United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Bastrop, TX, Employer
__________________________________________

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

Docket No. 11-2067
Issued: May 10, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 29, 2011 appellant filed a timely appeal of a September 15, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs’ (OWCP) denying his request for
reconsideration because it was not timely filed and failed to establish clear evidence of error.
Because more than one year has elapsed between the last merit decision by OWCP dated
December 20, 2001 and the filing of the appeal, the Board lacks jurisdiction to review the merits
of this case.1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.

1

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file an
appeal. See 20 C.F.R. § 501.3(d)(2). An appeal of final adverse 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).
2

5 U.S.C. § 8101 et seq.

§§ 501.2(c) and 501.3, the Board has jurisdiction over the September 15, 2011 nonmerit
decision.3
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated January 13, 2010, the
Board affirmed a March 27, 2009 decision which found appellant’s request for reconsideration
was untimely and failed to show clear evidence of error.4 The facts and the circumstances as set
forth in the prior decision are hereby incorporated by reference.5
In an August 25, 2011 letter, appellant requested reconsideration and argued that OWCP
made procedural errors in his claim. He contended OWCP failed to make an independent
finding in determining whether the incidents of discrimination and/or harassment had occurred as
alleged. Appellant commented that the issue was not whether he established harassment or
discrimination under the standards by the Equal Employment Opportunity Commission (EEOC)
but whether he submitted sufficient evidence to establish an injury in the performance of duty.
He noted that while OWCP may look to evidence from an EEOC claim in determining whether
incidents or harassment occurred as alleged, OWCP must make its own independent findings and
stated that this did not happen. Appellant further argued that his procedural challenge applied to
the fact that OWCP failed to obtain and provide a qualified medical opinion. He also contended
that FECA procedures were unconstitutional to him, as a disabled veteran and that the denial of
equal protection of the law by OWCP was an error or justice that must be corrected for the faith
and good of the public interest.
Evidence received in support of his request for reconsideration included: copies of
previously submitted documents, some of which had handwritten markings and annotations of
varying legibility. Some of the annotations appeared to relate to personnel actions of the
employing establishment.
3

After appellant filed his appeal with the Board on September 29, 2011, OWCP issued an October 19, 2011
decision denying his request for reconsideration on the grounds it was untimely and failed to show clear evidence of
error. This decision, however, is null and void as the Board and OWCP may not simultaneously have jurisdiction
over the same issue. See Terry L. Smith, 51 ECAB 182 (1999); Arlonia B. Taylor, 44 ECAB 591 (1993); Russell E.
Lerman, 43 ECAB 770 (1992); Douglas E. Billings , 41 ECAB 880 (1990).
4

Docket No. 09-1200 (issued January 13, 2010). On May 19, 2010 the Board denied appellant’s petition for
reconsideration. Order Denying Petition for Reconsideration, Docket No. 09-1200 (issued May 19, 2010).
5

The relevant facts indicate that on June 5, 2000 appellant, an accounting technician, filed an occupational
disease claim for an emotional condition due to workplace harassment and racial discrimination. In a May 21, 2001
decision, OWCP’s hearing representative affirmed an August 22, 2000 decision denying the claim on the grounds no
compensable work factor had been established. By decision dated December 20, 2001, OWCP denied modification
of its prior decisions.

2

By decision dated September 15, 2011, OWCP determined the request for
reconsideration was untimely and failed to show clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file his application for review within one year of the date of that decision.6 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.7
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.8 OWCP regulations and procedure provide that OWCP will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20
C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of error on the
part of OWCP.9
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.10 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.11 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.12 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.13 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.14 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
6

20 C.F.R. § 10.607(a).

7

5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

8

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

9

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d (January 2004).
Office procedure further provides, the term clear evidence of error is intended to represent a difficult standard. The
claimant must present evidence which on its face shows that OWCP made an error (for example, proof that a
schedule award was miscalculated). Evidence such as a detailed, well-rationalized medical report which, if
submitted before the denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error. Id. at Chapter 2.1602.3c.
10

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

11

See Leona N. Travis, 43 ECAB 227, 240 (1991).

12

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

13

See Leona N. Travis, supra note 11.

14

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

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probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.15
The Board makes an independent determination of whether a claimant has submitted
clear evidence of error on the part of OWCP such that it abused its discretion in denying merit
review in the face of such evidence.16
ANALYSIS
The Board finds that appellant failed to file a timely application for review of the
December 20, 2001 merit decision. In implementing the one-year time limitation, OWCP’s
procedures provide that the one-year time limitation period for requesting reconsideration begins
on the date of the original decision. However, a right to reconsideration within one year
accompanies any subsequent merit decision on the issues.17 As appellant’s August 25, 2011
request for reconsideration was submitted more than one year after December 20, 2001, the date
of the last merit decision of record, it was untimely. Consequently, he must demonstrate clear
evidence of error by OWCP in denying his claim for compensation.18
In the December 20, 2001 merit decision, OWCP found appellant failed to establish any
compensable employment factors that caused his emotional condition. The Board finds that he
has not submitted evidence establishing clear evidence of error by OWCP in its finding that he
did not establish any compensable employment factors that caused or contributed to his
emotional condition.
Appellant’s legal arguments do not raise a substantial question concerning the correctness
of OWCP’s decision and are insufficient to show clear evidence of error in OWCP’s denial of his
emotional condition claim. He argued that OWCP made procedural errors but he did not submit
the type of positive, precise and explicit evidence or argument which manifests on its face that
OWCP committed an error. Appellant contended that it did not make findings of fact in his
claim. In finding that he did not establish any compensable employment factors, OWCP clearly
set forth findings of facts in its merit decisions of August 22, 2000, May 21, 2001 and
December 20, 2001. It found some allegations occurred but were not compensable employment
factors and that other allegations were not substantiated. While appellant alleged OWCP failed
to make independent findings, he failed to identify any specific, alleged work-related incidents or
factors of employment he felt were not adequately addressed by OWCP. Thus, his argument is
without merit.
Appellant next argued that OWCP failed to obtain and provide a qualified medical
opinion. OWCP denied his claim on the grounds no compensable factors of employment had
been established. As appellant failed to establish a compensable employment factor, it was
15

Leon D. Faidley, Jr., supra note 7.

16

Pete F. Dorso, 52 ECAB 424 (2001).

17

Larry L. Litton, 44 ECAB 243 (1992).

18

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

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unnecessary for OWCP to address medical evidence regarding causal relationship.19
Accordingly, this argument does not show any specific error on the part of OWCP.20
Appellant also indicated that he was a disabled veteran and stated that FECA procedures
were unconstitutional to him and that he was denied equal protection of the law by OWCP. He
has not specified or established any particular manner in which FECA procedures were applied
to his case in an unconstitutional manner. These contentions not germane to the issue on which
the claim was denied is insufficient to demonstrate clear evidence of error.21
Additionally none of the previously submitted documents appellant provided with his
request are of sufficient probative value to shift the weight of the evidence in his favor or raise a
substantial question as to the correctness of OWCP’s decision. He has not explained how
resubmission of these documents represent the type of positive, precise and explicit evidence
which manifested on its face that OWCP committed an error. While the notations and
annotations on the evidence may be new, appellant did not explain how these markings establish
clear evidence of error in OWCP’s decision. Under the clear evidence of error standard, it is not
enough to merely show that the evidence could be construed so as to produce a contrary
conclusion. For these reasons, OWCP properly denied appellant’s request for reconsideration.
On appeal, appellant essentially reiterates the same arguments he set forth before OWCP.
As noted above, his arguments and the evidence submitted on reconsideration are of insufficient
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.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.

19

See Margaret S. Krzycki, 43 ECAB 496 (1992).

20

See F.R., Docket No. 09-575 (issued January 4, 2010) (evidence that is not germane to the issue on which the
claim was denied is insufficient to demonstrate clear evidence of error).
21

See id. Furthermore, it has been held that constitutional questions are unsuited to resolution in administrative
hearing procedures. As the Board is an administrative body, it does not have jurisdiction to review a constitutional
claim. Federal courts retain jurisdiction over decisions under FECA where there is a charge of a violation of a clear
statutory mandate or where there is a constitutional claim. Robert F. Stone, 57 ECAB 292 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the September 15, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 10, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT
AGENCY, Purvis, MS, Employer
__________________________________________

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

Docket No. 13-1592
Issued: January 7, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 26, 2013 appellant, through counsel, filed a timely appeal from a March 27,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
schedule award claim. The Board also has jurisdiction over an April 26, 2013 nonmerit decision
denying reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this claim.
ISSUES
The issues are: (1) whether appellant established that she is entitled to a schedule award;
and (2) whether OWCP properly refused to reopen her case for further review of the merits
pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. In an August 12, 2010 decision, the
Board affirmed an OWCP decision dated July 22, 2009 that denied appellant’s recurrence of

disability claim.1 The Board found the medical evidence submitted by appellant insufficient to
establish that her disability as of April 16, 2008 was causally related to her accepted right knee
lateral collateral ligament strain. The facts of the case as set forth in the Board’s prior decision
are incorporated herein by reference.2
On August 3 and 9, 2012 appellant filed a claim for a schedule award.
By letter dated August 8, 2012, OWCP informed appellant that the evidence of record
was insufficient to support a schedule award. It requested that she submit a medical report from
her physician stating whether she had reached maximum medical improvement and providing an
impairment rating. Appellant was given 30 days to provide the requested information. No
evidence was received.
On September 14, 2012 Dr. H.P. Hogshead, an OWCP medical adviser, reviewed the
medical evidence of record. He concluded that appellant had no permanent impairment.
Dr. Hogshead noted that the most recent medical report of April 25, 2011 by Dr. Y. Susi Folse, a
treating Board-certified physiatrist, provided no abnormal findings on physical examination.
By decision dated September 17, 2012, OWCP denied appellant’s claim for a schedule
award. The medical evidence failed to establish permanent impairment to a scheduled member.
On September 21, 2012 counsel requested a telephonic hearing before an OWCP hearing
representative, which was held on January 10, 2013.
In a February 21, 2013 report, Dr. M. Stephen Wilson, an examining physician,
concluded that appellant had a two percent impairment of the right leg under the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides). He noted that she sustained an employment injury on March 21, 2007 when she fell at
work on her right knee. Dr. Wilson reported that appellant had right knee and leg instability,
weakness and pain. Appellant’s right knee symptoms were also exacerbated by prolonged
standing and repetitive movements. A physical examination of the right knee revealed a normal
range of motion, tenderness on palpation over the lateral and medial joint lines, positive
McMurray’s test and moderate patellofemoral crepitation. Using Table 16-3, Dr. Wilson found a
class 1 impairment or default impairment of two percent. He applied a grade modifier 1 for
functional history under Table 16-6, page 516, a grade modifier 1 for physical examination
findings under Table 16-7, page 517 and a grade modifier 1 for clinical studies using Table 16-8,
page 519. Dr. Wilson found the total right knee impairment was two percent.
By decision dated March 27, 2013, OWCP’s hearing representative affirmed the
September 17, 2012 denial of appellant’s schedule award claim. She found that Dr. Wilson’s
report was insufficient to permanent impairment due to the accepted employment injury as it was
based on an inaccurate medical and factual history.
1

Docket No. 09-2338 (issued August 12, 2010).

2

On March 21, 2007 appellant, then a 45-year-old receiving/dispatch clerk, filed a traumatic injury claim alleging
that on that date she injured her right knee when she stepped out of a traveling trailer. OWCP accepted the claim for
right knee collateral ligament strain.

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On April 2, 2013 counsel requested reconsideration. In support of her request, appellant
resubmitted the February 21, 2013 impairment rating by Dr. Wilson.
By decision dated April 26, 2013, OWCP denied reconsideration without further merit
review.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 Effective May 1, 2009, OWCP adopted the
sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that
date.6
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for right knee collateral ligament strain. Appellant
filed a claim for a schedule award which it denied on September 17, 2012. OWCP’s hearing
representative affirmed the denial in a March 27, 2013 decision. The issue is whether appellant
has established permanent impairment of her legs. The Board finds that she has failed to meet
her burden of proof.
The only evidence appellant submitted supporting her claim for a schedule award is the
February 21, 2013 report from Dr. Wilson. However, the report is based on an inaccurate history
of the employment injury. While Dr. Wilson correctly noted an injury date of March 21, 2007,
his description of how the injury occurred is inaccurate. He stated that the injury occurred when
appellant fell on March 21, 2007. However, a review of the record shows that the injury was
sustained when she heard her knee popping while stepping out of a trailer. Appellant did not
attribute her right knee injury to a fall. The Board has held that medical reports based on an
inaccurate factual history are entitled to diminished probative value.7 Thus, Dr. Wilson’s report
is insufficient to support appellant’s claim for a schedule award.

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id.

6

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
7

L.G., Docket No. 09-1692 (issued August 11, 2010); M.W., 57 ECAB 710 (2006); James R. Taylor, 56 ECAB
537 (2005).

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The record also contains a September 14, 2012 report by Dr. Hogshead, who concluded
that appellant had no permanent impairment of her legs. Dr. Hogshead noted the lack of any
abnormal physical examination findings by appellant’s treating physician in an April 25, 2001
report.
The Board finds that the record provides no probative medical evidence to establish any
permanent impairment causally related to appellant’s accepted right knee collateral ligament
strain. Appellant has not met her burden to submit medical evidence supporting that she
sustained a permanent impairment of a scheduled member of the body due to her accepted work
injury.8 She has not met her burden of proof.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,9
OWCP’s regulations provide that 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.10 To be entitled to a merit review of OWCP’s 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.11 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.12
ANALYSIS -- ISSUE 2
Counsel requested reconsideration by letter dated April 2, 2013 and resubmitted the
February 21, 2013 report from Dr. Wilson in support of appellant’s request. The issue on appeal
is whether appellant’s April 2, 2013 request for reconsideration met any of the conditions under
20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for further review of the merits.
Appellant did not submit any pertinent new or relevant evidence in support of her April 2,
2013 reconsideration request. She did not show that OWCP erroneously applied or interpreted a
8

Annette M. Dent, 44 ECAB 403 (1993).

9

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
10

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
11

Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

12

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).

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specific point of law. The only evidence provided by appellant with her request was a copy of
the February 21, 2013 report by Dr. Wilson, which was previously of record and considered by
OWCP’s hearing representative in a March 27, 2013 decision. The Board finds that she has not
established a basis for reopening her case for further merit review. The evidence submitted
repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening appellant’s case.13
The Board finds that OWCP properly determined that appellant was not entitled to
further review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(3) and properly denied her April 2, 2013 request for reconsideration.
CONCLUSION
The Board finds that appellant has not established that she sustained a permanent
impairment of her right lower extremity causally related to the accepted March 21, 2007
employment injury. The Board further finds that OWCP properly denied appellant’s request for
further merit review of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 26 and March 27, 2013 are affirmed.
Issued: January 7, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
13

See F.R., 58 ECAB 607 (2007); D’Wayne Avila, 57 ECAB 642 (2006).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.W., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL CORRECTIONAL
INSTITUTE, Memphis, TN, Employer
__________________________________________

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

Docket No. 09-1289
Issued: March 24, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 20, 2009 appellant filed a timely appeal from a February 6, 2009 decision of the
Office of Workers’ Compensation Programs that denied his 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 this
case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has an
impairment caused by the accepted internal derangement of the right medial meniscus that would
entitle him to a schedule award. On appeal, he contends that, while he has received schedule
awards totaling seven percent for the right leg adjudicated under the Office file number
xxxxxx001, the instant claim is for a new injury and he should therefore be entitled to a separate
schedule award.

FACTUAL HISTORY
On January 29, 2008 appellant, then a 47-year-old supervisory correctional officer,
sustained an employment-related internal derangement of the right medial meniscus when he
slipped on a puddle of water.1 He did not stop work until June 24, 2008 when Dr. Jean Simard, a
Board-certified orthopedic surgeon, performed right knee arthroscopy, partial medial
meniscectomy, chondroplasty and lateral release. Appellant returned to sedentary duty on
September 2, 2008. In reports dated December 5, 2008, Dr. Simard noted examination findings
of full range of motion, no swelling and mild quadriceps atrophy. He advised that appellant
could return to full duty without restrictions.
On December 9, 2008 appellant filed a schedule award claim and submitted a
December 5, 2008 report in which Dr. Simard advised that appellant reached maximum medical
improvement that day. Dr. Simard provided knee range of motion findings and advised that,
under Table 17-6 of the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides),2 appellant was entitled to a five percent
impairment for right thigh atrophy and, under Table 17-33 a two percent impairment for a partial
medial meniscectomy, to total a seven percent right lower extremity impairment. Appellant
returned to full duty on December 8, 2008. By report dated January 22, 2009, an Office medical
adviser reviewed Dr. Simard’s report and advised that, in accordance with Table 17-33, appellant
was entitled to a two percent right lower extremity impairment. The medical adviser noted that
Table 17-2 of the A.M.A., Guides precludes the use of a pain impairment with a diagnosis-based
estimate found in Table 17-33.
By decision dated February 6, 2009, the Office found that, based on the opinion of the
Office medical adviser, appellant was entitled to a two percent permanent impairment of the
right lower extremity but that, as he had already received seven percent impairment of the right
lower extremity, he was not entitled to an additional award.
LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act3 and section 10.404 of
the implementing federal regulations,4 schedule awards are payable for permanent impairment of
specified body members, functions or organs. 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

1

The record indicates that on July 31, 2002 appellant was granted a schedule award for a three percent
impairment of the left lower extremity and on February 3, 2006 was granted a schedule award for a five percent
impairment of the right lower extremity. The schedule award decision noted that he had previously received a two
percent impairment of the right lower extremity. That decision is not found in the record.
2

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

2

A.M.A., Guides5 has been adopted by the Office and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.6
Before the A.M.A., Guides, can be utilized, a description of impairment must be obtained
from the claimant’s physician. In obtaining medical evidence required for a schedule award, the
evaluation made by the attending physician must include a description of the impairment
including, where applicable, the loss in degrees of active and passive motion of the affected
member or function, the amount of any atrophy or deformity, decreases in strength or
disturbance of sensation or other pertinent descriptions of the impairment. This description must
be in sufficient detail so that the claims examiner and others reviewing the file will be able to
clearly visualize the impairment with its resulting restrictions and limitations.7
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the Office medical adviser for an opinion concerning the nature and
percentage of impairment.8
ANALYSIS
The Board finds that appellant has not established that he is entitled to a schedule award
greater than the seven percent previously awarded. By report dated December 5, 2008,
Dr. Simard, an attending orthopedic surgeon who performed partial meniscectomy on appellant’s
right knee on July 24, 2008, stated that he reached maximum medical improvement that day. He
advised that on examination appellant had mild quadriceps atrophy which under Table 17-6 of
the A.M.A., Guides, would entitle him to a five percent impairment and that under Table 17-33,
he was entitled to a two percent impairment for a partial medial meniscectomy, for a total seven
percent impairment of the right lower extremity. Table 17-6 of the A.M.A., Guides provides that
mild thigh atrophy can yield a three to eight percent impairment,9 but Table 17-2 provides that an
impairment for atrophy cannot be combined with an impairment for a diagnosis-based
meniscectomy.10 Based on Dr. Simard’s examination findings, appellant would therefore be
entitled to a five percent impairment rating.
In a January 22, 2009 report, an Office medical adviser noted his review of Dr. Simard’s
report and advised that Table 17-2 precluded combining impairment ratings for a diagnosisbased estimate and for pain. He concluded that appellant was entitled to a two percent right
lower extremity impairment. Dr. Simard, however, did not provide an impairment rating for pain
but stated that, under Table 17-6, appellant was entitled to a five percent impairment for thigh
5

A.M.A., Guides, supra note 2.

6

See Joseph Lawrence, Jr., supra note 2.

7

Patricia J. Penney-Guzman, 55 ECAB 757 (2004).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002); see J.P., 60 ECAB ____ (Docket No. 08-832, issued November 13, 2008).
9

Id. at 530.

10

A.M.A., Guides, supra note 2 at 526.

3

atrophy. The A.M.A., Guides provides for three separate methods for calculating the lower
extremity impairment: anatomic; functional and diagnosis based. When uncertain about which
method to use, the evaluator should calculate the impairment using different alternatives and
choose the method or combination of methods that gives the most clinically accurate impairment
rating. If more than one method can be used, the method that provides the higher impairment
rating should be adopted.11 Thus, as Dr. Simard found a five percent impairment due to thigh
atrophy, a finding greater than the two percent diagnosis-based estimate for a partial
meniscectomy, appellant established that he was entitled to a schedule award for a five percent
impairment rating of the right lower extremity.
With his appeal to the Board, appellant acknowledged that he had previously been
granted schedule awards totaling seven percent for a right lower extremity impairment. While he
argued on appeal that the previous award was for a different injury, section 8107 of the Act
provides that schedule awards are payable for permanent impairment of specified body members,
functions or organs, not for specific injuries12 and section 8108(1) provides that the period of
compensation payable under section 8107 is reduced by the period compensation paid or payable
under the schedule for an earlier injury if compensation in both cases is for disability of the same
member,13 which in this case is the right lower extremity. Appellant therefore has not
established that he is entitled to a schedule award for a right lower extremity impairment greater
than the seven percent previously awarded.
CONCLUSION
The Board finds that appellant is not entitled to a schedule award for his right lower
extremity greater than the seven percent previously awarded.

11

Id. at 527, 555; see J.C., 60 ECAB ____ (Docket No. 08-1833, issued March 23, 2009).

12

5 U.S.C. § 8107.

13

Id. at § 8108(1).

4

ORDER
IT IS HEREBY ORDERED THAT the February 6, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 24, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF THE ARMY, CORPUS
CHRISTI ARMY DEPOT, Corpus Christi, TX,
Employer
__________________________________________

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

Docket No. 17-0994
Issued: October 5, 2017

Case Submitted on the Record

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

JURISDICTION
On April 6, 2017 appellant, through counsel, filed a timely appeal from a February 2,
2017 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.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits on April 18, 2016; and (2) whether appellant met
his burden of proof to establish continuing disability or residuals after his benefits were
terminated.
On appeal counsel asserts that the February 2, 2017 decision is contrary to fact and law.
FACTUAL HISTORY
On March 20, 2013 appellant, then a 46-year-old aircraft mechanic, filed an occupational
disease claim (Form CA-2) alleging that his repetitive work duties caused bilateral elbow and
lower back conditions. On April 30, 2013 OWCP accepted the conditions of displacement of
lumbar intervertebral disc without myelopathy, lumbar sprain, bilateral medial epicondylitis,
bilateral lateral epicondylitis, and bilateral sprain of elbow and forearm. Appellant stopped work
on April 15, 2013 and did not return. He received wage-loss compensation and was placed on
the periodic compensation rolls.
On April 18, 2013 Dr. Patrick L. Gleason, a Board-certified neurosurgeon replaced a
dorsal column stimulator generator that had been initially inserted seven years previously.3
In October 2013, OWCP referred appellant to Dr. James E. Butler, a Board-certified
orthopedic surgeon, to determine his work capacity. In an October 14, 2013 report, Dr. Butler
noted a past medical history of back injury in 2001. He provided extensive physical examination
findings and diagnosed failed back syndrome, bilateral L5 radiculopathy, and painful elbows,
probably inflammatory. Dr. Butler advised that appellant was able to work modified duty with
permanent restrictions.
On October 16, 2013 appellant came under the care of Dr. Michael McLeod, Boardcertified in physical medicine, rehabilitation, and pain medicine. Dr. McLeod noted a past
history of lumbar fusion and decompression from L4 to S1. Following physical examination, he
diagnosed chronic pain syndrome, long-term use of medication, depression, anxiety disorder,
insomnia, lumbar root lesion, and postlaminectomy syndrome.
In a December 31, 2013 report, Dr. James D. Key, an attending Board-certified
orthopedic surgeon, noted his disagreement with Dr. Butler’s report. He indicated that he did not
think it was safe for appellant to work while taking medication.4
OWCP found that a conflict had been created regarding appellant’s work capabilities and
referred him to Dr. Charles W. Kennedy, Jr., Board-certified in orthopedic surgery, for an
impartial evaluation. In a March 24, 2014 report, Dr. Kennedy noted a significant lower back
3

A May 15, 2013 computerized tomography (CT) scan of the lumbar spine demonstrated status post fusion and
decompression from L4 to S1 and no significant disc bulges, extrusions, or spinal canal stenosis.
4

Dr. Key had provided a previous report dated April 9, 2013 on which OWCP had relied in accepting appellant’s
claim.

2

history with two prior surgeries. He reported physical examination findings and advised that
appellant was unable to work, noting that he was taking inappropriate and excessive pain
medication. Dr. Kennedy recommended psychological testing.
On May 18, 2014 Dr. Ryan B. Thomas, a Board-certified orthopedist, began treating
appellant’s bilateral elbow pain. He described upper extremity physical examination findings
and diagnosed bilateral lateral and medial epicondylitis.
Dr. Thomas Martens, an osteopath, prepared an impairment evaluation on June 10, 2014.
On September 2014 OWCP referred appellant to Dr. Jairo A. Fuentes, a Board-certified
physiatrist, for a second opinion evaluation to determine appellant’s current work capacity. In a
September 19, 2014 report, Dr. Fuentes noted appellant’s history of back problems dating back
to 1999 with subsequent surgeries. He described physical examination findings and diagnosed
tendinitis and synovitis of both elbows, status post lumbar fusion, and chronic pain syndrome,
lumbar spine. Dr. Fuentes advised that appellant’s chronic pain syndrome was due to failed back
surgery and subsequent infection at the site of implantation of a stimulator battery. He also
found a great deal of functional overlay and advised that appellant was taking too many narcotic
analgesics without significant benefit and recommended appropriate medication.
On May 11, 2015 OWCP again referred appellant to Dr. Walter A. Del Gallo, a Boardcertified orthopedic surgeon, for a second opinion evaluation to determine appellant’s current
work capacity.5 In a report dated May 28, 2015, Dr. Del Gallo noted his review of the medical
record, the accepted conditions, and the physical requirements of appellant’s date-of-injury job.
He described a preexisting lower back condition with prior surgeries and a problematic spinal
cord stimulator implantation which had been removed. Dr. Del Gallo noted appellant’s use of
significant opioid medication. He reported physical examination findings of diffuse tenderness
in both elbows including the medial and epicondylar areas, lumbar paraspinal tenderness,
restricted lumbar range of motion, and pain with straight leg raising bilaterally, both seated and
supine. Motor strength was 5/5 and symmetrical in all extremities, and sensation to light touch
was intact and symmetrical in all extremities.
Dr. Del Gallo opined that appellant’s lumbar spine problems were clearly preexisting.
He advised that there was insufficient evidence to support that appellant’s job duties caused the
diagnosed bilateral medial and lateral epicondylitis, noting that the symptoms were unimproved
even though appellant had ceased work two years before. Dr. Del Gallo explained that
appellant’s lack of response to any treatment for these conditions supported the lack of these
diagnoses. He advised that appellant’s pain was due to preexisting conditions and was not work
related.
In answer to specific OWCP questions, Dr. Del Gallo advised that the accepted workrelated conditions had resolved, noting the absence of displacement of a lumbar intervertebral
disc on CT or physical examination, and no evidence of a lumbar sprain on physical
examination. He indicated that both the elbow sprain and the bilateral medial and lateral
5

The statement of accepted facts (SOAF) and the list of questions provided to the physician by OWCP set forth
the conditions accepted by OWCP as employment related.

3

epicondylitis were not employment related. Dr. Del Gallo recommended that appellant be
weaned off pain medication. He advised that, in regard to the accepted conditions, appellant
could return to full duty as an aircraft mechanic, but that appellant would have significant
restrictions due to his preexisting and concurrent conditions. On an attached work capacity
evaluation (OWCP-5c form), Dr. Del Gallo advised that appellant had permanent restrictions and
could not work eight hours daily.6
In an August 11, 2015 report, Dr. Martens noted his disagreement with Dr. Del Gallo’s
report. He acknowledged that appellant had a preexisting back condition, but opined that his job
duties as an aircraft mechanic aggravated his back condition. Dr. Martens further opined that the
epicondylitis and sprain diagnoses were also caused by appellant’s work duties, and that he was
only on one narcotic medication and had not seen pain management for quite some time. He
advised that appellant was unable to return to work due to severe pain.
In October 2015, OWCP determined that a conflict in medical evidence had been created
between the opinions of Dr. Del Gallo and Dr. Martens regarding appellant’s condition status,
treatment opinions, and work capability.
A March 2, 2016 CT scan of the lumbar spine demonstrated hardware from previous
surgery, moderate spinal stenosis at L2-3 with borderline spinal canal size at L3-4, and no acute
abnormality otherwise identified.
On March 4, 2016 Dr. Martens requested that additional conditions be accepted. He
noted the accepted conditions, reviewed some medical evidence, and recommended that chronic
pain syndrome and major depressive disorder be added to the accepted conditions.
In a March 7, 2016 report, Dr. Ryan Potter, Board-certified in anesthesiology and pain
medicine, noted appellant’s complaint of mid-back, low-back, and bilateral leg pain. Following
physical examination which included a positive straight-leg raising bilaterally, he diagnosed
opioid dependence, low back pain, and radiculopathy. Dr. Potter recommended further studies.
On March 11, 2016 OWCP proposed to terminate appellant’s wage-loss and medical
benefits. It found that the weight of the medical opinion evidence rested with the opinion of
Dr. Del Gallo who advised that appellant’s work-related conditions had ceased and that he was
no longer disabled due to the accepted conditions.7
In a treatment note dated April 4, 2014, a nurse practitioner working with Dr. Potter,
noted the accepted conditions. She indicated that appellant was being scheduled for a caudal
injection.

6

The record also includes emergency department reports dated May 30 and June 1 and 3, 2015 noting that
appellant was seen for a pilonidal cyst abscess.
7

In correspondence dated March 17, 2016, OWCP notified appellant that a conflict in medical evidence had been
created and referred him to Dr. Goran Jezic, a Board-certified physiatrist. The appointment was cancelled as the
March 11, 2016 notice had been issued.

4

By decision dated April 18, 2016, OWCP terminated appellant’s wage-loss and medical
benefits, effective that day. It found that the weight of the medical evidence rested with the
opinion of Dr. Del Gallo.
A report submitted on April 25, 2016 indicated that Dr. Potter performed a caudal
epidural injection that day.
On April 22, 2016 appellant requested a hearing with OWCP’s Branch of Hearings and
Review.
At the hearing, held on December 7, 2016, counsel asserted that, as Dr. Del Gallo had not
based his opinion on the accepted conditions listed in the SOAF, his opinion was insufficient to
meet OWCP’s burden of proof to terminate. He noted that Dr. Del Gallo indicated that the
epicondylitis diagnoses could not be employment related and that the evidence did not establish a
displaced disc. The hearing representative advised appellant to submit an updated medical
opinion. Nothing further was submitted.
In a February 2, 2017 decision, an OWCP hearing representative found that the weight of
the medical evidence rested with the opinion of Dr. Del Gallo and affirmed the April 18, 2016
decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.8
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.9
ANALYSIS
OWCP accepted the conditions of displacement of lumbar intervertebral disc without
myelopathy, lumbar sprain, bilateral medial epicondylitis, bilateral lateral epicondylitis, and
bilateral sprain of elbow and forearm. Appellant stopped work on April 15, 2013, did not return,
and was placed on the periodic compensation rolls. By decision dated April 18, 2016, OWCP
terminated his wage-loss and medical benefits, effective that day. It found that the weight of the
medical evidence rested with the opinion of Dr. Del Gallo, a Board-certified orthopedic surgeon,
who provided a second opinion evaluation for OWCP.
The Board finds that this case is not in posture for decision because Dr. Del Gallo’s
opinion was not consistent with the SOAF. Bilateral medial and bilateral lateral epicondylitis
and lumbar disc displacement conditions had been accepted as work related.10 It is well
8

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

9

Id.

10

See Willa M. Frazier, 55 ECAB 379 (2004).

5

established that a physician’s opinion must be based on a complete and accurate factual and
medical background. When OWCP has accepted an employment condition as occurring in the
performance of duty, the physician must base his opinion on these accepted conditions.11
As noted, in his May 28, 2015 report, Dr. Del Gallo opined that appellant’s lumbar spine
problems were clearly preexisting and also advised that there was insufficient evidence to
support that appellant’s job duties caused the diagnosed bilateral medial and lateral epicondylitis.
He indicated that appellant’s pain was due to preexisting conditions and was not work related.
Medical opinions based on an incomplete or inaccurate history are of diminished
probative value.12 When OWCP has accepted an employment condition as occurring in the
performance of duty, the physician must base his opinion on the accepted facts.13
In Paul King,14 the Board found that the report of an impartial medical examiner who
disregarded a critical element of the SOAF was of diminished probative value. In King, the
impartial medical examiner also disagreed with the medical basis for acceptance of a condition.
The Board found that this defective report was insufficient to resolve an existing conflict of
medical opinion evidence.15
Dr. Del Gallo likewise disregarded the SOAF and, as in King, did not rely on the SOAF
regarding the accepted conditions. The Board therefore finds his report to be of diminished
probative value. The Board notes that it is the function of a medical expert to give an opinion
only on medical questions, not to find facts.16
The Board therefore finds that Dr. Del Gallo’s opinion is of limited value on the relevant
issue in this case, and OWCP improperly relied on his opinion to terminate appellant’s wage-loss
compensation and medical benefits.17
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits on April 18, 2016.

11

V.C., Docket No. 14-1912 (issued September 22, 2015).

12

L.G., Docket No. 09-1692 (issued August 11, 2010).

13

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

14

54 ECAB 356 (2003).

15

Id.

16

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

17

In view of the Board’s disposition of the first issue, it is not necessary to address the second issue.

6

ORDER
IT IS HEREBY ORDERED THAT the February 2, 2017 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 5, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 15-0837
Issued: July 10, 2015

Case Submitted on the Record

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

JURISDICTION
On March 2, 2015 appellant filed a timely appeal from a November 20, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury on January 7, 2014 in the performance
of duty.
FACTUAL HISTORY
On January 9, 2014 appellant, then a 56-year-old postmaster, filed a traumatic injury
claim alleging that at 12:20 p.m. on January 7, 2014 he injured his left shoulder when he fell on

1

5 U.S.C. § 8101 et seq.

ice in a parking lot. He did not stop work and the employing establishment did not controvert his
claim. Appellant’s regular-duty hours were from 8:30 a.m. until 5:00 p.m.
Appellant submitted reports from a physician assistant, Reid C. Berger, who noted a
history of a traumatic injury to the shoulder sustained on January 7, 2014. He recommended
light duty, including no lifting.
Appellant also submitted a report dated February 13, 2014 from Dr. Mark Romzek, an
osteopath, who evaluated appellant for pain in his left shoulder after he slipped and fell on ice in
a parking lot. Dr. Romzek diagnosed tendinitis, bursitis, and a partial rotator cuff tear of the left
shoulder.
By letter dated October 17, 2014, OWCP advised appellant that it had initially paid a
limited amount of medical expenses as his claim appeared minor and was uncontroverted, but
was now formally adjudicating his claim. It requested that he submit additional factual and
medical information, including a detailed description of how his injury occurred and whether he
was on the premises of the employing establishment at the time of the incident. OWCP
requested that appellant explain whether the employing establishment owned or managed the
parking lot. It further advised him that a physician assistant was not considered a physician
under FECA and asked that he submit a comprehensive report from a physician addressing the
causal relationship between any diagnosed condition and work factors. Appellant did not
respond within the allotted time.
In a decision dated November 20, 2014, OWCP denied appellant’s traumatic injury claim
after finding that he had not established that he was injured in the performance of duty. It
determined that he had not demonstrated that he was in the scope of employment at the time of
his injury. OWCP noted that neither appellant nor the employing establishment submitted
evidence regarding “the facts surrounding the parking lot” necessary to show whether he was in
the performance of duty at the time of the incident. It further found that the medical evidence
was also insufficient to show that he sustained a diagnosed condition as a result of the January 7,
2014 incident.
LEGAL PRECEDENT
FECA2 provides for the payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.3 The phrase sustained
while in the performance of duty is regarded as the equivalent of the coverage formula
commonly found in workers’ compensation laws, namely, arising out of and in the course of
employment.4 In the course of employment relates to the elements of time, place, and work
activity.5 To arise in the course of employment, an injury must occur at a time when the
2

Id.

3

Id. at § 8102(a).

4

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).
5

D.L., 58 ECAB 667 (2007).

2

employee may reasonably be said to be engaged in his master’s business, at a place where he
may reasonably be expected to be in connection with his employment, and while he was
reasonably fulfilling the duties of her employment or engaged in doing something incidental
thereto.
OWCP’s procedures provide:
“If the employee has a fixed place of work, the CE [claims examiner] must
ascertain whether the employee was on the premises when the injury occurred.
The answers to the appropriate sections of Forms CA-1, CA-2 and CA-6 contain
information on this point. If clarification is needed, it should be secured from the
official superior in the form of a statement which describes the boundaries of the
premises and shows whether the employee was within those boundaries when the
injury occurred. Where indicated, the clarification should include a diagram
showing the boundaries of the industrial premises and the location of the injury
site in relation to the premises.”6
Regarding parking facilities, OWCP’s procedures provide:
“The industrial premises include the parking facilities owned, controlled, or
managed by the employer. An employee is in the performance of duty when
injured while on such parking facilities unless engaged in an activity sufficient for
removal from the scope of employment. In such cases the official superior should
be requested to state whether the parking facilities are owned, controlled, or
managed by the employer, and whether the injury did in fact occur in the parking
area. The CE may approve the case when the official superior’s response is
affirmative and consistent with the other evidence.”7
An employee’s presence at the employing establishment’s premises during work hours,
or a reasonable period before or after a duty shift, is insufficient, in and of itself, to establish
entitlement to benefits for compensability. The claimant must also establish the concomitant
requirement of an injury arising out of the employment. This encompasses not only the work
setting, but also the causal concept that some factor of the employment caused or contributed to
the claimed injury. In order for an injury to be considered as arising out of the employment, the
facts of the case must show substantial employer benefit is derived or an employment
requirement gave rise to the injury.8
ANALYSIS
Appellant alleged that he injured his left shoulder on January 7, 2014 when he slipped
and fell on ice in a parking lot. The employing establishment did not controvert the claim.
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.4(b) (August 1992).

7

Id. at Chapter 2.804.4(f) (August 1992).

8

See Cheryl Bowman, 51 ECAB 519 (2000); Shirlean Sanders, 50 ECAB 299 (1999); Charles Crawford, 40
ECAB 474 (1989).

3

OWCP requested that appellant submit supporting factual evidence, including a detailed
description of the circumstances surrounding his fall on January 7, 2014 and whether the
employing establishment controlled the parking lot where the alleged incident occurred. OWCP
did not request information from the employing establishment regarding whether the parking lot
was part of its premises.
The Board finds that the case is not in posture for decision, as the evidence of record is
insufficient to determine whether appellant was on the premises of the employing establishment
at the time of the alleged January 7, 2014 work incident. OWCP’s procedures provide that it
should obtain relevant information from an official superior if it requires clarification before
determining whether or not the employee was on the premises.9 Its procedures further provide
that it should ask that an official superior relate whether the parking facilities are owned,
controlled, or managed by the employing establishment.10 However, there is no evidence that
OWCP obtained a statement from the employing establishment in accordance with its procedures
prior to finding that appellant had not shown that he was on the premises of the employing
establishment when injured.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While appellant has the burden to establish entitlement to compensation, OWCP shares
the 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
The Board finds that OWCP did not sufficiently develop the evidence regarding whether the
parking lot where the alleged incident occurred was on the premises of the employing
establishment.12 OWCP may not simply conclude, based on the failure of appellant and the
employer to respond, that appellant has not met his burden.13
On remand, OWCP should obtain information from the employing establishment and
determine whether the parking lot was owned, managed, or controlled by the employing
establishment and thus part of the premises.14 It should then determine whether appellant was in
the performance of duty at the time of the incident and, if so, adjudicate whether the factual and
medical evidence establishes that he sustained an injury as alleged. Following such further
development as deemed necessary, OWCP should issue a de novo decision.

9

See supra note 6.

10

See supra note 7.

11

See L.L., Docket No. 12-194 (issued June 5, 2012); N.S., 59 ECAB 422 (2008); Mary A. Geary, 43 ECAB
300 (1991).
12

See Rosie P. Colmer, Docket No. 03-116 (issued May 2, 2003).

13

See Londa Lee, Docket No. 01-1183 (issued January 22, 2002)

14

Off-premises injuries sustained by employees having fixed hours and place of work, while going to or coming
home from work or during a lunch period, are not compensable as they do not arise out of and in the course of
employment but are merely the ordinary, nonemployment hazards of the journey itself, which are shared by all
travelers. Anne R. Rebeck, 32 ECAB 315 (1980).

4

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 20, 2014 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: July 10, 2015
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
DEPARTMENT OF THE ARMY, SURFACE
DEPLOYMENT & DISTRIBUTION
COMMAND, Fort Bragg, NC, Employer
__________________________________________

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

Docket No. 19-1574
Issued: March 24, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 18, 2019 appellant, through counsel, filed a timely appeal from a May 15, 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 greater than seven
percent permanent impairment of his right upper extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
On March 17, 2016 appellant, then a 48-year-old braker/switcher, filed a traumatic injury
claim (Form CA-1) alleging that on March 14, 2016 he injured his right shoulder while attempting
to pull handbrakes off of a railcar while in the performance of duty. He stopped work on
April 5, 2016. OWCP accepted the claim for right shoulder joint sprain. On August 31, 2016
appellant underwent an OWCP-approved right shoulder diagnostic arthroscopy, major
glenohumeral debridement, superior labrum anterior posterior Type 2 tear debridement, long head
of the biceps tenotomy, complete subacromial decompression of a Type 3 acromion and
subacromial bursa and rotator cuff repair with one triple-loaded suture. OWCP placed him on the
supplemental rolls effective August 31, 2016 and on the periodic rolls effective
September 18, 2016. Appellant returned to full-time, light-duty capacity on January 18, 2017.
On April 27, 2017 appellant filed a claim for a schedule award (Form CA-7).
In an April 5, 2017 report, Dr. Chad M. Fortun, a Board-certified orthopedic surgeon,
indicated that appellant had 11 percent right upper extremity permanent impairment. He noted
that appellant had undergone right shoulder surgery and also had minor restrictions in range of
motion (ROM) and occasional right shoulder pain.
On May 1, 2017 Dr. David Garelick, a Board-certified orthopedic surgeon serving as a
district medical adviser (DMA), indicated that Dr. Fortun’s April 5, 2017 impairment rating was
not in accordance with the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).3 He opined, under Table 15-5, page 403
of the A.M.A., Guides, that appellant had five percent permanent impairment for a full-thickness
rotator cuff tear under the diagnosis-based impairment (DBI) methodology for assigning
permanent impairment. The DMA noted that there was no change using the net adjustment
formula and that appellant had reached maximum medical improvement (MMI) on April 5, 2017.
By decision dated May 10, 2017, OWCP granted appellant a schedule award for five
percent permanent impairment of the right upper extremity based on the DMA’s report. The award
ran 15.6 weeks for the period April 5 through July 23, 2017.
On May 18, 2017 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative, which was held on November 9, 2017.
By decision dated January 9, 2018, OWCP’s hearing representative set aside the May 10,
2017 decision and remanded the claim for further medical development and application of FECA

3

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

2

Bulletin No. 17-06.4 The hearing representative instructed that the DMA consider both the DBI
and the ROM methodology in determining the extent of permanent impairment.
In a January 12, 2018 supplemental report, the DMA advised that the ROM methodology
could not be applied as appellant’s right shoulder measurements were taken only one time and
FECA Bulletin No. 17-06 required three independent measurements for use of the ROM
methodology. He reiterated that appellant had five percent permanent impairment under the DBI
methodology.
In a February 23, 2018 report, Dr. Fortun applied the sixth edition of the A.M.A., Guides
to his April 5, 2017 examination findings. He indicated that MMI was reached on April 5, 2017.
Using the DBI methodology under Table 15-5, page 403, Dr. Fortun opined that class 1 rotator
cuff tear or tendon rupture, grade A, secondary to minor residual loss of ROM. He indicated that
this would result in five percent right upper extremity impairment rating.
By decision dated March 5, 2018, OWCP denied appellant’s claim for an increased
schedule award.
On March 13, 2018 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
By decision dated July 9, 2018, OWCP’s hearing representative set aside the March 5,
2018 decision and remanded the case for further development. OWCP was directed to request a
supplemental report from Dr. Fortun to provide additional ROM measurements necessary to
determine impairment under the ROM impairment methodology.
In a July 16, 2018 letter to Dr. Fortun, OWCP requested that he provide a supplemental
impairment report in which he evaluated appellant’s permanent impairment of the right upper
extremity using both the DBI and ROM impairment methodology. Dr. Fortun was further advised
that the ROM measurements must have an organic basis, that three independent measurements
must be recorded, and that the greatest ROM finding should be used for determination of
impairment under the ROM methodology.
In an August 8, 2018 report, Dr. Fortun advised that appellant did not have any ROM
restrictions to qualify him for an impairment rating under the ROM methodology.
On August 21, 2018 OWCP referred appellant, along with a statement of accepted facts,
the medical record and a list of questions, to Dr. Chason S. Hayes, a Board-certified orthopedic
surgeon, for a second opinion evaluation and opinion regarding permanent impairment in
accordance with FECA Bulletin No. 17-06 and the sixth edition of the A.M.A., Guides.
In an October 11, 2018 report, Dr. Hayes reviewed appellant’s medical records and noted
examination findings. Utilizing the DBI methodology under Table 15-5 for the diagnosis of rotator
cuff injury partial thickness tear, he opined that appellant had a class 1 impairment. Dr. Hayes
assigned a grade modifier for functional history (GMFH) of 1; a grade modifier for physical
4

FECA Bulletin No. 17-06 (May 8, 2017).

3

examination (GMPE) of 1; and a grade modifier for clinical studies (GMCS) of 1. He indicated
that the resulting grade was C for a final upper extremity impairment of one percent. Under the
ROM methodology, Dr. Hayes reported three ROM measurements and reported the maximum
measurement, including 150 degrees flexion; 40 degrees extension; 150 degrees abduction; 40
degrees adduction; 80 degrees external rotation; and 80 degrees internal rotation. He found that,
flexion of 150 degrees was three percent impairment, extension of 40 degrees was one percent
impairment, abduction of 150 degrees was three percent impairment, and appellant’s other ROM
findings were within normal limits, for a combined permanent impairment of seven percent.
Dr. Hayes opined that the ROM methodology should be used as it resulted in the greater of the
two impairment calculations.
In an updated November 5, 2018 report, the DMA reviewed Dr. Hayes’ report. He found
that MMI occurred on October 11, 2018 the date of Dr. Hayes’ impairment rating. The DMA
maintained his prior five percent right upper extremity impairment rating based on the DBI
method. He also concurred with Dr. Hayes’ seven percent right upper extremity impairment rating
based on the ROM method, noting that shoulder ROM had been measured three times, and that it
represented the greater impairment.
By decision dated November 20, 2018, OWCP granted appellant an additional two percent
impairment of the right upper extremity, for a total seven percent permanent impairment. The
increased schedule award ran for 6.24 weeks for the period October 11 through
November 23, 2018.
On November 27, 2018 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative. The hearing was held March 13, 2019.
By decision dated May 15, 2019, an OWCP hearing representative affirmed the
November 20, 2018 decision.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body.5 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate

5

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

4

standard for evaluating schedule losses.6 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (6th ed. 2009).7
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment class of diagnosis (CDX) condition, which is then adjusted by grade modifiers or
GMFH, GMPE, and GMCS.8 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX)
+ (GMCS - CDX).9
The A.M.A., Guides also provide that ROM impairment methodology is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
DBI sections are applicable.10 If ROM is used as a stand-alone approach, the total of motion
impairment for all units of function must be calculated. All values for the joint are measured and
added.11 Adjustments for functional history may be made if the evaluator determines that the
resulting impairment does not adequately reflect functional loss and functional reports are
determined to be reliable.12
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments.13 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“As the [A.M.A.,] Guides caution that, if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the A.M.A.,
6

20 C.F.R. § 10.404; L.T., Docket No. 18-1031 (issued March 5, 2019); see also Ronald R. Kraynak, 53 ECAB
130 (2001).
7
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5 (March 2017).
8

A.M.A., Guides 383-492.

9

Id. at 411.

10

Id. at 461.

11

Id. at 473.

12

Id. at 474.

13

FECA Bulletin No. 17-06 (May 8, 2017).

5

Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)14
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”15
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified.16
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish greater than
seven percent permanent impairment of his right upper extremity, for which he previously received
a schedule award.
OWCP initially awarded appellant five percent right upper extremity impairment. Upon
further development of the claim, it referred appellant to Dr. Hayes for a second opinion evaluation
and opinion regarding permanent impairment of his right upper extremity under both the DBI and
ROM impairment methodology. In his October 11, 2018 report, Dr. Hayes opined that appellant
had one percent permanent impairment of the right upper extremity under the DBI methodology
and seven percent permanent impairment of the right upper extremity under the ROM
methodology. He concluded that the ROM methodology yielded the greater impairment.
In accordance with its procedures, OWCP properly routed the case record to its DMA who
concurred with Dr. Hayes’ seven percent right upper extremity permanent impairment finding
based upon the ROM methodology and opined that it represented the greater right upper extremity
impairment.
The Board has reviewed Dr. Hayes’ ROM impairment rating under Table 15-34, page 475
of the A.M.A., Guides and concurs that appellant has seven percent permanent impairment of the
right upper extremity based upon the ROM methodology. Pursuant to Table 15-34, appellant’s
right shoulder flexion of 150 degrees equals three percent impairment, extension of 40 degrees
equals one percent impairment, and abduction of 150 degrees equals three percent impairment.

14

A.M.A., Guides 477.

15

Id.; Docket No. 18-0760 (issued November 13, 2018); A.G., Docket No. 18-0329 (issued July 26, 2018).

16

See Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.808.6(f) (March 2017).

6

Appellant’s right shoulder permanent impairment under the ROM methodology therefore totals
seven percent.
While the DMA did not discuss Dr. Hayes’ impairment finding under the DBI
methodology, the Board finds this is harmless error as it equated to five percent right upper
extremity impairment previously calculated and awarded.
There is no other current medical evidence in conformance with the sixth edition of the
A.M.A., Guides addressing a greater than seven percent permanent impairment of the right upper
extremity. Accordingly, appellant has not met his burden of proof to establish greater than seven
percent permanent impairment of his right upper extremity, for which he previously received a
schedule award.
On appeal counsel contends that OWCP failed to give deference to appellant’s attending
physician. The Board does not find that assertion is meritorious and for the reasons set forth above
it finds that appellant has not established greater than seven percent permanent impairment of his
right upper extremity.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish greater than
seven percent permanent impairment of his right upper extremity, for which he previously received
a schedule award.

7

ORDER
IT IS HEREBY ORDERED THAT the May 15, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 24, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
AMERICAN LAKE MEDICAL CENTER,
Tacoma, WA, Employer
__________________________________________

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

Docket No. 16-0585
Issued: March 27, 2017

Case Submitted on the Record

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

JURISDICTION
On February 8, 2016 appellant filed a timely appeal from a December 15, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an additional
schedule award.
FACTUAL HISTORY
On January 5, 2015 appellant, then a 67-year-old social worker, filed an occupational
disease claim (Form CA-2) alleging an employment injury in the performance of duty. She
referred to attachments to her claim form which did not accompany her claim form. Appellant
1

5 U.S.C. § 8101 et seq.

first became aware of her condition on April 14, 2013 and she first became aware that the
condition was related to her federal employment on March 28, 2006.2 OWCP accepted the claim
for bilateral shoulder adhesive capsulitis, bilateral shoulder impingement, and aggravation
bilateral shoulder arthritis.
On January 5, 2015 appellant filed a claim for a schedule award (Form CA-7).
In a December 30, 2014 report, Dr. Daniel A. Brzusek, a treating Board-certified
physiatrist, provided a history of injury and physical examination findings. He diagnosed
bilateral shoulder adhesive capsulitis, bilateral shoulder impingement, and aggravation of
bilateral shoulder arthritis, which he opined had been caused or aggravated by appellant’s
employment. Dr. Brzusek used the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides). He found 35 percent right upper
extremity permanent impairment and 12 percent left upper permanent extremity impairment.
Dr. Brzusek based his impairment rating on the range of motion (ROM) methodology. Using
Table 15-34, page 475 and Figures 15-28, page 476, 15-29, page 475; and 15-30, page 476, he
assigned 9 percent impairment for flexion, 0 percent impairment for extension, 6 percent
impairment for abduction, 2 percent impairment for adduction, 8 percent impairment for internal3
rotation, and 9 percent impairment for external rotation, resulting in a total right upper extremity
permanent impairment of 35 percent.
Next, Dr. Brzusek calculated appellant’s left upper extremity permanent impairment.
Using Table 15-34, page 475 and Figures 15-28, page 475, 15-29, page 476; and 15-30, page
476, he determined 3 percent impairment for flexion and abduction, 0 percent impairment for
adduction and extension, 4 percent impairment for internal rotation, and 2 percent impairment
for external rotation, resulting in a total left upper extremity permanent impairment of 12 percent
under the ROM methodology. Lastly, Dr. Brzusek observed appellant’s rating had changed little
since his last impairment rating of July 12, 2012.
On March 5, 2015 an OWCP medical adviser reviewed Dr. Brzusek’s impairment rating
He indicated that the A.M.A., Guides generally prefer the use of the DBI method, as found on
page 461, but does allow for ratings based on the ROM method if that method better reflects the
degree of impairment. The medical adviser related that his ratings currently were different from
Dr. Brzusek’s as he had erred in reading Table 15-34 regarding extension, adduction, internal
rotation, and external rotation on the right. On the left side he noted that Dr. Brzusek had
misread the impairment value for extension. Using the correct values, the medical adviser
related that appellant had a right upper extremity permanent impairment of 25 percent, and 13
percent left upper extremity permanent impairment due to shoulder pathology.
By letter dated April 20, 2015, OWCP referred appellant for a second opinion evaluation
with Dr. Josef K. Eichinger, a Board-certified orthopedic surgeon, to determine the extent of
appellant’s bilateral upper extremity impairment.
In a June 15, 2015 report, Dr. Eichinger, based on a review of the statement of accepted
facts (SOAF), review of the medical evidence and physical examination, noted the accepted
2

Appellant retired from the employing establishment effective June 28, 2014.

3

The doctor mistakenly wrote external twice.

2

conditions were bilateral shoulder impingement, bilateral shoulder arthritis aggravation, and
bilateral shoulder adhesive capsulitis. Utilizing the A.M.A., Guides (6th ed.), he determined,
using the ROM method of establishing permanent impairment, that appellant had 14 percent
right upper extremity permanent impairment and 16 percent left upper extremity.
In a letter dated August 12, 2015, OWCP referred appellant to Dr. Lance Brigham, a
Board-certified orthopedic surgeon, to resolve the conflict in the medical opinion evidence as to
the extent of permanent impairment.
In a September 2, 2015 report, Dr. Brigham, based upon a review of medical evidence,
the SOAF, and a physical examination, diagnosed bilateral shoulder impingement, adhesive
capsulitis, and aggravation of arthritis. Utilizing the sixth edition of the A.M.A., Guides, and
also using the ROM method of establishing permanent impairment, Dr. Brigham calculated 11
percent permanent impairment of each upper extremity.
On November 15, 2015 an OWCP medical adviser reviewed and concurred with
Dr. Brigham’s impairment determination.
By decision dated December 15, 2015, OWCP denied appellant’s claim for an additional
schedule award. The denial was based on the finding that appellant had previously received a
schedule award under OWCP File No. xxxxxx178 and was not entitled to an additional schedule
award for her bilateral upper extremities under the current claim number, OWCP File No.
xxxxxx012.
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 the FECA program with the Director of OWCP.4 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.5 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.6
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

4

See 20 C.F.R. §§ 1.1-1.4.

5

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
6

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

3

5 U.S.C.

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).7 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.8
ANALYSIS
The issue on appeal is whether appellant met her burden of proof to establish an
additional schedule award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.9
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.10 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.11
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 December 15, 2015
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

7

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

Isidoro Rivera, 12 ECAB 348 (1961).

9

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

10

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

11

Supra note 9.

4

deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper
extremity schedule award.12
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 15, 2015 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: March 27, 2017
Washington, DC

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

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

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

12

In its December 15, 2015 decision, OWCP determined that appellant was not entitled to an additional schedule
in its December 15, 2015 decision since it found she had previously received a schedule award under OWCP File
No. xxxxxx178 for 34 percent right arm permanent impairment and 12 percent left arm permanent impairment. On
remand, it should combine the present case record, OWCP File No. xxxxxx012, with OWCP File No. xxxxxx178.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF THE AIR FORCE, IDAHO
AIR NATIONAL GUARD, Boise, ID Employer
__________________________________________

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Appearances:
Wendy R. Hatten, for the appellant
Office of Solicitor, for the Director

Docket No. 08-1694
Issued: February 2, 2009

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 May 27, 2008 appellant filed a timely appeal from an April 15, 2008 decision of the
Office of Workers’ Compensation Programs denying his claim for a recurrence of disability.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant had a recurrence of disability on August 3, 2002 causally
related to his May 17, 1990 accepted cervical strain.
FACTUAL HISTORY
This is the second appeal in this case.1 By decision dated March 19, 2007, the Board
affirmed Office decisions dated December 15, 2005 and March 3, 2006, which denied
1

Docket No. 06-1389 (issued March 19, 2007). On May 17, 1990 appellant, then a 30-year-old aircraft mechanic,
sustained a cervical strain when he was ejected from an RF-4C aircraft.

appellant’s request for reconsideration of the denial of his claim for a recurrence of disability on
December 30, 1996 causally related to his May 17, 1990 employment injury. The law and the
facts of the previous Board decision are incorporated herein by reference.
On May 27, 2007 appellant filed a claim for a recurrence of disability on August 3, 2002
causally related to his May 17, 1990 accepted cervical strain.2
By letter dated February 13, 2008, the Office asked appellant to submit additional
evidence, including a detailed description of what occurred on August 3, 2002. It also requested
a rationalized medical opinion explaining how his recurrence of disability on August 3, 2002 was
causally related to his May 17, 1990 employment injury.
In a March 11, 2008 letter, appellant, through his representative, contended that he
sustained shoulder and thoracic spine injuries on May 17, 1990, in addition to the accepted
cervical strain. He argued that the medical evidence was sufficient to establish that he sustained
a recurrence of disability on August 3, 2002 causally related to his May 17, 1990 employment
injury.
An October 15, 2007 report from the Boise Veterans Administration Medical Center
addressed appellant’s spinal and lower extremity conditions. However, the report is not signed.
Therefore, it cannot be determined whether a physician prepared the report. The record contains
numerous medical reports discussing appellant’s spinal and lower and upper extremity
conditions. However, none of these reports specifically addresses the issue of whether appellant
sustained a recurrence of disability on August 3, 2002 causally related to his accepted May 17,
1990 cervical strain.
By decision dated April 15, 2008, the Office denied appellant’s claim for a recurrence of
disability on August 3, 2002 on the grounds that the medical evidence failed to establish causal
relationship to the May 17, 1990 employment injury.3
LEGAL PRECEDENT
An employee who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable and
probative evidence that the disability for which compensation is claimed is causally related to the
accepted injury.4 This burden includes the necessity of furnishing medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disabling condition is causally related to the employment injury and supports that

2

Appellant’s claim for a recurrence of disability on October 31, 2002 was denied by Office decision dated
November 22, 2004.
3

Subsequent to the April 15, 2008 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
4

Charles H. Tomaszewski, 39 ECAB 461 (1988).

2

conclusion with sound medical rationale.5 Where no such rationale is present, medical evidence
is of diminished probative value.6
The Office’s implementing federal regulations provide:
“Recurrence of disability means an inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition which
had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness.”7
ANALYSIS
Appellant has the burden to provide medical evidence establishing that he sustained a
recurrence of disability beginning August 3, 2002 causally related to his accepted cervical strain
sustained on May 17, 1990.
By letter dated February 13, 2008, the Office requested that appellant submit additional
evidence, particularly a medical report with a rationalized opinion explaining how his recurrence
of disability on August 3, 2002 was causally related to his May 17, 1990 employment injury.
Appellant submitted no such evidence.
The October 15, 2007 report from the Boise Veterans Administration Medical Center was
not signed by a physician. The Board has held that medical evidence must be in the form of a
reasoned opinion by a qualified physician.8 Therefore, this report does not constitute probative
medical evidence.
The other medical reports of record speak to appellant’s spinal and lower and upper
extremity conditions. However, the reports do not address the issue of whether appellant
sustained a recurrence of disability on August 3, 2002 causally related to his accepted May 17,
1990 cervical strain. There is no medical evidence of record establishing that appellant sustained
a recurrence of disability as alleged. For this reason, the Office properly denied his claim.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a recurrence of disability on August 3, 2002 causally related to his May 17, 1990
accepted cervical strain.

5

Lourdes Davila, 45 ECAB 139 (1993).

6

Michael Stockert, 39 ECAB 1186 (1988).

7

20 C.F.R. § 10.5(x).

8

See Robert J. Krstyen, 44 ECAB 227, 229 (1992).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 15, 2008 is affirmed.
Issued: February 2, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4