United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0088
Issued: May 11, 2017

Case Submitted on the Record

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

JURISDICTION
On October 20, 2016 appellant, through counsel, filed a timely appeal from an August 26,
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 to consider the merits of the case.
ISSUE
The issue is whether appellant has established a permanent impairment of the lower
extremity for schedule award purposes.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 23, 2008 appellant, then a 44-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on January 22, 2008, her vehicle was struck from behind by a
school bus while it was parked at a curb. She alleged that she sustained injuries to her left
buttock and left leg. Appellant stopped work after the injury and returned to restricted duties on
or about April 1, 2008. On February 12, 2008 OWCP accepted her claim for lumbar sprain and
sciatica. It paid appellant intermittent wage-loss benefits from March 8 to September 9, 2008.
By letter dated March 11, 2009, the employing establishment informed OWCP that
appellant was in receipt of Office of Personal Management disability retirement benefits
effective March 6, 2009. It noted that limited-duty work would have remained available to her,
if she had not voluntarily retired.
Appellant filed a claim for a schedule award (Form CA-7) on August 13, 2010.
In a report dated April 8, 2011, Dr. Jerold P. Gurley, Board-certified in orthopedic
surgery, related that appellant presented with complaints of chronic lumbosacral back pain,
bilateral lower extremity pain with weakness and peristhesias, as well as chronic neck and left
arm pain, with peristhesias, and weakness following a work-related injury of January 22, 2008.
He noted that lower extremity neurological examination demonstrated grade 5 motor strength
throughout, no muscular atrophy, and sensory examination intact to light touch and pinwheel.
Dr. Gurley related an impression of chronic lumbago, chronic cervicalgia, chronic cervical and
lumbar radiculopathy, lumbar spondylosis at L5-S1, and noncompressive lumbar disc herniation
at L5-S1. He noted that the diagnostic studies did not correlate with appellant’s symptoms.
Dr. Gurley related that he lacked an explanation for her radicular leg symptoms and therefore
recommended additional diagnostic studies.
By letter dated March 27, 2012, appellant was referred to Dr. Mahal A. Ghanma, a
Board-certified orthopedic surgeon, for a second opinion to determine to the status of her
accepted medical conditions.
On July 26, 2012 counsel wrote to OWCP requesting the status of her schedule award
claim.
In a report dated August 2, 2012 appellant’s treating physician, Dr. Ronald Celeste, a
specialist in internal medicine, related that appellant had herniated discs of the spine, which were
the product of the accepted injury in this claim.
In a report dated August 6, 2012, Dr. Ghanma related that appellant had no objective
findings to support that she still had a low back, cervical, left shoulder, or thoracic strain.
Appellant also had no objective evidence of sciatica. Dr. Ghanma explained that she no longer
had residuals of the work-related injuries and that her claim should not be expanded to include
the current condition of degenerative disc disease as this condition was age related and
degenerative in nature.

2

By letter dated August 29, 2012, OWCP advised counsel that since appellant’s treating
physician requested that appellant’s claim be expanded to include herniated disc, she did not
appear to be at maximum medical improvement, and a second opinion evaluation was necessary.
In an August 28, 2015 report, Dr. Catherine Watkins Campbell, a Board-certified family
practitioner, conducted an examination for the purpose of providing an impairment rating for
counsel. She noted that there was diffuse tenderness of the left lumbar and gluteal tenderness,
with sciatic notch tenderness on the left. Dr. Watkins Campbell noted a normal sensory
examination in the lower extremities, with normal reflexes and normal lumbar lordosis
maintained. She noted that there was grade 3/5 strength deficit with hip flexion and a grade 4/5
deficit with knee extension. Dr. Watkins Campbell noted that the right thigh measured 44
centimeters and that the left thigh measured 42.5 centimeters. She noted a positive
Trendelenburg sign on the left. After applying the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2009), Dr. Watkins Campbell
found that appellant had six percent permanent left lower extremity impairment. She noted that
appellant had a class 1 impairment based on mild sensory deficit of the left sciatic nerve, as
indicated in Table 16-12 of the A.M.A., Guides.3 Dr. Watkins Campbell based this
determination on a history of fluctuating symptoms and examination findings over time. She
applied a grade modifier for functional history of 2 based on positive Trendelenburg sign.
Dr. Watkins Campbell found that a grade modifier for physical examination was not applicable
as the examination findings were used to determine diagnostic class. She also noted that no
grade modifier for clinical studies was available. Dr. Watkins Campbell noted that the net
adjustment was 1 (2-1 = 1) and determined that appellant had a final grade D impairment which
yielded six percent permanent impairment for appellant left lower extremity.
In a September 26, 2015 report, OWCP’s medical adviser reviewed the evidence,
including the report of Dr. Watkins Campbell. He determined that there seemed to be consistent
evidence of lack of objective sensory, motor or diagnostic evidence related to lower extremity
deficits of the lumbar spinal nerve roots. The medical adviser noted that there was no diagnostic
evidence of lumbar nerve root involvement. As such, he determined that there was no lower
extremity impairment using The Guides Newsletter, Rating Spinal Nerve Impairment
(July/August 2009). The medical adviser noted that appellant was found to have normal lower
extremity sensory changes and 5/5 strength by other physicians of record. However, he noted
that the grade 3/5 strength deficit and thigh atrophy found by Dr. Watkins Campbell (if related to
the lumbar spine) would be a new finding, would be serious, and require follow up by a surgeon
for additional diagnostic testing. The medical adviser indicated that, if there was further
controversy, then a second opinion with an orthopedic surgeon would be appropriate.
By decision dated October 9, 2015, OWCP found that appellant’s claim for a schedule
award was denied as she had not met the requirements for establishing a schedule award. It
determined that the weight of the medical evidence rested with the opinion of OWCP’s medical
adviser, as appellant’s physician had not properly applied the A.M.A., Guides.

3

A.M.A., Guides 535.

3

On October 19, 2015 appellant, through counsel, requested a telephone hearing before an
OWCP hearing representative. At a hearing held on June 14, 2016, counsel noted that OWCP’s
medical adviser indicated that a second opinion was advisable. He further contended that
referral to an impartial medical examiner was necessary as there was a conflict between the
opinion of appellant’s treating physician and that of the medical adviser.
By decision dated August 26, 2016, OWCP’s hearing representative affirmed the
October 9, 2015 decision, finding that OWCP’s medical adviser properly applied the A.M.A.,
Guides and found that appellant had no permanent impairment entitling her to a schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to insure equal justice under the law to all claimants, good administrative practice
necessitates the use of single set of tables so that here may be uniform standards applicable to all
claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.7
Neither FECA nor its regulations provide for a schedule award for impairment to the
back or to the body as a whole.8 Furthermore, the back is specifically excluded from the
definition of organ under FECA.9 The sixth edition of the A.M.A., Guides does not provide a
separate mechanism for rating spinal nerve injuries as impairments of the extremities.
Recognizing that FECA allows ratings for extremities and precludes ratings for the spine, the
July/August 2009, The Guides Newsletter offers an approach to rating spinal nerve impairments
consistent with sixth edition methodology. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP procedures indicate that The Guides
Newsletter is to be applied.10

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id.

7

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

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

9

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

10

Supra note 7.

4

OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the medical adviser for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides with the medical adviser providing rationale
for the percentage of impairment specified.11
ANALYSIS
OWCP accepted appellant’s claim for lumbar sprain and sciatica. Appellant’s physician,
Dr. Watkins Campbell, found that appellant had six percent permanent impairment based on the
A.M.A., Guides. In reaching this conclusion, she found some mild physical findings on
examination, including grade 3/5 strength deficit with hip flexion, a grade 4/5 deficit with knee
extension, and a positive Trendelenburg sign. Dr. Watkins Campbell found that, pursuant to
Table 16-12 of the A.M.A., Guides, appellant had a class 1 mild sensory deficit of the left sciatic
nerve, resulting in six percent permanent impairment of the left lower extremity. OWCP’s
medical adviser found that Dr. Watkins Campbell’s use of Table 16-12 was not the accepted
method of rating spinal nerve impairment for the purpose of determining a schedule award.
OWCP has implemented guidelines that impairment to the upper or lower extremities caused by
a spinal injury should be evaluated in accordance with the article Rating Spinal Nerve Extremity
Impairment using the six edition in the July/August 2009 edition of the The Guides Newsletter
published by the A.M.A., Guides.12
OWCP’s medical adviser, thereafter determined that appellant had no permanent
impairment as there was no diagnostic evidence of lumbar nerve root involvement. However, he
did note that Dr. Watkins Campbell found grade 3/5 changes and thigh atrophy, that this would
be a new finding, and that it would be serious and require follow up by a surgeon for additional
diagnostic testing. The medical adviser indicated that, if there was further controversy, a second
opinion with an orthopedic surgeon would be appropriate.
In addition to discrepancy in findings between Dr. Watkins Campbell and OWCP’s
medical adviser, the Board notes that in its August 29, 2012 development letter OWCP had
determined a second opinion examination was necessary since appellant’s treating physician had
requested that the claim be expanded to include the condition of herniated discs.
The Board therefore finds that this case is not in posture for decision.
Accordingly, the Board remands this case so that a new physician can conduct an
examination and make findings on physical examination with regard to the degree of permanent
impairment of appellant’s left lower extremity. Following any necessary further development,
OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
11

See supra note 7 at Chapter 2.808.6(f) (February 2013).

12

See A.D., Docket No. 16-0841 (issued February 16, 2017).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 26, 2016 is set aside and the case is remanded for further
consideration consistent with the above opinion.
Issued: May 11, 2017
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kissimmee, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-1873
Issued: April 9, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 14, 2009 appellant filed a timely appeal from the June 22, 2009 merit decision of
the Office of Workers’ Compensation Programs, which denied his new injury claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty after he
returned to regular work on January 3, 2008.
FACTUAL HISTORY
On April 25, 2007 appellant, then a 50-year-old lead sales and service associate,
sustained an injury in the performance of duty when he slipped and fell while handling a large
express parcel. The Office accepted his claim for temporary aggravation of an old disruption of
the right anterior cruciate ligament. It expanded its acceptance to include lumbar strain, right
medial meniscus tear, right anterior cruciate ligament tear and cervical strain. Appellant
received a schedule award for a three percent impairment of the right lower extremity.

On December 6, 2007 appellant returned to a modified assignment performing sedentary
administrative duties. On January 3, 2008 he returned to regular work with a 25-pound lifting
restriction.1
On February 19, 2008 appellant filed a claim alleging that he sustained a recurrence of
total disability on February 9, 2008 causally related to his April 25, 2007 employment injury:
“Returned to work on 12/06/2007 restricted to sedentary work. On Jan 03, 2008 was changed to
restricted 25 lbs. max. weight, until now.” He noted that since he returned to work his back and
knee conditions had not improved. “The type of work I do requires standing for prolonged
periods of time, carrying, reaching, twisting and bending.” Appellant twice mentioned that he
was diagnosed with vertigo on February 7, 2008.
On April 15, 2008 the Office notified appellant that it was converting his recurrence
claim to a new injury claim, as he had returned to work and was implicating new employment
factors.2 In a decision dated May 23, 2008, it denied appellant’s claim on the grounds that the
evidence was insufficient to establish that an event occurred on February 9, 2008, and the
medical evidence did not explain how conditions such as dizziness, vertigo and an ear infection
resulted from any factor of employment on February 9, 2008.
On May 11, 2009 an Office hearing representative set aside the May 23, 2008 decision
and remanded the case for further development. The hearing representative found that the Office
developed the claim for inappropriate conditions, as appellant was claiming an increase in his
back and knee pain. The hearing representative remanded the case for a consolidation of case
records and further development of whether appellant sustained a new back or knee injury in the
performance of duty on February 9, 2008.
On May 21, 2009 Dr. Marcus Kornberg, the attending orthopedic surgeon, related
appellant’s complaints and described his findings on physical examination. He offered the
following assessment:
“[Appellant] has documented L3-L4 pathology based on an MRI [magnetic
resonance imaging] [scan] of the lumbar spine performed August 30, 2007. He
was initially seen by me December 11, 2007 at which time it was determined that
the patient suffered aggravation of preexisting lumbar spondylosis. [Appellant]
did have lumbar issues prior to the industrial event of April 25, 2007. He was
actually seen by Dr. Henningsen in the office for symptoms of back pain with
degenerative disease, however, at that time he did not have sciatica. Presently
[appellant] has back pain with sciatica secondary to herniation at the L3-L4 level

1

On December 28, 2007 appellant filed a claim alleging that he sustained a recurrence of disability for work on
or about December 21, 2007 causally related to his April 25, 2007 employment injury. The Office denied his
recurrence claim and a hearing representative affirmed. OWCP File No. xxxxxx130. On February 19, 2008
appellant filed a claim alleging that he sustained a vertigo injury in the performance of duty on January 31, 2008
when he became very dizzy while lying on a table doing his physical rehabilitation routine. The Board affirmed the
Office’s denial of his claim. Docket No. 09-1541 (issued February 5, 2010). OWCP File No. xxxxxx236.
2

OWCP File No. xxxxxx130.

2

on the right. It is my opinion [that he] suffered permanent aggravation of
preexisting lumbar spondylosis with resultant lumbar disc herniation.”3
In a decision dated June 22, 2009, the Office denied appellant’s injury claim on the
grounds that the medical evidence did not establish that the claimed medical condition resulted
from the accepted events. It noted that Dr. Kornberg offered no objective findings to support a
material worsening of appellant’s back condition, failed to provide an accurate factual and
medical background and failed to provide medical rationale.
On appeal appellant argues that the Office was not diligent in consolidating his cases and
either misfiled some of the documents or was not diligent in interpreting the medical evidence.
He quoted the hearing representative’s finding that the Office improperly developed the claims
for dizziness, vertigo and ear infection and stated that the hearing representative “ordered a
remand for those conditions.”
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.4 An
employee seeking benefits under the Act has the burden of proof to establish the essential
elements of his claim. When an employee claims that he sustained an injury in the performance
of duty, he must submit sufficient evidence to establish that he experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. He must also
establish that such event, incident or exposure caused an injury.5
Causal relationship is a medical issue,6 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,7 must be one of reasonable medical certainty,8

3

On December 11, 2007 Dr. Kornberg related the history of appellant’s April 25, 2007 injury and reported that
appellant’s lumbar symptoms were related to preexisting lumbar spondylosis. “Patient is assured that he did not
suffer significant or limiting injury to his lumbar spine.” On February 12, 2008 he advised appellant that he had
symptoms secondary to disc disruption and protrusion, but that he had no herniation, no significant spinal canal or
foraminal compromise, and there was no evidence of nerve root compression.
4

5 U.S.C. § 8102(a).

5

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

6

Mary J. Briggs, 37 ECAB 578 (1986).

7

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

8

See Morris Scanlon, 11 ECAB 384, 385 (1960).

3

and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.9
ANALYSIS
Appellant claimed compensation for total disability beginning February 9, 2008, and he
attributed this disability to the duties he performed after he returned to regular work on
January 3, 2008. The employing establishment confirmed that he returned to regular work that
date with a 25-pound lifting restriction. So while appellant’s allegation of standing for
“prolonged” periods of time, carrying, reaching, twisting and bending is vague and not well
specified, it can be accepted that appellant was performing his regular duties with a 25-pound
lifting restriction beginning January 3, 2008. The question becomes whether these duties caused
an injury that disabled appellant beginning February 9, 2008.
The Board has reviewed appellant’s case records,10 and the only narrative medical
opinion he submitted to support this claim was his orthopedic surgeon’s May 21, 2009 report.
Dr. Kornberg stated that appellant suffered a permanent aggravation of his preexisting lumbar
spondylosis with resultant lumbar disc herniation. But he did not say how. As it pertains to
appellant’s claim, Dr. Kornberg did not attribute the permanent aggravation to any specific duty
appellant performed after he returned to regular work on January 3, 2008, and he did not soundly
explain how any specific work duty aggravated the preexisting lumbar spondylosis and caused a
herniation at L3-4.
Indeed, as the August 30, 2007 MRI scan would appear to establish, appellant had the
L3-4 pathology prior to returning to regular work on January 3, 2008. It was on December 11,
2007, according to Dr. Kornberg, that he determined appellant had suffered an aggravation of
preexisting lumbar spondylosis. So how these conditions relate to the duties appellant later
performed when he returned to regular work on January 3, 2008 remains unaddressed.
Because Dr. Kornberg’s opinion did not directly address appellant’s claim, it carries no
probative value in establishing a disabling low back injury in the performance of duty after
appellant returned to regular work on January 3, 2008. This evidence does not establish the
critical element of causal relationship. The Board therefore finds that appellant has not met his
burden of proof. The Board will affirm the Office’s June 22, 2009 decision.
Appellant expresses concern on appeal that the Office was not diligent in consolidating
his cases and either misfiled some of the documents or was not diligent in interpreting the
medical evidence, but the Board has reviewed all the medical evidence in each of his case
records for the period relevant to his claim, and can find no probative medical opinion explaining
how his duties on or after January 3, 2008 caused an injury. As for appellant’s contention that
the hearing representative remanded the case for further development of dizziness, vertigo and
ear infection, that was not the case. On May 11, 2009 the hearing representative observed that
appellant’s current claim related to his back and knee pain, and so it was inappropriate for the
9

See William E. Enright, 31 ECAB 426, 430 (1980).

10

OWCP File Nos. xxxxxx139, xxxxxx130 and xxxxxx236.

4

Office, in its May 23, 2008 decision, to have developed and denied the claim based on other
medical conditions. To correct this, the hearing representative remanded the case to allow
appellant an opportunity to provide evidence sufficient to support a claim for his back and knee
conditions. The Board has separately and very recently reviewed appellant’s claim for vertigo
and has affirmed the Office’s denial of that claim.11
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury in the performance of duty after he returned to regular work on
January 3, 2008. The medical opinion evidence fails to establish causal relationship.
ORDER
IT IS HEREBY ORDERED THAT the June 22, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 9, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

See note 1.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
U.S. POSTAL SERVICE, RANSON POST
OFFICE, Ranson, WV, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-1155
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On June 4, 2021 appellant, through counsel, filed a timely appeal from a May 21, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 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 Board notes that, following the issuance of the May 21, 2021 decision, OWCP received additional evidence.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish her remaining
claims for intermittent disability from work for the period March 5 through April 9, 2021, causally
related to her accepted April 30, 2018 employment injury.
FACTUAL HISTORY
On May 8, 2018 appellant then a 41-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on April 30, 2018 she sustained a strained left hip/buttock when she
was startled by a snake and fell backwards when delivering mail while in the performance of duty.
She stopped work on the filing date of her claim. On June 8, 2018 OWCP initially accepted the
claim for strain of the muscle, fascia, and tendon of the left hip, and unspecified strain of the left
hip. It later expanded acceptance of the claim to include trochanteric tendinitis/bursitis of the left
hip and strain of the gluteus medius. OWCP paid appellant wage-loss compensation on the
supplemental rolls as of June 23, 2018 and on the periodic rolls commencing January 6, 2019. It
again paid her intermittent wage-loss compensation on the supplemental rolls as of September 15,
2019, following her return to part-time limited-duty work on September 23, 2019.
Appellant filed several claims for compensation (Form CA-7) for disability from work for
the period February 27 through April 9, 2021. On March 29, and April 2 and 13, 2021 she filed
an accompanying time analysis form (Form CA-7a) wherein she claimed that she used leave
without pay (LWOP) as follows: eight hours each on February 27, March 13, 16, 20, 23, and 30,
and April 2, and 3, 2021 due to her days off work; two hours on March 1, 2021; 1.34 hours on
March 3, 2021; 4.20 hours on March 4, 2021; eight hours each on March 5 and 6, 2021 to receive
an injection in her physician’s office; 3.48 hours on March 8, 2021; 2.35 hours on March 9, 2021;
eight hours on March 11, 2021 due to being placed off work by her physician; eight hours each on
March 12, 15, 19, 22, 29 and April 8 and 9, 2021 due to hip pain; 1.46 hours on March 24, 2021;
3.08 hours on March 25, 2021; 2.02 hours on March 31, 2021; 2.85 hours on April, 1, 2021; 2.59
hours on April 6, 2021; and 4.45 hours on April 7, 2021.
In support of her claim, appellant submitted medical reports dated March 4 and 24, 2021
from Juris Eyler, a physician assistant. Mr. Eyler diagnosed pain, unilateral primary osteoarthritis,
other articular cartilage disorders of the left hip; sacroiliitis, not elsewhere classified; difﬁculty in
walking, not elsewhere classiﬁed, and trochanteric bursitis of the left hip. He advised that appellant
could continue to perform sedentary work with restrictions and indicated that her absences from
work for a partial day on March 4, 2021 and a full day on March 5, 2021 should be excused due
to a hip injection she received on March 4, 2021. On March 24, 2021 Mr. Eyler restricted her to
work four-to-six hours per day, three- to four-hour days per week, due to flare-ups of pain and
other symptoms effective March 3, 2021.
OWCP, in a development letter dated March 29, 2021, informed appellant that the evidence
submitted was insufficient to establish her claim for wage-loss compensation. It advised her of
the type of medical evidence necessary to establish her disability claim and afforded her 30 days
to submit the requested evidence.

2

In a separate letter dated March 29, 2021, OWCP requested that the employing
establishment indicate whether work was available for appellant on February 27 and March 5, 6,
11, and 12, 2021.
OWCP subsequently paid appellant wage-loss compensation on the supplemental rolls for
intermittent disability from work for the period February 13 through 26 and March 8 and 9, 2021.
OWCP received an April 3, 2020 left hip arthrogram report by Dr. Taik-Kun Kim, a Boardcertified diagnostic radiologist. Dr. Kim noted that the arthrogram was performed prior to a
magnetic resonance imaging (MRI) scan. He provided an impression that the arthrogram was
successful and uncomplicated.
On April 6, 2021 the employing establishment responded to OWCP’s March 29, 2021
letter, noting that no work was available on February 27, 2021 and eight hours of work was
available on March 5, 6, 11, and 12, 2021.
In an April 16, 2021 letter, OWCP requested that the employing establishment provide
whether limited-duty work was available for appellant on intermittent dates during the period
March 13 through April 9, 2021.
In an initial response dated April 22, 2021, the employing establishment indicated that up
to six hours of limited-duty work per day was available on March 13, 15, 16, 19, 20, 22, 23, 29,
30, 31 and April 2, 3, 8, and 9, 2021. It indicated that medical evidence dated March 24, 2020
provided that appellant could work four-to-six hours per day, three-to-four days per week as
tolerated.
On April 28, 2021 the employing establishment further responded that appellant had days
off from work and was off work based on her physician’s order during the period March 13 through
April 9, 2021. It noted that her days off from work were March 13, 16, 20, 23, and 30 and
April 2, 2021. The employing establishment also noted that appellant was off from work on
March 15, 19, 22, and 29 and April 6 and 9, 2021 based on her physician’s order. Appellant
worked 5.98 hours on March 31, 2021.
OWCP subsequently paid appellant wage-loss compensation on the supplemental rolls for
intermittent disability from work for the periods March 13 through 26, 2021 and March 31 through
April 7, 2021.
OWCP continued to receive medical evidence. In an April 3, 2021 left hip MRI arthrogram
report, Dr. John M. Filigenzi, a Board-certified diagnostic radiologist, provided an impression of
mild left hip chondromalacia. Dr. Filigenzi related that appellant had a complex tear of the
acetabular labrum extending from the anterior-superior labrum through the posterior-superior
labrum, more severe anteriorly as detailed in his report. He also provided impressions of mild
degenerative changes of the sacroiliac joints and pubic symphysis, based on review of an April 1,
2020 pelvis MRI scan.
Dr. S. Shar Hashemi, a Board-certified surgeon, noted in reports dated May 10 and 14,
2021 that appellant’s history of a 2018 employment-related left hip injury. He discussed:
examination findings and diagnosed injury of cutaneous sensory nerve at hip and thigh level, left
3

leg, initial encounter; injury of other nerves at hip and thigh level, left leg, initial encounter; and
causalgia of the left lower limb. Dr. Hashemi placed appellant off work for one month
commencing April 29 and May 14, 2021, respectively.
A May 6, 2021 report by Dr. Raj Parekh, an anesthesiologist, noted appellant’s history of
injury, discussed examination findings, and provided impressions of high risk medication
monitoring narcotics, left hip chronic pain syndrome, unspecified and uncomplicated opioid use,
generalized anxiety disorder, and left hip labral tear. Dr. Parekh related that there was no doubt
that appellant’s left hip pain was causing significant disability and pain. He noted that she reported
that prior to her accepted employment injury, she was quite active, but now she was limited by her
pain and could not adequately perform her work duties.
In a May 21, 2021 decision, OWCP authorized payment of wage-loss compensation for
eight hours on February 27, 2021 and two hours each on March 13, 15, 16, 19, 20, 22, 23, 29, 30,
and 31 and April 2, 3, 8, and 9, 2021. It also noted that appellant had previously received
intermittent wage-loss compensation for March 1, 3, 4, 8, 9, 17, 24, 25, 31, and April 1, 6, and
9, 2021. The claim remained denied, however, as appellant had not provided medical evidence
establishing that she was disabled from work as a result of her accepted work -related medical
conditions for the remainder of the claimed period.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.5 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.6 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.7
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.8 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a

4

Supra note 2.

5

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
6

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
7

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

8

Id. at § 10.5(f); see, e.g., G.T., 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB 397 (1999).

4

medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.9
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.10 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.11
For a routine medical appointment, a maximum of four hours of compensation for time lost
to obtain medical treatment is usually allowed.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish her remaining
claims for intermittent disability from work for the period March 5 through April 9, 2021, causally
related to her accepted April 30, 2018 employment injury. Appellant filed a series of CA-7 forms
for intermittent disability from work commencing February 27, 2021. The record reflects that
OWCP has paid intermittent wage-loss compensation commencing February 27, 2021 for the dates
on which eight hours of work was not made available by the employing establishment and for the
dates on which appellant received authorized medical treatment.
OWCP received reports from medical providers regarding appellant’s disability status
during the relevant period. Several reports were submitted by Mr. Eyler, a physician assistant. In
a report dated March 4, 2021, Mr. Eyler advised that appellant’s absences from work for a partial
day on March 4, 2021 and a full day on March 5, 2021 should be excused due to a hip injection
she received on March 4, 2021. OWCP paid appellant wage-loss compensation for the time she
lost from work to receive the hip injection on March 4, 2021; however, it denied her claim for
wage-loss compensation commencing March 5, 2021 as Mr. Eyler’s opinion regarding appellant’s
disability status was of no probative value. 13 On March 24, 2021 Mr. Eyler restricted her to work
four to six hours per day, three to four hour days per week, due to flare -ups of pain and other
symptoms effective March 3, 2021. The Board has held that the reports of a physician assistant
are of no probative value as a physician assistant is not considered a physician as defined under
FECA and, therefore, is not competent to provide a medical opinion. The reports from Mr. Eyler

9

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

10

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

11

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter 2.901.19(c)
(February 2013); see also K.A., Docket No. 19-0679 (issued April 6, 2020).
13

D.B., Docket No. 20-0192 (issued November 2, 2020); S.K., Docket No. 19-0272 (issued July 21, 2020).

5

are, therefore, insufficient to establish appellant’s claim, except to establish that appellant received
treatment on the dates he provided authorized medical treatment.14
OWCP also received reports from Dr. Hashemi. In a report dated May 10, 2021,
Dr. Hashemi placed appellant off work for one month commencing April 29, 2021. He noted her
history of injury and diagnosed injury of cutaneous sensory nerve at the hip and thigh level of left
leg and causalgia of the left lower limb. However, Dr. Hashemi did not explain, with rationale,
how or why appellant was unable to perform her regular work on the claimed dates of disability
due to the effects of her accepted conditions. His other May 14, 2021 report also did not address
the relevant period of claimed disability. The Board has held that a report is of limited probative
value regarding causal relationship if it does not contain medical rationale explaining how a given
medical condition/period of disability has an employment-related cause.15 For these reasons, the
Board finds that Dr. Hashemi’s reports are insufficient to establish appellant’s disability claim.
Appellant also submitted a May 6, 2021 report from Dr. Parekh. Dr. Parekh noted a history
of the April 30, 2018 employment injury. He diagnosed, inter alia, left hip chronic pain syndrome
and left hip labral tear. Dr. Parekh opined that appellant’s hip pain caused her disability from
work. However, he did not offer an opinion as to whether her disability on the claimed dates were
causally related to the accepted condition. The Board has held that medical evidence that does not
offer an opinion regarding the cause of an employee’s condition or disability is of no probative
value on the issue of causal relationship. 16 Therefore, this evidence is insufficient to establish
appellant’s disability claim.
Likewise, Dr. Kim’s April 3, 2020 procedure note is insufficient to establish appellant’s
disability claim. In his April 3, 2020 note, he advised that a left hip arthrogram was successful
and uncomplicated. However, Dr. Kim did not provide an opinion addressing whether appellant
had disability on the claimed dates causally related to an accepted condition and, as such, his note
is of no probative value.17
Appellant submitted left hip MRI arthrogram reports from Dr. Kim and Dr. Filigenzi. The
Board has held, however, that diagnostic studies, standing alone, lack probative value on the issue

14

Section 8101(2) of FECA provides that medical opinions can only be given by a qualified physician. This section
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. 5 U.S.C. § 8101(2); 20 C.F.R.
§ 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013); M.M., Docket No. 20-0019 (issued May 6, 2020); K.W., 59 ECAB 271, 279 (2007); David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006); see also D.B., id.; E.T., Docket No. 17-0265 (issued May 25, 2018)
(physician assistants are not considered physicians under FECA).
15

See T.S., Docket No. 20-1229 (issued August 6, 2021); S.K., Docket No. 19-0272 (issued July 21, 2020);
T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).
16

See T.S., id.; J.M., Docket No. 19-1169 (issued February 7, 2020); A.L., 19-0285 (issued September 24, 2019);
L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
17

Id.

6

of causal relationship as they do not address whether the accepted employment injuries resulted in
appellant’s period of disability on specific dates. 18
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work during the claimed period as a result of the accepted
employment injury. 19 Because appellant has not submitted rationalized medical opinion evidence
sufficient to establish employment-related disability during the claimed period due to her accepted
conditions, the Board finds that she has not met her burden of proof to establish h er claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish her remaining
claims for intermittent disability from work for the period March 5 through April 9, 2021, causally
related to her accepted April 30, 2018 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 21, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

18

See T.S., id.; D.M., Docket No. 20-0548 (issued November 25, 2020); O.C., Docket No. 20-0514 (issued
October 8, 2020); R.J., Docket No. 19-0179 (issued May 26, 2020).
19

Supra note 6.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Surfside, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Joanne Wright, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1778
Issued: April 9, 2019

Case Submitted on the Record

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

JURISDICTION
On September 25, 2018 appellant, through counsel, filed a timely appeal from a
September 20, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right shoulder
injury due to the accepted factors of his federal employment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as set forth in the
Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On June 29, 2015 appellant, then a 58-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he sustained a right shoulder condition in the form of a rotator
cuff tear due to performing his work duties as a letter carrier.4 He indicated that he had engaged
in repetitive motions on a daily basis for the past 33¾ years while working as a letter carrier.
Appellant advised that he first reported his right shoulder pain when he previously filed a separate
claim for an alleged August 18, 2007 right shoulder injury under OWCP File No. xxxxxx964,5 and
indicated that he continued to experience right shoulder pain consistent with a right rotator cuff
tear when casing mail, lifting, and otherwise reaching out with his arms.6 He stopped work on
May 5, 2015.
In an accompanying undated statement, appellant provided further details of the repetitive
letter carrier duties which he felt caused a new occupational right shoulder injury.
In a development letter dated July 17, 2015, OWCP requested that appellant submit
additional evidence in support of his claim, including a physician’s opinion supported by a medical
explanation as to how his work activities caused, contributed to, or aggravated his claimed medical
condition.
Appellant submitted reports from several attending physicians detailing the treatment of
his various medical conditions. In two reports dated July 29, 2013, Dr. Alex M. Lam, a Boardcertified internist and rheumatologist, diagnosed diffuse arthralgia and primary localized
osteoarthritis. In a September 9, 2013 report, Dr. Hugh Fonesca, a Board-certified internist and
rheumatologist, diagnosed diffuse arthralgia, primary localized osteoarthritis, sarcoidosis, Crohn’s
disease, synovitis, and tenosynovitis.
Beginning in March 2015, appellant received treatment for his right shoulder condition
from Dr. Marc Z. Hammerman, a Board-certified orthopedic surgeon. In a March 27, 2015 report,
3

Docket No. 17-1536 (issued December 5, 2017).

4

OWCP assigned the present claim OWCP File No. xxxxxx065.

5
The Board notes that appellant’s prior claim for an August 18, 2007 right shoulder injury in OWCP File No.
xxxxxx964 is not the subject of the present appeal.
6

Section 11 of the form asks the claimant to provide the date he first became aware of the claimed condition and
appellant provided the dates August 18, 2007 and April 16, 2015. Section 12 asks the claimant to provide the date he
realized when the claimed condition was caused or aggravated by the employment and appellant provided the dates
August 18, 2007 and May 6, 2015.

2

Dr. Hammerman advised that appellant presented complaining of having right shoulder pain for
an unspecified period. He diagnosed right rotator cuff tendinitis/bursitis in the shoulder region,
scapular elastofibroma of the right shoulder (with possible tear) as seen on prior diagnostic testing,
and degeneration of cervical intervertebral disc.
Appellant submitted an April 10, 2015 magnetic resonance imaging (MRI) scan of his right
shoulder which contains an assessment of partial rotator cuff tear, degenerative joint disease of the
shoulder region (unspecified whether generalized or localized), labral tear, superior glenoid labrum
lesions, and bicipital tenosynovitis.7 He also submitted a May 6, 2015 report showing that
Dr. Hammerman performed an unauthorized right shoulder surgery on that date, including rotator
cuff repair involving the supraspinatus muscle, acromioplasty, resection of the distal clavicle,
subacromial bursectomy, and arthroscopic labral debridement.
In an August 14, 2015 report, Dr. Hammerman discussed the findings of the April 10, 2015
MRI scan and indicated that, considering appellant’s 33 years of engaging in repetitive motion as
a letter carrier, it was within all reasonable medical probability there was a causal relationship
between his letter carrier duties and the clinical findings.
By decision dated January 26, 2016, OWCP denied appellant’s claim for a work-related
occupational right shoulder condition finding that he had not submitted medical evidence sufficient
to establish causal relationship between a diagnosed medical condition and the accepted
employment factors, i.e., his letter carrier duties which included casing mail, carrying a mailbag,
delivering mail, and pushing mail gurneys.8
On March 28, 2017 appellant, through counsel, requested reconsideration. He submitted a
March 20, 2017 report from Dr. Martin E. Hale, an attending Board-certified orthopedic surgeon.
Dr. Hale posited that, based on appellant’s letter carrier duties, his continued work with overhead
reaching for casing as well as repetitive reaching and twisting of his arm during the delivery portion
of his route “are significantly contributing to his continuing shoulder problems.”
By decision dated June 16, 2017, OWCP denied modification of its June 2, 2016 decision
denying appellant’s claim for a work-related occupational right shoulder condition. It found that
he had not submitted sufficient medical evidence to establish causal relationship between his
claimed right shoulder condition and the accepted employment factors.
Appellant appealed to the Board and, by decision dated December 5, 2017,9 the Board
affirmed OWCP’s June 16, 2017 decision. The Board found that the medical reports submitted by
7

Appellant also submitted an August 20, 2007 MRI scan of his right shoulder which specifically indicated that no
rotator cuff tear, retraction, or atrophy was seen. The scan did show a suspected muscle strain or partial tear involving
the anterior head of the deltoid muscle.
8
OWCP modified a prior decision, dated September 1, 2015, in which it found that appellant failed to file a timely
claim. It now found that he did, in fact, file a timely claim. On August 2, 2016 appellant, through counsel, requested
reconsideration and presented additional argument. By decision dated December 20, 2016, OWCP denied appellant’s
request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
9

Supra note 3.

3

appellant, including those of Dr. Hammerman, failed to contain adequate medical rationale to
establish causal relationship between a diagnosed medical condition and the accepted employment
factors.
On June 26, 2018 appellant, through counsel, requested reconsideration and submitted
additional medical evidence.10 In a March 1, 2018 report, Dr. Hammerman indicated that he had
treated appellant since March 27, 2015 for his right shoulder conditions. He noted that, after
reviewing the description of appellant’s letter carrier position, it was apparent to him that
appellant’s physical findings were consistent with his 30 years of reaching above shoulder height
for up to three hours per day, as well as lifting 25- to 30-pound tubs filled with flat mail “resulting
in increased rotator cuff pathology.” Dr. Hammerman found that the repetitive movement of
casing the mail was also “consistent with potential overuse secondary to the repetitive motion.”
He noted that, despite many years of being on pain management secondary to back pain, multiple
joint, and Crohn’s, appellant had a right shoulder problem “without having a prior history of
trauma to the shoulder” which was associated with an overuse syndrome. Dr. Hammerman opined
that the findings of an April 10, 2015 MRI scan of the right shoulder were consistent with the
history of the overuse syndrome. He asserted that the signiﬁcant partial tearing of the rotator cuff
with acromioclavicular joint degeneration and a type II acromion were typical ﬁndings with a
chronic overuse syndrome.
Dr. Hammerman further indicated that the activities noted in the letter carrier job
description were aggravating factors and indicated that, at the time of the May 6, 2015 surgery,
appellant was observed to have a full-thickness tear of the right rotator cuff which was even more
signiﬁcant than what was noted on the April 10, 2015 MRI scan. He explained that the
hypertrophic bursitis that was present at the time of the May 6, 2015 surgery was consistent with
chronic irritation to the subacromial and rotator cuff area. Dr. Hammerman further explained that
continuing to perform letter carrier duties, with the underlying ﬁndings noted at the time of the
May 6, 2015 surgery, would result in the worsening of appellant’s right rotator cuff pathology. He
noted that he had reviewed the Board’s December 5, 2017 decision and indicated, “In view of there
not being any other history of trauma to the shoulder, and in view of the nature of his work
activities resulting in the overuse of his right dominant upper extremity, I find the correlation of
his work overuse activities, to the right shoulder pathology, as a causative factor, to be quite
consistent.”
By decision dated September 20, 2018, OWCP denied appellant’s claim for a work-related
right shoulder condition, finding that Dr. Hammerman failed to provide a rationalized medical
opinion establishing causal relationship between a diagnosed medical condition and the accepted
employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
10
Appellant also submitted photographs, taken from an employing establishment publication of general application,
showing various people performing such activities as lifting mail trays and pushing mail carts.

4

time limitation period of FECA,11 that an injury was sustained in the performance of duty as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.12 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.13 To determine whether a federal employee sustained a traumatic injury in
the performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment incident
at the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.14
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence.15 The opinion of the physician must be based on a complete and accurate
factual and medical background of the employee, must be one of reasonable medical certainty, and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established employment factors.16
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right shoulder
injury due to the accepted factors of his federal employment.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s June 16, 2017 decision because the Board
considered that evidence in its December 5, 2017 decision and found it insufficient to establish
causal relationship. Findings made in prior Board decisions are res judicata absent any further
review by OWCP under section 8128 of FECA.17 The Board notes that it has been accepted that
appellant sustained employment factors, i.e., his letter carrier duties which included casing mail,
carrying a mailbag, delivering mail, and pushing mail gurneys. However, appellant has not met
his burden of proof to submit medical evidence establishing causal relationship between a
diagnosed medical condition and the accepted employment factors.

11
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
12

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
13

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
14

P.B., Docket No. 18-1322 (issued January 2, 2019); T.H., 59 ECAB 388 (2008).

15

F.S., Docket No. 15-1052 (issued July 17, 2015); Tomas Martinez, 54 ECAB 623 (2003).

16

P.K., Docket No. 08-2551 (issued June 2, 2009); John W. Montoya, 54 ECAB 306 (2003).

17

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

5

Appellant submitted a March 1, 2018 report from Dr. Hammerman who noted that, after
reviewing the description of appellant’s letter carrier position, it was apparent to him that
appellant’s physical findings were consistent with his 30 years of reaching above shoulder height
for up to three hours per day, as well as lifting 25- to 30-pound tubs filled with flat mail “resulting
in increased rotator cuff pathology.” Dr. Hammerman found that the repetitive movement of
casing the mail was also “consistent with potential overuse secondary to the repetitive motion.”
He opined that the findings of an April 10, 2015 MRI scan of the right shoulder were consistent
with the history of the overuse syndrome. Dr. Hammerman indicated that the signiﬁcant partial
tearing of the rotator cuff with acromioclavicular joint degeneration and a type II acromion were
typical ﬁndings with a chronic overuse syndrome. He further indicated that the activities noted in
the letter carrier job description were aggravating factors and asserted that, at the time of the
May 6, 2015 surgery, appellant was observed to have a full-thickness tear of the right rotator cuff
which was even more signiﬁcant than what was noted on the April 10, 2015 MRI scan.
Dr. Hammerman concluded noted, “In view of there not being any other history of trauma to the
shoulder, and in view of the nature of his work activities resulting in the overuse of his right
dominant upper extremity, I find the correlation of his work overuse activities, to the right shoulder
pathology, as a causative factor, to be quite consistent.”
The Board finds that Dr. Hammerman’s March 1, 2018 report is of limited probative value
regarding appellant’s claimed work-related injury because he did not provide adequate medical
rationale in support of his opinion that a specific medical condition was caused or aggravated by
the reported employment activities. Dr. Hammerman indicated that there was a causal relationship
between appellant’s employment activities and his right shoulder problems, but he provided vague
references to what types of medical conditions were related to such activities. He alternatively
suggested that appellant sustained some form of right shoulder overuse condition or right shoulder
rotator cuff tear/degenerative condition, but he did not clearly identify the specific diagnosed
conditions which he felt were related to the employment activities or describe the medical
mechanism through which specific work activities could have caused or aggravated specific
medical conditions. The Board has held that a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is
unsupported by medical rationale.18 Dr. Hammerman repeatedly indicated that certain of his
findings were “consistent” with appellant’s general work duties, but he did not adequately explain
his reasoning for reaching such conclusions. His March 1, 2018 report contains conclusory
opinions without the necessary rationale explaining how and why the employment incident/factors
were sufficient to result in a diagnosed medical condition. The Board has held that such an opinion
is insufficient to meet a claimant’s burden of proof to establish a claim.19
As the evidence of record does not contain sufficient rationale explaining causal
relationship between the claimed condition and the accepted employment factors, the Board finds
that appellant has not met his burden of proof.
On appeal counsel contends that Dr. Hammerman’s March 1, 2018 report establishes
appellant’s claim for a work-related right shoulder condition. However, the Board has explained
18

C.M., Docket No. 14-0088 (issued April 18, 2014).

19

J.D., Docket No. 14-2061 (issued February 27, 2015).

6

why Dr. Hammerman failed to provide adequate medical rationale in support of his opinion on
causal relationship.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right shoulder
injury due to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the September 20, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 9, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Laredo, TX, Employer
)
__________________________________________ )
A.R., Appellant

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

Docket No. 17-1504
Issued: May 25, 2018

Case Submitted on the Record

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

JURISDICTION
On June 27, 2017 appellant filed a timely appeal from a February 7, 2017 merit decision
and a March 31, 2017 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish permanent
impairment of his lower extremities due to his accepted employment injuries, thereby warranting
a schedule award; and (2) whether OWCP properly denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 17, 2005 appellant, then a 39-year-old supervisory deputy marshal, injured his
low back when performing training exercises in the performance of duty. He did not stop work.
OWCP accepted the claim for lumbar sprain/strain and later expanded acceptance of the claim to
include displaced lumbar disc without myelopathy and aggravation of lumbar degenerative disc
disease. Appellant underwent an authorized lumbar fusion on February 15, 2007.
An initial magnetic resonance imaging (MRI) scan of the lumbar spine on August 29,
2005 revealed mild generalized disc bulge with evidence of an annular tear at L5-S1 and
desiccated intervertebral disc spaces at L4-5 and L5-S1. On February 15, 2007 Dr. Lloyd A.
Youngblood, a Board-certified neurosurgeon, performed a decompressive laminectomy, partial
medial facetectomy, foraminotomy, and nerve root decompression bilaterally at L4, L5, and S1
nerve roots; posterior lumbar interbody fusion; and microsurgical repair of dural defect at right
L5. On April 5, 2007 Dr. Youngblood noted that appellant was doing well postoperatively. He
noted residual L5 radiculopathy on the right, but his preoperative pain had largely resolved.
Dr. Youngblood returned appellant to light-duty work on April 16, 2007, part time, four hours a
day.2
Appellant was treated by Dr. Robert G. Johnson, a Board-certified neurosurgeon and
associate of Dr. Youngblood, on September 3, 2009 and March 2, 2010, who noted appellant’s
surgery history and advised that appellant was doing well with only minimal neuritic pain in his
right leg. On March 15, 2012 Dr. Johnson advised that appellant reported one episode of intense
muscle spasm that had lasted five weeks, but had resolved. Appellant continued to cycle over
100 miles a week and perform core exercises. Dr. Johnson noted that appellant was
neurologically intact and in good physical condition. March 15, 2012 lumbar spine x-rays
showed stable postoperative changes.
On October 28, 2015 appellant filed a claim for a schedule award (Form CA-7). He
submitted an undated impairment evaluation from Dr. Richard Radecki, a Board-certified
physiatrist, which was based on a September 25, 2015 examination.3 Appellant presented with
mild pain of the mid-back region in the lumbar area, some radiating pain into his legs, weakness,
and left leg numbness. Dr. Radecki noted that appellant underwent fusion surgery without
difficulties and was released back to full-time duty on July 10, 2007. He advised that appellant
had reached maximum medical improvement (MMI). Dr. Radecki noted findings of no antalgic
gait, negative straight leg raise in the seated position bilaterally, manual muscle testing of 5/5, no
muscle atrophy, mild discomfort in the lumbar paraspinals bilaterally, intact transitional
movements, intact sensation, and negative clonus, Babinski, and Romberg testing. He diagnosed
status post multilevel fusion performed for degenerative disc changes and work-related injury.
Dr. Radecki opined that appellant had six percent whole person impairment pursuant to the
American Medical Association, Guides to the Evaluation of Permanent Impairment,4 (A.M.A.,
2

Appellant eventually returned to full duty. He did not claim wage-loss compensation.

3

No medical evidence was submitted to the record after the March 15, 2012 reports until Dr. Radecki’s report.

4

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

2

Guides). He noted that pursuant to Table 17-6, appellant had a grade modifier 1 for descriptions
of pain with strenuous or vigorous activity. For physical examination appellant had a grade
modifier of zero and clinical studies grade modifier was not utilized as it was used to make the
diagnosis. Dr. Radecki diagnosed alteration of multiple segment levels status postsurgery. He
referenced Table 17-4, page 570 and indicated that using the lumbar spine regional grid system,
appellant was a class 1 equal to single or multiple level medically documented findings with or
without surgery resolution of radiculopathy or nonverifiable radicular pain at appropriate clinical
levels. Dr. Radecki noted the default impairment was seven percent whole person. He advised
that the neck grade modifier equalization would be -1 which yielded impairment of six percent
whole person. Dr. Radecki opined that, under the A.M.A., Guides, appellant sustained six
percent whole person impairment.
In a November 19, 2015 letter, OWCP advised Dr. Radecki that, under FECA, awards for
permanent impairment may not be paid for the spine, but that awards could be paid for
impairment of the upper or lower extremities caused by injury to a spinal nerve. Therefore, if a
work-related spinal nerve injury caused impairment to the extremities, he could render an
impairment rating of the affected extremities by using the article entitled “Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition,” which was published in the July/August 2009
The Guides Newsletter, a supplemental publication of the A.M.A., Guides. OWCP requested a
supplemental report based on the foregoing. No response was received from Dr. Radecki.
On September 8, 2016 an OWCP medical adviser reviewed Dr. Radecki’s report. He
noted that Dr. Radecki’s examination did not demonstrate any neurologic deficit in either leg and
that appellant had normal gait mechanics. The medical adviser indicated that Dr. Radecki
calculated his impairment rating based on Table 17-4, page 570-74 of the A.M.A., Guides which
provides whole person impairment for mechanical low back pain, radiculopathy, and
documented spinal pathology on diagnostic studies including an MRI scan. However, OWCP
and FECA provide schedule awards only for the loss of use/impairments in the lower extremities
and not for spinal pain. The medical adviser noted appellant’s diagnosed condition was status
post posterior lumbar interbody fusion L4-S1 on February 15, 2007. He concluded that, under
the A.M.A., Guides, appellant had no impairment of the lower extremities resulting from the
accepted work injury of August 17, 2005. The date of MMI was noted as September 25, 2015,
the date of Dr. Radecki’s evaluation.
By decision dated September 14, 2016, OWCP denied appellant’s claim for a schedule
award. It found that the evidence of record did not establish that appellant sustained permanent
impairment of a scheduled member due to his accepted injury. On September 19, 2016 OWCP’s
decision was returned to sender as undeliverable. On February 7, 2017 OWCP reissued the
September 19, 2016 decision and mailed it to appellant’s current address.
On March 6, 2017 appellant requested reconsideration. In a February 21, 2017 statement,
he disagreed with the September 14, 2016 decision and requested reconsideration. Appellant
asserted that the Social Security Administration allowed impairment consistent with his injury
and that the A.M.A., Guides allowed ratings for whole person impairment. He asserted that,
pursuant to the A.M.A., Guides, permanent impairments, including his back fusion, were to be
rated. Appellant requested that an impairment rating be obtained from the physician who

3

performed his surgery. He also resubmitted OWCP’s medical adviser’s September 8, 2016
report and OWCP’s September 14, 2016 decision.
By March 31, 2017 decision, OWCP denied appellant’s request for reconsideration as the
evidence submitted was insufficient to warrant a merit review.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.8
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.9 A
schedule award is not payable for the loss, or loss of use, of a part of the body that is not
specifically enumerated under FECA.10 Moreover, neither FECA nor its implementing
regulations provide for a schedule award for impairment to the back or to the body as a whole.
Furthermore, the back is specifically excluded from the definition of organ under FECA.11
In 1960, amendments to FECA modified the schedule award provisions to provide for an
award for permanent impairment to a member of the body covered by the schedule regardless of
whether the cause of the impairment originated in a scheduled or nonscheduled member.
Therefore, as the schedule award provisions of FECA include the extremities, a claimant may be
entitled to a schedule award for permanent impairment to an extremity even though the cause of
the impairment originated in the spine.12

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).

7

Id.

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013).
9

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

10

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

11

James E. Mills, 43 ECAB 215, 219 (1991); James E. Jenkins, 39 ECAB 860, 866 (1990).

12

Supra note 10.

4

The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides
Newsletter, “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition”
(July/August 2009) (hereinafter The Guides Newsletter) is to be applied.13 The Board has long
recognized the discretion of OWCP to adopt and utilize various editions of the A.M.A., Guides
for assessing permanent impairment.14 In particular, the Board has recognized the adoption of
this methodology for rating extremity impairment, including the use of The Guides Newsletter,
as proper in order to provide a uniform standard applicable to each claimant for a schedule award
for extremity impairment originating in the spine.15
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a work-related sprain/strain of the lumbar
region, displaced lumbar disc without myelopathy, and aggravation of lumbar degenerative disc
disease. Appellant underwent a lumbar fusion on February 15, 2007. On October 28, 2015 he
claimed a schedule award. OWCP denied appellant’s claim, finding that the medical evidence of
record was insufficient to establish permanent impairment of a scheduled body member due to
the accepted conditions.
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of his lower extremities due to his accepted employment injuries and, therefore, a
schedule award is not warranted.
In support of his claim, appellant submitted a report from Dr. Radecki who found that
appellant had six percent whole person permanent impairment under the sixth edition of the
A.M.A., Guides. In making this determination, Dr. Radecki referenced Table 17-4 (Lumbar
Spine Regional Grid) beginning on page 570. On November 19, 2015 OWCP advised
Dr. Radecki that awards for permanent impairment could not be paid for the spine under FECA.
It requested that he provide a calculation for any affected extremities pursuant to the
July/August 2009 The Guides Newsletter. Dr. Radecki did not respond to this request.
Thereafter, OWCP referred the case for review by an OWCP medical adviser. Its
procedures provide that, after obtaining all necessary medical evidence, the file should be routed
to an OWCP medical adviser for an opinion concerning the nature and percentage of impairment
in accordance with the A.M.A., Guides, with the medical adviser providing rationale for the
percentage of impairment specified.16
13

See G.N., Docket No. 10-0850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part 3
-- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is included as
Exhibit 4.
14

D.S., Docket No. 14-0012 (issued March 18, 2014).

15

See E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).

16

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).

5

The Board finds that the medical adviser properly determined that appellant had no
permanent impairment of his lower extremities under the standards of the sixth edition of the
A.M.A., Guides and The Guides Newsletter. In his September 8, 2016 report, the medical
adviser properly indicated that that Dr. Radecki’s opinion on lower extremity impairment of the
lumbar spine was deficient because he improperly applied the standards of Table 17-417 to find
lumbar spine impairment, rather than applying the standards of The Guides Newsletter. The
Board has held that The Guides Newsletter provides the standards for evaluating any permanent
impairment in the lower extremities referable from the lumbar spine.18 The medical adviser
found no basis under The Guides Newsletter to rate impairment of either leg, noting that
Dr. Radecki did not report any neurologic deficit in either leg, and that appellant had normal gait
mechanics.
Because Dr. Radecki’s impairment evaluation was not conducted in accordance with the
standards of the sixth edition of the A.M.A., Guides and The Guides Newsletter, it is of limited
probative value and insufficient to establish that appellant has lower extremity impairment
attributable to his accepted conditions.19 Appellant has not submitted probative medical
evidence sufficient to establish lower extremity impairment under The Guides Newsletter. Thus
a schedule award is not warranted.
On appeal appellant notes that Dr. Radecki submitted an impairment rating, but failed to
mention that appellant developed lumbar spinal stenosis as a result of his back fusion. He noted
experiencing ongoing leg symptoms requested a follow up visit with one of his physicians to
confirm his symptoms and to obtain an impairment rating. As found, Dr. Radecki’s opinion is of
limited probative value as he did not follow The Guides Newsletter. In a letter dated
November 19, 2015, OWCP requested that Dr. Radecki provide an impairment rating based on
applicable tables found in The Guides Newsletter, but he did not respond to this request. This
decision does not preclude appellant from obtaining additional medical evidence and further
pursuing the matter.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,20 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(3) of the implementing federal regulations, which provides that a claimant may
17

See A.M.A., Guides 570, Table 17-4.

18

See supra note 13.

19

See Carl J. Cleary, 57 ECAB 563, 568 at note 14 (2006) (an opinion which is not based upon the standards
adopted by OWCP and approved by the Board as appropriate for evaluating schedule losses is of little probative
value in determining the extent of a claimant’s impairment).
20

5 U.S.C. § 8128(a).

6

obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence which:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”21
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.22
ANALYSIS -- ISSUE 2
OWCP denied appellant’s schedule award claim because he failed to submit evidence
sufficient to establish permanent impairment of a scheduled member due to his accepted work
injury. Thereafter, it denied his reconsideration request, without conducting a merit review.
The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the
claim. In his request for reconsideration, appellant did not show that OWCP erroneously applied
or interpreted a specific point of law. He submitted a statement dated February 21, 2017 and
stated his disagreement with the February 7, 2017 decision denying his claim for a schedule
award. Appellant contended that the A.M.A., Guides and the Social Security Administration
allowed whole person impairment. He asserted that pursuant to the A.M.A., Guides permanent
impairments such as his back fusion were to be rated. Appellant requested that an impairment
rating be obtained from the physician who performed his surgery. These assertions do not show
a legal error by OWCP or a new and relevant legal argument. As noted, a schedule award is not
payable for the loss, or loss of use, of a part of the body that is not specifically enumerated under
FECA.23 Neither FECA nor its implementing regulations provide for a schedule award for
impairment to the back or to the body as a whole and the back is specifically excluded from the
definition of organ under FECA.24 The Board has also held that information regarding other
federal agencies is not dispositive with regard to questions arising under FECA.25 Thus, these
assertions do not show a legal error by OWCP or a represent a new and relevant legal argument.

21

20 C.F.R. § 10.606(b)(3).

22

Id. at § 10.608(b).

23

Supra note 10.

24

Supra note 11.

25

D.I., 59 ECAB 158, 162 (2007).

7

The underlying issue in this case is whether appellant submitted sufficient evidence to
establish he sustained permanent impairment to a scheduled member due to his accepted work
injury. That is a medical issue which must be addressed by relevant new medical evidence.26
However, appellant did not submit any pertinent new and relevant medical evidence in support
of his claim.
Appellant resubmitted an OWCP medical adviser’s report and an OWCP decision.
However, this evidence is duplicative of evidence previously submitted and considered by
OWCP. Evidence that repeats or duplicates evidence already in the case record has no
evidentiary value and does not constitute a basis for reopening a case.27 Therefore, these reports
are insufficient to require OWCP to reopen the claim for a merit review.
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by OWCP,
or submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish permanent
impairment of his lower extremities due to his accepted employment injuries, thereby warranting
a schedule award. The Board further finds that OWCP properly denied his request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

26

See Bobbie F. Cowart, 55 ECAB 746 (2004).

27
See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984); Bruce E. Martin, 35
ECAB 1090, 1093-94 (1984).

8

ORDER
IT IS HEREBY ORDERED THAT the March 31 and February 7, 2017 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 25, 2018
Washington, DC

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

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

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

9