United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, VEHICLE
MAINTENANCE FACILITY, Baltimore, MD,
Employer
__________________________________________

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

Docket No. 16-1645
Issued: May 3, 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 August 9, 2016 appellant filed a timely appeal from a July 7, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.
ISSUE
The issue is whether appellant has more than 13 percent permanent impairment of her left
upper extremity and 6 percent permanent impairment of her right upper extremity, for which she
previously received schedule awards.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 4, 2013 appellant, a 59-year-old clerk, filed an occupational disease claim (Form
CA-2) under OWCP File No. xxxxxx451, alleging that she developed bilateral carpal tunnel
syndrome (CTS) causally related to factors of her federal employment. She indicated on the claim
form that she first became aware of her condition and its relation to her federal employment on
December 5, 2012.2
On December 23, 2013 OWCP received a bilateral upper extremity nerve conduction
velocity (NCV) study and a medical report from Dr. Margit L. Bleecker, a Board-certified
neurologist. Dr. Bleecker diagnosed right neurogenic thoracic outlet syndrome (TOS), which she
explained was supported by examination findings (positive Adson’s maneuver) and
electrodiagnostic studies.3 She noted that appellant worked for the employing establishment since
1986, and her duties as a general clerk involved frequent filing.4 Dr. Bleecker further noted that
appellant frequently had to reach above her shoulder height for filing, and also the file drawers
were extremely tight and required a lot of force to pull open. She explained that these were risk
factors for right TOS, which diagnosis had been demonstrated on appellant’s physical examination
and her NCV studies. Dr. Bleecker further explained that constant flexion and extension with
filing put stress on the ulnar nerve in the cubital tunnel, which diagnosis was also demonstrated
both by examination and NCV studies.5
On January 29, 2014 appellant filed a claim for a schedule award (Form CA-7) based on a
partial loss of use of her left and right upper extremities.
In a February 11, 2014 report, Dr. Bleecker advised that appellant had five percent left
upper extremity impairment for left CTS and six percent right upper extremity impairment for
right CTS under the sixth edition of the American Medical Association, Guides to the Evaluation

2

Appellant has two other claims with OWCP. In File No. xxxxxx753, appellant filed a traumatic injury claim
(Form CA-1) on January 11, 2012, alleging that she injured her left shoulder and neck while carrying heavy folders.
OWCP accepted this claim for sprain of the shoulder and upper left arm (ICD-9 840.9), and sprain of the neck (ICD9 847.0). In File No. xxxxxx032, appellant filed an occupational disease claim (Form CA-2) on January 8, 2014 for
a work-related right upper extremity injury that she allegedly sustained on or about December 23, 2013. She indicated
that her employment duties included computer data input. Appellant also indicated that she had already been
diagnosed with bilateral CTS, and that she recently experienced shocking nerve pain and swelling in her right forearm,
elbow, and shoulder. File Nos. xxxxxx451. xxxxxx753, and xxxxxx032 have been administratively combined, with
File No. xxxxxx451 serving as the master file.
3

Dr. Bleecker reported that the NCV study results revealed right ulnar neuropathy at the elbow, which supported
the clinical presentation of right cubital tunnel syndrome. She also noted that a right brachial plexus lesion involving
the lower roots supported a positive examination for right thoracic outlet syndrome.
4
Appellant’s duties also included extensive keyboarding and use of a mouse. Dr. Bleecker explained that constant
flexion and extension of the elbow and reaching above shoulder height had proved to be difficult for appellant.
5

Dr. Bleecker also submitted narrative reports dated September 10, November 14, and December 19, 2013. These
reports pertained to appellant’s December 5, 2012 injury. Dr. Bleecker diagnosed neck sprain, left shoulder sprain,
bilateral CTS, and left brachial plexus lesions/TOS.

2

of Permanent Impairment (A.M.A., Guides).6 With regard to the left upper extremity, she arrived
at her five percent impairment rating by relying on Table 15-23 at page 449.7 Dr. Bleecker found
that under the heading of “Test Findings” appellant had a grade modifier of 2, for conduction delay
and motor conduction block; under the heading of “History,” she rated a grade modifier of 2, based
on significant intermittent symptoms; and under the heading of “Physical Findings” she found that
appellant’s physical examination yielded a grade modifier of 2 for decreased sensation. Pursuant
to the rating process set forth at page 448,8 Dr. Bleecker determined that the average value for
these modifiers, based on adding 2 plus 2 plus 2, divided by 3, equaled 2, which produced a midrange impairment of 5 under Table 15-23. Given that appellant’s QuickDASH (Disabilities of the
Arm, Shoulder, and Hand) test score was 50, she found that this yielded a mild grade modifier of
2, which produced five percent impairment rating for left carpal tunnel syndrome.
Dr. Bleecker utilized the identical findings and analysis to render her six percent right upper
extremity impairment for right-sided CTS, except with regard to the QuickDASH score of 68. She
found that this was a severe problem which yielded a grade modifier of 2, producing six percent
permanent impairment rating for right carpal tunnel syndrome.
Dr. Bleecker also found that appellant had four percent left upper extremity impairment for
tendinitis of the left shoulder; and four percent left upper extremity impairment for left neurogenic
thoracic outlet syndrome.
In a statement of accepted facts dated February 28, 2014, OWCP advised that it had
accepted the conditions of sprain of the shoulder and upper left arm (ICD-9 840.9), sprain of the
neck (ICD-9 847.0), bilateral CTS (ICD-9 354.0), and left brachial plexus (ICD-9 353.0).
In a March 23, 2014 report, Dr. Arnold T. Berman, a Board-certified orthopedic surgeon
and district medical adviser (DMA), found that appellant had 10 percent permanent impairment of
the left upper extremity impairment and 6 percent permanent impairment of the right upper
extremity. He found that appellant had 1 percent permanent impairment of the left upper extremity
for the left shoulder; 5 percent permanent impairment of the left upper extremity based on leftsided carpal tunnel syndrome, and 1 percent permanent impairment for cervical spine discogenic
disease, for a combined total of 10 percent left upper extremity permanent impairment.
Dr. Berman further found that appellant had six percent right upper extremity permanent
impairment based on right-sided CTS.
In addition, Dr. Berman reviewed a February 11, 20149 report of Dr. Bleecker, who rated
permanent impairment of the bilateral upper extremities based in part on a diagnosis of TOS. He
advised that TOS was not an accepted condition, and there was no clinical evidence to support that
6

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

7

Id. at 449.

8

Id. at 448.

9

The Board notes that DMA Dr. Berman referred to a February, 11, 2012 report of Dr. Bleecker. However, this
appears to have been a typographical error as Dr. Bleecker’s initial impairment rating report was dated
February 11, 2014.

3

diagnosis. Dr. Berman calculated 16 percent permanent impairment of the bilateral upper
extremities.
By decision dated April 4, 2014, OWCP granted appellant a schedule award for 10 percent
permanent impairment of her left upper extremity and 6 percent permanent impairment of her right
upper extremity. The award ran for 6.24 weeks, covering the period February 11, 2014 to
January 26, 2015. It based this award on the Dr. Berman’s March 23, 2014 impairment rating.10
On April 17, 2014 appellant requested reconsideration of the April 4, 2014 schedule award
decision.
On March 26, 2015 appellant filed a claim for an additional schedule award (Form CA-7)
based on a partial loss of use of her left and right upper extremities.
In a May 4, 2015 report, OWCP’s medical adviser, Dr. Berman, amended his March 23,
2014 report and substituted four percent impairment for left-sided TOS, a condition which he had
not rated in his previous report, for the one percent impairment for cervical spine disease. This
amendment resulted in an additional three percent permanent impairment rating for the left upper
extremity.
On September 1, 2015 appellant again filed a Form CA-7 claim for an additional schedule
award under File No. xxxxxx451 based on a partial loss of use of her left and right upper
extremities.
By decision dated October 29, 2015, OWCP awarded appellant a schedule award for an
additional three percent permanent impairment of the left upper extremity for 6.24 weeks, covering
the period January 27 to April 2, 2015.
On November 4, 2015 OWCP accepted the condition of brachial plexus disorders. It
indicated that it had originally accepted a condition for left brachial plexus lesions under ICD-9
353.0 and noted that the condition was also commonly referred to as TOS (left), which had been
added under ICD-10, G540.
In a November 23, 2015 report, Dr. Bleecker found, using the Combined Values Chart,
that appellant had 13 percent left upper extremity permanent impairment and 3 percent right upper
extremity permanent impairment. She derived this rating by calculating three percent impairment
for the left and right upper extremities based on three percent impairment for bilateral CTS; five
10

By decision dated April 11, 2014, under OWCP File No. xxxxxx032, OWCP denied appellant’s request to expand
the accepted conditions to include right TOS. OWCP determined that Dr. Bleecker’s December 23, 2013 narrative
report was insufficient to establish that appellant’s TOS was causally related to the accepted work conditions. OWCP
further noted that TOS had already been rejected under appellant’s prior claim in File No. xxxxxx451, and that File
No. xxxxxx032 was just an attempt to add a medical condition that had already been reviewed and ruled out. On
March 17, 2015 appellant requested reconsideration of the April 11, 2014 decision. By decision dated June 11, 2015,
OWCP denied appellant’s request for reconsideration, finding that the evidence submitted was insufficient to warrant
review of its April 11, 2014 merit decision. Appellant subsequently appealed the June 11, 2015 decision to the Board.
By decision dated October 22, 2015, the Board set aside OWCP’s June 11, 2015 decision and remanded the case for
further development as File Nos. xxxxxx451 and xxxxxx032 had not at that time been administratively combined.
Docket No. 15-1706 (issued October 22, 2015).

4

percent impairment for left thoracic outlet syndrome; and five percent impairment for left shoulder
tendinitis.
OWCP subsequently referred appellant to Dr. Robert A. Smith, a Board-certified
orthopedic surgeon, for a second opinion examination and impairment rating. In a January 8, 2016
report, he found that appellant had five percent left upper extremity impairment for left CTS and
five percent right upper extremity rating for right CTS under the A.M.A., Guides. Dr. Smith found
on examination that the upper extremities revealed no dystrophic findings, focal muscle atrophy,
engorgement, dependent rubor or increased collateralization. He noted no muscle atrophy in the
arm, forearm or hand, with mild loss of sensation in the tips of the index and middle fingers,
negative Tinel’s signs at the elbows and equivocal Tinel’s signs at the volar wrists, mildly positive
Phalen’s maneuvers, bilaterally, normal motor strength in gripping, pinch and opposition,
bilaterally, dynamometer testing showing equal grip strength of 20 pounds on average, bilaterally,
and normal finger abduction and adduction strength.
Dr. Smith calculated five percent permanent impairment of the right and left upper
extremities due to bilateral CTS, utilizing Table 15-23 at page 449 of the A.M.A., Guides.11 He
found pursuant to the heading of “Test Findings” that appellant had a grade modifier of 2, for
sensory delay and motor conduction block, pursuant to the heading of “History,” he rated a grade
modifier of 2, based on significant intermittent symptoms, and pursuant to the heading of “Physical
Findings” he found that appellant’s physical examination yielded a grade modifier of 2, for
decreased sensation. Utilizing the rating process at page 448,12 Dr. Smith added 2 plus 2 plus 2,
divided by 3, which equaled 2, yielding a mid-range impairment of 5 under Table 15-23. Given
that appellant’s QuickDASH test score was 55, he found that this yielded a mild grade modifier of
2, which produced a five percent permanent impairment rating for bilateral CTS.
With regard to the additional accepted conditions, Dr. Smith opined that, based on
appellant’s current clinical findings, the conditions of cervical sprain, left shoulder/arm sprain, and
left brachial plexus had objectively resolved without discernible residuals. He noted on
examination that the cervical spine was functional, with no finding of spasm, atrophy, trigger
points, or deformity. Dr. Smith reported that appellant had satisfactory cervical range of motion
and no muscle spasm or rigidity during excursion, with no deformity, atrophy, or scapular winging.
He found that appellant had essentially full range of motion of her left shoulder, with findings of
180 degrees adduction, 170 degrees abduction, 50 degrees abduction, 50 degrees extension, 80
degrees internal rotation and 60 degrees external rotation. There were no signs of instability,
crepitation or impingement and negative Tinel’s signs at the thoracic outlets. Dr. Smith advised
that degenerative disease of the cervical spine and left shoulder were not accepted conditions for
this claim either by direct causation or aggravation; therefore, the only ratable condition for this
claim was bilateral carpal tunnel syndrome.
In a May 28, 2016 report, Dr. Michael M. Katz, a Board-certified orthopedic surgeon
serving as a DMA, reviewed Dr. Smith’s January 8, 2016 report and concurred with his five
percent bilateral upper extremity impairment rating for bilateral CTS. He opined that his report
11

Supra note 5.

12

Id. at 448.

5

was in conformance with the protocols of A.M.A., Guides. OWCP’s medical adviser found that,
because Dr. Smith’s rating did not exceed the prior award for five percent left upper extremity
impairment and six percent right upper extremity impairment for bilateral CTS, appellant was not
entitled to an additional schedule award.
By decision dated July 7, 2016, OWCP denied appellant’s claim for an additional schedule
award. It found that she had not established more than the 13 percent permanent impairment of
her left upper extremity and 6 percent permanent impairment of her right upper extremity, for
which she had previously received schedule awards.
LEGAL PRECEDENT
The schedule award provisions of FECA13 and its implementing regulations14 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.15 The claimant has the burden of proving that the condition for which
a schedule award is sought is causally related to her employment.16
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).17 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment of the Class of Diagnosis (CDX) condition, which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE), and
Clinical Studies (GMCS.18 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).19
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.20 In
Table 15-23, grade modifiers levels (ranging from zero to four) are described for the categories
13

5 U.S.C. § 8107.

14

20 C.F.R. § 10.404.

15

Id.

16

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

17
Supra note 5 at 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement.
18

Id. at 385-419.

19

Id. at 411.

20

Id. at 449.

6

test findings, history and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.21
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser providing
rationale for the percentage of impairment specified.22
ANALYSIS
OWCP accepted the conditions of bilateral CTS, left brachial plexus lesions/left thoracic
outlet syndrome, sprain of left shoulder and upper arm, and cervical sprain. In its April 4, 2014
decision, OWCP awarded appellant 10 percent left upper extremity impairment, for 1 percent
impairment of the left shoulder, 5 percent impairment for left-sided CTS, and 1 percent impairment
for cervical spine discogenic disease, and 6 percent impairment of the right upper extremity, for
right-sided CTS. Appellant subsequently requested reconsideration and filed a claim for an
additional schedule award. OWCP awarded an additional three percent left upper extremity
permanent impairment for left-sided TOS in an October 29, 2015 decision.
Appellant subsequently submitted Dr. Bleecker’s November 23, 2015 report. She found
that appellant had 10 percent left upper extremity permanent impairment and 6 percent right upper
extremity permanent impairment based on 3 percent impairment for bilateral CTS, 5 percent
impairment for left TOS, and 5 percent impairment for left shoulder tendinitis. Dr. Smith,
OWCP’s referral physician, reported findings on examination, reviewed the medical history and
statement of accepted facts and found that appellant had no ratable impairment from her accepted
cervical sprain, left shoulder/arm sprain, and left brachial plexus conditions. He opined that these
conditions had objectively resolved without discernible residuals. Dr. Smith reported that she had
a normal cervical spine examination and normal left shoulder examination, with essentially normal
range of motion. He further found that there were no signs of instability, crepitation or
impingement and negative Tinel’s signs at the thoracic outlets. Dr. Smith advised that
degenerative disease of the cervical spine and left shoulder were not accepted conditions for this
claim either by direct causation or aggravation. He therefore concluded that the only ratable
condition for this claim was bilateral CTS.23
As noted above, impairment due to CTS is evaluated pursuant to Table 15-23 of the
A.M.A., Guides, which sets forth grade modifier levels for test findings, history, and physical

21

Id. at 448-450.

22

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
23
The Board notes that appellant had already received a schedule award for one percent impairment of the left
upper extremity for the left shoulder and four percent left upper extremity impairment for left-sided TOS.

7

findings; these grade modifier levels are averaged to arrive at the appropriate overall grade
modifier level and to identify a default rating value.24
The Board finds that appellant has not met her burden of proof to establish more than the
13 percent permanent impairment of her left upper extremity and 6 percent permanent impairment
of her right upper extremity previously awarded.
In his January 8, 2016 second opinion report, Dr. Smith, a Board-certified orthopedic
surgeon, calculated five percent bilateral permanent impairment of the upper extremities from the
accepted bilateral CTS under the A.M.A., Guides using the formula set forth above. He found that
her other accepted upper extremity conditions had resolved and did not warrant an additional
impairment rating.
Dr. Smith provided clinical findings and explained how those objective elements warranted
the percentages assessed. OWCP medical adviser, Dr. Katz, concurred with Dr. Smith’s 5 percent
bilateral permanent impairment rating and methodology. OWCP then issued the July 7, 2016
decision finding that appellant was not entitled to an additional impairment for her accepted
bilateral CTS, or any other accepted condition, as the impairment calculated by Dr. Smith did not
exceed the impairment for which she had already received a schedule award.
The Board finds that OWCP properly accorded Dr. Smith’s impairment rating the weight
of the medical evidence. Dr. Smith’s opinion was based on a statement of accepted facts and the
complete medical record. He provided a thorough impairment rating, utilizing the appropriate
portions of the A.M.A., Guides. Dr. Smith described how the objective clinical findings,
intermittent symptoms, and physical examination warranted the specified percentage of
impairment. There is no probative medical evidence of record demonstrating that appellant
sustained more than the 13 percent permanent impairment of her left upper extremity and 6 percent
permanent impairment of her right upper extremity previously awarded due to her accepted upper
extremity conditions. Thus, appellant has not met her burden of proof.
Appellant may request a schedule award or increased schedule award at any time, based
on evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than 13
percent permanent impairment of her left upper extremity and 6 percent permanent impairment of
her right upper extremity, for which she previously received schedule awards.

24

Supra note 5 at 448-50.

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ORDER
IT IS HEREBY ORDERED THAT the July 7, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 3, 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
__________________________________________
K.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Carmel Valley, CA, Employer
__________________________________________

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

Docket No. 21-1269
Issued: March 28, 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 August 16, 2021 appellant filed a timely appeal from a July 29, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation benefits,
effective August 15, 2021, for failure to complete an EN1032 form as requested.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 29, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedures 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.

FACTUAL HISTORY
On April 28, 2017 an employing establishment official, on behalf of appellant, then a 45
year-old rural carrier, filed a traumatic injury claim (Form CA-1) alleging that on April 15, 2017
appellant was injured in a motor vehicle accident, which resulted in head trauma, contusions, and
soft tissue damage while in the performance of duty. OWCP accepted the claim for multiple
fractures of the left ribs, traumatic subarachnoid hemorrhage without loss of consciousness,
cerebral infarction due to unspecified collusion or stenosis of right anterior cerebral artery,
aneurysm of other specified arteries, cerebral aneurysm, nonruptured, and contusion of left lower
leg. It paid appellant wage-loss compensation on the supplemental rolls, commencing May 30,
2017, and on the periodic rolls, commencing June 25, 2017.
Over time, OWCP periodically requested that appellant submit financial disclosure
statements (Form EN1032), which solicited information about her employment, volunteer work,
dependent(s) status, receipt of other federal benefits and/or payments, and third -party settlements.
On June 9, 2021 OWCP advised appellant that she was required to fully answer all
questions on the enclosed EN1032 form and return it within 30 days or her benefits would be
suspended. It mailed the notice to her last known address of record. No response was received.
By decision dated July 29, 2021, OWCP suspended appellant’s wage-loss compensation
benefits, effective August 15, 2021, due to her failure to submit the EN1032 form, as requested.
It advised that, if she were to complete and return the form, her wage-loss compensation benefits
would be restored retroactively to the date of suspension.
LEGAL PRECEDENT
Section 8106(b) of FECA authorizes the Secretary of Labor to require a partially disabled
employee to report his or her earnings from employment or self-employment, by affidavit or
otherwise, in the manner and at the times the Secretary specifies. 3
Under section 10.528 of OWCP’s implementing federal regulations, an employee in receipt
of compensation benefits must complete an affidavit as to any work or activity indicating an ability
to work, which the employee has performed for the prior 15 months. 4 If an employee who is
required to file such a report fails to do so within 30 days of the date of the request, his or her right
to compensation for wage loss is suspended until OWCP receives the requested report. At that
time, OWCP will reinstate compensation retroactive to the date of suspension if the employee
remains entitled to compensation.5

3

5 U.S.C. § 8106(b).

4

20 C.F.R. § 10.528. See also R.B., Docket No. 20-0176 (issued June 25, 2020); A.H., Docket No. 15-0241 (issued
April 3, 2015).
5

Id. See also J.M., Docket No. 20-1310 (issued April 21, 2021); P.M., Docket No. 16-0382 (issued May 19, 2016).

2

ANALYSIS
The Board finds that OWCP properly suspended appellant’s wage-loss compensation
benefits, effective August 15, 2021, due to her failure to complete an EN1032 form as requested.
On June 9, 2021 OWCP provided appellant with the EN1032 form and advised that federal
regulations required her to complete the form and answer all questions concerning her employment
or earnings. It properly notified appellant that, if she did not completely answer all questions and
return the form within 30 days, her benefits would be suspended. The record reflects that OWCP’s
letter was sent to appellant’s last known address of record and there is no indication that it was
returned as undeliverable. 6 Under the mailbox rule, a document mailed in the ordinary course of
the sender’s business practices to the addressee’s last known address is presumed to be received
by the addressee. 7
The record indicates that appellant failed to timely submit an EN1032 form within 30 days
of OWCP’s request. As OWCP was paying appellant wage-loss compensation on the periodic
rolls she was, therefore, required to fully complete and submit the EN1032 form in a timely
manner.8 Appellant’s failure to file an EN1032 form within 30 days properly resulted in the
suspension of her wage-loss compensation. Thus, the Board finds that OWCP properly suspended
her wage-loss compensation benefits, effective August 15, 2021, pursuant to 20 C.F.R. § 10.528.9
CONCLUSION
The Board finds that OWCP properly suspended appellant’s wage-loss compensation
benefits, effective August 15, 2021, for failure to submit a completed EN1032 form as requested.

6

See J.H., Docket No. 20-0785 (issued October 23, 2020); Kenneth E. Harris, 54 ECAB 502 (2003).

7

Id.

8

See R.S., Docket No. 20-0580 (issued September 14, 2020); A.S., Docket No. 17-1530 (issued November 7, 2017).

9

See R.B., supra note 4.

3

ORDER
IT IS HEREBY ORDERED THAT the July 29, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 28, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlotte, NC, Employer
__________________________________________

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

Docket No. 18-0808
Issued: December 7, 2018

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 March 6, 2018 appellant filed a timely appeal from an October 10, 2017 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 to
consider the merits of the case.
ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s entitlement
to wage-loss compensation and schedule award compensation effective October 15, 2017 as he
refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On April 3, 2015 appellant, then a 55-year-old customer service supervisor, filed a
traumatic injury claim (Form CA-1) alleging that he developed paranoia and anxiety after a

1

5 U.S.C. § 8101 et seq.

“miscreant” pointed a gun at him on March 31, 2015 in the employing establishment parking lot.2
In a March 3, 2015 narrative statement, he noted that as he and a coworker were leaving the
employing establishment after work, they noticed a brown car in the parking lot. Both appellant
and his coworker went to their respective vehicles. The driver of the brown car then drove behind
appellant’s vehicle and got out. Appellant also exited his vehicle and the driver of the brown car
pulled out a “silver automatic” pistol and accused appellant of taking his marijuana. Appellant
asked what he was talking about and heard his coworker start his postal truck. He kept talking to
the alleged assailant and then ran and jumped onto the driver’s side running board of the postal
truck. The two employees drove away while appellant was hanging on the side of the truck.
Appellant then called the police, who quickly arrived and questioned him for four hours. He noted
that the alleged assailant had searched his vehicle’s glove compartment and that he was concerned
that he had secured appellant’s address.
On September 4, 2015 OWCP accepted appellant’s claim for post-traumatic stress disorder
(PTSD). It paid him wage-loss compensation and medical benefits on the supplemental rolls as of
May 18, 2015, and on the periodic rolls as of October 18, 2015.
In a report dated June 1, 2015, Dr. Cheryl Masters, a clinical psychologist, noted
appellant’s history of injury on March 31, 2015. She diagnosed PTSD. Dr. Masters opined that
appellant could return to work in an environment with less stress and less contact with other people.
She agreed with appellant that he should not work as a supervisor. Dr. Masters concluded that
these restrictions were necessary for 12 months to allow appellant to transition back into the
workplace.
In a report dated September 1, 2015, Dr. Dorata Gawlas, a Board-certified psychiatrist,
opined that appellant was indefinitely totally disabled. She noted that his recent incident at work,
robbery at gun point, had caused an exacerbation of his mental condition.
Dr. Masters completed a report on December 17, 2015 and found that appellant could
return to work with restrictions. She noted that appellant should not work on the night shift or
perform supervisory duties. Dr. Masters further noted that appellant should not lock up or be the
last person to leave. She also recommended reassignment.
Dr. Masters completed a note on April 20, 2016 and recommended that appellant work on
the day shift, that he not be responsible for closing alone, and that he be removed from supervisory
roles. She further recommended an alternative work location.
On May 25, 2016 OWCP referred appellant for a second opinion evaluation with
Dr. Patricia K. Boyer, a Board-certified psychiatrist. In her June 9, 2016 report, Dr. Boyer
described the March 31, 2015 employment injury and her examination of appellant. She diagnosed
major depressive disorder, recurrent, general personality disorder, and alcohol abuse. Dr. Boyer
opined that the March 31, 2015 employment injury did not cause appellant’s total disability for

2
The record indicates that appellant was diagnosed with depression in July 2002. He had three previous claims for
emotional conditions, OWCP File Nos. xxxxxx096, xxxxxx963, and xxxxxx905 which were not accepted as
employment related.

2

work. She found that appellant could work eight hours a day in his usual job, but that restrictions
such as a nonsupervisory role would be helpful.
On October 11, 2016 OWCP drafted clarification questions for Dr. Boyer addressing
whether appellant’s work restrictions were temporary or permanent and whether he had reached
maximum medical improvement (MMI). However, no response was received.3
Dr. Masters completed a report on November 25, 2016 and noted that appellant’s initial
diagnosis of PTSD had been reduced to adjustment disorder with mixed emotional features and
that his diagnosis of depression from 2013 remained. She noted that appellant continued to
experience symptoms of occasional insomnia, fatigue, worry, irritability, and anhedonia.
Dr. Masters found that appellant’s specific work-related condition had resolved. She provided
work restrictions noting that appellant should not be stationed at his previous location, that he not
be given the responsibility of closing up and exiting the building alone, and that he not be placed
in a supervisory position.
On April 6, 2017 OWCP requested a supplemental report from Dr. Masters addressing
whether appellant’s accepted condition had resolved, whether there remained work-related
conditions, and the relationship of appellant’s work restrictions to his accepted employment injury.
She responded on April 20, 2017 and repeated that appellant no longer exhibited the symptoms
associated with PTSD due to the March 31, 2015 employment injury and that his initial PTSD
diagnosis was reduced to adjustment disorder with mixed emotional features. Dr. Masters reported
that appellant had been treated for depression for two years prior to the March 31, 2015
employment injury and that the work incident had contributed to his depression and stress level.
She noted that in order to reduce the likelihood of appellant feeling threatened and causing a
relapse of his PTSD, she recommended that he not be stationed at his previous location, and that
he not be given the responsibility of closing up and exiting the building alone. Dr. Masters
reported that these were the conditions under which the March 31, 2015 employment injury
occurred and therefore were likely triggers which could cause decompensation. She further noted
that appellant continued to have a low stress tolerance and irritability, especially with others, such
that he should not be placed in a supervisory position. Dr. Masters opined that appellant’s
restrictions were permanent and that he had reached MMI.
In a letter dated June 2, 2017, OWCP informed the employing establishment that the
weight of the medical evidence rested with Dr. Masters’ April 20, 2017 report and requested that
it offer appellant a job comporting with her restrictions. It also referred appellant for vocational
rehabilitation counseling services on June 6, 2017.
On June 6, 2017 the employing establishment offered appellant a modified operations
support specialist position. The hours were from 3:30 p.m. until 12:30 a.m. This position required
him to review city and rural carriers, CPMS clearance, PM all clear, and night owl Amazon
verification. The position did not require appellant to supervise any employees. However, it noted
that appellant was to use a computer to review the activities of carriers’ scanners and to review the
activities of the carriers throughout the day to ensure that the carrier had met his allotted time to
deliver his route, take his lunch break, and collect the mail. Appellant was to enter his findings on
The record does not contain a copy of OWCP’s letter requesting a supplemental report from Dr. Boyer or any
response from her regarding the request for clarification.

3

a computer program and to submit reports to the manager. The employing establishment noted
that appellant’s new duty station would be located 12.7 miles from the location of his employment
injury site. It further noted that he would not be given the responsibility of closing up and exiting
the building alone, as the new duty station was staffed around the clock. The employing
establishment reported that the new duty station parking lot was secured by a locked gate and that
it could only be accessed with an authorized employee identification badge. Appellant declined
this position on June 12, 2017 citing that it included his regular job duties.
In a letter dated June 28, 2017, OWCP’s claims examiner expressed concerns regarding
the offered position to the employing establishment. She noted that the offered position was at
night and that appellant would be walking to his car alone. The claims examiner further noted that
she required a copy of appellant’s date-of-injury position to distinguish his date-of-injury duties
from the modified position duties. She queried whether appellant was performing supervisory
duties as he was monitoring other employees. The claims examiner also contacted the vocational
rehabilitation counselor via telephone and discussed these issues.
In a letter dated June 30, 2017, the employing establishment provided appellant’s date-ofinjury job description. It explained that in his offered modified-duty position, appellant would be
assigned a parking space near the front door and that after 5:00 p.m. he could move his vehicle to
the postmaster’s parking spot directly outside the front door. The employing establishment noted
that there was lighting around the facility and cameras at the door and each corner of the building
as well as a security booth manned 24 hours a day. In regard to appellant’s duties, it noted that
appellant would have no interaction with craft employees and that he would have no management
of employees, but instead his reviews of the employees’ work would be completed via computer
without actual personal contact.
In a telephone conference dated July 13, 2017, the employing establishment, the vocational
rehabilitation counselor, and appellant’s claims examiner discussed the issues of appellant’s duty
schedule and whether his duties included supervisory responsibilities. It agreed to include parking
specifications in the job offer as well as ascertaining whether security would be available to walk
appellant to his car. The vocational rehabilitation counselor distinguished the modified job from
appellant’s date-of-injury position as he was not interacting face-to-face with employees or with
the public. On August 3, 2017 the employing establishment confirmed that a guard would be
available to help appellant safely walk to his car.
On August 8, 2017 the employing establishment again offered appellant the position of
modified operations support specialist with the same duties and work hours. It noted that this
position was not offered at his previous duty station, that he would not be responsible for closing
the employing establishment, and that he would not be placed in a supervisory position or be
supervising employees. The employing establishment noted that after 5:00 p.m., when the
postmaster left, appellant could move his car and park right next to the door. At the end of
appellant’s workday, someone would stand at the exit door and watch him get in his car.
Furthermore, there were cameras on the side of the building facing the parking lot.
In a statement dated August 10, 2017, appellant indicated that he did not want to work
nights. On August 12, 2017 he declined this position noting that, after the March 31, 2015
employment injury, he was afraid to be out of his house after dark.

4

In a letter dated August 16, 2017, OWCP informed appellant that it considered the modified
operations support specialist position to be suitable based on the medical limitations provided by
Dr. Masters. It found he would not be performing supervisory duties and that the offered position
was at a different employing establishment location. OWCP further found appellant was not
responsible for closing the new duty station. It noted the arrangements for appellant to move his
car to near the entrance. OWCP afforded appellant 30 days to accept the offered positions or to
provide his reasons for refusal. It also explained the penalty provisions of 5 U.S.C. § 8106(c)(2).
On August 28, 2017 Dr. Joseph L. Godfrey, a Board-certified psychiatrist, diagnosed
adjustment disorder and depression. He found that appellant was totally disabled for two weeks
from that date.
In a letter dated September 21, 2017, OWCP reviewed the evidence submitted by appellant
and found that he had not offered a valid reason to refuse the offered position. It afforded him an
additional 15 days to accept and report to the modified-duty position. OWCP noted that, if
appellant did not accept and report to the position within 15 days, his entitlement to wage-loss and
schedule award compensation would be terminated.
Appellant submitted a letter dated September 12, 2017 in which he refused the offered
position as he was depressed and had anxiety problems. He provided a news article discussing the
shooting of a postal carrier on August 31, 2017 in Charlotte, North Carolina which resulted in
serious injuries. Appellant noted that mail carriers had been shot in Charlotte and that this caused
him anxiety.
Dr. Godfrey repeated his findings and conclusions on September 25, 2017 and continued
to support appellant’s disability for work.
By decision dated October 10, 2017, OWCP found that appellant had refused an offer of
suitable work and terminated his entitlement to wage-loss and schedule award compensation in
accordance with 5 U.S.C. § 8106(c)(2).
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification of
compensation benefits.4 After it has determined that an employee has disability causally related
to his or her federal employment, OWCP may not terminate compensation without establishing
that the disability has ceased or that it is no longer related to the employment.5 Section 8106(c) of
FECA6 provides that a partially disabled employee who refuses or neglects to work after suitable
work is offered to, procured by, or secured for the employee is not entitled to compensation.
Section 10.517 of the applicable regulations7 provides that an employee who refuses or neglects
to work after suitable work has been offered or secure for the employee, has the burden of showing
4

L.L., Docket No. 17-1247 (issued April 12, 2018); Mohamed Yunis, 42 ECAB 325, 334 (1991).

5

G.R., Docket No. 16-0455 (issued December 13, 2016).

6

5 U.S.C. § 8106(c)(2).

7

20 C.F.R. § 10.517(a).

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that such refusal or failure to work was reasonable or justified, and shall be provided with the
opportunity to make such showing before a determination is made with respect to termination of
entitlement to compensation. To justify termination of compensation, OWCP must establish that
the work offered was suitable and must inform appellant of the consequences of refusal to accept
such employment.8 Section 8106(c) will be narrowly construed as it serves as a penalty provision,
which may bar an employee’s entitlement to compensation based on a refusal to accept a suitable
offer of employment.9
According to OWCP’s procedure, a job offer must be in writing and contain a description
of the duties to be performed and the specific physical requirements of the position.10 OWCP
regulations provide factors to be considered in determining what constitutes suitable work for a
particular disabled employee, including the employee’s current physical limitations, whether the
work is available within the employee’s demonstrated commuting area, the employee’s
qualifications to perform such work, and other relevant factors.11 The issue of whether an
employee has the physical ability to perform a modified position offered by the employing
establishment is primarily a medical question that must be resolved by medical evidence. All
impairments, whether work related or not, must be considered in assessing the suitability of an
offered position.12 Section 10.517(a) of FECA’s implementing regulations provides that an
employee who refuses or neglects to work after suitable work has been offered or secured by the
employee has the burden of proof to show that such refusal or failure to work was reasonable or
justified.13 Pursuant to section 10.516, the employee shall be provided with the opportunity to
make such a showing before a determination is made with respect to termination of entitlement to
compensation.14
After termination or modification of benefits clearly warranted on the basis of the evidence,
the burden for reinstating compensation benefits shifts to appellant.15
ANALYSIS
The Board finds that OWCP did not meet its burden of proof to establish that the modified
operations support specialist position was suitable such that it could terminate appellant’s
entitlement to wage-loss and schedule award compensation, effective October 15, 2017 as he
refused an offer of suitable work under 5 U.S.C. § 8106(c)(2).

8

L.L., supra note 4; Arthur C. Reck, 47 ECAB 339, 341-42 (1995).

9

L.L., id.

10

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

11

L.L., id.; J.J., Docket No. 17-0410 (issued June 20, 2017); Rebecca L. Eckert, 54 ECAB 183 (2002).

12

Id.

13

L.L., supra note 4; Catherine G. Hammond, 41 ECAB 375, 385 (1990); 20 C.F.R. § 10.517(a).

14

Id. at § 10.516.

15
L.L., supra note 4; K.J., Docket No. 16-0846 (issued August 18, 2016); Talmadge Miller 47 ECAB 673,
679 (1996); see also George Servetas, 43 ECAB 424 (1992).

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In terminating appellant’s entitlement to wage-loss and schedule award compensation
under 5 U.S.C. § 8106(c), OWCP did not properly determine that the suitable work position was
within the restrictions provided by OWCP’s second opinion physician, Dr. Boyer.
OWCP referred appellant for a second opinion evaluation with Dr. Boyer and upon review
of her June 9, 2016 report, determined that this report required further clarification. The record
indicates that it prepared supplemental questions for Dr. Boyer, but the record does not document
that a letter was issued requesting a supplemental report. The Board finds that, once OWCP
undertook development of the evidence by referring appellant to a second opinion physician, it
had an obligation to obtain a sufficiently reasoned report as to whether appellant could return to
work and under what restrictions.16
Furthermore, appellant’s treating physician, Dr. Masters, provided work restrictions based
on appellant’s accepted condition of PTSD. Dr. Masters found that appellant’s PTSD was not
totally disabling and provided work restrictions on December 17, 2015 and April 20 and
November 25, 2016. These restrictions included that appellant should work the dayshift, that he
should not close his duty station alone or exit the building alone, that he should not perform
supervisory duties, and that he should not work at his date-of-injury location. Based on these
restrictions, on August 8, 2017 the employing establishment offered appellant the position of
modified operations support specialist.
The issue of whether a claimant is able to perform the duties of the offered employment
position is a medical one and must be resolved by probative medical evidence.17 While OWCP
found that Dr. Masters’ opinions contained sufficient medical rationale to support that appellant
could perform the duties contained in the offered position,18 which included working until 12:30
a.m., the Board finds her opinion is insufficient for OWCP to meet its burden of proof. Dr. Masters
opined on December 17, 2015 and April 20, 2016 that appellant should not work the night shift
and should work the dayshift. She noted that appellant should avoid the conditions under which
the March 31, 2015 employment injury occurred which were triggers to cause decompensation.
The position offered by the employing establishment included working until 12:30 a.m. While
OWCP and the employing establishment explored options to make this schedule more acceptable
for appellant, including parking close to the door and observed exiting of the building, there is no
medical evidence in the record establishing that these attempted curative measures would be
sufficient. OWCP did not secure a medical report from Dr. Masters that reviewed the job offer
and provided a reasoned opinion as to its suitability for appellant, considering all existing and
relevant conditions.19 The medical evidence of record, therefore, fails to establish that the offered
position was suitable.

16

W.L., Docket No. 17-1965 (issued September 12, 2018); G.C., Docket No. 16-1109 (issued December 7, 2016);
Walter A. Fundinger, Jr., 37 ECAB 200, 205 (1985) (OWCP had an obligation to properly develop the medical
evidence after referral to a second opinion physician).
17

F.B., Docket No. 17-0216 (issued February 13, 2018); Gayle Harris, 52 ECAB 319 (2001).

18

F.B., id.; Maurissa Mack, 50 ECAB 498 (1999).

19

S.Y., Docket No. 17-1032 (issued November 21, 2017).

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The Board has held that, for OWCP to meet its burden of proof in a suitable work
termination, the medical evidence should be clear and unequivocal that the claimant could perform
the offered position.20 As a penalty provision, section 8106(c)(2) of FECA must be narrowly
construed.21 Based on the evidence of record, the Board finds that OWCP improperly determined
that the modified position offered to appellant constituted suitable work within his established
limitations and capabilities. Consequently, OWCP did not meet its burden of proof to justify the
termination of his entitlement to wage-loss and schedule award compensation.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
entitlement to wage-loss and schedule award compensation, effective October 15, 2017, as he
refused an offer of suitable work under 5 U.S.C. § 8106(c)(2).
ORDER
IT IS HEREBY ORDERED THAT the October 10, 2017 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 7, 2018
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

20

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

21

Id.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.P., Appellant
and
U.S. POSTAL SERVICE, LOUISVILLE
PROCESSING & DISTRIBUTION CENTER,
Louisville, KY, Employer
__________________________________________

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

Docket No. 08-907
Issued: September 23, 2008

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 February 7, 2008 appellant filed a timely appeal from the November 28 and
December 31, 2007 merit decisions of the Office of Workers’ Compensation Programs that
denied his claim for wage-loss compensation from October 11 to December 7, 2006 from
August 13 to 16, 2007. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the claim.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he was totally
disabled for work from October 11 and December 7, 2006 and August 13 and 16, 2007, as a
result of his accepted employment-related condition.
FACTUAL HISTORY
On March 1, 2006 appellant, then a 49-year-old driver, filed a traumatic injury claim
stating that he sustained a lower back injury as well as bruised ribs on the right side in the

performance of duty on February 27, 2006. He stopped work on the same day and was released
to return to work on March 1, 2006. The employing establishment advised that he stepped into a
jacked-up trailer and felt immediate back pain. He sought medical treatment from the Veterans
Affairs Medical Center in Louisville and was diagnosed with a muscle strain. In a March 9,
2006 attending physician’s report, Dr. Matthew Marshbanks, a Board-certified internist,
diagnosed severe muscle strain on the right side of the lumbar spine. In a March 2, 2006 report,
Dr. W. Paul McKinney, a Board-certified internist, noted appellant’s history of acute onset back
pain while cranking a trailer at work. He diagnosed back pain due to severe muscle strain of
right lumbar musculature at work. The Office accepted appellant’s claim for sprain/strain of the
lumbar region and sprain/strain of the ribs, right side.
In a December 14, 2006 note, Dr. Marshbanks advised that appellant was under his care
on that day and was able to return to work the same day. In a December 15, 2006 report,
Dr. Albert Seow, a Board-certified diagnostic radiologist, noted performing a right hip
arthrogram. A December 16, 2006 magnetic resonance imaging (MRI) scan of appellant’s
lumbar spine noted degenerative disc disease at L3-4 and L4-5 with a right foraminal protrusion
at L4-5.
By correspondence dated January 5, 2007, appellant claimed a recurrence of disability for
which he stopped work on October 11, 2006 and returned to light duty on December 11, 2006.
In October 19, 2006 chart notes, Dr. Marshbanks noted that appellant complained of hip pain.
He noted that appellant’s examination and MRI scan were consistent with arthritis. In a
November 13, 2006 chart note, Jeff M. Thomas, a radiology technician, advised that appellant
underwent an arthrogram on that day. On November 30, 2006 Dr. Marshbanks advised that
appellant was capable of returning to light duty effective December 1, 2006. On December 6,
2006 Dr. Chadwick W. Hatfield, a resident, released appellant to light duty. Appellant submitted
chart notes not relevant to the claimed period of disability.
By correspondence dated January 23, 2007, the Office informed appellant that it had
received his recurrence of disability claim and noted that his original claim was still open for
medical treatment of his work-related injury.
On January 29, 2007 appellant claimed compensation for leave without pay and wage
loss from October 11 to December 7, 2006.
In a June 24, 2007 report, Dr. Marshbanks advised that appellant was treated for a back
injury which had occurred and was exacerbated at work and that he also had hip pain. An MRI
scan performed on October 13, 2006 revealed evidence of degenerative disease of the hip, while
an arthrogram conducted in December showed degenerative arthritis of the hip. Dr. Marshbanks
also noted that a December 15, 2006 MRI scan diagnosed degenerative disc disease at L3-4 and
L4-5 with mild foraminal narrowing. He advised that appellant had been restricted to light-duty
work. Appellant also provided a November 15, 2006 note from Dr. Scott A. Klein, an attending
orthopedic surgeon, who indicated that he had sustained a “twisting injury” to his right hip while
at work approximately three months prior. He noted examining appellant on November 15, 2006
and found tenderness in the right hip. Appellant also provided an October 19, 2006 chart note
from Dr. Marshbanks, which did not indicate whether the physician saw or treated appellant on
that day.

2

In a July 30, 2007 form note, Dr. Thomas Frazier, a resident specializing in internal
medicine, diagnosed severe degenerative disc disease and disc bulge at the L4-5 levels, with an
indefinite recovery time. In a duty status report of the same day, he noted pain and limited range
of motion of appellant’s spine and diagnosed degenerative disc disease.
On August 16, 2007 appellant filed a claim for compensation for the period August 13
and 16, 2007. He provided an August 13, 2007 note from Dr. Sarah H. Callahan, a Boardcertified radiologist, who explained that an unidentified procedure for which appellant was
scheduled that day had been postponed until August 15, 2007. Dr. Callahan requested that
appellant be excused from work through August 16, 2007.
By decision dated November 28, 2007, the Office denied appellant’s claim for wage-loss
compensation for the period August 13 to 16, 2007.
Subsequent to the Office’s November 28, 2007 decision, appellant submitted progress
notes and discharge notes from August 13, 14 and 16, 2007, signed by Lisa A. Evans, a licensed
practical nurse.
By decision dated December 31, 2007, the Office denied appellant’s claim for
compensation for the period October 11 through December 7, 2006.
LEGAL PRECEDENT
For each period of disability claimed, the employee has the burden of proving that he was
disabled for work as a result of the accepted employment injury.1 As used in the Federal
Employees’ Compensation Act, the term “disability” means incapacity, because of an
employment injury, to earn the wages that the employee was receiving at the time of injury.2
Disability is thus not synonymous with physical impairment, which may or may not result in
incapacity to earn wages.3 Whether a particular injury causes an employee to be disabled for
employment and the duration of that disability, are medical issues, which must be proved by a
preponderance of the reliable, probative and substantial medical evidence.4 The Board will not
require the Office to pay compensation in the absence of medical evidence directly addressing
the particular period of disability for which compensation is sought. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.5

1

William A. Archer, 55 ECAB 674 (2004).

2

Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.5(f).

3

See Fred Foster, 1 ECAB 21 (1947).

4

Fereidoon Kharabi, 52 ECAB 291 (2001); see also Edward H. Horton, 41 ECAB 301 (1989).

5

Sandra D. Pruitt, 57 ECAB 126, 129 (2005); William A. Archer, supra note 1; Fereidoon Kharabi, id.

3

ANALYSIS
The Board finds that appellant did not meet his burden of proof in establishing that he
was disabled from October 11 through December 7, 2006 due to his accepted employment
injury. The Office accepted that appellant sustained a lumbar sprain/strain and a sprain/strain of
the ribs in the performance of duty on February 27, 2006. He was released to return to work on
March 1, 2006. Appellant stopped working again on October 11, 2006 and returned to light duty
on December 11, 2006.
Appellant provided insufficient medical evidence to support his claim of disability from
October 11 through December 7, 2006. He submitted November 30 and December 14, 2006
chart notes from Dr. Marshbanks, who indicated that appellant was able to return to light-duty
work effective December 1, 2006. However, Dr. Marshbanks did not address why appellant
became disabled for work during the period claimed. Appellant also submitted a December 6,
2006 chart note from Dr. Hatfield, who indicated that appellant was capable of performing
light-duty work at that time. However, Dr. Hatfield did not address the causation of appellant’s
claimed disability for work during the period at issue. The Board has held that a medical report
which does not address causation is not a basis for payment of compensation.6 Appellant did not
submit any other medical reports addressing his disability for work during the period October 11
to December 7, 2006. The reports of Dr. Marshbanks and Dr. Hatfield are not sufficient to
establish that appellant was disabled during the entire period from October 11 to December 7,
2006 as a result of his February 27, 2006 work-related injury. The, other medical records
provided by appellant do not contain a physician’s opinion supporting that his accepted condition
caused any disability for the claimed period. The Board finds that appellant has not met his
burden of proof in establishing that he was entitled to compensation for disability during the
period claimed.
Appellant also claimed compensation for disability from August 13 to 16, 2007. In
support of his claim, he submitted an August 13, 2007 note from Dr. Callahan, who merely
advised that appellant had been scheduled to undergo a procedure on that day, which was
postponed to August 15, 2007. Dr. Callahan requested that appellant be excused from work
through August 16, 2007. However, she did not identify the procedure for which appellant was
scheduled or explain how it was related to his February 27, 2006 employment injury.
Dr. Callahan did not address why appellant was required to remain off work when the
unidentified procedure was postponed. Appellant submitted no other medical evidence
addressing his claimed disability for work from August 13 to 16, 2007.7 The Board finds that

6

See A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 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).
7

Appellant also provided notes signed by a nurse. However, nurses are not physicians under the Act and are not
competent to render a medical opinion. G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007). See
5 U.S.C. § 8101(2) (defines the term “physician”).

4

appellant has not submitted sufficient evidence to establish that he was entitled to compensation
for disability during the period August 13 to 16, 2007, due to his accepted work-related injury.8
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he was
entitled to compensation for total disability during the periods October 11 to December 7, 2006
and August 13 to 16, 2007, due to his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the November 28 and December 31, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 23, 2008
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

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Subsequent to the Office’s November 28, 2007 decision denying appellant’s claim for compensation for the
period August 13 to 16, 2007, appellant submitted additional medical evidence. The Board, however, notes that it
cannot consider this evidence for the first time on appeal because the Office did not consider this evidence in
reaching its final decision. The Board’s review is limited to the evidence in the case record at the time the Office
made its final decision. 20 C.F.R. § 501.2(c).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DELIVERY FACILITY, Huntington, WV,
Employer
__________________________________________

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

Docket No. 10-1000
Issued: January 24, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 1, 2010 appellant, through his attorney, filed a timely appeal from the
January 12, 2010 merit decision of the Office of Workers’ Compensation Programs, which
denied his claim for an increased schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant had more than two percent impairment of his left lower
extremity for which he received a schedule award.
On appeal, appellant’s attorney contends that the Office’s decision is contrary to fact and
law.
FACTUAL HISTORY
On March 26, 2001 appellant, then a 53-year-old electronic technician, filed a traumatic
injury claim alleging that on that date when he squatted down to inspect a machine and when he

stood up, he felt a slight pop in his left knee. On February 15, 2006 the Office formally accepted
his claim for sprain of knee, medial collateral ligament, left; and tear of the medial meniscus of
knee, current. Appellant filed a claim for recurrence on January 30, 2006. On June 12, 2006
Dr. Jack R. Steel, a Board-certified orthopedic surgeon, the Office authorized an arthroscopic,
partial, left medial meniscectomy.
On July 17, 2007 appellant filed a claim for a schedule award.
In a report dated March 3, 2008, Dr. Thomas F. Scott, a Board-certified orthopedic
surgeon, concluded that based on the fifth edition of the America Medical Association, Guides to
the Evaluation of Permanent Impairment (2001), Table 17-33, appellant had 22 percent
impairment of the affected lower extremity. By memorandum dated April 2, 2008, the Office
asked the Office medical examiner to review Dr. Scott’s opinion and determine whether the
A.M.A., Guides were properly applied and determine appellant’s permanent impairment.
On April 4, 2008 the Office medical adviser noted that Dr. Scott did not explain how he
arrived at 22 percent impairment. The Office medical adviser noted that pursuant to the A.M.A.,
Guides (fifth edition), Table 17-33, appellant is entitled to two percent impairment of the left
lower extremity secondary to undergoing a partial medial meniscectomy, but noted that no other
ratable deficits were noted.
In a June 9, 2008 report, Dr. Scott indicated that pursuant to the fifth edition of the
A.M.A., Guide, Table 17-33, an impairment rating of seven percent of the lower extremity is
awarded for a total meniscectomy medial and lateral and that, accordingly, appellant had a seven
percent impairment of the involved extremity.
On July 8, 2008 the Office asked the Office medical adviser to comment on Dr. Scott’s
addendum to his report. In a reply of the same date, the Office medical adviser noted that
Dr. Scott utilized figures for total medical meniscectomy whereas appellant had a partial medial
meniscectomy. The Office medical adviser reiterated that appellant was entitled to two percent
impairment of the left lower extremity based upon undergoing a partial medial meniscectomy.
By decision dated September 30, 2008, the Office issued a schedule award for two
percent impairment of the left lower extremity.
On October 25, 2008 appellant, through her attorney, requested a telephonic hearing
which was held on February 10, 2009.
On January 9, 2009 appellant submitted a medical report by Dr. Nancy Renneker, a
Board-certified physiatrist, who opined that appellant was entitled to 27 percent impairment of
the left lower extremity based on the fifth edition of the A.M.A., Guides. Dr. Renneker noted
that in addition to 2 percent impairment for status post left knee partial medial meniscectomy, a
five degree left knee flexion contracture represented an additional 10 percent left lower extremity
impairment, that palpable and audible creptitus on the active left knee range of motion
represented an additional 5 percent left lower extremity impairment and a 4/5 left knee extensor
strength represented an additional 12 percent left lower extremity impairment. Combining these
figures, she opined that appellant had 27 percent left lower extremity impairment.

2

By decision dated May 7, 2009, the hearing representative set aside the Office’s
September 30, 2008 decision, noting that appellant has now presented evidence showing strength
loss and impaired motion and that to render a definitive determination on appellant’s degree of
impairment, the Office should refer appellant to a Board-certified specialist for a second opinion
assessment, followed by the issuance of a de novo decision.
On remand, the Office referred appellant to Dr. E. Gregory Fisher, a Board-certified
orthopedic surgeon for a second opinion. By report dated July 24, 2009, Dr. Fisher noted that on
review of the medical record and on examination, the sprain of the medial collateral ligament of
the left knee had healed and resolved with no residuals. He noted no instability or laxity of the
medial collateral ligament and no pain, tenderness or discomfort. Using the criteria found in the
A.M.A., Guides (sixith edition, 2009) 510, Table 16-3, appellant would fit a class 0 because of
no significant objective findings noted on examination. Therefore, Dr. Fisher concluded, she had
zero percent lower extremity impairment based on the medial collateral ligament sprain/strain.
For tear of the medial meniscus of the left knee, he noted that appellant had a partial medial
meniscectomy performed three years ago with residual intermittent discomfort over the left knee
area with no muscle atrophy or muscle weakness over the left thigh muscles. Dr. Fisher noted
she had adequate range of motion of the left knee, but did note instability or effusion. He noted
that x-rays taken two years ago revealed a normal knee except for some mid narrowing between
the patellofemoral joint and that the magnetic resonance imaging (MRI) scan in 2006 revealed
the tear of the medial meniscus with no other pathology. Dr. Fisher concluded that this
information pursuant to the A.M.A., Guides 509, Table 16-3 would fit a class 1. He then
addressed the modifiers. Using the A.M.A., Guides, Chapter 16, Table 16-6 for functional
history adjustment, Dr. Fisher indicated that appellant would have a grade modifier of 0 because
appellant does not have a gait derangement and does not use any orthotics or external support for
ambulation. Using Chapter 16, Table 16-7 (page 517) for physical examination, he found a
grade modifier of 1 because of the range of motion was from 0 to 115 degrees with some
discomfort over the medial joint margin of the left knee. Using Chapter 16, Table 16-8 for
clinical study adjustment, Dr. Fisher found that appellant had a positive MRI scan for tear of the
medial meniscus only and that recent x-rays showed only mild narrowing of the joint space of
the patellofemoral joint which fit a grade modifier of 1. Using this information, he gave her a
minus 2 adjustment and a Grade A which equated to a one percent lower extremity impairment.
Dr. Fisher noted that using the Combined Values Chart of zero percent and one percent gave
appellant a total of one percent impairment to the lower extremity for all of the allowed
conditions stemming from the injury of March 26, 2001.
By memorandum dated August 5, 2009, the Office asked the Office medical adviser to
review Dr. Fisher’s report and indicate whether the sixth edition of the A.M.A., Guides were
properly applied.
In an August 12, 2009 report, the Office medical adviser applied the sixth edition of the
A.M.A., Guides and determined that appellant had one percent impairment of the left lower
extremity as a result of his accepted employment injury. Although he did not agree with all of
Dr. Fisher’s reasoning, he concluded that the final rating was proper. The Office medical adviser
noted that it was error for Dr. Fisher to combine diagnoses. He noted that appellant’s most
impairing diagnosis was meniscal injury status post partial medial meniscectomy. The Office
medical adviser stated that pursuant to the A.M.A., Guides 509-11, Table 16-3, the fact that

3

appellant underwent a partial medial meniscectomy for meniscal injury places him in Class 1 as
a result of the diagnosis with a default Grade C equal to two percent of lower extremity
impairment. With regards to functional history grade modifier, the Office medical adviser,
utilizing the A.M.A., Guides, Table 16-6, page 516, chose a grade modifier of 1, which he noted
was in agreement with that of the rating doctor. He noted that appellant was having ongoing
symptoms, but did not have a gait derangement and does not use any orthotics or external
support for ambulation. In determining the physical examination grade modifiers, the Office
medical adviser utilized Table 16-7, page 517 of the A.M.A., Guides and noted that he was in
disagreement with the rating doctor. He noted that while Dr. Fisher indicated decreased range of
motion, he did not perform range of motion measurements in compliance with section 16.7,
located on page 543. The Office medical adviser further noted that Dr. Fisher, did not document
palpation and findings on pain. Accordingly, he concluded that appellant was not eligible for a
rating under palpatory and observed findings and further noted that there were no other objective
physical examination findings identified. With regards to the clinical studies grade modifier, the
Office medical adviser, utilizing the A.M.A., Guides, page 519, Table 16-8, found a grade
modifier of 0. He noted his disagreement with that of the rating doctor. The Office medical
adviser noted that Dr. Fisher referred to mild narrowing of the joint space of the patellofemoral
joint and assigned a grade modifier of 1, but the Office medical adviser found this had no
relationship to meniscal surgery. He assigned a grade modifier of 1. The Office medical adviser
also noted no other diagnostic tests specific to meniscal injury and, thus concluded that the final
grade modifier equaled zero.1 Using the net adjustment formula, he determined that the grade
modifiers indicated that the net adjustment should be two grades to the left of Grade C (the
default grade). The Office medical adviser finding the final grade for appellant was zero,
concluded that appellant had one percent left lower permanent extremity impairment.
By decision dated September 3, 2009, the Office found that appellant was not entitled to
a greater schedule award. It based this conclusion on Dr. Fisher’s report that appellant had one
percent impairment of the left lower extremity and the fact that the Office had previously issued
a schedule award for two percent impairment of the left lower extremity.
On September 9, 2009 appellant, through his attorney, filed a request for a telephonic
hearing. At the hearing held on November 30, 2009 appellant testified that Dr. Fisher’s
examination was cursory and that he spent most of the time reviewing the file.
By decision dated January 12, 2010, the hearing representative affirmed the September 3,
2009 decision.
LEGAL PRECEDENT
The schedule award provisions of the Federal Employees’ Compensation Act2 provide
compensation to employees sustaining impairment from loss or loss of use of specified member
of the body. The Act, however, does not specify the manner in which the percentage loss of a
1

The Office mistakenly stated that appellant had received a schedule award based on two percent impairment of
the right lower extremity, whereas his injury was to his left lower extremity.
2

5 U.S.C. §§ 8101-8193.

4

member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized 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 Office as a standard for
evaluation of schedule losses and the Board has concurred in such adoption.3 Effective May 1,
2009 the Office began using the sixth edition of the A.M.A., Guides to calculate schedule
awards.4
In addressing lower extremity impairments, the sixth edition identifying the impairment
class for the diagnosed condition (CDX), which is then adjusted by grade modifiers based on
functional history (GMFH), physical examination (GMPE) and clinical studies (GMCS).5 The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).6
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through the Office medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the Office medical
adviser providing rationale for the percentage of impairment specified.7
ANALYSIS
The Board finds that the Office properly determined that appellant was not entitled to
greater than two percent impairment of the left lower extremity, for which he received a schedule
award.
The Office accepted appellant’s claim for sprain of knee, medial collateral ligament, left;
and tear of the medial meniscus of knee, current. On September 30, 2008 it issued a schedule
award based on two percent impairment of the lower extremity; an impairment that was based on
calculations made under the fifth edition of the A.M.A., Guides. Subsequently, appellant
submitted a medical report by Dr. Renneker which showed strength loss and impaired motion,
and in a decision dated May 7, 2009, the hearing representative determined that as a result of this
new evidence, the Office should refer appellant for a second opinion examination. The Office
referred appellant to Dr. Fisher for an evaluation. Dr. Fisher utilized the sixth edition of the
A.M.A., Guides in evaluating appellant’s permanent impairment. In a report dated July 24,
2009, he found that appellant had one percent impairment of his left lower extremity. The Office
referred this report to the Office medical adviser who in a report dated August 12, 2009, agreed
with Dr. Fisher that appellant had one percent impairment of the left lower extremity, but
3

Bernard A. Babcock, Jr., 542 ECAB 143 (2000).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims.
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
5

A.M.A., Guides (6th ed., 2009) at 494-531, see J.B., 61 ECAB __ (Docket No. 09-2191, issued May 14, 2010).

6

Id. at 521.

7

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

5

differed with Dr. Fisher as to the appropriate methodology for achieving this result. The Office
medical adviser disputed Dr. Fisher’s combining of impairment ratings for meniscal injury and
collateral ligament sprain, noting that the sixth edition of the A.M.A., Guides indicates that only
the most impairing diagnoses in the knee region may be rated. The A.M.A., Guides state that in
most cases, only one diagnosis in a region will be appropriate, and that if a patient has two
significant diagnoses, the examiner should use the diagnosis with the highest impairment rating
in that region that is causally related for the impairment calculation.8
The Board finds that the Office medical adviser properly determined that appellant’s
most impairing diagnosis was meniscal injury status post partial medical meniscectomy, and that
pursuant to Table 16-3 of the A.M.A., Guides, the fact that appellant underwent a partial medial
menisectomy for meniscal injury placed him in a Class 1 with a default Grade C equal to two
percent impairment of lower extremity impairment.9 With regards to grade modifiers, the Office
medical adviser found a grade modifier of 1 with regards to functional history, as appellant was
having ongoing symptoms but did not have gait derangement and did not use any orthotics or
external support for ambulation.10 He found a Grade 0 for physical examination modifiers,11
correctly noting that Dr. Fisher did not perform testing that would support his finding of a higher
modifier. The Office medical adviser then found a grade modifier of 0 for clinical studies.12 He
noted that although Dr. Fisher found a grade modifier of 1 for clinical studies, the mild
narrowing of joint space of the patellofemoral joint shown by x-rays bore no relationship to the
meniscal surgery. Using the net adjustment formula, the Office medical adviser properly
determined that the net adjustment should be two grades to the left of Grade C (the default
grade), or a Grade A. He correctly determined that this would indicate that appellant had one
percent impairment to his left lower extremity.13 The Office medical adviser properly explained
his calculations under the sixth edition of the A.M.A, Guides and why the attending physician
misapplied the A.M.A., Guides. There is no probative medical evidence of record that appellant
had a greater impairment. Accordingly, appellant has not established entitlement to greater than
two percent impairment of the left lower extremity, for which he received a schedule award.
CONCLUSION
The Board finds that appellant has not established that he has more than two percent
impairment of his left lower extremity for which he received a schedule award.

8

A.M.A., Guides (6th ed., 2009) at 497.

9

Id. at 509, 521.

10

Id. at 516, Table 16-6.

11

Id. at 517, Table 16-7.

12

Id. at 519, Table 16-8.

13

Id. at 509.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 12, 2010 is affirmed.
Issued: January 24, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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