cured with surgery.
Dr. Carlson utilized the sixth edition of the A.M.A., Guides, and applied the ROM
method for evaluating impairment of appellant’s left shoulder which is found in Chapter 15.7.
He utilized Table 15-34 on page 475 to determine that she had 21 percent impairment of the left
shoulder for loss of ROM. Using Table 15-35 and Table 15-7 on pages 477 and 406, he assigned
grade modifiers 2 each for functional history with a QuickDASH score of 60 and 21 percent loss
of ROM impairment. Dr. Carlson found that no adjustment to the 21 percent impairment rating
was required since the grade modifier 2 for functional history corresponded to the grade modifier
2 for loss of ROM. Regarding impairment of appellant’s left brachial plexus of the lower trunk
at C8-T1, Dr. Carlson applied Table 15-20, Table 15-14, Table 15-7, and Table 15-23, on pages
434, 425, 406, and 449, and assigned a class 1 grade modifier each for physical examination
findings and clinical studies for electromyogram (EMG) and nerve conduction velocity (NCV)
and a class 2 grade modifier for functional history. He applied the net adjustment formula and
moved one space to the left of the default value of C to the value four percent. Dr. Carlson used
the combined values chart to determine that 21 percent impairment for loss of ROM and 4
percent impairment due to a left brachial plexus injury when combined was equal to 24 percent
permanent impairment to the left upper extremity. Regarding impairment of appellant’s right
brachial plexus of the lower trunk at C8-T1, Dr. Carlson again applied Table 15-20, Table 15-14,
Table 15-7, and Table 15-23, on pages 434, 425, 406, and 449, and assigned a class 1 grade
modifier each for physical examination findings, functional history (QuickDASH score of 34),
and clinical studies. He applied the net adjustment formula and found the default value of C was

4

unchanged which resulted in three percent impairment for the right brachial plexus of the lower
trunk at C8-T1. Dr. Carlson explained why thoracic outlet syndrome should be included as
related to the accepted employment-related motor vehicle accidents. He concluded that appellant
reached MMI on September 9, 2010.
On September 29, 2010 Dr. Robert Y. Pick, a Board-certified orthopedic surgeon serving
as an OWCP medical adviser, reviewed the statement of accepted facts and the medical record.
He found that appellant’s case did not merit any permanent impairment for the left and right
upper extremities. Dr. Pick noted, among other things, that a January 14, 2005 cervical spine
magnetic resonance imaging (MRI) scan was normal, a November 18, 2005 left shoulder MRI
scan was unremarkable, and a November 19, 2001 EMG/NCV study report was inconclusive for
any particular entrapment neuropathy or thoracic outlet syndrome. He opined that appellant had
undergone extensive treatment and consequently, findings concerning permanent impairment
from various evaluating physicians were skewed and as such their provision of permanency was
completely unrelated to any of the accepted occupational conditions.
On October 18, 2010 OWCP requested that Dr. Pick determine the extent of appellant’s
permanent impairment under the sixth edition of the A.M.A., Guides as he may not have
reviewed Dr. Carlson’s September 9, 2010 report. In an October 29, 2010 report, Dr. Pick
reviewed Dr. Carlson’s report and noted that the report focused on anatomic regions and
conditions beyond those clearly described as accepted. Thus, he advised that Dr. Carlson’s
impairment calculations related to appellant’s right and left upper extremities were not within the
scope of the accepted conditions listed in the statement of accepted facts. Dr. Pick determined
that she had reached MMI on September 9, 2010, the date of Dr. Carlson’s examination.
In a June 28, 2011 decision, an OWCP hearing representative set aside a November 10,
2010 schedule award decision regarding appellant’s right lower extremity impairment5 and
remanded the case for OWCP to, among other things, obtain further rationale from Dr. Carlson
explaining how the accepted April 15, 2000 work-related motor vehicle accident caused
appellant’s thoracic outlet syndrome. She found that Dr. Carlson’s opinion on this issue was
deemed a second opinion.
In an October 18, 2011 report, Dr. Carlson advised that appellant’s case should be
expanded to include bilateral traumatic thoracic outlet syndrome due to her April 15, 2000 workrelated injuries and aggravated by her January 10, 2001 employment-related injuries. He
explained that she had the appropriate neurologic symptoms of upper extremity numbness,
5

In his September 9, 2010 report, Dr. Carlson determined that appellant had one percent permanent impairment
of the right lower extremity based on the sixth edition of the A.M.A., Guides. Dr. Pick agreed with Dr. Carlson’s
one percent impairment rating. In a November 10, 2010 decision, OWCP granted appellant a schedule award for
one percent impairment of the right lower extremity and found zero percent impairment to the upper extremities.
Following OWCP’s hearing representative’s remand on June 28, 2011, OWCP issued a January 18, 2012 decision
which granted appellant a schedule award for an additional four percent impairment of the right lower extremity,
totaling five percent. The record indicates that OWCP previously paid compensation for appellant’s schedule award
for one percent impairment to the right lower extremity for the period which ended on September 29, 2010. By
decision dated March 30, 2012, an OWCP hearing representative set aside the January 18, 2012 decision and
remanded the case for further medical development regarding permanent impairment of appellant’s right knee and
bilateral upper extremities.

5

paresthesias, fatigue, and weakness with overhead tasks. Appellant also had an objective
vascular finding of obliteration of her brachial artery pulse with overhead maneuvers. An
EMG/NCV study showed right C8-T1 involvement which involved the lower roots of the
brachial plexus. Dr. Carlson concluded that, based on these signs and symptoms, appellant
developed post-traumatic thoracic outlet syndrome due to her work-related motor vehicle
accidents.
In a January 18, 2012 decision, OWCP accepted appellant’s claim for aggravation of
bilateral traumatic thoracic outlet syndrome. It authorized the left first rib resection performed
on March 12, 2004.
On March 8, 2012 appellant filed a recurrence of disability claim (Form CA-2a)
commencing March 29, 2011 due to the withdrawal of her limited-duty work. She claimed that
she was sent home on March 29, 2011 after being told that there was no work available within
her restrictions. The employing establishment indicated that appellant performed limited-duty
work eight hours a day following her January 10, 2001 employment injuries.
On May 3, 2012 OWCP updated its statement of accepted facts to include the newly
accepted thoracic outlet syndrome condition. On June 18, 2012 it referred the case record to an
OWCP medical adviser for review of Dr. Carlson’s bilateral upper extremity impairment ratings
due to this work-related condition.
In a June 22, 2012 report, Dr. Harvey L. Seigel, a Board-certified-orthopedic surgeon
serving as an OWCP medical adviser, reviewed the medical record and Dr. Carlson’s findings.
He found that Dr. Carlson had correctly applied the criteria and tables in the sixth edition of the
A.M.A., Guides. Dr. Seigel determined that appellant reached MMI between August 2004, three
months following physical therapy for her first rib resection, and the date she returned to work in
2005. In a September 24, 2012 addendum report, he clarified his date of MMI finding by stating
that appellant reached this status on September 9, 2010, the date of Dr. Carlson’s report.
In a decision dated September 28, 2012, OWCP granted appellant a schedule award for
24 percent permanent impairment of the left upper extremity and 3 percent permanent
impairment of the right upper extremity based on the opinions of Dr. Carlson and Dr. Seigel.
On October 5, 2012 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative.
In an October 12, 2012 decision, OWCP denied appellant’s recurrence claim. It found
that the evidence of record was insufficient to establish a change in the nature and extent of her
light-duty job requirements or a withdrawal of her light-duty assignment by the employing
establishment.
On November 9, 2012 counsel requested reconsideration.
In a February 11, 2013 report, Dr. Weiss explained the differences between his and
Dr. Carlson’s right upper extremity permanent impairment. He noted that he used SemmesWeinstein Monofilament testing to determine the extent of appellant’s permanent impairment
due to her brachial plexus neuropathy and noted that such testing was required under the A.M.A.,
6

Guides to determine sensory deficits in the C5 through C8 distribution on the right. Dr. Weiss
utilized Table 15-20 on page 434 of the A.M.A., Guides to determine a three percent sensory
impairment. He related that Dr. Carlson did not indicate whether he used the Semmes-Weinstein
Monofilament method to ascertain appellant’s sensory deficits in rating impairment due to her
brachial plexus neuropathy.
Dr. Weiss rated appellant’s impairment for right elbow
de Quervain’s tenosynovitis and lateral epicondylitis, and concluded that her combined right
upper extremity permanent impairment was 16 percent.
In a February 21, 2013 report, Dr. Stuart M. Hochron, a Board-certified internist, listed
appellant’s complaints and advised that her medical condition and work limitations had not
improved. He noted that they had somewhat worsened since January 2009. Dr. Hochron also
noted that appellant was severely limited in her ability to perform functions that were normally
required in workplaces, but she could work with certain restrictions.
By letter dated February 4, 2013, the employing establishment noted that it concurred
with appellant’s statements regarding her alleged recurrence of disability. It related that her
light-duty job was withdrawn because there was no longer any work available for her. This
change did not occur due to misconduct, performance, or reduction-in-force.
In a March 28, 2013 decision, an OWCP hearing representative affirmed the October 12,
2012 denial of appellant’s recurrence claim. She found that the medical evidence of record was
insufficient to establish that appellant sustained a recurrence of disability due to her accepted
employment-related injuries.
In a May 30, 2013 decision, an OWCP hearing representative set aside the September 28,
2012 schedule award decision. He found an unresolved conflict in medical opinion regarding the
extent of appellant’s right upper extremity impairment. The hearing representative remanded the
case for OWCP to obtain a supplemental report from Dr. Carlson to explain how he determined
appellant’s sensory impairment related to her accepted right thoracic outlet syndrome under the
sixth edition of the A.M.A., Guides, and chose the date of MMI.
In a June 21, 2013 report, Dr. Carlson noted that he used a Semmes-Weinstein
Monofilament test to perform his sensory examination. He chose September 9, 2010 as the date
of MMI because it was the date he examined appellant, who was six years postsurgical therapy
of the first left rib resection which allowed more than enough time to pass for maximum healing
and rehabilitation.
On July 19, 2013 Dr. Spyros Panos, a Board-certified orthopedic surgeon serving as an
OWCP medical adviser, reviewed the medical record, including Dr. Carlson’s findings. He
advised that Dr. Carlson had correctly applied the criteria and tables from the sixth edition of the
A.M.A., Guides based on, appellant’s accepted employment-related conditions. Dr. Panos noted
that Dr. Carlson appropriately did not apply impairment ratings for appellant’s right elbow and
right wrist conditions, which were not accepted conditions and had normal findings on
examination on September 9, 2010. He advised that appellant did not have more than three
percent permanent impairment of the right upper extremity. Dr. Panos determined that she
reached MMI on September 9, 2010.

7

In a July 29, 2013 decision, OWCP found that appellant had no more than three percent
permanent impairment of the right upper extremity for which she had received a schedule award.
It found that the weight of the evidence was represented by the opinions of Dr. Carlson and
Dr. Panos.
By letter dated August 5, 2013, counsel requested an oral hearing before an OWCP
hearing representative.
In a December 23, 2013 letter, counsel requested dismissal of appellant’s appeal of the
March 28, 2013 recurrence decision to the Board6 and requested reconsideration of this decision
before OWCP.
Appellant submitted Dr. Hochron’s January 7 and June 11, 2009, and February 9, 2013
reports. Dr. Hochron advised that the accepted employment-related motor vehicle accidents
significantly contributed to appellant’s wrist tenosynovitis, chronic wrist pain, right knee
meniscal tear, exacerbation of her thoracic outlet syndrome, symptoms of fibromyalgia, and
ongoing neck pain which resulted in significant physical impairment. He concluded that her
chronic conditions rendered her only able to perform part-time work with restrictions.
In a January 27, 2014 report, Dr. Richard J. Schaller, Board-certified in emergency
medicine, assessed appellant as having permanent chronic ongoing subjective and objective
problems, and physical limitations as a direct result of her April 15, 2000 and January 10, 2001
employment-related injuries. He reviewed a description of her letter carrier job and concluded
that she would never be able to fully perform the duties outlined in the job description.
Dr. Schaller noted that appellant was forced to retire because the employing establishment
declined her request for reasonable accommodation.
In a decision dated January 29, 2014, an OWCP hearing representative affirmed the
July 29, 2013 schedule award decision. He found that Dr. Carlson’s opinion represented the
special weight of the medical evidence and established that appellant had no more than 24
percent impairment of the left upper extremity and 3 percent impairment of the right upper
extremity.
By decision dated March 13, 2014, OWCP denied modification of the March 28, 2013
recurrence decision. It found that the reports of Dr. Hochron and Dr. Schaller did not provide a
sufficiently rationalized medical opinion based on objective findings to support their
conclusions.
LEGAL PRECEDENT -- ISSUE 1
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has

6

In a February 24, 2014 order, under the instant claim assigned File No. xxxxxx163, the Board dismissed
appellant’s appeal of OWCP’s hearing representative’s March 28, 2013 decision. Order Dismissing Appeal, Docket
No. 13-1664 (issued February 24, 2014).

8

vested the authority to implement the FECA program with the Director of OWCP.7 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.8 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.9
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).10 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.11
ANALYSIS -- ISSUE 1
The first issue for consideration on appeal is whether appellant has more than 3 percent
permanent impairment of the right upper extremity and 24 percent permanent impairment of the
left upper extremity, for which she received schedule awards.
The Board finds that this issue is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the diagnosis-based
impairment (DBI) or the ROM methodology when assessing the extent of permanent impairment
for schedule award purposes.12 The purpose of the use of uniform standards is to ensure
7

See 20 C.F.R. §§ 1.1-1.4.

8

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
9

5 U.S.C.

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

10

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
11

Isidoro Rivera, 12 ECAB 348 (1961).

12

T.H., Docket No. 14-0943 (issued November 25, 2016).

9

consistent results and to ensure equal justice under the law to all claimants.13 In T.H., the Board
concluded that OWCP physicians are at odds over the proper methodology for rating upper
extremity impairment, having observed attending physicians, evaluating physicians, second
opinion physicians, impartial medical examiners, and district medical advisers use both DBI and
ROM methodologies interchangeably without any consistent basis. Furthermore, the Board has
observed that physicians interchangeably cite to language in the first printing or the second
printing when justifying use of either ROM or DBI methodology. Because OWCP’s own
physicians are inconsistent in the application of the A.M.A., Guides, the Board finds that OWCP
can no longer ensure consistent results and equal justice under the law for all claimants.14
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the January 29, 2014
schedule award decision. Following OWCP’s development of a consistent method for
calculating permanent impairment for upper extremities to be applied uniformly, and such other
development as may be deemed necessary, OWCP shall issue a de novo decision on appellant’s
claim for an upper extremity schedule award.
LEGAL PRECEDENT -- ISSUE 2
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.15 This term also means an inability to work that takes place when a lightduty 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 reduction-in-force) or when the
physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.16
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the
burden to establish by the weight of the reliable, probative and substantial evidence a recurrence
of total disability and to show that he or she cannot perform such limited-duty work. As part of

13

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

14

Supra note 12.

15

20 C.F.R. § 10.5(x).

16

Id.

10

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 limited-duty job requirements.17
To show a change in the degree of the work-related injury or condition, the claimant must
submit rationalized medical evidence documenting such change and explaining how and why the
accepted injury or condition disabled the claimant for work on and after the date of the alleged
recurrence of disability.18
ANALYSIS -- ISSUE 2
The second issue for consideration on appeal is whether appellant has established a
recurrence of disability causally related to her accepted aggravation of bilateral thoracic outlet
syndrome. OWCP accepted appellant’s claims for neck and lumbar strains, contusions of the left
hip and bilateral knees, and bilateral thoracic outlet syndrome. Appellant stopped work on
January 11, 2001 and returned to limited-duty work on January 22, 2001. On March 29, 2011
she stopped work again and claimed a recurrence of disability due to the withdrawal of her
limited-duty position by the employing establishment on that same day.
The Board has held that withdrawal of a light-duty job formulated to comply with an
employee’s work-related medical limitations can constitute a recurrence of disability.19 In the
present case, the employing establishment acknowledged that appellant’s light-duty job was
withdrawn because there was no work available. The position was not withdrawn due to
misconduct, performance, or reduction-in-force. The Board, therefore, finds that appellant
sustained an employment-related recurrence of total disability when her work was withdrawn by
the employing establishment on March 29, 2011.20
CONCLUSION
The Board finds that this case is not in posture for a decision on the extent of permanent
impairment to appellant’s right and left upper extremities. The Board further finds that appellant
has met her burden of proof to establish that she sustained a recurrence of disability commencing
March 29, 2011 due to her accepted employment injuries.

17

Richard A. Neidert, 57 ECAB 474 (2006); Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB
222 (1986).
18

James H. Botts, 50 ECAB 265 (1999).

19

J.F., 58 ECAB 124 (2006).

20

Jackie D. West, supra note 17; K.S., Docket No. 08-2105 (2009).

11

ORDER
IT IS HEREBY ORDERED THAT the March 13, 2014 decision of the Office of
Workers’ Compensation Programs regarding appellant’s recurrence of disability is reversed. The
January 29, 2014 decision of the Office of Workers’ Compensation Programs regarding
appellant’s schedule award claim is set aside and the case is remanded for further action
consistent with this decision of the Board.21
Issued: April 26, 2017
Washington, DC

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

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

21

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
East Orange, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1061
Issued: July 25, 2018

Case Submitted on the Record

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

JURISDICTION
On April 18, 2017 appellant, through counsel, filed a timely appeal from a November 22,
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 the claim.3

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
3

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its November 22, 2016 decision.
The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore,
the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of total
disability commencing December 3, 2014, causally related to her accepted December 12, 2011
employment injury.
FACTUAL HISTORY
This case was previously before the Board.4 The facts and circumstances as set forth in
the prior decision are incorporated herein by reference. The relevant facts are as follows.
On December 15, 2011 appellant, then a 47-year-old medical clerk, filed a traumatic injury
claim (Form CA-1) alleging that she injured her left thumb, wrist, and shoulder while in the
performance of duty on December 12, 2011 when her chair slipped from underneath her. OWCP
accepted that she sustained a left thumb sprain.
Appellant continued to work in a full-time, full-duty capacity until December 3, 2014 when
she stopped work. She filed a notice of recurrence (Form CA-2a) on December 4, 2014 alleging
an increase in pain of her left thumb, wrist, and shoulder due to unaccepted conditions of carpal
tunnel syndrome, cubital tunnel syndrome, and left carpometacarapal (CMC) joint arthritis.
By decision dated March 13, 2015, OWCP denied appellant’s recurrence claim as she had
not established total disability due to the accepted injury. It also found that she had not established
that any additional conditions were causally related to the accepted injury.
Appellant appealed to the Board on April 8, 2015. By decision dated August 19, 2015, the
Board affirmed OWCP’s March 13, 2015 denial of the recurrence claim. The Board also found
that the evidence of record was insufficient to support the expansion of the acceptance of
appellant’s claim to include additional conditions.
In a May 6, 2015 attending physician’s report (Form CA-20), Dr. Susan Scott, an
orthopedic hand surgeon, noted that appellant had sustained a fall in the workplace with hand
trauma on December 12, 2011 and had no history or evidence of concurrent or preexisting disease.
She opined that appellant’s left thumb basal joint arthritis and left carpal tunnel were caused or
aggravated by her employment activity, which was described as “job traumatic arthritis and
neuropathy.” Dr. Scott indicated that appellant was disabled until August 18, 2015 due to pain
and weakness and would need future surgeries.
On May 19, 2015 appellant underwent left carpal tunnel release, left cubital tunnel release,
left thumb trapeziectomy and left first CMC arthroplasty, which Dr. Scott performed. On July 7,
2015 she underwent a removal of K wire. These surgeries were not approved by OWCP.
Appellant, through counsel, requested reconsideration on August 26, 2015.

4

Docket No. 15-1037 (issued August 19, 2015).

2

A May 9, 2012 x-ray report indicated mild degenerative change in the first CMC joint and
a slight narrowing of the third and fourth metacarpophalangeal joints. No radiopaque foreign body
was identified.
In a March 13, 2014 report, Dr. Nigel Shenoy, Board-certified in neuromuscular medicine,
physical medicine, and rehabilitation, related that appellant received a CMC injection. He
provided a diagnosis of left thumb pain due to first CMC arthritis.
In a March 31, 2013 report, Dr. Wesley San, a specialist in physical medicine and
rehabilitation, treated appellant’s left first CMC with an injection. He noted that appellant’s thumb
pain had worsened as the prior injection wore off. Dr. San opined that appellant’s left thumb pain
was due to CMC arthritis. In a March 31, 2013 report, Dr. San treated appellant with a left first
CMC injection. He opined that her left thumb pain was due to CMC arthritis. Dr. San also opined
that appellant’s right thumb pain was likely due to “OA.” In an August 2, 2013 report, Dr. Rana
Rand, a specialist in physical medicine and rehabilitation, opined that appellant’s left first CMC
pain was secondary to first CMC arthritis.
In a partial September 3, 2013 report, Dr. Gwen Lacerda, a specialist in physical medicine
and rehabilitation, provided an assessment of left first CMC pain secondary to first CMC arthritis.
The first page of the report was not included.
An October 8, 2014 electromyography (EMG) study revealed mild left carpal tunnel
syndrome and incidental finding of left Martin Gruber anastomosis with concomitant left thenar
eminence pain status post steroid injections in the past.
In the May 19, 2015 preoperative note, Dr. Edward Deisole, a Board-certified internist,
indicated that appellant had a fall at work injuring her left thumb. Since then, she had left thumb
pain, left wrist/hand pain, and now, numbness radiating from her elbow. Dr. Deisole diagnosed
left carpal tunnel, left cubital tunnel, and left thumb CMC arthritis and noted that she would be
undergoing a left carpal tunnel release.
As noted, on May 19, 2015, appellant underwent left carpal tunnel release and left thumb
basal joint arthroplasty. On July 7, 2015 the hardware was removed.
In a July 17, 2015 letter, Dr. David P. Taormina, an orthopedic surgeon, noted that
appellant’s history of injury began in 2011 when she fell off a chair and landed on her hand. He
indicated that she had hyperextended her left thumb which led to her primary injury. Given this
mechanism of injury, Dr. Taormina noted that appellant was at risk for post-traumatic arthritis. He
opined that it was likely that this was the cause of her development of thumb/CMC post-traumatic
arthritis and ultimate surgery.
In a two-month postoperative status report of July 22, 2015, Dr. Taormina removed
appellant’s sutures and indicated that she was to begin occupational therapy. The July 22, 2015
postoperative x-ray report noted postoperative changes as well as scattered degenerative changes
involving the interphalangeal articulations, with no evidence of cortical destruction.
In a July 22, 2015 report, Dr. Daniel Kao, an internist, and Dr. Marguerite Diab, a
physiatrist, evaluated appellant for hand therapy and splinting. Dr. Kao noted that appellant’s pain
3

and numbness had improved since her left cubital tunnel release, left thumb trapeziectomy, first
CMC interpositional arthroplasty and carpal tunnel release, and Kirschner wire removal. In a
July 22, 2015 addendum, Dr. Diab noted the history of the work injury as reported by appellant.
Appellant indicated that her left upper extremity symptoms began in 2011 after a fall at work and
that she was diagnosed with left cubital tunnel syndrome, carpal tunnel syndrome, and left thumb
CMC arthritis.
By decision dated November 24, 2015, OWCP denied modification of its March 13, 2014
denial of appellant’s claim for recurrence.5 It found that there was no sufficiently well-rationalized
medical opinion as to whether the December 12, 2011 work injury caused, contributed, or
aggravated any hand, thumb, or wrist condition or which established that she had a return of
disability or increased disability as a result of a consequential condition.
On January 16, 2016 appellant, through counsel, requested reconsideration. He asserted
that the medical record was sufficient to support causal relationship as it documented a serious
injury to appellant’s left hand and shoulder and noted the history of the injury.
Duplicative treatment notes, physical therapy records, x-ray reports, EMG and MRI scan
reports between the period February 22, 2012 through December 4, 2014, which the Board had
previously addressed in its August 19, 2015 decision, were received.
A June 11, 2011 progress note and a December 13, 2011 note from a nurse practitioner,
documented appellant’s left wrist, hand, and shoulder symptoms.
By decision dated March 28, 2016, OWCP denied modification of its November 24, 2015
decision. It found that the evidence of record was insufficient to support her claimed recurrence.
On July 12, 2016 appellant, through counsel, requested reconsideration. Counsel requested
that OWCP approve the case for traumatic osteoarthritis of the CMC joint of the left thumb, posttraumatic left carpal tunnel syndrome, chronic post-traumatic medial epicondylitis of the left
elbow, post-traumatic cubital tunnel syndrome for the left elbow, post-traumatic tendinitis of the
left wrist and the surgeries that have occurred, which included ulnar nerve release at the cubital
tunnel of the left elbow, left carpal tunnel release at the wrist, left thumb arthroplasty and removal
of the wire fixation from the thumb arthroplasty.
In a May 2, 2016 report, Dr. David Weiss, an osteopath, noted his review of the medical
records and set forth examination findings. He diagnosed post-traumatic osteoarthritis of the CMC
joint of the left thumb, post-traumatic left carpal tunnel syndrome, chronic post-traumatic medial
epicondylitis to the left elbow, post-traumatic cubital tunnel syndrome to the left elbow, and
chronic post-traumatic extensor tendinitis to the left wrist. Dr. Weiss indicated that appellant
sustained significant musculoskeletal trauma to her left elbow and left wrist and hand secondary
to a post-traumatic hyperextension injury to the left wrist and hand and a direct impact injury to
the medial aspect of the left elbow. He opined that her orthopedic injuries and necessity for
multiple surgical procedures were directly attributable to the traumatic work-related
5
As noted, the Board previously affirmed OWCP’s March 13, 2015 decision on August 19, 2015 in Docket No.
15-1037.

4

hyperextension injury to the left wrist and hand which caused her post-traumatic osteoarthritis of
the CMC joint, the left wrist strain and sprain, and the post-traumatic carpal tunnel syndrome. In
terms of the left elbow, the medial contusion resulted in a chronic medial epicondylitis and a
documented left ulnar nerve neuropathy for which she eventual underwent surgeries to the left
wrist and hand with a CMC joint arthroplasty, an open left carpal tunnel syndrome release and a
left ulnar nerve release of May 19, 2015.
By decision dated November 22, 2016, OWCP denied modification of its March 28, 2016
decision. It found that the evidence did not provide sufficient medical rationale to support the
December 3, 2014 claimed recurrence.
LEGAL PRECEDENT
FECA pays compensation for the disability of an employee resulting from personal injury
sustained while in the performance of duty.6 Disability means the incapacity, because of an
employment injury, to earn the wages the employee was receiving at the time of injury. It may be
partial or total.7
A recurrence of disability is defined as the 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.8 The Board has held that whether a particular injury causes an employee
to be disabled from work is a medical question that must be resolved by competent and probative
medical evidence.9 The weight of medical opinion is determined on the report of a physician, who
provides a complete and accurate factual and medical history, explains how the claimed disability
is related to the employee’s work, and supports that conclusion with sound medical reasoning.10
Where no such rationale is present, medical evidence is of diminished probative value.11
In order to establish that a claimant’s alleged recurrence of the condition was caused by the
accepted injury, medical evidence of bridging symptoms between his or her present condition and
the accepted injury must support the physician’s conclusion of causal relationship.12

6

5 U.S.C. § 8102(a).

7

20 C.F.R. § 10.5(f).

8

Id. at § 10.5(x). See S.F., 59 ECAB 525 (2008); Albert C. Brown, 52 ECAB 152 (2000); Terry R. Hedman, 38
ECAB 222 (1986).
9

See R.C., 59 ECAB 546 (2008); Carol A. Lyles, 57 ECAB 265 (2005); Donald E. Ewals, 51 ECAB 428 (2000).

10

Sandra D. Pruitt, 57 ECAB 126 (2005).

11

Michael Stockert, 39 ECAB 1186, 1187-88 (1988); see Ronald C. Hand, 49 ECAB 113 (1957).

12

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

5

For conditions not accepted by OWCP as being employment related, it is the employee’s
burden to provide rationalized medical evidence sufficient to establish causal relationship, not
OWCP’s burden to disprove such relationship.13
ANALYSIS
The Board finds that appellant has not established a recurrence of disability commencing
December 3, 2014 causally related to her accepted December 12, 2011 employment injury.
OWCP accepted that appellant sustained a left thumb sprain on December 12, 2011.
Appellant worked in a full-time, full-duty capacity until December 3, 2014, when she stopped
work. She filed a recurrence claim alleging an increase of pain due to unaccepted conditions of
carpal tunnel syndrome, cubital tunnel syndrome, and left CMC arthritis. On August 19, 2015 the
Board affirmed OWCP’s denial of the recurrence claim and the denial of the expansion of the
claim to include additional conditions. Findings made in prior Board decisions are res judicata
absent any further review by OWCP under section 8128 of FECA.14 The Board will, therefore,
not review the evidence addressed in the prior appeals.
The evidence of record does not establish that appellant had a spontaneous return of
disability due to her accepted left thumb strain of December 12, 2011.15 There is also no medical
evidence to support that the accepted thumb sprain was still active when appellant stopped work
on December 4, 2014.
A May 9, 2012 x-ray report indicated that appellant had continuing left thumb pain with
mild degenerative change in first CMC joint. Appellant received CMC injections for her left
thumb pain as well as bilateral knee viscosupplementation. Several physicians including
Drs. Lacerda, San, and Shenoy, opined that appellant’s left first CMC pain was due to first CMC
arthritis. However, none of these physicians addressed causal relationship to her accepted
employment injury. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.16
Furthermore, pain is a description of a symptom rather than a clear diagnosis of a medical
condition.17 Thus, these reports are insufficient to establish that the December 12, 2011 work
incident caused, contributed to, or aggravated any left thumb condition.
Dr. Scott opined, in her May 6, 2015 Form CA-20 report, that appellant’s left thumb basal
joint arthritis and left carpal tunnel were caused or aggravated by her employment activity, which
was described as “job traumatic arthritis and neuropathy.” She also indicated that appellant was
13

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51
ECAB 638 (2000).
14

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

15

Supra note 8.

16

Jaja K. Asaramo, supra note 13.

17
C.B., Docket No. 09-2027 (issued May 12, 2010); Robert Broome, 55 ECAB 339 (2004) (the Board has
consistently held that pain is a symptom rather than a compensable medical diagnosis).

6

disabled until August 18, 2015 due to pain and weakness and would need future surgeries.
However, Dr. Scott provided no medical rationale to support her opinion on causal relationship.
The Board has found that medical conclusions unsupported by rationale are of little probative
value.18 Thus, Dr. Scott’s opinion is insufficient to establish appellant’s claim.
In the May 19, 2015 preoperative note, Dr. Deisole indicated that appellant injured her left
thumb during a work fall. Since then, she had left thumb, wrist, and hand pain, and now, numbness
radiating from her elbow. While he noted the work injury and provided diagnoses of left carpal
tunnel, left cubital tunnel, and left thumb CMC arthritis, Dr. Deisole failed to provide an opinion
on causal relationship.19 He failed to offer an explanation as to why appellant’s left thumb pain
would persist and how or why the additional diagnoses were causally related to the work injury.
Thus, Dr. Deisole’s report is insufficient to establish appellant’s claim,
In his July 17, 2015 letter, Dr. Taormina, noted that the hyperextension of appellant’s left
thumb led to her primary injury and put her at risk for post-traumatic arthritis. He opined that it
was likely that this was the cause of her development of thumb/CMC post-traumatic arthritis and
ultimate surgery. Dr. Taormina’s opinion, however, is of diminished probative value as it is
conclusory and equivocal in character.20 While he noted hyperextension of appellant’s left thumb
during the accepted employment injury, he did not explain how physiologically hyperextension
would have in fact caused or contributed to her diagnosed conditions.21 Thus, Dr. Taormina’s
report is insufficient to establish appellant’s claim.
Similarly, in his May 2, 2016 report, Dr. Weiss noted the history of the work injury. He
diagnosed post-traumatic osteoarthritis of the CMC joint of the left thumb, post-traumatic left
carpal tunnel syndrome, chronic post-traumatic medial epicondylitis to the left elbow, posttraumatic cubital tunnel syndrome to the left elbow, and chronic post-traumatic extensor tendinitis
to the left wrist which he opined were directly attributable to the work injury. Dr. Weiss indicated
that appellant sustained significant musculoskeletal trauma to her left elbow and left wrist and
hand secondary to a post-traumatic hyperextension injury to the left wrist and hand and had a direct
impact injury to the medial aspect of the left elbow. He indicated that appellant’s conditions were
directly attributable to the hyperextension injury to the left wrist and hand which caused her posttraumatic osteoarthritis of the carpometacarpal joint, the left wrist strain and sprain, and the posttraumatic carpal tunnel syndrome. Dr. Weiss also indicated that the medial contusion of the left
elbow resulted in a chronic medial epicondylitis and a document left ulnar nerve neuropathy.
However, he provided no medical rationale to support his opinion on causal relationship. Without
explaining how physiologically appellant’s work injury caused or contributed to her diagnosed
post-traumatic osteoarthritis of the CMC joint of the left thumb, post-traumatic left carpal tunnel
syndrome, chronic post-traumatic medial epicondylitis to the left elbow, post-traumatic cubital

18

M.P., Docket No. 14-1289 (issued September 26, 2014).

19

Jaja K. Asaramo, supra note 13.

20

D.D., 57 ECAB 734 (2006).

21

See D.P., Docket No. 16-1358 (issued December 19, 2016).

7

tunnel syndrome to the left elbow, and chronic post-traumatic extensor tendinitis to the left wrist,
Dr. Weiss’ opinion is of limited probative value.22
In a July 22, 2015 report, Dr. Diab reported the history of the work injury as reported by
appellant. She also noted that appellant indicated that she was diagnosed with left cubital tunnel
syndrome, carpal tunnel syndrome, and left thumb CMC arthritis. This report is of diminished
probative value as there is no discussion of objective findings, or a physician’s explanation and
opinion on the cause of the conditions.23
The remainder of the medical evidence is also of limited probative value. The record
contains reports from occupational therapists and physical therapists which document appellant’s
left wrist, hand, and shoulder symptoms. However, the Board has held that treatment notes signed
by such providers are not considered probative medical evidence as those providers are not
considered physicians under FECA.24
Appellant’s honest belief that accepted December 12, 2011 employment incident caused
her recurrence of disability as of December 3, 2014 as well as her additional conditions, however
sincerely held, does not constitute medical evidence sufficient to establish causal relationship.25
Appellant has not submitted a sufficiently reasoned medical opinion explaining why her
recurrence of disability beginning December 3, 2014 was caused or aggravated by the
December 12, 2011 employment injury.
On appeal counsel asserts that the medical evidence of record established that her left wrist,
hand, and shoulder symptoms immediately began after her fall at work and became progressively
worse. However, as discussed above, none of the medical evidence supports her claim for
recurrence.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

22

See D.P., Docket No. 16-1358 (issued December 19, 2016).

23
A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee s condition is of limited probative value on the issue of causal relationship).
24

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); see also J.J., Docket No. 15-0727
(issued July 16, 2015) (reports from appellant’s occupational therapist have no probative medical value. Occupational
therapists are not considered physicians as defined under FECA). See 5 U.S.C. § 8101(2) (this subsection defines a
physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law).
25

H.H., Docket No. 16-0897 (issued September 21, 2016).

8

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability as of December 3, 2014, causally related to her December 12, 2011 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the November 22, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 25, 2018
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-108
Issued: July 13, 2010

Case Submitted on the Record

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

JURISDICTION
On October 14, 2009 appellant filed a timely appeal from a June 11, 2009 Office of
Workers’ Compensation Programs’ schedule award decision. Under 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than seven percent permanent impairment to her
right lower extremity.
FACTUAL HISTORY
Appellant, a 37-year-old mail clerk, fractured her right ankle on December 3, 2007 when
she slipped on ice while walking down a flight of steps. She filed a claim for benefits on
December 4, 2007, which the Office accepted for closed fracture of the right lateral malleolus
and closed fracture of the right malleolus.
In a report dated March 6, 2009, Dr. John T. Kroner, Board-certified in orthopedic
surgery, stated that he did not anticipate any further improvement in appellant’s condition. He

advised that she had 10 percent restriction of dorsi and plantar flexion of the ankle compared to
the opposite side, with a significant propensity for possible arthritic development over time.
Based on these factors, Dr. Kroner rated 7.5 percent impairment to the right lower extremity as
compared to an amputation at the level of the right ankle.
On March 11, 2009 appellant filed a Form CA-7 claim for a schedule award based on
loss of use of her right lower extremity.
In a report dated March 25, 2009, Dr. Eric Malicky, Board-certified in orthopedic
surgery, found that appellant had 10 percent permanent impairment of the right leg. He based
this rating on loss of range of motion to the right ankle of 10 degrees dorsiflexion and 40 degrees
palmar flexion.
In a report dated May 6, 2009, an Office medical adviser found that appellant had a seven
percent impairment of her right lower extremity based on loss of range of motion in the right
ankle pursuant to the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (the A.M.A., Guides). Relying on Dr. Malicky’s findings
on examination, he found that 10 degrees dorsiflexion represented seven percent impairment for
loss of range of motion in the ankle under Table 16-22 at page 549 of the sixth edition of the
A.M.A., Guides.1
On June 11, 2009 the Office granted appellant a schedule award for a seven percent
permanent impairment of the right leg. The period of the award ran from March 25 to
August 13, 2009, or a total of 20.16 weeks of compensation.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,2 and its
implementing federal regulations,3 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides, as the uniform standard applicable to all
claimants.4 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate

1

The Office medical adviser stated that his rating differed from that of Dr. Kroner because he based his rating on
the sixth edition of the A.M.A., Guides, contrary to Dr. Kroner, who did not reference the A.M.A., Guides in his
March 25, 2009 report.
2

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

3

20 C.F.R. § 10.404.

4

Id. at § 10.404(a).

2

schedule awards.5 The claimant has the burden of proving that the condition for which a
schedule award is sought is causally related to his or her employment.6
ANALYSIS
The Office accepted appellant’s claim for a right ankle fracture sustained on
December 3, 2007.
An Office medical adviser utilized the findings on examination made by Dr. Malicky in a
March 25, 2009 report. The Office medical adviser cited Table 16-22 at page 549 of the sixth
edition of the A.M.A., Guides, which rates impairment of the ankle based on loss of range of
motion. Appellant had seven percent impairment based on 10 degrees dorsiflexion of the right
ankle. The Office medical adviser properly applied the A.M.A., Guides to rate the impairment.
The only other impairment rating of record is that of Dr. Kroner, who stated that
appellant had 10 percent restriction of dorsi and plantar flexion of the ankle compared to her
opposite ankle, with the possibility of future arthritic development. He rated 7.5 percent
impairment of the right leg. Dr. Kroner’s report is of diminished probative value, however, he
did not refer to any of the applicable protocols or tables of the sixth edition of the A.M.A.,
Guides in making his impairment rating.7 Accordingly, the Board finds that the Office properly
relied on the opinion of the Office medical adviser as the basis for the June 11, 2009 schedule
award decision.8 The Board finds that appellant has no more than seven percent impairment to
her right leg. There is no other probative medical evidence establishing that greater impairment.
CONCLUSION
The Board finds that appellant has seven percent permanent impairment to her right
lower extremity.

5

See FECA Bulletin No. 09-03 (issued March 15, 2008).

6

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

7

The Board notes that a description of appellant’s impairment must be obtained from appellant’s physician,
which must be in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly
visualize the impairment with its resulting restrictions and limitations. See Peter C. Belkind, 56 ECAB 580,
585 (2005).
8

See Tommy R. Martin, 56 ECAB 273 (2005).

3

ORDER
IT IS HEREBY ORDERED THAT the June 11, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: July 13, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4