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

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

Docket No. 06-1095
Issued: April 5, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 10, 2006 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated March 22, 2006 which denied her claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained a new injury to her left leg on February 16, 1999; and (2) whether her sexual
dysfunction was causally related to her December 2, 1997 employment injury and, if so, would
she then be entitled to a schedule award.

FACTUAL HISTORY
This case has been before the Board on prior occasions.1 By decision dated July 27,
2000, the Board set aside a January 26, 1999 Office decision and remanded the case to the Office
to determine the rate of pay for compensation purposes.2 On August 3, 2000 appellant filed a
schedule award claim and on August 20, 2001 was granted an award for a 43 percent permanent
loss of use of the left lower extremity. On August 21, 2001 she requested a review of the written
record and argued that she was entitled to receive wage-loss compensation and concurrent
schedule award compensation because she sustained a new injury on February 16, 1999 when
she developed foot drop. By decision dated March 15, 2002, an Office hearing representative
affirmed the schedule award decision and interrupted appellant’s temporary total disability for
the term of the schedule award. On March 28 and April 3, 2002 appellant filed requests for
reconsideration. On June 13, 2002 the Board dismissed her appeal at her request3 and by
decision dated August 8, 2002 the Office denied her reconsideration request. By letter dated
August 16, 2002, appellant claimed that her sexual dysfunction should be covered by her
schedule award claim and on August 14 and 18, 2002 requested reconsideration. In a decision
dated April 11, 2003, the Office denied her reconsideration request. Appellant then filed an
appeal with the Board and, by order dated October 14, 2004, the Board granted the Director’s
motion to remand and cancelled a schedule oral argument. The Director acknowledged that the
Office precluded appellant from a merit review of the schedule award due to inordinate delays
and requested that the case be remanded to the Office to conduct a merit review.4 The law and
facts of the previous Board decisions and orders are incorporated herein by reference.
Subsequent to the Board’s October 14, 2004 order, in a January 6, 2005 decision, the
Office found that appellant had not sustained a new leg injury on February 16, 1999 which
would entitle her to concurrent compensation and that her sexual dysfunction was not caused by
the employment injury. On July 8, 2005 appellant filed an appeal with the Board and, by order
dated January 3, 2006, the Board remanded the case to the Office for reconstruction of the
record, to be followed by an appropriate decision.5 On March 22, 2006 the Office reissued the
January 6, 2005 decision.
The medical evidence relevant to the issue of whether appellant sustained a new injury to
her left leg on February 16, 1999 includes an operative report dated February 16, 1999 in which
1

On December 2, 1997 appellant, then a 47-year-old post master, sustained an employment-related lumbar strain
and herniated disc at L5-6 for which she underwent surgery on June 25, 1998. She had a history of nonwork-related
back surgery in 1988 and underwent an intestinal bypass procedure in 1999. Except for three days in
November 1998, appellant has not worked since February 28, 1998. She underwent a second surgical procedure on
February 16, 1999.
2

Docket No. 99-1590 (issued July 27, 2000). By decision dated August 15, 2000, affirmed by an Office hearing
representative on December 19, 2000, the Office determined that the proper rate of pay was $699.58, the date
disability began. Appellant did not file an appeal of this decision with the Board.
3

Docket No. 02-1258 (issued June 13, 2002).

4

Docket No. 03-1460 (issued October 14, 2004).

5

Docket No. 05-1554 (issued January 3, 2006).

2

Dr. Reginald Q. Knight, a Board-certified orthopedic surgeon, advised that he performed
redecompression laminectomy at L4-5. In treatment notes dated March 15 and 19, 1999,
Dr. Knight advised that appellant had some symptoms of L5-S1 paresthesia which could be
associated with manipulation of the nerve at surgery and on April 30, 1999 reported that she had
complaints consistent with early sympathetic dystrophy. In an August 27, 1999 report,
Dr. Keith V. Anderson, Board-certified in orthopedic surgery, noted appellant’s complaints of
left lower extremity L5 weakness and that she reported bowel, bladder and sexual difficulties.
He diagnosed failed back syndrome with anxiety overlay. In a December 29, 1999 consultation
report, Dr. Steven Tung, a Board-certified anesthesiologist, noted appellant’s complaints of
chronic low back and leg pain. He diagnosed lumbar radiculopathy, L5, left, status post
decompressive laminectomy times three.
By report dated May 16, 2000, Dr. Gregory T. Carter, a Board-certified physiatrist,
advised that appellant had obvious left foot drop. In reports dated November 16 and 29, 2000,
Dr. Carter, who performed an impairment rating, advised that, following three surgical
procedures, appellant was left with chronic L4-5 radiculopathy and foot drop with objectively
documented atrophy and significant motor loss. In numerous treatment notes and reports dating
from September 22, 1998 to February 23, 2000, Dr. Michael W. Strohbach, Board-certified in
family medicine, noted diagnoses including sympathetic dystrophy and treatment for appellant’s
back and leg conditions and chronic pain.
The evidence relevant to appellant’s claim for sexual dysfunction includes an intake form
prepared by appellant for a second opinion evaluation with Dr. Ron Brockman, an osteopath
practicing orthopedics. In that form, appellant alleged that she could not have sex due to pain.
In his report dated January 13, 1999, Dr. Brockman diagnosed degenerative changes in the
lumbar spine, aggravated by the employment injury. In his report dated August 27, 1999,
Dr. Anderson noted appellant’s complaint of sexual difficulties. Dr. Carter advised in
November 2000 that, while appellant complained of bladder and bowel dysfunction, she had no
electromyographic (EMG) evidence of bladder or bowel dysfunction or evidence of cauda equina
syndrome.6
LEGAL PRECEDENT -- ISSUE 1
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, Larson notes that, when the question is whether compensability
should be extended to a subsequent injury or aggravation related in some way to the primary
injury, the rules that come into play are essentially based upon the concepts of direct and natural
results and of claimant’s own conduct as an independent intervening cause. The basic rule is that
a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury.7 The Board
has defined “the same injury” as used in the above section to include an injury which is suffered
6

Cauda equina syndrome is defined as a dull aching pain of the perineum, bladder and sacrum, generally
radiating in a sciatic fashion, with associated paresthesias and a reflexic paralysis, due to compression of the spinal
nerve root. Dorland’s Illustrated Medical Dictionary, 29th edition (2000).
7

Larson, The Law of Workers’ Compensation § 1300; see Charles W. Downey, 54 ECAB 421 (2003).

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as a consequential effect of a primary employment-related injury,8 finding that a consequential
injury “does not constitute a new, separate, or independent injury.”9
Section 8116(a) of the Federal Employees’ Compensation Act10 provides that an
employee who receives continuing compensation or has been paid a lump sum in commutation
of installment payments until the expiration of the period during which the installment payments
would have continued, may not receive salary, pay or remuneration of any type from the United
States,11 and it is a well-established principle that a claimant is not entitled to dual workers’
compensation benefits for the same injury.12 With respect to benefits under the Act, the Board
has held that an employee cannot concurrently receive compensation under a schedule award and
compensation for disability for work.13
ANALYSIS -- ISSUE 1
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained a new left lower extremity injury on January 16, 1999 such that she would be entitled
to a schedule award compensation concurrently with wage-loss compensation. The only medical
report that discusses the cause of this condition are the treatment notes dated March 15 and 19,
1999 in which Dr. Knight, who performed the surgery, advised that appellant had some
symptoms of L5-S1 paresthesia which could be associated with manipulation of the nerve at
surgery and on April 30, 1999 reported that she had complaints consistent with early sympathetic
dystrophy. Other medical reports from Drs. Anderson, Tung, Carter and Strohbach note her left
lower extremity condition, but none of these physicians provided an opinion regarding its cause,
and medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.14
The medical record supports that appellant developed left foot drop after the surgical
procedure she had on January 16, 1999. It would thus be a consequential injury, not a new
injury, and appellant received an appropriate schedule award for a 43 percent left lower
extremity impairment on August 20, 2001. The Board therefore finds that appellant would not
be entitled to receive schedule award compensation concurrently with wage-loss compensation.15

8

Ruey J. Yu, 49 ECAB 256 (1997).

9

Id.

10

5 U.S.C. §§ 8101-8193.

11

5 U.S.C. § 8116(a); see also 20 C.F.R. § 10.400(b); Dale Mackelprang, 55 ECAB 174 (2003).

12

James A. Earle, 51 ECAB 567, 568 (2000).

13

Id.

14

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

15

James A. Earle, supra note 12.

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LEGAL PRECEDENT -- ISSUE 2
Under section 8107 of the Act16 and section 10.404 of the implementing federal
regulations,17 schedule awards are payable for permanent impairment of specified body
members, functions or organs. No schedule award is payable for a member, function or organ of
the body that is not specified in the Act or in the implementing regulations. The Act identifies
members as the arm, leg, hand, foot, thumb and finger; functions as loss of hearing and loss of
vision; and organs to include the eye. Section 8107(c)(22) of the Act provides for the payment of
compensation for permanent loss of “any other important external or internal organ of the body as
determined by the Secretary of Labor.”18 The Secretary of Labor has made such a determination
and, pursuant to the authority granted in section 8107(c)(22), added the breast, kidney, larynx,
lung, penis, testicle, ovary, uterus and tongue to the schedule.19 It is the claimant’s burden of
establishing that he or she sustained a permanent impairment of a scheduled member or function
as a result of an employment injury.20
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.21 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.22 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.23

16

5 U.S.C. § 8107.

17

20 C.F.R. § 10.404.

18

5 U.S.C. § 8107(c)(22).

19

5 U.S.C. § 10.404(a); see Paul A. Zoltek, 56 ECAB ___ (Docket No. 04-2185, issued February 9, 2005). The
Act, however, does not specify the manner in which the percentage of impairment shall be determined. For
consistent results and to ensure equal justice under the law for 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
American Medical Association, Guides to the Evaluation of Permanent Impairment has been adopted by the Office,
and the Board has concurred in such adoption, as an appropriate standard for evaluating schedule losses.
20

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

21

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

22

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

23

Dennis M. Mascarenas, 49 ECAB 215 (1997).

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ANALYSIS -- ISSUE 2
The Board finds that the medical evidence does not support that the claimed sexual
dysfunction condition was caused by or was a consequence of the accepted lumbar strain and
herniated disc at L5-6. The only medical evidence that mentions the claimed condition are the
reports of Dr. Brockman and Dr. Anderson who merely noted appellant’s report that she could
not have sex due to pain. The physicians’ reports, however, do not contain a reasoned medical
opinion regarding the cause of appellant’s reported condition, and medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on
the issue of causal relationship.24 The Board will not require the Office to pay compensation for
disability in the absence of any medical evidence directly addressing the particular period of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.25 Moreover, even had appellant
establish that any sexual dysfunction was employment related, she would not be entitled to a
schedule award because this condition is not a scheduled member. For example, she has not
established that she sustained loss to a scheduled member such as to her uterus or ovary.26
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a new injury to her left leg on February 16, 1999 or that any sexual dysfunction was
causally related to her December 2, 1997 employment injury.

24

Willie M. Miller, supra note 14.

25

Fereidoon Kharabi, 52 ECAB 291 (2001).

26

20 C.F.R. § 10.404(a); compare Marilyn S. Freeland, 57 ECAB ___ (Docket No. 06-563, issued June 7, 2006).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 22, 2006 be affirmed.
Issued: April 5, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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Appearances:
Joyce Fuller, for the appellant
Office of Solicitor, for the Director

Docket No. 12-1749
Issued: February 5, 2013

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 August 16, 2012 appellant, through his representative, filed a timely appeal of a
June 21, 2012 decision of the Office of Workers’ Compensation Programs (OWCP), finding that
appellant’s request for reconsideration was untimely and failed to show clear evidence of error.
Pursuant to 20 C.F.R. § 501.3, the Board has jurisdiction over the June 21, 2012 decision. The
Board does not have jurisdiction over a decision on the merits of the claim.1
ISSUE
The issue is whether OWCP properly found appellant’s application for reconsideration
was untimely and failed to show clear evidence of error.

1

The last merit decision was an OWCP decision dated April 22, 2002. The Board has jurisdiction over final
decisions of OWCP. See 20 C.F.R. § 501.2(c). For OWCP decisions issued prior to November 19, 2008, a claimant
had one year to file an appeal. An appeal of OWCP decisions issued on or after November 19, 2008 must be filed
within 180 days of the decision. 20 C.F.R. § 501.3(e) (2008).

FACTUAL HISTORY
The case has been before the Board on prior appeals. Appellant filed a traumatic injury
claim alleging that he sustained shoulder, clavicle strain and right rotator cuff injury on
August 9, 2000 when a coworker tapped him on the shoulder, causing him to “go to his knees.”2
By merit decisions dated November 22, 2000 and April 22, 2002, OWCP denied the claim on the
grounds that the medical evidence did not establish that the diagnosed conditions were causally
related to the alleged incident.
By decision dated December 21, 2005, the Board affirmed an August 27, 2004 OWCP
decision finding that appellant’s request for reconsideration was untimely filed and failed to
show clear evidence of error.3 In a decision dated August 17, 2007, the Board dismissed his
appeal as there was no final decision issued within one year of the filing of the appeal.4 By
decision dated June 20, 2008, the Board affirmed an October 12, 2007 OWCP decision, finding
that appellant’s application for reconsideration was untimely and showed no clear evidence of
error.5 In a decision dated December 17, 2009, the Board affirmed a February 13, 2009 OWCP
decision, finding his application for reconsideration as untimely and failed to show clear
evidence of error.6 In a decision dated August 16, 2011, the Board affirmed an August 3, 2010
OWCP decision, finding appellant’s application for reconsideration was untimely and failed to
show clear evidence of error.7 The history of the case as contained in the Board’s prior decisions
and orders is incorporated herein by reference.
In a letter dated March 28, 2012 and received by OWCP on April 3, 2012, appellant
requested reconsideration. Appellant reiterated his argument that there was no new injury on
August 9, 2000 and that OWCP failed to consider evidence. He submitted an employing
establishment “authorization for medical report” dated May 23, 2000.
Appellant did not submit other evidence with the application for reconsideration. The
Board notes that OWCP’s file for the September 18, 1991 claim contains reports from
Dr. Andrew Kant, an orthopedic surgeon, regarding neck, shoulder and elbow pain. Dr. Kant did
not discuss an August 9, 2000 injury.

2

The record indicates that appellant also had a May 3, 2000 claim accepted for right shoulder strain and a
September 18, 1991 claim accepted for left elbow lateral epicondylitis, left shoulder adhesive capsulitis, left brachial
plexus lesions, left other tenosynovitis hand/wrist, right sprain/strain shoulder and upper arm, right
acromioclavicular sprain/strain. The September 18, 1991 claim has been designated as a master file for both the
May 3, 2000 claim and the August 9, 2000 claim on appeal.
3

Docket No. 04-2283 (issued December 21, 2005).

4

Docket No. 07-978 (issued August 17, 2007).

5

Docket No. 08-271 (issued June 20, 2008).

6

Docket No. 09-1027 (issued December 17, 2009).

7

Docket No. 10-2378 (issued August 16, 2011). By order dated February 23, 2012, the Board denied appellant’s
petition for reconsideration.

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By decision dated June 21, 2012, OWCP found the application for reconsideration
untimely. It denied merit review on the ground that appellant’s application for reconsideration
did not show clear evidence of error.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act (FECA) provides that OWCP may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision.8 The employee shall exercise this right through a request to
the district office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”9
According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP
decision as a matter of right.10 This section vests OWCP with discretionary authority to
determine whether it will review an award for or against compensation.11 It, through regulations,
has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a) of
FECA.12 As one such limitation, 20 C.F.R. § 10.607 provides that an application for
reconsideration must be sent within one year of the date of OWCP’s decision for which review is
sought. OWCP will consider an untimely application only if the application demonstrates clear
evidence of error on the part of OWCP in its most recent merit decision. The evidence must be
positive, precise and explicit and must manifest on its face that OWCP committed an error.13
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.14 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
establish clear evidence of error.15 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.16 The Board makes an independent

8

5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.605 (1999).

10

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

11

Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”
12

5 U.S.C. §§ 8101-8193.

13

D.O., Docket No. 08-1057 (issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005).

14

Annie L. Billingsley, 50 ECAB 210 (1998).

15

Jimmy L. Day, 48 ECAB 652 (1997).

16

Id.

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determination as to whether a claimant has submitted clear evidence of error on the part of
OWCP.17
ANALYSIS
The case has been before the Board on several prior appeals. The last decision on the
merits of the claim for an injury on August 9, 2000 was dated April 22, 2002. The application
for reconsideration was dated March 28, 2012, which is more than one year after April 22, 2002
and is properly found to be untimely.
Appellant argued that there was clear evidence of error in the April 22, 2002 decision,
stating that there was no new injury on August 9, 2000 and he sustained a recurrence of
disability. The Board addressed this argument in both the December 21, 2005 and August 16,
2011 decisions, finding that if there is a new employment incident then the claim is properly
considered a claim for a new injury. The March 28, 2012 application for reconsideration also
reiterated appellant’s argument that there is relevant evidence not previously considered. But
appellant did not identify any specific relevant evidence that establishes clear evidence of error.
He referred to an August 15, 2000 attending physician’s report from, general practitioner,
Dr. John Trowbridge as “not in the record.” A review of the record indicates that this report was
before OWCP at the time of the April 22, 2002 decision. Dr. Trowbridge provided diagnoses
that included acute rotator cuff sprain right shoulder and checked a box “yes” that the diagnoses
were causally related to the employment incident. The checking of a box “yes” is of little
probative value in establishing causal relationship between a diagnosed condition and an
employment incident.18
The evidence necessary to establish clear evidence of error, must be sufficient to shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision. Appellant enumerated the evidence of record but did not
identify any evidence that was of such probative value that it shifted the weight of the evidence
in favor of appellant. The “authorization for medical report” form submitted is a form
authorizing any medical provider to furnish information to the employing establishment. It does
not provide any probative medical evidence on the issue presented.
On appeal, appellant’s representative again asserts that there was clear evidence of error
by OWCP. She reviews the history of the case and requests that the Board restore appellant’s
benefits. The only issue in the case is whether appellant has established clear evidence of error
in the denial of the claim for injury on August 9, 2000. For the reasons noted above as well as
those discussed in the Board’s prior decisions, the record does not establish clear evidence of
error in this case.

17

Thankamma Mathews, 44 ECAB 765 (1993).

18

See Barbara J. Williams, 40 ECAB 649, 656 (1989).

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CONCLUSION
The Board finds that OWCP properly denied merit review on the grounds the application
for reconsideration was untimely and failed to show clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 21, 2012 is affirmed.
Issued: February 5, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
U.S. POSTAL SERVICE, ST. AUGUSTINE
ANNEX, St. Augustine, FL, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1506
Issued: February 5, 2009

Case Submitted on the Record

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

JURISDICTION
On April 29, 2008 appellant, through counsel, filed a timely appeal of the April 18, 2008
merit decision of the Office of Workers’ Compensation Programs denying her claim for a
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant sustained any permanent impairment from her October 12,
2005 injury.
FACTUAL HISTORY
On October 12, 2005 appellant, then a 38-year-old letter carrier, sustained injury to her
neck, shoulders and lower back when her postal vehicle was struck from behind by an
automobile. The Office accepted the claim for neck and lumbar sprains and right-sided pinching
sciatic nerve injury.

In a December 7, 2007 report, Dr. Robert W. Elkins, an examining Board-certified
orthopedic surgeon, concluded that appellant had a nine percent permanent impairment of the
right lower extremity. He diagnosed resolved cervical sprain with negative neurological
examination, minimal symptomatology and negative physical examination. Dr. Elkins found
mild right sacroiliac joint dysfunction with fibular heat peroneal neuritis which caused some
right lower extremity weakness and sensory loss. He noted that appellant had many more
subjective complaints than objective findings. A physical examination revealed a negative
cervical neurological examination. Dr. Elkins reported that appellant showed “some tenderness
at the sacroiliac joint on the right side and some peroneal nerve irritation at the knee.” He noted
it was “difficult to state whether her problems are coming from above, at her neck, or at the
fibular head” and that “[t]he peroneal nerve is a branch of the sciatic nerve.” Using Table 16-10,
page 482, Dr. Elkins concluded that appellant had a three percent sensory impairment to her right
lower extremity and a six percent motor impairment for a moderate involvement of the peroneal
nerve, which combined to total nine percent right lower extremity impairment. In reaching the 3
percent impairment rating, he found appellant had a 50 percent grade deficit which he multiplied
by the maximum 5 percent. As to the 6 percent motor impairment motor, Dr. Elkins found
appellant had a 25 percent grade deficit of the peroneal nerve which he multiplied by the
maximum 25 percent.
On February 12, 2008 appellant filed a claim for a schedule award.
The case record was referred to an Office medical adviser for review. On January 25,
2008 the medical adviser stated that Dr. Elkins’ report was “simply not credible from a medical
perspective.” He pointed out that, although Dr. Elkins found that appellant had a nine percent
impairment of the right lower extremity due to an injury to the peroneal nerve, “this is not an
accepted condition.” The medical adviser related that appellant “had mostly negative tests and
examinations” and there was a lack of any objective findings. He concluded that appellant had
no impairment of the right lower extremity.
In a letter dated January 28, 2008, the Office asked appellant to show the Office medical
adviser’s opinion to Dr. Elkins for any comments as to whether he agreed.
In a letter dated March 26, 2008, appellant’s counsel requested the Office to issue a
decision on the schedule award as appellant did not anticipate submitting additional medical
evidence.
In a decision dated April 18, 2008, the Office denied appellant’s claim for a schedule
award. It noted that the evidence was insufficient to establish that she sustained permanent
impairment to a scheduled member due to her accepted work injury.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing federal regulations,2 set forth the number of weeks of compensation payable to
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

2

employees sustaining permanent impairment from loss or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the American Medical Association, Guides to the Evaluation
of Permanent Impairment (5th ed. 2001) as the uniform standard applicable to all claimants.3
Effective February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule
awards.4
A schedule award is not payable for a member, function or organ of the body not
specified in the Act or in the implementing regulations.5 As neither the Act nor the regulation
provide for the payment of a schedule award for the permanent loss of use of the back or spine,
no claimant is entitled to such an award.6 However, as the Act makes provision for the lower
extremities, a claimant may be entitled to a schedule award for permanent impairment to a lower
extremity even though the cause of the impairment originates in the spine, if the medical
evidence establishes impairment as a result of the employment injury.7
ANALYSIS
The Board finds that the medical evidence fails to establish that appellant sustained any
permanent impairment to a scheduled member of the body. The Office accepted her claim for
neck and lumbar sprains and right-sided pinching sciatic nerve injury. Although appellant may
not receive a schedule award for permanent impairment to her back,8 she may be entitled to a
schedule award for any permanent impairment to her lower extremities, provided the medical
evidence establishes such impairment.9 However, the Board finds that the medical evidence of
record does not establish that she sustained permanent impairment to her legs due to the accepted
back conditions.
The Office medical adviser properly reviewed the medical record and found no basis for
rating impairment to a scheduled member of the body.10 He noted that Dr. Elkins’ opinion was
“simply not credible from a medical perspective” and that a peroneal nerve injury, upon which
the impairment rating was based, was not an accepted condition. The medical adviser related
that appellant “had mostly negative tests and examinations.” He properly concluded that there
3

20 C.F.R. § 10.404(a).

4

20 C.F.R. § 10.404(a); see Thomas P. Lavin, 57 ECAB 353 (2006); Jesse Mendoza, 54 ECAB 802 (2003).

5

W.C., 59 ECAB ___ (Docket No. 07-2257, issued March 5, 2008); Anna V. Burke, 57 ECAB 521 (2006).

6

D.N., 59 ECAB ___ (Docket No. 07-1940, issued June 17, 2008).

7

J.Q., 59 ECAB ___ (Docket No. 06-2152, issued March 5, 2008).

8

5 U.S.C. § 8101(19); James E. Mills, 43 ECAB 215 (1991).

9

George E. Williams, 44 ECAB 530 (1993).

10

The Board notes that it is appropriate for an Office medical adviser to review the clinical findings of the
treating physician to determine the permanent impairment. See Federal (FECA) Procedure Manual, Part 3 -Medical, Medical Examinations, Chapter 3.500.5(c) (March 1994); Richard R. LeMay, 56 ECAB 341 (2006).

3

was no medical evidence of impairment to either lower extremity resulting from the accepted
conditions and therefore there was no ratable impairment in this case.
Appellant did not submit sufficient medical evidence to establish that she sustained a
permanent impairment to a specified member, organ or function of the body listed in the Act or
its implementing regulations. The medical evidence of record supports that she has no lower
extremity impairment. The Board finds that appellant is not entitled to a schedule award as a
result of her employment-related accepted neck and lumbar sprains and right-sided pinching
sciatic nerve injury.
CONCLUSION
The Board finds that the Office properly denied appellant’s claim for a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 18, 2008 is affirmed.
Issued: February 5, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, DOMINION STATION )
POST OFFICE, Bristol, VA, Employer
)
__________________________________________ )
T.M., Appellant

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

Docket No. 09-474
Issued: October 2, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 8, 2008 appellant filed a timely appeal from two November 21, 2008
decisions of the Office of Workers’ Compensation Programs regarding an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUES
The issues are: (1) whether the Office properly found a $2,671.43 overpayment of
compensation for the period January 29, 2007 to April 12, 2008 as appellant received augmented
compensation while having no eligible dependents; (2) whether the Office properly found that
appellant was at fault and therefore the overpayment was not subject to waiver; and (3) whether
the Office properly directed recovery of the overpayment by deducting $333.92 from appellant’s
continuing compensation payments.
On appeal, appellant asserts that the Office should have waived recovery of the
overpayment due to financial hardship. He contended that he was not at fault in the creation of
the overpayment as he promptly notified the Office of his divorce.

FACTUAL HISTORY
The Office accepted that on November 22, 1999 appellant, then a 45-year-old rural
carrier, sustained left shoulder, cervical and lumbar sprain/strains when attacked by a dog. He
remained under medical care and received compensation for intermittent work absences.
Appellant received compensation at the augmented, three-fourths rate as he was married and had
eligible dependents.1 He was placed on the periodic rolls effective April 20, 2003.
In a February 21, 2007 letter, appellant advised the Office that his divorce became final
on January 29, 2007 but he had not received a copy of the decree until the previous week. He
stated that he “no longer ha[d] any dependents.” Appellant requested that the Office “make any
necessary adjustments in [his] workers’ compensation.” He enclosed a copy of the divorce
decree.
In a June 26, 2007 affidavit of earnings and employment (Form CA-1032), appellant
advised that he was divorced effective January 29, 2007 and had no eligible dependents. He was
not sure whether he was receiving compensation at the correct rate.
In April 16, 2008 memoranda, the Office determined that, from January 29, 2007 to
April 12, 2008, appellant received compensation at the 3/4, augmented rate while he had no
eligible dependents. Although appellant notified the Office on February 26, 2007 that his
divorce was final, it erroneously paid compensation at the augmented rate. From January 29 to
March 17, 2007, he received $2,643.43 but was only entitled to $2,352.00, a difference of
$291.43. For the period March 18, 2007 to March 15, 2008, appellant received $20,046.00 but
was entitled to only $17,846.00, a difference of $2,210.00. For the period March 16 to April 12,
2008, he received $1,542.00 but was entitled to only $1,372.00, a difference of $170.00. The
Office then totaled the $291.43, $2,210.00 and $170.00 amounts to equal $2,673.43. It corrected
appellant’s ongoing compensation to the 2/3 rate effective April 13, 2008.
By notice dated April 22, 2008, the Office advised appellant of its preliminary
determination that a $2,671.43 overpayment of compensation was created as he received
compensation at the augmented rate from January 29, 2007 to April 12, 2008 although he had no
eligible dependents. From January 29, 2007 to April 12, 2008, appellant was paid $24,231.43 in
compensation but was entitled to only $21,560.00. The Office made the preliminary
determination that appellant was at fault in the creation of the overpayment as he accepted
payments which he knew or should have known he was not entitled. It afforded 30 days to
provide financial information and to request a hearing. Appellant did not respond to the notice
of overpayment.2
By decisions dated November 21, 2008, the Office found a $2,671.43 overpayment for
the period January 29, 2007 to April 12, 2008, as appellant received augmented compensation
1

On affidavits of earnings and employment (Form CA-1032) from June 2002 to July 2007, appellant listed his
wife and children as dependents. His children were no longer eligible dependents as of May 12, 2006.
2

Appellant submitted a June 16, 2008 Form CA-1032 noting no eligible dependents.

2

while having no eligible dependents. It found appellant was at fault as he was aware or
reasonably should have been aware that the payments were incorrect. As he did not submit
financial information, the Office directed recovery of the overpayment by deducting $333.92
from his continuing compensation, with interest, from December 21, 2008 to August 1, 2009.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act3 provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty.4 Section 8129(a) of the Act provides, in
pertinent part, that when “an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations prescribed by the
Secretary of Labor by decreasing later payments to which an individual is entitled.”5 If a
claimant receives augmented compensation during a period where he or she has no eligible
dependents, the difference between the compensation he or she was entitled to receive at the twothirds compensation rate and the augmented compensation received at the three-quarters rate
constitutes an overpayment of compensation.6
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation. The record
establishes that he was paid wage-loss compensation at the augmented three-quarters rate after
he was divorced effective January 29, 2007 and had no other qualifying dependents. Appellant
timely informed the Office of his divorce. However, the Office paid him compensation at the
augmented three-quarters rate through April 12, 2008.
The Board finds that appellant was not entitled to compensation at the augmented threequarters rate after his divorce on January 29, 2007. Appellant was only entitled to receive
compensation at the statutory two-thirds rate. An overpayment in compensation was created
once his divorce was made final.7
The Board finds, however, that this case is not in posture for decision regarding the
amount of the overpayment. The Office found that appellant received $24,231.43 in
compensation from January 29, 2007 to April 12, 2008 but was only entitled to $21,560.00.
However, the record does not confirm either amount. There are no payment records for any
portion of the period in question. The Office based its calculations on summary worksheets but
did not provide supporting payment records. The record on appeal is insufficient to establish that
appellant received $24,231.43 in compensation. The Office did not explain how it calculated the
3

5 U.S.C. §§ 8101-8193.

4

Id. at § 8102(a).

5

Id. at § 8129(a).

6

Diana L. Booth, 52 ECAB 370 (2001).

7

Id.

3

$21,560.00 amount. The case will be remanded to the Office for further development to
determine the amount of the overpayment.
The Board notes that, on appeal, appellant asserted that the Office should have waived
recovery of the overpayment due to financial hardship.
ANALYSIS -- ISSUE 2
The Office found appellant at fault in creation of the overpayment as he knew or should
have known he received compensation at an incorrect rate from January 29, 2007 to
April 12, 2008. On appeal, appellant contends that he was not at fault in creation of the
overpayment.
The compensation payment records for the period January 29, 2007 to April 12, 2008 are
not of record. Without these forms, it cannot be determined if appellant had proper notice of his
compensation rate or that the three-fourths rate continued after his divorce became final.
Therefore, it cannot be ascertained if appellant knew or should have known that he received
payments at an incorrect rate. It is thus premature for the Board to address the issue of fault on
the present appeal.
CONCLUSION
The Board finds that the case is not in posture for a decision regarding the amount of the
overpayment. The case will be remanded to the Office for additional development. As the case
is not in posture regarding the amount of the overpayment, it is premature for the Board to
address the issues of waiver and recovery.

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 21, 2008 are affirmed as to fact of overpayment. As to
amount and fault, the decisions are set aside and the case remanded to the Office for
development consistent with this decision.
Issued: October 2, 2009
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
M.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Las Vegas, NV, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-0930
Issued: June 17, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 27, 2019 appellant, through counsel, filed a timely appeal from a January 28,
2019 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 an injury in the
performance of duty, as alleged.
FACTUAL HISTORY
On April 7, 2018 appellant, then a 56-year-old transportation security officer (screener),
filed a traumatic injury claim (Form CA-1) alleging that at 4:30 p.m. on Friday April 6, 2018 he
sustained a left knee and low back injury when he tripped on torn carpet while in the performance
of duty.3 He notified his supervisor, stopped work, and first received medical treatment on
April 7, 2018. On the reverse side of the claim form, C.H., appellant’s supervisor, controverted
the claim, contending that appellant was not in the performance of duty at the time of the alleged
occurrence.
In an April 7, 2018 signed statement, appellant reported that his injury occurred at 4:20
p.m. on Friday, April 6, 2018 at the C Annex Checkpoint underneath the monitors near the
Metropolitan Police Department podium. He asserted that he was walking to sit down on a chair
under the departure/arrival monitors when he tripped on the carpet and fell, hitting his left knee
and also injuring his lower back. Appellant contacted his supervisors on April 7, 2018. He
explained that, when his injury occurred, he continued to work his shift and did not realize the
extent of his injuries until he visited urgent care. Appellant reported that no one directly witnessed
his fall, but he informed his coworkers of his injury.
An employing establishment incident report documents that appellant called the hotline on
April 7, 2018 to notify the employing establishment that on April 6, 2018 he tripped and fell,
injuring his left knee and lower back. It was noted that the injury occurred at 4:20 p.m.
An April 7, 2018 attending physician’s report (Form CA-20) from Dr. Nickolas Karajohn,
a family medicine physician, indicated that appellant sought treatment for an April 6, 2018 injury
when he fell at work. The physician noted a history of prior left knee surgery and diagnosed left
knee strain and lumbar strain.
Dr. Sinoneta Soriano, a Board-certified family practitioner, reported that appellant was
seen on April 7, 2018 for left knee and back injuries which occurred when he tripped and fell on a
carpet at work. In a hospital encounter form report from Dr. Soriano dated April 7, 2018,
appellant’s history of injury was recorded as a trip and fall on ripped carpet while walking to C
Annex Security Checkpoint on April 6, 2018 at 4:25 p.m.
An April 9, 2018 progress note and work capacity evaluation (Form OWCP-5c) was also
submitted from Dr. Karajohn documenting treatment and referrals for a magnetic resonance
imaging (MRI) scan of the left knee.
The employing establishment issued an authorization for examination and/or treatment
(Form CA-16) on April 10, 2018, which allowed appellant to obtain treatment at Enterprise Quick
3

Appellant’s regularly scheduled work shift ran Sunday through Thursday from 4:30 p.m. to 1:00 a.m. daily.

2

Care for the claimed April 6, 2018 injury. It indicated that there was doubt as to whether his
condition was caused by an injury in the performance of duty.
In a development letter dated April 27, 2018, OWCP informed appellant that the evidence
of record was insufficient to establish his claim. It advised him of the type of factual and medical
evidence necessary and provided a questionnaire for his completion. OWCP afforded appellant
30 days to submit the necessary evidence.
Medical reports dated April 9, 2018 documenting x-rays of the left knee and lumbar spine,
along with form reports and disability slips, were also submitted.
By letter dated May 25, 2018, the employing establishment challenged the claim after an
internal fact-finding investigation. It found that review of a 24-hour closed circuit surveillance
video did not establish that the claimed incident took place. The employing establishment reported
that appellant made several statements indicating that he was injured on April 6, 2018 before
clocking in for his shift around 4:30 p.m. at the C Annex Checkpoint when he tripped over loose
carpet and fell into chairs under the departure/arrival monitors. However, review of video footage
of appellant at that time, date, and location did not reveal that the incident took place. The
employing establishment noted that appellant was clearly seen on the surveillance footage at the
C Annex Security Checkpoint on or about 4:30 p.m. on April 6, 2018. However, the footage did
not show that appellant experienced a trip on the carpet resulting in his fall to the ground, or
otherwise, resulting in an injury. Appellant’s manager G.R. reviewed the footage and further
found that appellant was not seen tripping, stumbling, or bracing himself on the chairs. The
employing establishment noted that appellant further alleged that he reported the incident to his
coworkers, but the coworkers he identified had refuted his allegation. Accompanying witness
statements were provided in support of the claim challenge.
In an April 7, 2018 statement, supervisor C.H. reported that appellant advised him on that
date of the April 6, 2018 employment incident at the C Annex Checkpoint. Appellant reported
that he fell down over some chairs up against the wall due to a tear in the carpet square before he
clocked in to start his shift on April 6, 2018. He demonstrated where he had fallen and informed
C.H. that he could no longer perform his employment duties. C.H. provided appellant with the
Form CA-1 packet.
In an April 7, 2018 employing establishment report form, M.G., a supervisory reporting
officer, related that she assisted appellant with filing his Form CA-1. Appellant had advised that
he had fallen on some loose carpet near the podium behind C Annex Checkpoint at approximately
4:20 p.m. on April 6, 2018.
In an April 12, 2018 statement, C.M., a coworker, reported that on April 6, 2018 he came
to work and sat down underneath the departure board at C Annex Checkpoint near the Metropolitan
Police Department podium as he waited to clock in for his shift. Appellant walked up to him and
sat down beside him around 4:20 p.m. C.M. reported that appellant was walking fine and they
both stood up and clocked in at 4:25 p.m. He further stated that appellant did not talk to him about
any injury that occurred on April 6, 2018 and did not say anything about an injury to him.

3

An April 13, 2018 statement was submitted from manager G.R. who had a telephone
conversation with appellant on April 10, 2018 to inquire about what transpired on April 6, 2018
when he was injured. He found that the allegations and statements made by appellant were not
supported after reviewing the April 6, 2018 surveillance video. G.R. noted that review of the video
footage revealed that appellant never walked directly towards the row of chairs under the monitors
next to the podium as appellant had stated, and not once was he observed tripping, stumbling, or
bracing himself on the chairs. He further reported that review of the surveillance footage showed
that at no time was appellant limping after getting up from the chair when he walked to the time
clock, clocked-in, and proceeded to the C Annex breakroom. G.R. further noted that appellant
alleged that another employee, C.M., was sitting in the chairs when the injury took place, though
he was looking down and did not witness the incident. Appellant had asserted that after he sat
down, he advised C.M. of what had just transpired and told him that his knee hurt a lot. However,
C.M. had provided a statement refuting these assertions.
In e-mail correspondence dated May 4, 2018, the employing establishment requested that
appellant provide information pertaining to his work-related injury by responding to a series of
questions. Appellant responded to the e-mail stating that his injury occurred on April 6, 2018 at
approximately 4:20 p.m. at C Annex Security Checkpoint near the bypass doors and the Metro
podium. He reported that, immediately prior to the incident, he was walking from the breakroom
to sit down on the chairs prior to clocking in. The incident occurred when appellant was walking
and tripped on the carpet, and when he tripped, he hit his left knee on the front of the row of chairs.
Immediately, after the incident, he mentioned the injury to his coworkers, C.M. and D.B.
By decision dated May 29, 2018, OWCP denied appellant’s claim finding that the evidence
of record was insufficient to establish that the April 6, 2018 employment incident occurred as
alleged. It noted that he had not responded to the April 27, 2018 development questionnaire to
substantiate the factual element of his claim and evidence had shown that the April 6, 2018
employment incident did not occur in the manner alleged. OWCP concluded therefore that the
requirements had not been met to establish an injury as defined by FECA.
On June 5, 2018 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative. A hearing was held on November 13, 2018. During the hearing,
appellant testified that his injury actually occurred on April 5, 2018 and he mistakenly had written
the date down as April 6, 2018. He explained that he was injured on April 5, 2018 at the C Annex
Security Checkpoint in McCarran Airport. Appellant noted that he had a preexisting injury two
and one-half years ago, but he had been doing well and his low back and left knee were fine when
he started his shift on that day. While walking to the checkpoint, he was looking up at the flight
monitors and tripped on a loose piece of carpet, causing him to bang his knee on the row of
permanent steel leather chairs beneath the flight monitors. Appellant reported stumbling, but not
falling to the ground, causing him to also injure his back as he tried to catch himself from falling
backwards. He explained that the incident occurred early in his shift and he continued to finish
his workday. Appellant was not aware of any eyewitnesses and no one came forward as a witness
to the event. He explained that, on the date of injury, he sent a text message to E.R., a coworker,
informing her of his injury with pictures of the carpet and his left knee. Appellant also reported
speaking to D.S. and I.S. about his injury after they asked him why he was limping. He explained
that he did not report the injury on the day it happened because all of his supervisors had called
off work and that there was no supervisor on duty that he could report the incident to. Appellant

4

did not seek medical treatment on the following date, April 6, 2018, because they were
shorthanded at work and he did not feel that his pain was severe enough. He finished his shift on
April 6, 2018 and noted that there were also no supervisors on duty to inform them of his injury.
On April 7, 2018 appellant reported his injury, filed a Form CA-1, and sought treatment at an
urgent care facility. He discussed his course of medical treatment and explained that he had made
a Freedom of Information Act request for the surveillance videos which were reviewed by the
employing establishment. Appellant was provided 1 hour and 15 minutes of video coverage on
April 6, 2018 and approximately 30 minutes of video coverage on April 5, 2018. He reported that
he did not see the tripping incident or any evidence of injury in the April 5, 2018 video footage.
Appellant further stated that he did not see the tripping incident in the April 6, 2018 video, but did
see evidence of the injury. He explained that the April 6, 2018 footage from the day after the
injury showed him coming down the escalators in a lot of pain and limping down the stairs onto
the checkpoint as he was starting his shift. OWCP’s hearing representative advised appellant that
the record would be held open for 30 days to submit additional evidence.
Following the hearing, appellant submitted additional medical reports documenting
treatment for his lumbar and left knee injury.
Appellant also submitted a September 1, 2018 statement from R.E., a coworker, who
reported that, on or about April 6, 2018, she received a text message from him with pictures of an
injury to his knee. He informed her that he had tripped and fallen near the back of his duty station
because of a torn carpet and sent her pictures of the carpet. R.E. reported that she had no reason
not to believe appellant’s claim as she had previously expressed concerns about the carpet.
In an October 22, 2018 statement, appellant reported that on April 5, 2018 he was ill due
to migraines and cluster headaches. He reported that he tripped on an old worn carpet at C Annex
Security Checkpoint which caused injury to his left knee and low back. At the time of the incident
appellant did not think that his injuries were very serious. He worked through that shift and also
the next shift, while limping and in severe pain. Appellant stated that he could not get his trousers
over his swollen left knee, causing him to seek treatment at an urgent care facility where he had
x-rays administered. He was advised not to walk on his left knee and to follow up with a left knee
MRI scan. On April 7, 2018 appellant called OWCP, notified his supervisors, and filed a Form
CA-1.
By decision dated January 28, 2019, OWCP’s hearing representative affirmed the May 29,
2018 denial of the claim, finding that the evidence of record was insufficient to establish that the
employment incident occurred as alleged.
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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the

5

employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.5
In order to determine whether an employee actually sustained an injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established.6 Fact of
injury consists of two components which must be considered in conjunction with one another. The
first component to be established is that the employee actually experienced the employment
incident which is alleged to have occurred.7 The second component is whether the employment
incident caused a personal injury.
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his subsequent course of action.8
The employee has not met his burden of proof to establish the occurrence of an injury when there
are inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.9 Such
circumstances as late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty following the alleged injury, and failure to obtain medical treatment
may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in determining
whether a prima facie case has been established. An employee’s statements alleging that an injury
occurred at a given time and in a given manner is of great probative value and will stand unless
refuted by strong or persuasive evidence.10
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant filed a Form CA-1 on April 7, 2018 alleging that he had sustained a left knee
injury which occurred the previous day, April 6, 2018, when he tripped on torn carpet at
approximately 4:30 p.m. before clocking in for his shift at the C Annex Security Checkpoint.
Following OWCP’s initial denial of the claim, a hearing was held on November 13, 2018.
Appellant testified that his injury occurred on April 5, 2018 and not April 6, 2018 as previously
alleged. He reported that he mistakenly wrote April 6, 2018 as the date of injury which actually
occurred on April 5, 2018 at the C Annex Security Checkpoint early in his work shift.

4

E.A., Docket No. 17-0330 (issued December 12, 2018); Gary J. Watling, 52 ECAB 278 (2001).

5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Michael E. Smith, 50 ECAB 313 (1999).
6

D.B., Docket No. 18-1348 (issued January 4, 2019).

7

J.M., Docket No. 17-0284 (issued February 7, 2018); Elaine Pendleton, 40 ECAB 1143 (1989).

8

M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

9

See V.J., Docket No. 19-1600 (issued March 13, 2020); E.C., Docket No. 19-0943 (issued September 23, 2019).

10

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

6

Given that appellant clarified his date of injury to April 5, 2018, the Board finds that the
case must be remanded to request additional information from the employing establishment
concerning the April 5, 2018 incident, including a description of the location, duration, and details
depicted in surveillance video. Although the employing establishment provided a detailed review
of the April 6, 2018 surveillance footage, after appellant clarified his date of injury to April 5, 2018
at the November 13, 2018 hearing, OWCP failed to request information from the employing
establishment regarding surveillance video footage for the April 5, 2018 date of injury as it had
done for the initial April 6, 2018 date of injury.
While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence, particularly when such evidence
is of the character normally obtained from the employing establishment or other governmental
source.11 Without additional information from the employing establishment pertaining to the
alleged April 5, 2018 employment incident, OWCP has failed to procure the evidence necessary
to determine whether the April 5, 2018 employment incident occurred as alleged. On remand, the
employing establishment shall confirm whether surveillance video from April 5, 2018 established
that appellant was injured at the time, place, and in the manner alleged. It shall also provide a
copy of the surveillance video to OWCP, if available. Following this and any other further
development deemed necessary, OWCP shall issue a de novo decision.12
CONCLUSION
The Board finds that this case is not in posture for decision.

11

See L.L., Docket No. 12-194 (issued June 5, 2012); N.S., 59 ECAB 422 (2008).

12

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No.
17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

7

ORDER
IT IS HEREBY ORDERED THAT the January 28, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: June 17, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.W., Appellant
and
DEPARTMENT OF THE ARMY, TANK
AUTOMOTIVE & ARMAMENT COMMAND,
Warren, MI, Employer
__________________________________________

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

Docket No. 11-1137
Issued: December 21, 2011

Case Submitted on the Record

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

JURISDICTION
On April 7, 2011 appellant filed a timely appeal from the October 28, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
further merit review. As more than 180 days elapsed from the last merit decision of June 10,
2010 to the filing of this appeal, 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 nonmerit decision.
ISSUE
The issue is whether OWCP properly denied appellant’s request for merit review under
5 U.S.C. § 8128(a).
On appeal appellant contends that OWCP ignored the role of nickel metal exposure in
causing her sarcoidosis and improperly failed to find a causal relationship between her illness
and her work exposure.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case has previously been on appeal before the Board. The pertinent facts and history
are hereinafter set forth.
On April 2, 2003 appellant, then a 55-year-old mechanical engineer, filed an occupational
disease claim alleging that she sustained neuron sarcoidosis and skin sarcoidosis as a result of the
environmental conditions in the building where she worked. OWCP initially denied her claim on
July 24, 2003 as it found that the evidence was insufficient to establish that the work exposure
occurred as alleged and also for the reason that the medical evidence was insufficient to relate
the cause of her medical conditions to her federal employment. By decision dated May 18, 2004,
an OWCP hearing representative found that, although the evidence was sufficient to establish the
claimed occupational exposure, the claim was denied as the medical evidence did not establish
causal relationship. In response to appellant’s request for reconsideration, by decision dated
February 7, 2006, OWCP denied modification of the May 18, 2004 decision, finding that the
medical evidence was insufficient to establish the causal relationship between her claimed work
exposure and her diagnosed conditions. A subsequent request for reconsideration was denied by
OWCP without merit review on March 1, 2007. Appellant filed an appeal to the Board. By
decision dated October 10, 2007, the Board found that OWCP properly denied appellant’s
request for merit review. The facts as set forth in the Board’s prior decision are hereby
incorporated into this decision.2
Appellant filed a request for reconsideration before OWCP. By decision dated March 3,
2010, it denied modification of the earlier decisions.3
On March 9, 2010 appellant again requested reconsideration and submitted a
November 15, 2007 report by Dr. Ernest P. Chiodo, a physician Board-certified in internal
medicine, occupational medicine and public health and general preventive medicine. Dr. Chiodo
opined that her sarcoidosis was due to exposure to metals including nickel during her federal
employment. By decision dated June 10, 2010, OWCP determined that the new evidence was
not sufficient to warrant modification of appellant’s claim and that her claim remained denied. It
found that Dr. Chiodo failed to provide a well-reasoned medical opinion explaining how her
sarcoidosis was related to her federal employment.
On September 2, 2010 appellant again requested reconsideration. She submitted the
results of a July 28, 2006 lymphocyte transformation test interpreted by Dr. Lisa Maier, a
physician Board-certified in critical care medicine, internal medicine, occupational medicine and
pulmonary disease. Dr. Maier noted a normal response to mitogen but an abnormal lymphocyte
2

Docket No. 07-1170 (issued October 10, 2007); petition for recon. denied, Docket No. 07-1170 (issued
August 28, 2008).
3

OWCP noted that the documents provided with the reconsideration request did not address the issue, i.e.,
whether appellant’s work exposure directly caused, aggravated, accelerated or precipitated her diagnosed
sarcoidosis. It further noted that the documents were essentially repetitive in nature, cumulative or irrelevant and
immaterial to the issue at hand, noting that, although some of the documents may pertain to appellant’s sarcoidosis
condition, none of the evidence provided an opinion regarding the etiology of appellant’s condition in relationship to
her exposure to toxins and metals at work.

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proliferation to nickel sulfate. Appellant also resubmitted the November 15, 2007 report by
Dr. Chiodo and a July 28, 2010 report by Dr. Leia F. Meyers, a Board-certified family
practitioner, who indicated that appellant had been her patient since January 2006 and, as of
May 2006, she had been treated for diabetes mellitus type II with nephropathy, neurosaroidosis,
hypertension, elevated cholesterol, allergic rhinitis, osteoporosis, hypothyroidism and Common
Variable Immunity Deficiency (likely due to sarcoid). Appellant contended that the evidence
showed with medical certainty that her work environment caused her sarcoidosis.
By decision dated October 28, 2010, OWCP denied appellant’s request for
reconsideration without reviewing the merits of the case.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.6 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.7
ANALYSIS
OWCP denied appellant’s claim as it found that the medical evidence did not establish
that appellant sustained a medical condition causally related to the accepted factors of her federal
employment. On appeal, appellant makes various arguments that address the merits of her case.
However, the last merit decision in this case was issued on June 10, 2010 at which time OWCP
determined that new medical evidence, and in particular, the medical report of Dr. Chiodo dated
November 15, 2007, was not sufficient to warrant modification of the prior decisions denying
appellant’s claim. As previously stated, this decision was issued over 180 days prior to the filing
of this appeal and, accordingly, the Board does not have jurisdiction to review the merits of the
case.8 The only issue before the Board is whether OWCP properly denied appellant’s
reconsideration request.
On reconsideration, appellant resubmitted the report of Dr. Chiodo which was already
addressed in OWCP’s decision of June 10, 2010. The Board has held that submission of
4

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.606(b)(2).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8

Id. at § 501.3(e).

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evidence or argument which repeats or duplicates that already in the case record does not
constitute a basis for reopening a case.9 With regard to the July 28, 2006 report by Dr. Maier and
the July 28, 2010 report by Dr. Meyers, these reports do not address the relevant issue of whether
appellant’s work exposure caused her medical condition. Dr. Maier listed the results of a
lymphocyte transformation test but did not address appellant’s employment or the issue of causal
relation. Dr. Meyers noted only that she was treating appellant for various specific medical
conditions, but she also did not address the causal relationship to appellant’s employment. The
Board has held that the submission of evidence or argument which does not address the
particular issue involved does not constitute a basis for reopening a case.10
Because appellant did not show that OWCP erroneously interpreted a specific point of
law, advance a relevant legal argument not previously considered or submit relevant and
pertinent new evidence not previously considered by OWCP, it did not abuse its discretion in
denying appellant’s request for reconsideration.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for merit review under
5 U.S.C. § 8128(a).

9

Edward W. Malaniak, 51 ECAB 279 (2000); S.J., Docket No. 10-1318 (issued February 3, 2011).

10

Edward Mathew Diekemper, 31 ECAB 224 (225 (1979); D.B., Docket No. 10-2036 (issued May 13, 2011).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 28, 2010 is affirmed.
Issued: December 21, 2011
Washington, DC

Richard J. Daschbach, 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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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Nashua, NH, Employer
__________________________________________

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Appearances:
Lawrence Vama, for the appellant
Office of Solicitor, for the Director

Docket No. 08-1079
Issued: May 8, 2009

Case Submitted on the Record

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

JURISDICTION
On March 4, 2008 appellant, through her representative, filed a timely appeal from the
September 26, 2007 merit decision of the Office of Workers’ Compensation Programs, which
suspended her compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case.1
ISSUE
The issue is whether the Office properly suspended appellant’s compensation for failing
to submit a Form CA-1032, as requested.
FACTUAL HISTORY
On November 29, 2002 appellant, then a 35-year-old mail handler, sustained an injury in
the performance of duty when the vehicle on which she was sitting was struck from behind by a
mail container. The Office accepted her claim for cervical strain, right shoulder strain, thoracic
1

The Office’s September 26, 2007 decision is the only Office decision the Board may review.

strain and lumbar strain. Appellant received compensation for wage loss. After she returned to
work on February 28, 2006 in a modified position for 30 hours a week, the Office paid
compensation for partial disability based on her actual earnings.
On February 5, 2007 the Office informed appellant that federal regulations required her
to make an affidavit of any earnings or employment during the previous year, and that a
Form CA-1032 was enclosed for that purpose. It notified appellant that she had to completely
answer all questions and return the statement within 30 days, otherwise her benefits would be
suspended.
In a decision dated September 26, 2007, the Office suspended appellant’s compensation
for failing to submit the Form CA-1032, as requested. It noted that appellant did not reply to its
February 5, 2007 correspondence.
LEGAL PRECEDENT
Section 8106(b) of the Federal Employees’ Compensation Act authorizes the Secretary of
Labor to “require a partially disabled employee to report his earnings from employment or selfemployment, by affidavit or otherwise, in the manner and at the times the Secretary specifies.”
Pursuant to this authority, as well as her authority under 5 U.S.C. § 8149 to “prescribe rules and
regulations necessary for the administration and enforcement” of the Act, the Secretary has
promulgated the following regulation at 20 C.F.R. § 10.528:
“[The Office] periodically requires each employee who is receiving compensation
benefits to complete an affidavit as to any work, or activity indicating an ability to
work, which the employee has performed for the prior 15 months. If an employee
who is required to file such a report fails to do so within 30 days of the date of the
request, his or her right to compensation for wage loss under 5 U.S.C. 8105 [total
disability] or 8106 [partial disability] is suspended until [it] receives the requested
report. At that time, [the Office] will reinstate compensation retroactive to the
date of suspension if the employee remains entitled to compensation.”
ANALYSIS
On February 5, 2007 the Office provided appellant with a Form CA-1032 and explained
that federal regulations required her to complete it. It properly notified appellant that if she did
not completely answer all questions and return the statement within 30 days, her benefits would
be suspended.
Notwithstanding notice of these consequences, appellant did not return the form within
30 days. Indeed, by September 26, 2007, more than seven months had passed and the Office still
had received no response. The Board finds, therefore, that it properly suspended appellant’s
right to compensation for wage loss under section 10.528 of the regulations. The Board will
affirm the Office’s September 26, 2007 decision.

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CONCLUSION
The Board finds that the Office properly suspended appellant’s compensation for failing
to submit a Form CA-1032, as requested.
ORDER
IT IS HEREBY ORDERED THAT the September 26, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 8, 2009
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

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

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

Docket No. 17-0087
Issued: April 5, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 20, 2016 appellant, through counsel, filed a timely appeal from a
September 14, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established more than one percent permanent
impairment of her right upper extremity, for which she previously received a schedule award.
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 December 17, 2013 appellant, then a 47-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 4, 2013, she sustained a neck injury when her
vehicle was rear-ended at a traffic light by another vehicle. OWCP accepted her claim for neck
sprain, back sprain of the thoracic region, and sprain of the right shoulder on January 27, 2014.
On January 23, 2015 appellant requested a schedule award (Form CA-7). On January 27,
2015 OWCP notified her that it had not received any medical evidence in support of her schedule
award claim. It afforded appellant 30 days to submit additional evidence. Appellant did not
respond within the time allotted.
By decision dated March 18, 2015, OWCP denied appellant’s claim for a schedule award,
finding that the medical evidence was not sufficient to establish permanent impairment to a
scheduled member due to her accepted work injury.
On March 23, 2015 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative. With the request, appellant submitted a report dated April 21,
2015 from Dr. Catherine Watkins Campbell, a Board-certified occupational medicine specialist.
Dr. Watkins Campbell rendered an impairment rating of seven percent of the right shoulder
based upon the Sixth Edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides). She stated that appellant reached maximum medical
improvement on December 16, 2014 and used the range of motion (ROM) method of
impairment. Based on a QuickDASH score of 57, Dr. Watkins Campbell assigned a functional
history modifier of grade 2 and for physical examination a grade modifier of 1. For each
modifier, she referenced Table 15-7 and Table 15-9, respectively, within the A.M.A., Guides to
justify her grade modifiers.
By decision dated September 10, 2015, an OWCP hearing representative vacated
OWCP’s March 18, 2015 decision, noting that due to the submission of the April 21, 2015 report
of Dr. Watkins Campbell, appellant had submitted sufficient evidence to warrant review by a
district medical adviser (DMA).
OWCP forwarded the case record and a statement of accepted facts to a DMA on
September 21, 2015. On October 1, 2015 the DMA, Dr. Morley Slutsky, Board-certified in
occupational medicine, rated appellant’s permanent impairment of the right upper extremity
impairment for right shoulder sprain as one percent impairment. He stated that his percentage of
permanent impairment differed from Dr. Watkins Campbell’s because he used the diagnosisbased impairment (DBI) rating method, while she used the ROM-based method of impairment
rating.
By decision dated December 16, 2015, OWCP granted appellant a schedule award for
one percent permanent impairment of right upper extremity. It noted that the weight of medical
evidence regarding appellant’s percentage of impairment was assigned to the DMA because he
correctly applied the A.M.A., Guides.

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On December 30, 2015 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative. The hearing was held on August 1, 2016. At the hearing,
counsel alleged that Dr. Watkins Campbell’s report was not fully and properly evaluated, and
that Dr. Slutsky was biased and unfair, using stale evidence to lower appellant’s impairment
rating. Counsel argued that Dr. Slutsky’s bias created an adversarial stance in a proceeding that
was supposed to be nonadversarial.
On September 14, 2016 the hearing representative affirmed OWCP’s December 16, 2015
decision, finding that Dr. Slutsky’s opinion constituted the weight of the medical evidence.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement FECA program with the Director of OWCP.3 Section 8107 of
FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use
of specified members, functions, and organs of the body.4 FECA, however, does not specify the
manner by which the percentage loss of a member, function, or organ shall be determined. To
ensure consistent results and equal justice under the law, good administrative practice requires
the use of uniform standards applicable to all claimants. Through its implementing regulations,
OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.5
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).6 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.7

3

See 20 C.F.R. §§ 1.1-1.4.

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For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
5

5 U.S.C.

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

6

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5(a) (February 2013).
7

Isidoro Rivera, 12 ECAB 348 (1961).

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ANALYSIS
The issue on appeal is whether appellant has more than one percent permanent
impairment of the right upper extremity, for which she previously received a schedule award.
The Board finds that this case is not in posture for decision.
In her April 21, 2015 report, Dr. Watkins Campbell found that appellant had seven
percent permanent impairment of her right shoulder using the ROM method. On October 1,
2015 Dr. Slutsky, acting as OWCP’s DMA, reviewed Dr. Watkins Campbell’s report and found
that appellant had one percent permanent impairment of her right upper extremity, pursuant to
the DBI protocol for rating permanent impairment.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.8
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.9 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.10
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the September 14, 2016
decision. Following OWCP’s development of a consistent method for calculating permanent
impairment for upper extremities to be applied uniformly, and such other development as may be
deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper
extremity schedule award.
CONCLUSION
The Board finds that this case is not in posture for decision.

8

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

9

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

10

Supra note 8.

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ORDER
IT IS HEREBY ORDERED THAT the September 14, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: April 5, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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