United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-0136
Issued: March 28, 2022

Case Submitted on the Record

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

JURISDICTION
On November 2, 2020 appellant filed a timely appeal from an October 8, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case. 3
1
On November 2, 2020 appellant also filed an appeal from a purported October 1, 2020 decision of OWCP.
However, the October 1, 2020 document is a proposed termination notice rather than a final decision of OWCP. The
only final adverse decision over which the Board may exercise jurisdiction is the October 8, 2020 merit decision. See
20 C.F.R. §§ 501.2(c) and 501.3.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 8, 2020 decision, appellant submitted additional evidence to OWCP
and on appeal to the Board. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is
limited to the evidence in the case record that was before OWCP at the time of its f inal decision. Evidence not before
OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is
precluded from reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On April 24, 2013 appellant, then a 31-year-old automation clerk, filed a traumatic injury
claim (Form CA-1) alleging that on April 14, 2013 she sustained an injury to her neck and back
area when she engaged in reaching and lifting duties while in the performance of duty.5 She
stopped work on April 22, 2013. OWCP accepted that appellant sustained aggravation of
preexisting cervical spondylosis and paid appellant wage-loss compensation for disability from
work commencing April 22, 2013 on the supplemental rolls and commencing December 15, 2013
on the periodic rolls.
On January 15, 2015 appellant filed a claim for compensation (Form CA-7) for a schedule
award due to her accepted April 14, 2013 employment injury. In support of her claim, she
submitted an October 28, 2014 report in which Dr. Jonathan Nissanoff, a Board-certified
orthopedic surgeon, determined that she had a 30 percent “combined whole person impairment
rating.”
By decision dated March 11, 2015, OWCP denied appellant’s claim for a schedule award.
By decision dated October 22, 2015, OWCP denied modification of the March 11, 2015
decision. On April 7, 2016 appellant requested reconsideration and submitted additional evidence.
By decision dated April 14, 2016, OWCP denied her request for reconsideration of the merits of
her claim pursuant to 5 U.S.C. § 8128(a).

4

Docket No. 15-1437 (issued May 9, 2016).

5

Based on the description of injury, appellant’s claim was converted to an occupational disease claim (Form CA-2)
because the employment activities occurred over a period longer than one workday or shift. A traumatic injury refers
to injury caused by a specific event or incident or series of incidents occurring within a single workday or work shift,
whereas an occupational disease refers to an injury produced by employment over a period longer than a single workday
or shift. 20 C.F.R. §§ 10.5(q), (ee), respectively; R.V., Docket No. 18-1037 (issued March 26, 2019); Brady L. Fowler,
44 ECAB 343, 351 (1992).

2

Appellant also appealed to the Board and, by decision dated May 9, 2016, 6 the Board
affirmed the decision. 7
In a July 25, 2018 report, Dr. Kamshad Raiszadeh, a Board-certified orthopedic surgeon,
determined that appellant had zero percent permanent impairment of the upper extremities
stemming from the cervical spine. He noted that, although an electromyogram/nerve conduction
velocity (EMG/NCV) study suggested mild carpal tunnel syndrome and an ulnar condition, there
was no frank neurologic evidence of either condition upon which to rate a diagnosis-based
impairment. Dr. Raiszadeh referenced symptoms of pain in appellant’s wrists and found one
percent permanent impairment of each upper extremity due to the reported symptoms by utilizing
Table 15-2 (Wrist Regional Guide) on page 395 of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).8
In an October 22, 2018 report, Dr. David M. Kupfer, a Board-certified orthopedic surgeon,
indicated that appellant had a history of bilateral carpal tunnel syndrome and left ulnar neuropathy.
A February 15, 2019 EMG/NCV study found no sensory or motor findings emanating from the
cervical spine. The study revealed mild findings in the ulnar and median nerves.
On April 17, 2019 OWCP referred appellant’s medical record to Dr. Herbert White, a
Board-certified orthopedic surgeon serving as an OWCP district medical adviser (DMA). It
requested an opinion on permanent impairment utilizing The Guides Newsletter, Rating Spinal
Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter),
which is a supplemental publication of the sixth edition of the A.M.A., Guides. In an April 22,
2019 report, Dr. White discussed the diagnostic testing of record and opined that there was no
evidence of compression of the cervical spine. He concluded that, under The Guides Newsletter,
there was no spinal nerve root abnormality that would result in a ratable upper extremity
impairment.
On May 7, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and series of questions, for a second opinion examination and evaluation with Dr. Jon P.
Kelly, a Board-certified orthopedic surgeon. It requested an opinion on permanent impairment
utilizing The Guides Newsletter. In a July 17, 2019 report, Dr. Kelly discussed appellant’s factual
and medical history and reported the findings of the physical examination he conducted on that
date. He noted atypical and equivocal medical findings without regard to any true ulnar or carpal
tunnel condition. Dr. Kelly reported that appellant exhibited normal upper extremity sensory and
motor findings. 9 He indicated that she had subjective complaints of possible radicular symptoms
of the upper extremities, but advised that the diagnostic testing of record, including a magnetic
6

Supra note 4.

7

Appellant also appealed January 2 and 27 and June 8, 2015 merit decisions of OWCP, which the Board affirmed
in its May 9, 2016 decision, but the subject matters of these decisions are not currently before the Board.
8

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

9

Dr. Kelly indicated that appellant had reached maximum medical improvement (MMI) by the date of his
examination.

3

resonance imaging (MRI) scan of the cervical spine, did not demonstrate evidence of neural
impingement. Dr. Kelly determined that, therefore, appellant did not have a ratable permanent
impairment of the upper extremities under the sixth edition of the A.M.A., Guides and The Guides
Newsletter.
On August 28, 2019 OWCP again referred appellant’s case to Dr. White in his capacity as
a DMA. In a September 10, 2019 report, Dr. White found that she did not have a ratable permanent
impairment of the upper extremities. He expressed his agreement with the conclusions of
Dr. Kelly.
By decision dated September 16, 2019, OWCP denied appellant’s schedule award claim,
finding that she did not meet her burden of proof to establish permanent impairment of a scheduled
member or function of the body.
On October 14, 2019 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. During the hearing, held on February 12, 2020, she
argued that she had permanent impairment of her upper extremities due to bilateral carpal tunnel
syndrome and a cubital tunnel condition.
Appellant submitted additional medical evidence, including September 19 and 30, 2019
reports from Dr. Kupfer who diagnosed cervical disc disorder with radiculopathy, history of
bilateral carpal tunnel syndrome, and left ulnar radiculopathy at the cubital tunnel with intermittent
ulnar nerve subluxation.
By decision dated April 28, 2020, OWCP’s hearing representative affirmed the
September 16, 2019 decision, finding that appellant failed to establish an upper extremity
impairment emanating from the cervical spine.
On July 10, 2020 appellant requested reconsideration of the April 28, 2020 decision.
Appellant submitted additional medical evidence, including May 19 and June 4, 2020
reports from Dr. Enass Rickards, a Board-certified orthopedic surgeon. In these reports,
Dr. Rickards diagnosed bilateral carpal tunnel syndrome and left ulnar nerve lesion. A June 1,
2020 EMG/NCV study showed a left ulnar neuropathy with conduction block between the elbow
and wrist.
On July 16, 2000 OWCP referred appellant, along with an updated SOAF and a series of
questions, for a second opinion examination and evaluation with Dr. William P. Curran, a Boardcertified orthopedic surgeon. It requested that he provide an opinion on whether she continued to
have residuals of her accepted April 22, 2013 employment injury.
In a September 1, 2020 report, Dr. Curran discussed appellant’s factual and medical history
and reported the findings of the physical examination he conducted on that date. He noted that the
cervical compression test he conducted was negative and that she did not exhibit spasms in her
cervical spine. The Phalen’s test was positive in both wrists. Dr. Curran diagnosed, inter alia,
cervical strain, and clinical and electrical evidence of left cubital tunnel syndrome. He opined that

4

the June 1, 2020 EMG/NCV study of appellant’s upper extremities was negative for bilateral
carpal tunnel syndrome and he found no objective findings of the accepted condition of cervical
spondylosis. Dr. Curran noted that the most recent cervical MRI scan, dated March 8, 2019, was
entirely within normal limits. He found evidence of a left cubital tunnel syndrome, which caused
numbness, tingling, and weakness of digits four and five of the left hand , but indicated that this
was a nonindustrial condition. Dr. Curran advised that appellant had reached MMI.
By decision dated October 8, 2020, OWCP denied modification of the April 28, 2020
decision.
LEGAL PRECEDENT
The schedule award provisions of FECA 10 and its implementing regulations11 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, OWCP has adopted the A.M.A., Guides as
the uniform standard applicable to all claimants. 12 As of May 1, 2009, the sixth edition of the
A.M.A., Guides is used to calculate schedule awards. 13
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole. 14 However, a
schedule award is permissible where the employment-related spinal condition affects the upper
and/or lower extremities. 15 The sixth edition of the A.M.A., Guides (2009) provides a specific
methodology for rating spinal nerve extremity impairment in The Guides Newsletter, which is a
supplemental publication of the sixth edition of the A.M.A., Guides. It was designed for situations
where a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded
ratings for the spine. The FECA-approved methodology is premised on evidence of radiculopathy
affecting the upper and/or lower extremities. The appropriate tables for rating spinal nerve
extremity impairment are incorporated in the Federal (FECA) Procedure Manual. 16

10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

12

Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); id. at Chapter 3.700.2 and Exhibit 1 (January 2010).
14

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see A.G., Docket No. 18-0815 (issued January 24, 2019);
Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).
15

Supra note 13 at Chapter 2.808.5c(3) (March 2017).

16

Supra note 13 at Chapter 3.700, Exhibit 4 (January 2010).

5

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
In his July 17, 2019 report, Dr. Kelly discussed appellant’s factual and medical history and
reported the findings of the physical examination he conducted on that date. He noted atypical
and equivocal medical findings without regard to any true ulnar o r carpal tunnel condition.
Dr. Kelly reported that appellant exhibited normal upper extremity sensory and motor findings.
He indicated that she had subjective complaints of possible radicular symptoms of the upper
extremities, but advised that the diagnostic testing of record, including an MRI scan of the cervical
spine, did not demonstrate evidence of neural impingement. Dr. Kelly determined that, therefore,
appellant did not have a ratable permanent impairment of the upper extremities under the sixth
edition of the A.M.A., Guides. Moreover, Dr. White, a DMA, found in a September 10, 2019
report that she did not have a ratable permanent impairment of the upper extremities. Dr. White
expressed his agreement with the conclusions of Dr. Kelly.17
Appellant has not submitted probative medical evidence establishing ratable permanent
impairment of the upper extremities. The Board has held that an opinion on permanent impairment
is of little probative value if it is not derived in accordance with the standards adopted by OWCP
and approved by the Board as appropriate for evaluating schedule losses. 18
Appellant submitted a July 25, 2018 report from Dr. Raiszadeh who referenced symptoms
of pain in her wrists and found one percent permanent impairment of each upper extremity due to
the reported symptoms by utilizing Table 15-2 on page 395 of the sixth edition of the A.M.A.,
Guides.19 However, OWCP has not accepted an employment-related wrist condition. Moreover,
Dr. Raiszadeh’s report is of little probative value because he has not adequately explained how the
employment-related conditions resulted in a ratable impairment under the A.M.A., Guides.20 In
addition, he acknowledged in the same report that appellant had zero percent permanent
impairment of the upper extremities stemming from her cervical spine. Dr. Raiszadeh also noted
that, although an EMG/NCV study suggested mild carpal tunnel syndrome and an ulnar co ndition,
there was no frank neurologic evidence of either condition upon which to rate a diagnosis -based
impairment. The Board notes that neither of these conditions has been accepted by OWCP.
The Board finds that OWCP properly relied on the opinion of Dr. Kelly, an OWCP referral
physician, in denying appellant’s schedule award claim. Dr. Kelly’s comprehensive and well-

17
The Board notes that Dr. Curran, an OWCP referral physician, indicated in a September 1, 2020 report that he
found no objective findings of the accepted condition of cervical spondylosis. OWCP did not ask him to comment on
permanent impairment.
18

See N.A., Docket No. 19-0248 (issued May 17, 2019); James Kennedy, Jr., 40 ECAB 620, 626 (1989).

19

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

20

See supra note 19.

6

rationalized July 17, 2019 report constitutes the most recent assessment of her upper extremity
impairment and represents the weight of the medical evidence with respect to the matter.
Appellant may request a schedule award at any time based on evidence of a new exposure
or medical evidence showing progression of an employment-related condition resulting in
permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the October 8, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 28, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
EUROPE -- SEVENTH ARMY, APO, AE,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-1758
Issued: May 16, 2011

Case Submitted on the Record

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

JURISDICTION
On June 22, 2010 appellant filed a timely appeal from a March 26, 2010 merit decision of
the Office of Workers’ Compensation Programs denying a schedule award claim and a June 7,
2010 nonmerit decision denying reconsideration. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the claim.
ISSUES
The issues are: (1) whether appellant has established entitlement to a schedule award for
his left lower extremity; and (2) whether the Office properly denied his request for
reconsideration under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 19, 2003 appellant, then a 61-year-old quality assurance specialist, was
injured while on assignment in Germany when he bumped his left knee while climbing into a
military truck. The Office accepted the claim for left knee contusion and aggravation of
osteochondritis. Appellant retired on September 3, 2006.
On September 23, 2008 appellant requested a schedule award. In a September 22, 2008
letter, he asserted that his injury had worsened and that he had been fitted with a leg brace.
Appellant provided several documents in support of his schedule award claim. These included
personnel records pertaining to his retirement and progress notes from the Department of
Veterans Affairs.
On November 7, 2008 the Office referred the medical record to an Office medical adviser
for an opinion on whether appellant’s accepted conditions caused permanent impairment. In a
November 10, 2008 report, an Office medical adviser noted the history of injury, appellant’s
treatment and reviewed the medical record. He indicated that maximum medical improvement
was reached on May 23, 2008. The Office medical adviser opined that there were no objective
findings of record to support a permanent partial impairment of the left leg based either on lack
of range of motion or surgery to the left knee.
In a November 26, 2008 report, Dr. Vladimir A. Alexander, a Board-certified orthopedic
surgeon, noted the history of injury, appellant’s conservative treatment and his persistent pain in
the medial aspect of the left knee and inferior pole of the patella along with clicking and popping
of the knee. He noted examination findings and diagnosed left knee internal derangement.
Dr. Alexander also ordered a magnetic resonance imaging (MRI) scan. On December 3, 2008
appellant underwent an MRI scan of the left knee that showed a small amount of effusion,
degenerative patellar femoral changes and a partial tear of the medial collateral ligament. In a
December 9, 2008 report and a left knee impairment worksheet, Dr. Alexander noted the MRI
scan and examination findings. These included 120 degrees flexion, full extension, no gross
instability or instability to the knee and mild tenderness to palpation over the distal femur. The
Lachman, Apley and McMurray tests were negative. Dr. Alexander noted an impression of
status post previous trauma, left distal femur. He found appellant to be at maximum medical
improvement for his injury, noting that maximum improvement for such injuries were usually
reached within 12 to 16 weeks post injury. Dr. Alexander opined that appellant had eight percent
permanent impairment of the left leg due to weakness, atrophy, pain or discomfort. He also
opined that appellant could work full duty without limitations. On November 26, 2008
Dr. Alexander attributed appellant’s impairment to his work injury.
In a January 5, 2009 report, the Office medical adviser reviewed Dr. Alexander’s
December 9, 2008 reports. He noted that Dr. Alexander did not sufficiently explain the basis for
his impairment finding under the fifth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides). The Office medical adviser stated
that, in the absence of objective findings under the A.M.A., Guides, no impairment could be
awarded.

2

The Office determined that a conflict in medical opinion arose between Dr. Alexander
and the Office medical adviser with regard to whether appellant had a ratable impairment of the
left leg due to the accepted work injury. It referred appellant to Dr. Robert Henderson, a Boardcertified orthopedic surgeon, for an impartial medical evaluation.
In a March 24, 2009 report, Dr. Henderson noted the history of injury along with his
review of the medical records. He noted that appellant had symmetric range of motion to the
opposite side. Dr. Henderson stated that the work-related contusion had resolved as it was not
present in the last MRI scan and maximum medical improvement was reached within 16 weeks
of the injury or around May 1, 2004. He explained that the contusion should have lasted 12 to16
weeks and would be a zero percent disability with no restrictions. Dr. Henderson advised that
this was supported by objective findings.
By decision dated May 7, 2009, the Office denied appellant’s claim for a schedule award
and further denied compensation for wage loss or medical treatment. Determinative weight was
accorded to Dr. Henderson’s opinion as the impartial medical specialist.
On May 21, 2009 the Office received a letter from appellant requesting a review of the
written record. Appellant presented statements asserting that his left knee was still injured as a
result of the work injury and that he was disabled as a result.
By decision dated September 25, 2009, an Office hearing representative vacated the
May 7, 2009 decision and remanded the case for further development. He found that the case
was not in posture of a decision on schedule award and the Office did not afford appellant due
process prior to terminating compensation benefits. The hearing representative found that
Dr. Henderson was not an impartial medical specialist with regard to whether appellant’s work
injury had resolved. He further found that Dr. Henderson’s opinion did not sufficiently explain
his opinion regarding permanent impairment. The hearing representative directed the Office to
obtain a supplemental report from Dr. Henderson regarding whether appellant had any
permanent impairment of the left leg, pursuant to the A.M.A., Guides.
On January 27, 2010 the Office requested a supplemental report from Dr. Henderson
regarding whether appellant established any impairment under the sixth edition of the A.M.A.,
Guides. Dr. Henderson was asked to address the accepted conditions and provide a more
detailed opinion with regard to permanent impairment due to pain, atrophy, deformity, loss of
sensation, loss of strength, marked sensitivity to heat or cold, soft tissue damage or any other
relevant subjective factors.
In a March 12, 2010 supplemental report, Dr. Henderson reviewed appellant’s history
and examination findings. He advised that the only objective finding was pain over the lateral
epicondyle and the medial joint over the medial condyle where the prominence was.
Dr. Henderson stated that, while the February 2, 2004 MRI scan noted edema, this was a local
reaction and had resolution.
He advised that the accepted contusion had resolved.
Dr. Henderson further opined that appellant had recovered from his knee strain and aggravation
of the osteochondritis as of May 1, 2004. He explained that a contusion was something that
should resolve within a reasonable amount of time. Dr. Henderson stated that, while subjective
complaints over the areas and bony prominence could hurt, any direct blow would have resolved

3

and any pressure appellant may have from this would have happened independent of the course
of the contusion. He stated that appellant should have resolved to his baseline as of
May 1, 2004. Dr. Henderson noted no basis for rating impairment due to the work-related injury.
He also provided a March 24, 2009 impairment evaluation form in which he noted certain
findings and opined that there was no impairment of the left leg due to appellant’s knee
condition.
On March 24, 2010 a second Office medical adviser reviewed Dr. Henderson’s
March 12, 2010 report and concurred that there were no objective findings or a basis for an
impairment rating under the sixth edition of the A.M.A., Guides.
By decision dated March 26, 2010, the Office denied appellant’s claim for a schedule
award of the left lower extremity based on Dr. Henderson’s evaluation.
In an April 15, 2010 letter, appellant disagreed with the Office’s March 26, 2010 decision
and requested reconsideration. He submitted an April 4, 2010 statement addressing his
entitlement to schedule award benefits and referenced information he obtained from the internet.
Physical therapy reports and a September 2, 1999 SF-78 were also submitted.
By decision dated June 7, 2010, the Office denied appellant’s request for reconsideration
without a merit review.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Act,2 and its implementing federal regulations,3 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
the Act does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, the Office has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.4 As of May 1,
2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.5
Not all medical conditions accepted by the Office result in permanent impairment to a
scheduled member.6 The Board notes that, before applying the A.M.A, Guides, the Office must
determine whether the claimed impairment of a scheduled member is causally related to the
accepted work injury.7
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id. at § 10.404(a).

5

FECA Bulletin No. 09-03 (issued March 15, 2009); see also Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
6

Thomas P. Lavin, 57 ECAB 353 (2006).

7

Michael S. Mina, 57 ECAB 379, 385 (2006).

4

When there exist opposing medical opinions of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual and
medical background, will be given special weight.8
ANALYSIS -- ISSUE 1
The Office accepted the conditions of left knee contusion and aggravation of
osteochondritis. On September 23, 2008 appellant filed a claim for a schedule award. The
Office found a conflict in medical opinion between Dr. Alexander, who opined that appellant had
eight percent permanent impairment of the left lower extremity due to weakness, atrophy, pain or
discomfort, and the Office medical adviser, who found that appellant had no ratable impairment
under the A.M.A., Guides. It properly referred appellant to Dr. Henderson for an impartial
evaluation to resolve the conflict.9
In a March 12, 2009 report, Dr. Henderson reviewed the medical record and the
statement of accepted facts. He found appellant had symmetric range of motion and noted no
basis to find permanent impairment of the left leg. In his March 12, 2010 supplemental report,10
Dr. Henderson stated that the only objective finding was the complaint of pain over the lateral
epicondyle and the medial joint over the medial condyle where the prominence was. He found
that the accepted contusion and aggravation of osteochondritis resolved by May 1, 2004 such
that there was no permanent impairment due to the work-related injury. Dr. Henderson stated
that, while the February 2, 2004 MRI scan noted edema, this was a local reaction which had also
resolved. He explained that any pain resulting from the direct blow over the areas and bony
prominence would have resolved within a reasonable amount of time and any pressure appellant
may have would have happened independent of the course of the contusion. On March 24, 2010
an Office medical adviser reviewed Dr. Henderson’s March 12, 2010 supplemental report and
noted no findings that would warrant an impairment rating under the sixth edition of the A.M.A.,
Guides.
Dr. Henderson provided examination findings and provided a well-rationalized opinion
that there were no continuing symptoms of appellant’s accepted conditions on which permanent
impairment could be based. Although he noted pain over the medial joint over the medial
condyle, he opined that any pain due to the accepted injury had resolved and that any pressure
appellant currently felt in his knee would occur independent of his work injury.
The Board finds that Dr. Henderson’s opinion is sufficiently well rationalized and based
upon a proper factual and medical background such that it is entitled to special weight and
8

R.C., 58 ECAB 238 (2006); Bernadine P. Taylor, 54 ECAB 342 (2003).

9

Manuel Gill, 52 ECAB 282 (2001).

10

As Dr. Henderson’s initial March 24, 2009 report provided insufficient reasoning on permanent impairment,
the Office properly requested a supplemental report regarding permanent impairment. See Raymond A. Fondots, 53
ECAB 637, 641 (2002) (when the Office obtains an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or elaboration, the
Office must secure a supplemental report from the specialist to correct the defect in the original report).

5

establishes no basis for permanent impairment of the left leg causally related to appellant’s
accepted conditions. The Board finds that the Office properly denied appellant’s claim for a
schedule award.
LEGAL PRECEDENT -- ISSUE 2
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered by the Office; or by constituting
relevant and pertinent evidence not previously considered by the Office.11 Section 10.608 of the
Office’s regulations provide that when a request for reconsideration is timely, but does meet at
least one of these three requirements, the Office will deny the application for review without
reopening the case for a review on the merits.12
ANALYSIS -- ISSUE 2
Appellant requested reconsideration of the merits of his schedule award claim in
April 2010. His statements and beliefs about his entitlement to schedule award benefits do not
address a legal argument or advance a point of law and therefore fail to meet the first and second
standards of the Office’s regulations. Appellant merely stated his belief that he is entitled to
schedule award benefits. However, the issue of whether he has permanent impairment of his left
leg causally related to his accepted conditions is a medical issue. While appellant referenced
various articles from the internet in support of his belief that he was entitled to schedule award
benefits, the Board has held that such articles are of general application and not determinative
regarding whether specific conditions are causally related to the particular employment factors in
a claim.13 The relevant issue in this claim, whether he has established entitlement to a schedule
award for permanent impairment to his left lower extremity, is a medical question and must be
resolved by the submission of relevant medical evidence.14
Appellant did not submit any medical evidence addressing the extent, if any, of his
permanent impairment. He submitted physical therapy reports and a September 2, 1999 SF-78
form. However, these documents are irrelevant as they do not address the relevant medical issue
of permanent impairment causally related to the accepted conditions. Moreover, reports from
physical therapists do not constitute competent medical evidence as physical therapists are not
considered physicians under the Act.15 Therefore, this evidence does not comprise a basis for
11

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

12

Id. at § 10.608.

13

See C.B., Docket No. 08-2268 (issued May 22, 2009) (where the Board held that newspaper clippings, medical
texts and excerpts from publications are of no evidentiary value in establishing the necessary causal relationship, as
they are of general application and are not determinative of whether the specific condition claimed was causally
related to the particular employment injury involved).
14

Id.

15

5 U.S.C. § 8101(2). See also David P. Sawchuk, 57 ECAB 316 (2006); Paul Foster, 56 ECAB 208 (2004).

6

reopening the case.16 The remainder of the evidence submitted are duplicative of evidence
previously of record. Evidence or argument which is duplicative or cumulative in nature is
insufficient to warrant reopening a claim for merit review.17 Thus, appellant has failed to meet
the third standard of the Office’s regulations and the Office was not required to reopen his claim
for further consideration of the merits.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his request for reconsideration.
On appeal, appellant contends that he is entitled to an award as he continues to have pain
in his left knee and his activities of daily life are affected. As noted, the evidence of record does
not support impairment causally related to the accepted conditions. The Board has held that
factors such as limitations on daily activities are not considered in the calculation of a schedule
award.18 While appellant argued that Dr. Alexander supported impairment, he was a physician
on one side of a medical conflict that was resolved by Dr. Henderson. Accordingly, appellant
has not established that he sustained permanent impairment of the left leg causally related his
accepted conditions.
CONCLUSION
The Board finds that appellant has not established entitlement to a schedule award for
permanent impairment to his left lower extremity. The Board further finds that the Office
properly denied his request for reconsideration without further review of the merits of the claim.

16

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

17

Denis M. Dupor, 51 ECAB 482 (2000).

18

E.L., 59 ECAB 405 (2008).

7

ORDER
IT IS HEREBY ORDERED THAT the June 7 and March 26, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 16, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jacksonville, AL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-203
Issued: May 9, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 2, 2012 appellant filed a timely appeal from the October 18, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for
wage-loss compensation. 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 the case.
ISSUE
The issue is whether appellant has established that she had sustained temporomandibular
joint (TMJ) disorder causally related to her accepted September 3, 2010 employment injury.
FACTUAL HISTORY
On August 23, 2010 appellant, then a 39-year-old sales and service distribution clerk,
filed a traumatic injury claim alleging that a coworker threatened her on August 2, 2010.

1

5 U.S.C. § 8101 et seq.

In a report dated September 22, 2010, appellant’s treating physician, Dr. Glenn
Archibald, a psychiatrist, diagnosed appellant with panic disorder and post-traumatic stress
disorder. On October 19, 2010 OWCP accepted appellant’s claim for acute reaction to stress
temporary aggravation/single episode. A December 17, 2010 letter from the employing
establishment postmaster stated that appellant had been detailed to the Anniston Post Office so
that she would not have to work together with the clerk who threatened her. Appellant
intermittently stopped work and received compensation.
By letter dated April 5, 2012, OWCP requested that Dr. Archibald clarify appellant’s
disability status. Dr. Archibald advised that appellant’s current objective findings and diagnosis
included post-traumatic stress disorder and major depression. He stated that appellant had
residual disability causally related to the accepted injury due to the TMJ disorder symptoms, but
that she had returned to full-duty work in January 2012, and she could continue to work as long
as she did not work again with the coworker who threatened her.
In an April 26, 2012 report, Dr. Archibald related that he had been treating appellant for
post-traumatic stress disorder and panic disorder since September 22, 2010. He further stated
that appellant first complained of pain due to the TMJ condition on September 8, 2011 and she
related first experiencing TMJ pain in April 2011, while working on detail in the Anniston Post
Office. Appellant reported that she had continued to experience significant levels of anxiety, due
to having to perform different tasks with unfamiliar personnel. Dr. Archibald explained that “It
is widely accepted that TMJ pain is associated with and is symptomatic of stress, particularly
when the onset or worsening occurs in a close temporal relation to elevated levels of stress such
as that experienced by [appellant].” He concluded that he therefore diagnosed appellant’s
condition as pain disorder with associated psychological factors.
Appellant thereafter filed a series of claims for compensation, Form CA-7, alleging
disability from June 16 to August 31, 2012, due to the August 2, 2010 employment injury.2
Along with her request, appellant submitted a June 21, 2012 report from Dr. Archibald
who stated that she was suffering from severe symptoms of TMJ and should remain out of work
until she is able to begin her treatment for her condition.
On June 26, 2012 OWCP informed appellant that the TMJ condition was not accepted as
work related, as her claim was accepted for acute reaction to stress. Appellant was requested to
submit further medical evidence to substantiate her claim of disability, causally related to the
accepted injury.
Appellant submitted a July 19, 2012 report from Dr. Patrick Louis, a Board-certified oral
and maxillofacial surgeon, who noted that appellant had related a 15-month history of popping at
the right TMJ, with pain, worse when chewing, speaking or stressed. She had also related that
her problems began because of an incident at work which caused her severe stress and associated
grinding and clenching of her jaw. Regarding examination findings, Dr. Louis recorded “MIO is
18 [millimeters] (mm) with slight discomfort and can open to approximately 40 mm with pain.
Occasional popping of right TMJ with function. Protrusive 4 mm, lateral excursive 8 mm
2

Appellant continued to file CA-7 forms for additional periods of disability. The additional claimed periods of
disability are not the subject of this appeal.

2

bilaterally.” He noted that appellant had experienced multiple transient ischemic attacks as a
result of the pain, including one the night before. Dr. Louis diagnosed TMJ dysfunction and
bruxism with myofascial pain with significant psychological overtones and concluded that
appellant’s TMJ and myofascial pain were associated with the work-related stress.
On August 13, 2012 Dr. Archibald noted that appellant was still experiencing a great
amount of stress, the consequences of which were leading to severe physical difficulties,
including a worsening of her TMJ symptoms. He then opined that her stress and increasing TMJ
pain led to increases in her blood pressure resulting in at least two “mini strokes” for which she
has had to be hospitalized. Dr. Archibald opined that appellant should remain out of work until
these issues have been resolved. In a report dated August 30, 2012, he related that she had been
experiencing severe symptoms of TMJ, which he believed was directly related to anxiety and
stress that appellant was still under at work. Dr. Archibald related that appellant stated that she
had not been treated for her TMJ, but that the condition was improving and she requested that
she be allowed to return to work.
OWCP referred appellant to Dr. Michael Colin, a Board-certified specialist in oral
surgery, for a second opinion evaluation. In an October 10, 2012 report, Dr. Colin opined that
appellant did not suffer from true TMJ condition. He stated that, after gentle manipulation, he
was able to open her mouth to 40 mm without popping, clicking, or pain, that she had no
abnormal range of motion and no abnormal findings in her temporomandibular joint, and that her
muscles were extremely tender to palpation, both temporal is and massager. Dr. Colin felt that
appellant’s subjective complaints outweigh very significantly any of the objective findings. He
noted that she had stress-related muscle spasms and clenching, but he did not believe that these
were related to a true TMJ abnormality. Dr. Colin declined to determine whether appellant had
an acute reaction to stress as it is a psychiatric issue and beyond his scope of expertise. He
further noted that TMJ patients typically had no limitations on work activities unless they were
recovering from surgery.
On October 18, 2012 OWCP denied the claim on the grounds that the evidence of record
did not establish that appellant sustained a work-related TMJ condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.4 The medical evidence required to establish a causal
relationship between a claimed period of disability and an employment injury is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the compensable employment factors. The
3

5 U.S.C. § 8101 et seq.

4

See Elaine Pendleton, 40 ECAB 1143 (1989); see also J.L., Docket No. 09-2372 (issued July 2, 2010).

3

opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.5
ANALYSIS
The Board finds that appellant has not established that she has a TMJ disorder causally
due to her accepted August 2, 2010 emotional condition injury. OWCP accepted that appellant
sustained a single episode of acute reaction to stress on August 2, 2010. Appellant was allowed
to transfer to the Anniston Post Office in December 2010 so that she would not have to interact
with the coworker who threatened her.
Appellant thereafter submitted medical reports from her treating physician,
Dr. Archibald, a psychiatrist, who related that appellant had informed him in September 2011
that she had experienced TMJ symptoms since April 2011. Dr. Archibald diagnosed appellant
with TMJ which he concluded was due to stress she experienced at the employing establishment.
The Board finds that Dr. Archibald’s reports regarding appellant’s TMJ disorder are of limited
probative value. The Board notes that Dr. Archibald did not provide any physical examination
findings to support a diagnosis of TMJ disorder. His diagnosis appears to be based upon
appellant’s own recitation of symptoms, rather than upon physical examination or diagnostic
testing. Furthermore, while he related appellant’s condition to work stress, Dr. Archibald did not
in fact relate the diagnosis to continued stress from the accepted August 2, 2010 incident. Rather
he related that appellant felt stressed working at the Anniston Post Office, with new coworkers
and during the holiday period. He offered no rationalized medical opinion explaining how the
threat appellant experienced on August 2, 2010 could have caused a TMJ disorder in 2011 and
2012, when appellant was no longer working with the threatening coworker.
Appellant was also evaluated by Dr. Patrick, a Board-certified oral and maxillofacial
surgeon, who did relate examination findings and diagnosed appellant with TMJ dysfunction, but
like Dr. Archibald, Dr. Patrick did not explain with medical rationale, how appellant’s single
episode threat on August 2, 2010 would have caused the development of this disorder, after
appellant no longer worked with the perpetrator of the threat. While he did note that appellant’s
problems began because of an incident at work which caused her severe stress and associated
grinding and clenching of her jaw, he did not relate a complete factual history of appellant’s
claim. Dr. Patrick’s opinion did not relate an understanding that appellant no longer worked
with the perpetrator, and that appellant had related different stressors, such as working in a new
environment and working through the holiday season as the current causes of her stress. The
opinion of a physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty and must be supported by medical rationale.6 As
Dr. Patrick’s report was not based upon a complete factual and medical background, and offered
no supporting medical rationale, it is of limited probative value.

5

See Donna Faye Cardwell, 41 ECAB 730 (1990).

6

See Roy L. Humphrey, 57 ECAB 238 (2005).

4

OWCP’s second opinion physician, Dr. Colin, on the other hand, reported that appellant
did not in fact suffer from a TMJ condition. He provided physical examination findings of
normal range of motion and no abnormal findings in the temporomandibular joint. Dr. Colin
explained that, while appellant suffers from stress-related muscle spasms and clenching, she did
not have a true TMJ disorder. He concluded that appellant’s subjective complaints significantly
outweighed her objective findings. Dr. Colin declined to offer an opinion as to whether
appellant had an acute reaction to stress as this was outside his area of expertise.
The Board concludes that the medical evidence of record does not establish that appellant
has a TMJ disorder which is causally related to her accepted August 2, 2010 single episode
emotional condition event.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly denied appellant’s claim for compensation for the
period June 16 to August 31, 2012 due to TMJ.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 18, 2012 is affirmed.
Issued: May 9, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Bruceton Mills, WV, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-1708
Issued: May 8, 2019

Case Submitted on the Record

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

JURISDICTION
On September 11, 2018 appellant filed a timely appeal from an August 20, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.3

1
Together with his appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R.
§ 501.5(b). After exercising its discretion, by order dated March 11, 2019, the Board denied the request as appellant’s
arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the
record. Order Denying Request for Oral Argument, Docket No. 18-1708 (issued March 11, 2019).
2
3

5 U.S.C. § 8101 et seq.

Following the issuance of OWCP’s August 20, 2018 decision, appellant submitted new evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a left ankle injury
causally related to the accepted June 15, 2018 employment incident.
FACTUAL HISTORY
On June 18, 2018 appellant, then a 43-year-old utility systems operator/special operations
response team operator, filed a traumatic injury claim (Form CA-1) alleging a left ankle injury on
June 15, 2018 due to twisting his ankle while running in formation as part of a weapons
certification activity while in the performance of duty. He stopped work on June 15, 2018 and
received continuation of pay (COP).4
In a development letter dated July 18, 2018, OWCP requested that appellant submit
additional evidence in support of his claim, including a physician’s opinion supported by a medical
explanation as to how the reported employment incident caused or aggravated a medical condition.
It afforded him 30 days to submit such evidence.
Appellant subsequently submitted a June 15, 2018 report of John Huber, a physician
assistant. Mr. Huber reported physical examination findings and diagnosed sprain of other
ligament of left ankle (initial encounter).
The findings of June 15, 2018 x-ray testing of appellant’s left ankle contained a
“conclusion” of soft tissue swelling with no acute osseous pathology. X-ray testing of his left foot
on the same date revealed a heel spur with no acute osseous pathology.
In a June 20, 2018 report, Dr. William Mitchell, an attending Board-certified family
practitioner, indicated that he approved appellant’s request to remain off work until seen by an
orthopedic specialist as directed by Mr. Huber.
In an August 14, 2018 note, Dr. Benjamin Moorehead, an attending Board-certified
orthopedic surgeon, indicated that appellant had an “associated diagnosis” of “sprain of left ankle,
unspecified ligament, initial encounter.” Appellant also submitted a progress note dated
August 14, 2018 by Dr. Moorehead, in which he reported physical examination findings and his
impression of left lateral ankle sprain.
By decision dated August 20, 2018, OWCP denied appellant’s claim for a June 15, 2018
employment injury, finding that he had not met his burden of proof to establish the medical
component of fact of injury. It explained that he had established that he twisted his left ankle while
running at work on June 15, 2018 as alleged. However, appellant had not submitted a probative
medical report showing that a medical condition was diagnosed in connection with the accepted
employment incident.

4

Appellant was assigned to Priscilla Stilwell, a COP registered nurse sponsored by OWCP. In a July 2, 2018 report,
Ms. Stilwell indicated that appellant reported injuring his left ankle/left Achilles tendon while running a drill at work
on June 15, 2018.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.6 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment incident
at the time, place, and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.8
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence.9 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the established employment factors.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left ankle
injury causally related to the accepted June 15, 2018 employment incident.
In support of his claim, appellant submitted a June 15, 2018 report of Mr. Huber, an
attending physician assistant. Appellant also submitted a July 2, 2018 report of Ms. Stilwell, a
registered nurse. The Board has held, however, that health care providers such as physician
assistants and nurses are not considered physicians as defined under FECA and their reports do

5

Supra note 2.

6

E.S., Docket No. 18-1750 (issued March 11, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

7

D.J., Docket No. 18-0620 (issued October 10, 2018).

8

K.L., Docket No. 18-1029 (issued January 9, 2019); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee),
10.5(q) (traumatic injury and occupational disease defined, respectively).
9

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

10

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

3

not constitute competent medical evidence.11 Therefore, these reports are of no probative value
and are insufficient to meet appellant’s burden of proof.
The findings of a June 15, 2018 x-ray scan of appellant’s left ankle showed soft tissue
swelling with no acute osseous pathology, and the findings of x-ray testing of his left foot on the
same date revealed a heel spur with no acute osseous pathology. These diagnostic test results are
insufficient to establish appellant’s claim because the Board has held that diagnostic testing reports
lack probative value as they do not provide an opinion on the relationship between the accepted
employment incident and a diagnosed condition.12
In a June 20, 2018 report, Dr. Mitchell indicated that he approved appellant’s request to be
off work until seen by an orthopedic specialist as directed by Mr. Huber. In an August 14, 2018
note, Dr. Moorehead indicated that appellant had an “associated diagnosis” of “sprain of left ankle,
unspecified ligament, initial encounter.” While these reports constitute medical evidence, they do
not provide an opinion on causal relationship between the diagnosed condition and the accepted
June 15, 2018 employment incident. As such, they are of no probative value13 Appellant also
submitted an August 14, 2018 progress note of Dr. Moorehead. However, this report is of no
probative value because it does not provide an opinion on causal relationship.14
As the medical evidence of record does not contain a rationalized opinion on causal
relationship, the Board finds that appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left ankle
injury causally related to the accepted June 15, 2018 employment incident.

11

See M.M., Docket No. 17-1641 (issued February 15, 2018); K.J., Docket No. 16-1805 (issued February 23, 2018);
P.S., Docket No. 17-0598 (issued June 23, 2017); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA); 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by state law.
12

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

13

Id.

14

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the August 20, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 8, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.L., Appellant
and
U.S. ARMY CORPS OF ENGINEERS, McNARY
DAM, Umitilla, OR, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-797
Issued: November 18, 2010

Case Submitted on the Record

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

JURISDICTION
On February 4, 2010 appellant filed a timely appeal of an August 4, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs denying his request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
this decision. Because more than one year elapsed from the last merit decision dated October 16,
2007 to the filing of this appeal, the Board lacks jurisdiction over the merits of this claim
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to present clear evidence of error.

1

For final Office decisions issued prior to November 19, 2008, claimants had up to one year to appeal to the
Board. See 20 C.F.R. § 501.3(d)(2) (2008). For final Office decisions issued on and after November 19, 2008,
claimants have 180 days to file a Board appeal. See 20 C.F.R. § 501.3(e) (2009).

FACTUAL HISTORY
On September 11, 2007 appellant, then a 59-year-old plant mechanic, filed an
occupational disease claim alleging that he developed a right wrist condition due to federal
employment activities over a 25-year period.2 He first realized that his wrist condition was
causally related to his employment on June 4, 2007.
Appellant submitted a June 4, 2007 report from Dr. James M. Severance, Board-certified
in the field of emergency medicine, who described a work-related twisting injury, which
occurred on May 29, 2007 and diagnosed sprained right wrist and chronic degenerative wrist
injury.
In an October 16, 2007 decision, the Office denied appellant’s claim, finding that the
medical evidence did not establish a causal relationship between his claimed wrist condition and
factors of employment.
In a November 5, 2007 letter to the Office, appellant contended that the October 16, 2007
decision was sent erroneously, since the Office did not have all relevant medical evidence in its
possession at the time the decision was issued. He asked the Office to contact him to discuss its
intended course of action. Appellant stated:
“I am not sure what else I need to do at this point to have my claim fairly and
professionally processed at this particular office. I am NOT; repeat NOT going
through your enclosed Appeals Rights at this point. What I want is someone to
contact me, by phone at a prearranged day and time, or through a letter, that
shows me you have honestly and fairly considered all my medical information. I
don’t feel at this time that you have. After this forthcoming contact from your
office I will then consider my options to appeal my rights to a fair hearing of
some sort; I have not decided which one I will use yet. As far as I am concerned,
any time-frames you have with the appeals of rights have not started yet, due to
this first hastily-made-decision letter I have received. I am neither requesting a
hearing at this point nor a request for reconsideration by the District Office. I
want to make that clear, since things do seem to get a little ‘screwed up’ unless it
is very clear and in ‘black-and-white.’ I am sorry, I don’t know how else to say
it.”
Appellant submitted an October 22, 2007 report from Dr. John A. Durkan, a Boardcertified orthopedic surgeon, who stated that he had engaged in work activities that had placed a
great deal of stress on the right wrist, including using a percussion hammer and other tools.
Dr. Durkan noted the development of arthritic changes in the wrist joint, “which could reflect
progressive trauma to the wrist with secondary development of arthrosis.”
In a letter dated January 4, 2008, the Office responded to appellant’s correspondence,
advising him to consider filing an appeal of the October 16, 2007 decision if he was not satisfied
2

The Office accepted appellant’s May 30, 2007 traumatic injury claim for right wrist strain File No. xxxxxx711.
It combined File No. xxxxxx711 with File No. xxxxxx703 for more efficient handling.

2

with the outcome.3 It advised him to “be cautious that there are timeframes that must be adhered
to when filing an appeal.”
On April 29, 2009 appellant requested reconsideration of the October 16, 2007 decision.
He alleged that he had not received the Office’s January 4, 2008 letter and would have responded
if he had received it. Appellant was unable to contact Office personnel to discuss his case. He
stated:
“I basically thought that when the rest of the information got to OWCP
(Dr. Durkan’s letter) that OWCP would look at it and then hopefully reconsider
their decision and not have to formally file for appeals. I realize now that is not
the way the reconsideration/appeals process works at the OWCP. This was an
error on my part and I am truly sorry for the decision I made at that time.”
Appellant contended that the Office was on notice that he would be submitting a report
from Dr. Durkan; however, it prematurely denied his claim prior to receiving a relevant report.
Appellant submitted additional medical evidence from Dr. Durkan. In a March 31, 2009
duty status report, Dr. Durkan stated that appellant sustained a right wrist injury on May 29,
2009 in the performance of duty. In an April 20, 2009 report, he opined that the development of
degenerative joint disease in appellant’s right wrist was caused by long periods of vibrations,
impacts and repetitious use and over-use of his hands and wrists over the past 27 years of
employment.
Appellant submitted a statement describing the work activities claimed to have caused his
right wrist condition. He provided a June 4, 2007 computerized tomography scan of the right
upper extremity, a June 4, 2007 report of a right wrist x-ray and a copy of Dr. Severance’s
June 4, 2007 report. In an April 15, 2008 form report, Dr. Kate Flannigan Sawyer, an employing
establishment physician, noted that appellant had permanent restrictions due to a right wrist
injury.
By decision dated August 4, 2009, the Office denied appellant’s April 29, 2009 request
for reconsideration on the grounds that it was untimely and failed to establish clear evidence of
error.
LEGAL PRECEDENT
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.4 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.5 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish

3

The Board notes that the Office’s January 4, 2008 letter was mailed to appellant’s address of record.

4

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

5

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

3

clear evidence of error.6 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.7 This entails a limited review by the Office 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 the Office.8 The Board
makes an independent determination of whether a claimant has submitted clear evidence of error
on the part of the Office such that the Office abused its discretion in denying merit review in the
face of such evidence.9
ANALYSIS
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to present clear evidence of error.
The Office correctly found that appellant’s request for reconsideration was untimely.
The one-year period for requesting reconsideration begins on the date of the original decision. A
right to reconsideration within one year accompanies any subsequent merit decision on the
issues.10 Appellant had one year from October 16, 2007 to submit a timely request for
reconsideration. As his April 29, 2009 reconsideration request was made more than one year
after the October 16, 2007 merit decision, the request was untimely. Consequently, appellant
must establish clear evidence of error by the Office in denying his claim.11
In certain instances, the Board has held that a letter may constitute a request for
reconsideration even if it does not contain the word reconsideration.12 The Office’s procedures
provide that while no special form is required, the request must be in writing, identify the
decision and the specific issues, for which reconsideration is being requested and be
accompanied by relevant new evidence or argument not considered previously.13 The record in
this case contains correspondence and medical evidence submitted by appellant subsequent to the
Office’s decision denying his claim. The Board finds, however, that none of the statements
submitted within one year of the October 16, 2007 decision constituted a valid request for
reconsideration.

6

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

7

See M.L., 60 ECAB ___ (Docket No. 09-956, issued April 15, 2010). See Leona N. Travis, supra note 5.

8

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

9

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

10

Leon D. Faidley, 41 ECAB 104, 111 (1989). Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.3.b(1) (January 2004).
11

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

12

See Jack D. Johnson, 57 ECAB 593 (2006); Gladys Mercado, 52 ECAB 255 (2001); Richard J. Chabot,
43 ECAB 357 (1991).
13

Federal (FECA) Procedure Manual, supra note 10 at Chapter 2.1602.2(a) (May 1996); Vincente P. Taimanglo,
45 ECAB 504 (1994); see also 20 C.F.R. §§ 10.605 and 10.606(b).

4

In a November 5, 2007 letter, appellant asked the Office to contact him so that he could
ascertain whether the medical evidence of record had been fully considered. He noted, however,
that he was not availing himself of his rights of appeal, including a hearing or reconsideration by
the Office. On January 4, 2008 the Office advised appellant to consider filing an appeal of the
October 16, 2007 decision if he was not satisfied with the outcome, cautioning him that there are
timeframes that must be adhered to when filing an appeal. Appellant did not immediately heed
the Office’s advice. Rather, he delayed in filing his request for reconsideration until April 29,
2009, more than one year after the date of the Office’s merit decision.14
As noted, when an application for review is untimely, the Office undertakes a limited
review to determine whether the application presents clear evidence that the Office’s final merit
decision was in error.15 Appellant contended that the Office prematurely denied his claim. He
noted that he had great difficulty understanding the appeal process and hoped that the Office
would review his case without the necessity of filing a request for reconsideration. These
contentions do not establish error on the part of the Office. The Office properly advised
appellant of his appeal rights, which included the right to request reconsideration within one year
of the October 16, 2007 decision. Appellant did not elect to make a timely request. The Board
finds that his arguments are insufficient to raise a substantial question concerning the correctness
of the Office’s decision
Subsequent to the October 16, 2007 decision, appellant submitted three reports from
Dr. Durkan. On October 22, 2007 Dr. Durkan stated that appellant had engaged in work
activities that had placed a great deal of stress on the right wrist, including using a percussion
hammer and other tools. He noted that the development of arthritic changes in the wrist joint,
“[which] could reflect progressive trauma to the wrist with secondary development of arthrosis.”
On April 20, 2009 Dr. Durkan opined that the development of degenerative joint disease in
appellant’s right wrist was caused by long periods of vibrations, impacts and repetitious use and
over-use of his hands and wrists over 27 years of employment. In a March 31, 2009 duty status
report, he stated that appellant sustained a right wrist injury on May 29, 2009 in the performance
of duty. Although Dr. Durkan’s reports generally support appellant’s claim, they fail to raise a
substantial question as to the correctness of the Office’s decision. The term “clear evidence of
error” is intended to represent a difficult standard.
The submission of 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.16

14

Appellant contends that he did not receive the Office’s January 4, 2008 letter. The Board notes, however, that
the letter was properly mailed to appellant at his address of record. Under the “mailbox rule,” it is presumed, in the
absence of evidence to the contrary, that a notice mailed to an individual in the ordinary course of business was
received by that individual. This presumption arises when it appears from the record that the notice was properly
addressed and duly mailed. Michele Lagana, 52 ECAB 187, 189 (2000).
15

A.F., 59 ECAB 714 (2008).

16

Joseph R. Santos, 57 ECAB 554 (2006).

5

Appellant also submitted a statement describing the work activities claimed to have
caused his right wrist condition, June 4, 2007 radiograph reports and a work status report from
Dr. Sawyer. As none of these documents contains a medical opinion on causal relationship, they
are not relevant to the issue at hand. Dr. Severance’s June 4, 2007 report is duplicative and does
not demonstrate error on the part of the Office.
On appeal, appellant asserts that the Office did not discuss all medical evidence of record
in rendering its final decision. The Board finds, however, that the Office properly reviewed and
considered the evidence of record, which it determined did not establish clear evidence of error.
Appellant also alleges that the Office delayed the processing of his request for reconsideration.
The Board notes that the Office issued a decision on his request for reconsideration within
90 days of the request. The Board finds this timeframe to be reasonable and without prejudice to
appellant.17
The Board finds that the evidence submitted by appellant in support of his untimely
request for reconsideration does not constitute positive, precise and explicit evidence, which
manifests on its face that the Office committed an error. Thus, the evidence and argument
submitted by appellant are insufficient to show clear evidence of error on the part of the Office.18
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to present clear evidence of error.

17

The Office’s procedures state that, if a reconsideration decision is delayed beyond 90 days and the delay would
jeopardize a claimant’s ability to seek a merit review of his claim before the Board, the Office should conduct a
merit review and issue a decision so as to protect appellant’s right to appeal. See Federal (FECA) Procedure
Manual, supra note 10 at Chapter 2.1602.9 (May 1996); see also Ronald A. Eldridge, 53 ECAB 218 (2001).
18

The Board notes that appellant submitted additional evidence after the Office rendered its August 4, 2009
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its
final decision. Therefore, this additional evidence cannot be considered by the Board for the first time on appeal.
20 C.F.R. § 501.2(c); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated August 4, 2009 is affirmed.
Issued: November 18, 2010
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.F., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, SAC-CHICAGO, Oakbrook
Terrace, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
Daniel J. McMichael, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1153
Issued: October 18, 2007

Case Submitted on the Record

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

JURISDICTION
On March 23, 2007 appellant timely appealed a February 27, 2007 merit decision of the
Office of Workers’ Compensation Programs granting schedule award compensation. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established more than one percent impairment of his
right lower extremity, for which he received a schedule award.
FACTUAL HISTORY
On July 27, 1999 appellant, then a 51-year-old special agent, sustained a right ankle
injury while jogging on a treadmill. The Office accepted his claim for right Achilles tendinitis.
Appellant underwent surgical debridement of his right Achilles tendon on May 9, 2000. The
Office paid appropriate compensation.

In a decision dated January14, 2002, the Office granted a schedule award for one percent
impairment of the right lower extremity. The period of the award ran for 2.88 weeks, from
July 31 to August 20, 2001.
Appellant disagreed with the Office’s January 14, 2002 decision and appealed to the
Board. On December 31, 2003 the Board issued an order remanding case as it had not received
the case record.1 The case was remanded to the Office for reconstruction of the case record and,
to fully protect appellant’s rights, to appropriate decision.
In a decision dated May 18, 2004, the Office reissued the schedule award decision of
January 14, 2002.
On June 1, 2004 appellant requested an oral hearing, which was held May 18, 2005. The
Office received medical reports previously of record and new medical evidence. In an
October 26, 2004 report, Dr. Robert P. Poetz, a family practitioner, noted the history of injury
and appellant’s complaints of stiffness and swelling in the right ankle and inability to run since
the surgery. He diagnosed right Achilles tendinitis and status post debridement of the right
Achilles tendon. Dr. Poetz opined that appellant lacked plantar and dorsiflexion by 10 percent
on the right. He concluded that appellant had 30 percent right leg impairment, as measured at
the right foot and ankle, due to the July 1999 work injury.
In a June 7, 2006 report, Dr. Poetz stated that he arrived at his impairment rating utilizing
the American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed.
2001) (A.M.A., Guides). He stated that appellant had seven percent impairment due to loss of
plantar flexion and seven percent impairment due to loss of dorsiflexion. Dr. Poetz advised that
his rating of 30 percent impairment of the right leg was based on the A.M.A., Guides, coupled
with the history and appellant’s chief complaints, review of the medical records and findings on
physical examination. He noted that the A.M.A., Guides were only guidelines for the basis of a
rating and ratings were raised or lowered depending on the other variables.
In a September 15, 2005 decision, an Office hearing representative set aside the Office’s
May 18, 2004 decision and remanded the case for an Office medical adviser to review the reports
of Dr. Poetz.
In a report dated September 30, 2005, an Office medical adviser noted that Dr. Poetz, in
the October 26, 2004 report, provided no measurements made by a goniometer and indicated that
appellant had no sensory or motor deficits. The Office medical adviser found that Dr. Poetz’s
statement that appellant lacked plantar and dorsiflexion by 10 percent on the right side implied
that appellant would have a ratable impairment due to range of motion restrictions. However, he
stated that range of motion findings must be measured precisely using a goniometer and reported
in degrees, not in terms of percentages. The Office medical adviser further stated that
Dr. Poetz’s June 7, 2005 note which suggested a rating based on range of motion of the ankle,
was not acceptable for schedule award purposes as the A.M.A., Guides contain specific protocols
for rating ankle impairment. The Office medical adviser found that Dr. Poetz did not provide a
rating for the accepted ankle condition conforming to the A.M.A., Guides.
1

Docket No. 02-1178 (issued December 31, 2003).

2

By decision dated October 4, 2005, the Office denied appellant’s claim for an increased
schedule award.
On October 28, 2006 appellant requested an oral hearing, which was scheduled for
October 18, 2006. In an October 13, 2006 letter, appellant’s attorney requested a review of the
written record and submitted a March 16, 2006 report from Dr. Poetz who advised that he used a
goniometer to take range of motion measurements of the right lower extremity. Dr. Poetz stated
that appellant had plantar flexion of the right ankle to 20 degrees, dorsiflexion to 0 degrees,
inversion of the right foot to 10 degrees and eversion of the right foot to 8 degrees. He noted that
the Achilles on the right side was spastic, indurated and irregular feeling. Based on the A.M.A.,
Guides, Dr. Poetz opined that appellant had a total of 30 percent impairment to the right leg.
This was comprised of 7 percent impairment in both dorsi and plantar flexion, for a total 14
percent lower extremity impairment; 2 percent impairment in both inversion and eversion, for a
total 4 percent impairment; and 12 percent impairment due to the varus deformity.
By decision dated January 5, 2007, an Office hearing representative set aside the
October 4, 2005 decision and remanded the case to the Office medical adviser for review of
Dr. Poetz’s March 16, 2006 report.
In a January 28, 2007 report, the Office medical adviser opined that Dr. Poetz’s 30
percent impairment rating was based on unreliable examination findings. He noted that no prior
physician had ever reported that appellant had sustained such severe range of motion limitations
or that appellant had what Dr. Poetz reported as a varus deformity. The Office medical adviser
also noted that Dr. Poetz, in his October 26, 2004 report, had only discussed plantar and
dorsiflexion and provided no explanation as to how or why range of motion on plantar and
dorsiflexion was now more limited. He also stated that Dr. Poetz’s rating was incorrect as range
of motion limitations would be combined under the Combines Value Chart of the A.M.A.,
Guides, instead of added to any reported “varus deformity.” The Office medical adviser
concluded that Dr. Poetz’s disability rating was unacceptable.
By decision dated February 27, 2007, the Office denied appellant’s claim for an increased
schedule award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulation3 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss or loss of use, of scheduled members
or functions of the body. However, the Act does not specify the manner in which the
percentage of loss shall be determined. For consistent results and to ensure equal justice
under the law 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

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

3

A.M.A., Guides has been adopted by the implementing regulation as the appropriate
standard for evaluating schedule losses.4
ANALYSIS
Appellant received a schedule award for one percent impairment to his right leg. He
subsequently submitted medical reports from Dr. Poetz who stated that he had sustained a total
of 30 percent impairment to his right leg. An Office medical adviser reviewed Dr. Poetz’s
medical reports and determined that the medical evidence from Dr Poetz was not reliable to
support greater than the one percent impairment previously awarded.
Although Dr. Poetz’s determined that appellant sustained a 30 percent impairment of the
right lower extremity, it is not clear how he reached this conclusion utilizing the A.M.A., Guides.
In his October 26, 2004 and June 7, 2005 reports, Dr. Poetz stated that appellant’s impairment
rating was calculated under the A.M.A., Guides. However, Dr. Poetz provided no range of
motion findings by a goniometer5 so an impairment finding under the A.M.A., Guides could be
determined pursuant to the applicable tables in the A.M.A., Guides. The Board notes that under
Table 17-11, page 537 of the A.M.A., Guides, it is possible to have a seven percent impairment
due to plantar flexion, but impossible to have a seven percent impairment for loss of
dorsiflexion. While Dr. Poetz provided range of motion measurements by a goniometer in his
March 16, 2006 report, he failed to explain how he arrived at his 30 percent impairment rating in
accordance with reference to the relevant tables of the A.M.A., Guides.6 The Board notes that
under Table 17-11, page 537 of the A.M.A., Guides, plantar flexion of the right ankle to 20
degrees equals a seven percent lower extremity impairment while dorsiflexion to 0 degrees
equals a zero percent impairment, as opposed to the seven percent impairment rated by
Dr. Poetz. Under Table 17-12, page 537 of the A.M.A., Guides, a two percent lower extremity
impairment is provided for inversion of 10 degrees and eversion of 8 degrees. While Dr. Poetz
additionally advised that appellant had a varus deformity, which he rated as a 12 percent
impairment, he failed to provide a goniometer reading to support this finding or to provide
sufficient information which could be rated under Table 17-13, page 537 of the A.M.A., Guides.
The Office medical adviser reviewed the physical findings as reported by Dr. Poetz and
found that they were insufficient to support an impairment rating. He noted that Dr. Poetz did
not provide measurements using a goniometer in making his impairment ratings on October 26,
2004 and June 7, 2005. Dr. Poetz noted that appellant lacked plantar and dorsiflexion on the
right side, indicating loss of range of motion. He subsequently provided range of motion
measurements for dorsi and plantar flexion as well as inversion and eversion in a March 16, 2006
report. However, as noted by the Office medical adviser, Dr. Poetz additionally reported that
appellant had impairment due to a ratable varus deformity. The Office medical adviser
concluded that Dr. Poetz’s March 16, 2006 disability rating did not conform with the A.M.A.,
4

Id.

5

See, e.g., American Medical Association, Guides to the Evaluation of Permanent Impairment, Figure 17-5 (5th
ed. 2001) (notes how the goniometer should be positioned and how motion should be measured for dorsiflexion and
plantar flexion of the ankle).
6

See Tonya R. Bell, 43 ECAB 845, 849 (1992).

4

Guides as it was based on unreliable findings and not consistent with the other medical evidence
of record. He noted that Dr. Poetz did not explain how or why appellant’s range of motion
became more limited or why appellant had a varus deformity when no other evaluator had
reported such condition. The Board finds that the Office medical adviser’s opinion constitutes
the weight of the evidence.7 Since appellant already received a schedule award for one percent
impairment the Board finds that he has established greater impairment of his right lower
extremity.
CONCLUSION
The Board finds that appellant has no more than one percent impairment of his right
lower extremity for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the February 27, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 18, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7

Bobby L. Jackson, 40 ECAB 593, 601 (1989).

5