United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
C.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Warner Robins, GA, Employer
_________________________________________

)
)
)
)
)
)
)
)

Appearances:
L.Z. Dozier, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-16
Issued: February 6, 2015

Case Submitted on the Record

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

JURISDICTION
On October 2, 2014 appellant, through his attorney, filed a timely appeal from the
April 9, 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 OWCP properly denied appellant’s claim for a December 16, 2008
work injury as untimely filed.
FACTUAL HISTORY
On June 19, 2013 appellant, then a 33-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that he sustained injury to his back and right leg at work on
December 16, 2008. Regarding the cause of the claimed injury, he stated, “I was stepping out of
1

5 U.S.C. §§ 8101-8193.

my postal truck with a parcel when my right knee buckled and a sharp pain shot up my back.”
Appellant did not stop work at the time of the claimed December 16, 2008 injury. On the same
form, Willie Finney, a supervisor, noted, “Employee stated he reported this on
December 16, 2008. There is no record of this ever being reported.” Mr. Finney indicated that
the employing establishment was challenging appellant’s claim and stated, “This incident was
never reported and he earlier states that he was also injured off the job.”
In a June 19, 2013 letter to OWCP, an official for the employing establishment
challenged appellant’s claim for a December 16, 2008 work injury as untimely filed, noting that
he did not inform anyone at the employing establishment that he was claiming a December 16,
2008 work injury until he filed his Form CA-1 on June 19, 2013. The official discussed a
workers’ compensation claim appellant had previously filed in connection with a May 9, 2008
vehicular accident at work. The official noted that the claim regarding a May 9, 2008 accident
eventually led to a third-party action being filed and suggested that appellant filed his Form
CA-1 on June 19, 2013 as part of his counsel’s strategy in the third-party action.2
In a June 27, 2013 letter, OWCP asked appellant to answer various questions about his
claimed December 16, 2008 injury, including whether there were any witnesses to the claimed
work incident, whether he reported the claimed injury to a supervisor, and whether he sustained
any other injury, either on or off duty, between December 16, 2008 and the date the claimed
injury was first reported to his supervisor and to a physician. It requested that he submit
documentary evidence in support of his claim for a December 16, 2008 injury. Appellant was
provided 30 days to respond, but the record does not establish that he provided any documentary
evidence within the allotted time.
In a July 29, 2013 decision, OWCP denied appellant’s claim for a work-related
December 16, 2008 injury. Regarding the basis for the denial of the claim, it stated:
“You have established that you are a federal civilian employee who filed a timely
claim; however, after a thorough review of all evidence, your claim is denied
because the factual component of the third basic element, fact of injury, has not
been met.
“Specifically your case is denied because the evidence is not sufficient to
establish that the event(s) occurred as you described. The reason for this finding
is that you did not respond to any of the questions posed in the development letter,
nor did you sign the certification statement confirming everything you claimed
was true/correct, and we did not receive the medical evidence necessary to
support your claim.”
Appellant requested a hearing before an OWCP hearing representative. At the
February 24, 2014 hearing, he testified in response to a question regarding why he delayed in
2

The record appears to contain a 2012 document from the third-party action that mentions a work incident on
December 16, 2008. The record contains a “PS Form 1769/301 Accident Report” that generally mentions a
December 16, 2008 accident, but the document does not indicate when it was produced or who produced it. The
unsigned document was added to the record on June 20, 2013.

2

filing his claim for a December 16, 2008 work injury. Appellant stated, “When I talked to my
supervisor and when the incident actually happened she never instructed me that I needed to file
a claim for it…. So I wasn’t aware that that was something I was supposed to do.” He noted
that on December 16, 2008 he held a package weighing about 20 to 30 pounds and that, when he
stepped out of his postal truck, his right knee buckled and the pain shot up his back. Counsel
indicated that appellant reported the December 16, 2008 incident to his employer around the time
it occurred. He also noted that appellant had filed a claim for a May 2008 vehicular accident at
work.
Subsequent to the hearing, appellant submitted medical records in support of his claim.
He submitted a report from the date of the claimed injury, i.e., December 16, 2008, which was
produced by Dr. K. Scott Malone, an attending Board-certified orthopedic surgeon. The report
makes no mention of appellant having sustaining a work injury on December 16, 2008 and
indicates that he had no significant changes in his back and leg symptoms. In a March 26, 2014
report, Dr. Malone detailed his treatment of appellant and noted that appellant “returned to my
office on December 16, 2008 and reported his pain had flared up.” He stated:
“I have reviewed [appellant’s] records. I have also reviewed a copy of his
deposition in which he testified that the flare up of his symptoms on
December 16, 2008 occurred when he was stepping out of his postal vehicle with
a parcel and his right leg completely buckled and he felt pain shoot up in his leg
and back. I have also reviewed a decision by Judge Jason Ashford of the State
Court of Houston County in which he found that [appellant] suffered a new
work[-]related accident or aggravation on December 16, 2008.”
In an April 9, 2014 decision, an OWCP hearing representative affirmed OWCP’s July 29,
2013 decision denying appellant’s claim for a December 16, 2008 work injury as modified to
reflect that the claim was denied on the grounds that it was untimely filed. She found that
appellant’s claim was not filed within three years of his claimed December 16, 2008 injury and
that he did not submit probative evidence showing that his immediate supervisor had knowledge
of the claimed December 16, 2008 injury.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.3 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death. Compensation
for disability or death, including medical care in disability cases, may not be allowed if a claim is
not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
3

Charles Walker, 55 ECAB 238 (2004); see Charles W. Bishop, 6 ECAB 571 (1954).

3

“(2) written notice of injury or death as specified in section 8119 was given within
30 days.”4
Section 8119 of FECA provides that a notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury, or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the
address of the individual giving the notice.5 Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.6
When a traumatic injury definite in time, place, and circumstances is involved, the time
for giving notice of injury and filing for compensation begins to run at the time of the incident,
even though the employee may not have been aware of the seriousness or ultimate consequences
of his injury.7 The Board has held that the applicable statute of limitations commences to run
although the employee does not know the precise nature of the impairment.8
ANALYSIS
On June 19, 2013 appellant filed a traumatic injury claim (Form CA-1) alleging that he
sustained injury to his back and right leg at work on December 16, 2008. Regarding the cause of
the claimed injury, he stated, “I was stepping out of my postal truck with a parcel when my right
knee buckled and a sharp pain shot up my back.” On the same form, Mr. Finney, appellant’s
supervisor, noted that there was no record of appellant reporting a December 16, 2008 injury
prior to his June 19, 2013 filing of a Form CA-1. In an April 9, 2014 decision, OWCP denied
appellant’s claim for a December 16, 2008 work injury on the grounds that it was untimely filed.
The Board finds that OWCP properly found that appellant did not file a timely claim for
an alleged December 16, 2008 work injury. As appellant alleged that he sustained a traumatic
injury on December 16, 2008, the time limitation began to run on December 16, 2008 for this
claimed injury.9 As appellant did not file a claim until June 19, 2013, his claim was not filed
within the three-year period of limitation.
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of FECA if
his immediate superior had actual knowledge of the claimed December 16, 2008 injury within 30
days, or under section 8122(a)(2) if written notice of injury was given to his immediate superior
4

5 U.S.C. § 8122(a).

5

5 U.S.C. § 8119; Larry E. Young, 52 ECAB 264 (2001).

6

Laura L. Harrison, 52 ECAB 515 (2001).

7

Emma L. Brooks, 37 ECAB 407, 411 (1986).

8

Delmont L. Thompson, 51 ECAB 155 (1999).

9

See supra note 7.

4

within 30 days as specified in section 8119. Appellant has not satisfied either of these
provisions. On appeal, counsel argued that appellant’s statements at the February 24, 2014
hearing with an OWCP hearing representative establish that his immediate superior had actual
knowledge of his claimed December 16, 2008 injury within 30 days. However, appellant only
made vague comments about providing such notice and there is no evidence in the record to
support his assertions that his immediate superior had such knowledge. Moreover, the record
does not establish that he provided a statement to his immediate superior such that he satisfied
the provisions of sections 8119 and 8122(a) of FECA.10
The record shows that, despite appellant’s assertion that he did not know that he needed
to file a workers’ compensation claim for a work injury, he had previously filed a workers’
compensation claim on at least one other occasion, including one for a May 2008 vehicular
accident at work. There is no evidence that appellant’s immediate superior had actual
knowledge of appellant’s claimed December 16, 2008 injury prior to receiving the Form CA-1
he filed on June 19, 2013.11
For these reasons, appellant’s claim for a December 16, 2008 work injury was untimely
filed and OWCP properly denied the claim on this basis.
CONCLUSION
The Board finds that OWCP properly denied appellant’s claim for a December 16, 2008
work injury as untimely filed.

10

See supra notes 4 and 5.

11

Appellant submitted medical evidence in which a December 16, 2008 work incident is mentioned. The record
also appears to contain a document from a 2012 third-party action that mentions a work incident on
December 16, 2008. However, this evidence does not show that appellant’s immediate superior had actual
knowledge of his claimed December 16, 2008 work injury within 30 days.

5

ORDER
IT IS HEREBY ORDERED THAT the April 9, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 6, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, REMOTE ENCODING )
CENTER, Kearny, NJ, Employer
)
__________________________________________ )
S.K., Appellant

Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1783
Issued: May 2, 2012

Case Submitted on the Record

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

JURISDICTION
On July 28, 2011 appellant, through her attorney, filed a timely appeal from a June 29,
2011 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 schedule award issue.
ISSUE
The issue is whether appellant sustained more than a two percent permanent impairment
of the left arm for which she received a schedule award.
FACTUAL HISTORY
On July 30, 2000 appellant, then a 44-year-old data conversion operator, filed a Form
CA-2 for an occupational disease claim sustained in the performance of duty. A July 10, 2000
nerve conduction study performed by Dr. Dong W. Cho, a Board-certified physiatrist, exhibited
1

5 U.S.C. § 8101 et seq.

delayed conduction velocity and reduced amplitude of the left ulnar motor and sensory nerves
across the elbow segment, indicating tardy ulnar entrapment neuropathy. A July 26, 2000
magnetic resonance imaging scan obtained by Dr. Jack L. Baldassare, a Board-certified
diagnostic radiologist, showed mild osteoarthritic changes of the left upper extremity joint. On
September 17, 2000 appellant underwent left ulnar nerve transposition. In a March 1, 2001
nerve conduction study, Dr. Cho noted that the ulnar entrapment neuropathy was more proximal
than previously reported. Appellant subsequently underwent left ulnar nerve transposition
revision on May 11, 2001.2 OWCP accepted an occupational disease claim for left wrist and
thumb tendinitis.3
Appellant filed a claim for a schedule award on March 30, 2009 and submitted medical
evidence. In an amended February 16, 2009 report,4 Dr. Arthur F. Becan, an orthopedic surgeon,
remarked that appellant complained of intermittent left wrist and elbow symptoms related to
repetitive data entry duties. Appellant’s condition limited her ability to drive, sleep, complete
household work and perform other activities of daily living.5 Dr. Becan examined her left elbow
and observed a 17 centimeter hypertrophic surgical scar along the posterior medial aspect,
medial epicondyle tenderness and restricted joint flexion, pronation and supination. On
inspection of the left wrist, he observed tenderness of the carpi extensor ulnaris and the first
extensor compartment at the dorsal radial aspect, limited dorsiflexion, palmar flexion and ulnar
deviation and a positive Finkelstein’s test. Semmes-Weinstein monofilament testing also
revealed a threshold of 6.1 grams of force. Following a review of the April 23, 2009 statement
of accepted facts and medical file, Dr. Becan diagnosed cumulative and repetitive trauma
disorder, left ulnar neuropathy, recurrent left ulnar neuropathy, status post ulnar nerve
transposition, status post repeat ulnar nerve decompression, de Quervain’s disease and extensor
carpi ulnaris tendinitis. He applied Chapter 15 (The Upper Extremities), section 15.4e
(Peripheral Nerve and Brachial Plexus Impairment) of the A.M.A., Guides.6 Based on the
physical examination findings, Dr. Becan selected a sensory deficit level of 3.7 He assigned an
impairment class diagnosed condition (CDX) of 1 with a default grade of C, amounting to a five
percent impairment rating for severe ulnar sensory deficit above midforearm.8 Dr. Becan
2

OWCP authorized the revision surgery in an April 23, 2001 letter.

3

The foregoing information was incorporated into April 23, 2009 and September 30, 2010 statements of accepted
facts.
4

In his original report, Dr. Becan used the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter A.M.A., Guides) and calculated a 26 percent permanent
impairment of the left upper extremity. See infra note 6 (5th ed. 2001). OWCP advised Dr. Becan in an August 25,
2009 letter that impairment ratings must be based on the sixth edition of the A.M.A., Guides effective May 1, 2009.
The case record also contains an April 25, 2009 report from Dr. Morley Slutsky, a Board-certified occupational
physician and OWCP’s medical adviser, in which he presented an impairment rating of three percent based on the
fifth edition.
5

Dr. Becan added that appellant scored 63 on the shortened version of the “Disabilities of the Arm, Shoulder and
Hand” (QuickDASH) questionnaire.
6

A.M.A., Guides (6th ed. 2008), 429-32, 434-44.

7

Id. at 425 (Table 15-14) (Sensory and Motor Severity).

8

Id. at 443 (Table 15-21) (Peripheral Nerve Impairment: Upper Extremity Impairments).

2

identified a grade modifier value of 2 for Functional History (GMFH), citing appellant’s
symptoms while performing normal activities.9 In addition, he chose a grade modifier value of 1
for Clinical Studies (GMCS) as electrodiagnostic studies exhibited ongoing ulnar
abnormalities.10 Using the net adjustment formula of (GMFH -- CDX) + (GMCS -- CDX) or (2
- 1) + (1 - 1), Dr. Becan calculated a net adjustment of 1 and concluded that appellant sustained a
five percent permanent impairment of the left upper extremity.11 He listed February 16, 2009 as
the date of maximum medical improvement.
On December 23, 2009 Dr. Henry J. Magliato, OWCP’s medical adviser and a Boardcertified orthopedic surgeon, reviewed the April 23, 2009 statement of accepted facts and
Dr. Becan’s report. He stated that the five percent impairment rating was suitable only if OWCP
authorized ulnar nerve surgery. After he received a February 4, 2010 letter from OWCP stating
that it only accepted left wrist and thumb tenosynovitis, Dr. Magliato found in a February 22,
2010 report that Dr. Becan’s report failed to address an accepted condition.
Appellant was referred for a second opinion examination to Dr. Jeffrey F. Lakin, a
Board-certified orthopedic surgeon. In an April 21, 2010 report, Dr. Lakin noted appellant’s
complaints of hand numbness and reviewed the medical file. On neurological examination, he
recorded two-point discrimination above seven millimeters and elicited pain during resistive
wrist extension, flexion, supination and pronation. Dr. Lakin concluded that appellant did not
sustain an impairment of the left arm because she no longer experienced symptoms of her
accepted left wrist or thumb tendinitis. He listed April 21, 2010 as the date of maximum medical
improvement. On June 13, 2010 Dr. Andrew A. Merola, OWCP’s medical adviser and a Boardcertified orthopedic surgeon, agreed with Dr. Lakin’s opinion.
By decision dated August 4, 2010, OWCP denied appellant’s claim for a schedule award,
finding the medical evidence insufficient to demonstrate that she sustained a measurable
impairment of a scheduled member due to an accepted condition.
Appellant’s attorney requested reconsideration on August 16, 2010. He argued that
appellant’s occupational disease claim should be accepted to include her left elbow because
OWCP authorized the September 17, 2000 left ulnar nerve transposition surgery. Counsel also
pointed out that Dr. Magliato agreed with Dr. Becan’s five percent impairment rating on the
condition that OWCP authorized this surgery.
A September 30, 2010 statement of accepted facts related that OWCP accepted left ulnar
nerve entrapment neuropathy. In a September 30, 2010 letter, OWCP asked Dr. Lakin for a
supplemental report in view of this revised statement of accepted facts.
In a November 8, 2010 supplemental report, Dr. Lakin applied Chapter 15, section 15.4f
(Entrapment Neuropathy) of the A.M.A., Guides, in particular Table 15-23
9

Id. at 406 (Table 15-7) (Functional History Adjustment: Upper Extremities).

10

Id. at 410-11 (Table 15-9) (Clinical Studies Adjustment: Upper Extremities).

11

Dr. Becan pointed out that a grade modifier for Physical Examination (GMPE) was unnecessary because these
findings were already used to determine CDX. Id. at 407.

3

(Entrapment/Compression Neuropathy Impairment).12
Based on appellant’s mild hand
symptoms, diminished sensation and delayed conduction velocity, he found grade modifier
values of 1 for history, 2 for physical findings and 1 for test findings, respectively. Dr. Lakin
averaged these values to arrive at 1.33, which rounded down to 1 and assigned a grade of 1. The
QuickDASH modifier value was 1. Dr. Lakin concluded that appellant sustained a default two
percent permanent impairment for ulnar nerve entrapment neuropathy.
In a November 29, 2010 report, Dr. Magliato reviewed Dr. Lakin’s November 8, 2010
report and agreed with the two percent impairment rating. He identified February 16, 2009 as
the date of maximum medical improvement.
On December 15, 2010 OWCP granted a schedule award for two percent permanent
impairment of the left upper extremity for the period February 16 to March 31, 2009.
Counsel requested reconsideration on January 4, 2011 and asserted that Dr. Becan’s
amended February 16, 2009 report constituted the weight of the medical evidence.
On June 29, 2011 OWCP denied modification of the December 15, 2010 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 of or loss of use of scheduled members or functions of the body.13 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 regulation as the
appropriate standard for evaluating schedule losses.14
The A.M.A., Guides provides a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health (ICF).
Generally, for upper extremity impairments, the evaluator identifies the impairment class for the
CDX, which is then adjusted by grade modifiers based on GMFH, GMPE and GMCS. The net
adjustment formula is (GMFH -- CDX) + (GMPE -- CDX) + (GMCS -- CDX).15 Evaluators are
directed to provide reasons for their impairment rating choices, including the choices of
diagnoses from regional grids and calculations of modifier scores.16

12

Id. 432-33, 445-50.

13

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

14

K.H., Docket No. 09-341 (issued December 30, 2011).

15

R.Z., Docket No. 10-1915 (issued May 19, 2011).

16

J.W., Docket No. 11-289 (issued September 12, 2011).

4

The method used to calculate impairment on account of entrapment neuropathies deviates
slightly from the diagnosis-based method.17 When the diagnosis of entrapment neuropathy has
already been established, only grade modifiers need to be determined for the purposes of
calculating the impairment rating.18 Grade modifiers are described for test findings, history and
physical findings. Once the appropriate values for these modifiers are determined, the average of
these values is taken and rounded to the nearest integer to determine the grade.19 Next, the
evaluator looks at the “Upper Extremity Impairments” row at the bottom of Table 15-23, which
contains the range of impairment values for the grade selected. The middle value is the default
impairment percentage for the grade. Finally, the default percentage is modified based on the
functional scale grade, which is indicated by the shortened version of the QuickDASH. If the
functional scale grade is equal to the grade assigned for the condition, the default percentage is
the appropriate rating. If the functional scale grade is lower or higher than the grade assigned to
the condition, the lower or higher percentage, respectively, is the appropriate impairment
rating.20
ANALYSIS
OWCP accepted appellant’s occupational disease claim for left wrist and thumb tendinitis
and later expanded it to include left ulnar nerve entrapment neuropathy. The case record
indicates that the former has resolved while the latter forms the basis for the present schedule
award claim.
The Board finds that Dr. Lakin’s November 8, 2010 report constitutes the weight of the
medical evidence. The weight of the medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.21 Appellant submitted two impairment rating
reports from Dr. Becan, both of which were dated February 16, 2009. The original report
calculated a 26 percent permanent impairment of the left upper extremity based on the fifth
edition of the A.M.A., Guides. The Board has held that the fifth edition applies to schedule
award decisions issued between February 1, 2001 and April 30, 2009 while the sixth edition
applies to decisions issued on or after May 1, 2009.22 Here, OWCP issued its decision on
August 4, 2010. Since Dr. Becan did not utilize the proper edition of the A.M.A., Guides, this
report was of diminished probative value.23
17

See generally supra note 6 at 432-33, 445-50.

18

Id. at 433.

19

Id. at 433, 445-448.

20

Id. at 448-49.

21

I.R., Docket No. 09-1229 (issued February 24, 2010); James Mack, 43 ECAB 321, 329 (1991).

22

B.M., Docket No. 09-2231 (issued May 14, 2010).

23

A.B., Docket No. 10-2142 (issued August 10, 2011). See also James Kennedy, Jr., 40 ECAB 620, 627 (1989)
(an opinion that is not based upon standards adopted by OWCP and approved by the Board as appropriate for
evaluating schedule losses is of little probative value in determining the extent of permanent impairment).

5

After OWCP instructed him to use the sixth edition of the A.M.A., Guides, Dr. Becan
amended his February 16, 2009 report. He diagnosed cumulative and repetitive trauma disorder
and left ulnar neuropathy, inter alia, applied Chapter 15, section 15.4e of the A.M.A., Guides,
and calculated a five percent impairment rating for severe ulnar sensory deficit above
midforearm. As noted, however, OWCP specifically accepted left ulnar nerve entrapment
neuropathy and the A.M.A., Guides sets forth a distinct scheme for rating entrapment
neuropathies. The prologue of section 15.4 states, “Nerve entrapments (e.g., carpal tunnel
syndrome, cubital tunnel syndrome and other entrapments) are not isolated traumatic events and
are dealt with in section 15.4f, Entrapment Neuropathy.”24 This caveat is reiterated at the
beginning of section 15.4e: “Impairment from traumatic injury to peripheral nerves is defined by
the specific nerves involved, and the associated severity of sensory and motor deficits. [Section
15.4e] is not used for nerve entrapments since nerve entrapments are not isolated traumatic
events; nerve entrapments are rated in section 15.4f.”25 Because Dr. Becan used the wrong
rating scheme, his amended report is of limited probative value on the extent of appellant’s left
upper extremity impairment.
Dr. Lakin applied section 15.4f in his November 8, 2010 report. Citing appellant’s
complaints of mild hand symptoms, a neurological examination exhibiting decreased sensation,
and nerve conduction studies revealing delayed conduction velocity, he assigned grade modifier
values of 1 for history, 2 for physical findings and 1 for test findings, respectively. Dr. Lakin
obtained the average of these values, (1 + 2 + 1) / 3 or 1.33 and rounded to the nearest integer to
establish a grade modifier of 1. Based on the “Upper Extremity Impairments” row at the bottom
of Table 15-23, he observed that the default impairment rating for grade modifier of 1 was two
percent. Since the QuickDASH modifier value was also 1, Dr. Lakin opined that appellant
sustained a two percent permanent impairment for ulnar nerve neuropathy. Dr. Merola, OWCP’s
medical adviser, reviewed the report and agreed with the rating. In view of Dr. Lakin’s
rationalized medical opinion, the Board finds that OWCP properly granted a schedule award for
two percent permanent impairment of the left upper extremity.
Counsel contends on appeal that Dr. Becan’s February 16, 2009 reports should have
constituted the weight of the medical evidence. The Board has already addressed the
deficiencies of these reports. Alternatively, counsel argues that there is a medical conflict
between Drs. Becan and Lakin necessitating a referral for a referee examination.26 A simple
disagreement between two physicians does not, of itself, establish a conflict. A conflict only
exists only when there are opposing medical reports of virtually equal weight and rationale.27
Given that the reports of Drs. Becan and Lakin are not of equivalent probative value, a referee
examination is unnecessary.

24

Supra note 6 at 423.

25

Id. at 429 (Emphasis in original.). See also id. at 433 (“Entrapment neuropathy is determined using the
methods described in [section 15.4f] alone”).
26

See 5 U.S.C. § 8123(a); 20 C.F.R. § 10.321; R.H., 59 ECAB 382, 386-87 (2008).

27

John D. Jackson, 55 ECAB 465 (2004).

6

Appellant may request an increased schedule award based on evidence of a new exposure
or medical evidence showing progression of an employment-related condition resulting in
increased impairment.
CONCLUSION
The Board finds that appellant did not sustain more than a two percent permanent
impairment of the left upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the June 29, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 2, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ 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
__________________________________________
G.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Richmond, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Hank Royal, for the appellant
Office of Solicitor, for the Director

Docket No. 13-770
Issued: July 9, 2013

Case Submitted on the Record

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

JURISDICTION
On February 15, 2013 appellant, through her representative, filed a timely appeal from
the December 5, 2012 merit decision of the Office of Workers’ Compensation Programs
(OWCP), which calculated her loss of wage-earning capacity. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review that decision.2
ISSUE
The issue is whether OWCP properly determined appellant’s pay rate.
1
2

5 U.S.C. § 8101 et seq.

The Board has no jurisdiction to review OWCP’s hearing representative’s August 9, 2012 decision to affirm the
reduction of appellant’s wage-loss compensation based on her capacity to earn wages in the selected position of
administrative secretary. More than 180 days has elapsed from the issuance of OWCP’s August 9, 2012 decision to
the filing of this appeal. The only decision the Board may review is OWCP’s December 5, 2012 calculation of
appellant’s loss of wage-earning capacity. Accordingly, the only issue the Board may consider is whether the
calculation is correct and supported by the evidence.

FACTUAL HISTORY
On March 21, 2003 appellant, then a 40-year-old clerk, filed an occupational disease
claim alleging pain in her neck and right upper extremity after keying and reaching for parcels.
She did not stop work but was reassigned. OWCP accepted appellant’s claim for right shoulder
impingement syndrome.
Appellant underwent arthroscopic right shoulder surgery on March 16, 2004. She
stopped work again on May 18, 2009 before undergoing revision surgery on July 13, 2009.
OWCP accepted a right shoulder ganglion cyst. Appellant received compensation for temporary
total disability on the periodic rolls based on her May 18, 2009 pay rate.
Effective January 15, 2012, OWCP reduced appellant’s wage-loss compensation based
on her capacity to earn wages in the selected position of administrative secretary.
On August 9, 2012 OWCP’s hearing representative found that the selected position fairly
and accurately reflected appellant’s wage-earning capacity and that OWCP met its burden in
reducing her wage-loss compensation. The hearing representative also found, however, that
OWCP did not properly calculate the loss of wage-earning capacity. OWCP had used the pay
rate when disability began on May 18, 2009, but disability first began when appellant stopped
work for her right shoulder surgery on March 16, 2004. Appellant returned to modified duty
following the surgery and continued in this modified capacity until she stopped work again on
May 18, 2009. Further, as the evidence supported that she continued working full-time regular
duty after her injury until she stopped work for surgery on March 16, 2004, the hearing
representative found that the date of injury was the date of her last exposure to the work factors
that caused her condition on March 15, 2004.
OWCP’s hearing representative affirmed its reduction of wage-loss compensation based
on the selected position of administrative secretary but ordered OWCP to determine appellant’s
pay rate as of March 15 and 16, 2004 and to determine whether she was entitled to a date of
recurrence pay rate any time thereafter. The hearing representative affirmed OWCP’s decision
in part and remanded the case for a proper recalculation of the loss of wage-earning capacity
according to OWCP regulations and procedures.
After receiving pay rate information from the employing establishment, OWCP
recalculated appellant’s loss of wage-earning capacity on December 5, 2012. It compared the
current weekly pay rate for the position she held on the date of injury ($1,183.25)3 with the
weekly wages she was capable of earning in the selected position ($480.00). OWCP then
applied this wage-earning capacity (41 percent) to appellant’s weekly pay rate when disability
recurred effective May 18, 2009 ($1,212.14). It subtracted that amount from the recurrent pay
rate to find the loss of wage-earning capacity. OWCP applied the compensation rate of twothirds, increased this amount by applicable cost-of-living adjustments and subtracted premiums
for health benefits, basic life insurance and optional life insurance. It notified appellant of the
revision as instructed by OWCP’s hearing representative.
3

This figure represents the base weekly pay rate increased by Night Differential and Sunday Premium Pay.

2

On appeal, counsel cites two cases: Marvin Elder, Docket No. 03-1421 (issued
January 26, 2005) and Terry L. Hewitt, Docket No. 96-2563 (issued November 16, 1998).
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.4 “Disability” means the incapacity, because
of an employment injury, to earn the wages the employee was receiving at the time of injury. It
may be partial or total.5
If the disability is partial, the United States shall pay the employee during the disability
monthly monetary compensation equal to 66 2/3 percent of the difference between monthly pay
and monthly wage-earning capacity after the beginning of the partial disability.6
The method for determining loss of wage-earning capacity was set out by the Board in
the case of Albert C. Shadrick.7 The Board established a principle to eliminate economic factors
such as inflation or recession when computing the amount of monetary compensation due for
partial disability. According to this rule, the injured worker is paid compensation based on the
ratio of post-injury wage-earning capacity to the current pay rate of the date-of-injury job. After
such percentage is determined, compensation for partial disability is computed on the basis of
monthly pay.8
“Monthly pay” means the monthly pay at the time of injury or the monthly pay at the
time disability began or the monthly pay at the time compensable disability recurred if the
recurrence began more than six months after the injured employee resumed regular full-time
employment with the United States, whichever is greater.9
ANALYSIS
Under the Shadrick formula the ratio of the post-injury wages appellant is capable of
earning in the selected position is compared to the current pay rate for the position she held on
the date of injury. This step is the same in every case, regardless of when disability began or
recurred.
OWCP’s hearing representative found that the date of injury was the date of appellant’s
last exposure to the work factors that caused her condition. As she continued to work full-time
4

5 U.S.C. § 8102(a).

5

20 C.F.R. § 10.5(f).

6

5 U.S.C. § 8106(a).

7

5 ECAB 376 (1953).

8

Johnny A. Muro, 17 ECAB 537 (1966); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing
Compensation, Chapter 2.901.15.c (October 2009) (Shadrick formula codified at 20 C.F.R. § 10.403).
9

5 U.S.C. § 8101(4); John D. Williamson, 40 ECAB 1179 (1989).

3

regular duty after her injury until she stopped work for surgery on March 16, 2004, the hearing
representative determined that her date of injury was March 15, 2004. The employing
establishment advised that the current pay rate for the position appellant held on March 15, 2004
was $1,183.25.
OWCP’s hearing representative affirmed that appellant had the capacity to earn $480.00
a week in the selected position of administrative secretary. The ratio of the postinjury wages
appellant is capable of earning in this position ($480.00) to the current pay rate for the position
she held on March 15, 2004 ($1,183.25) is 41 percent, which OWCP correctly determined.
The second step is to apply this percentage to the pay at the time of injury or the pay at
the time disability began or the pay at the time compensable disability recurred if the recurrence
began more than six months after the injured employee resumed regular full-time employment
with the United States, whichever is greater. OWCP applied 41 percent to appellant’s pay when
her disability recurred on May 18, 2009. There is no evidence that she ever resumed regular fulltime employment with the United States following her May 16, 2004 right shoulder surgery. As
OWCP’s hearing representative indicated, appellant returned to modified duty following the
May 16, 2004 surgery and continued in this modified capacity until she stopped work again on
May 18, 2009. The Board therefore finds that OWCP erroneously applied the percentage of
wage-earning capacity to appellant’s pay at the time compensable disability recurred on
May 18, 2009.
OWCP should have applied this figure to the pay rate when disability began on
March 16, 2004. Accordingly, the Board will set aside OWCP’s December 5, 2012 decision and
remand the case for a proper calculation of appellant’s compensation for partial disability.
On appeal, counsel cites two cases addressing the issue of preexisting conditions. That
issue was addressed by OWCP’s hearing representative in his August 9, 2012 decision which is
not before the Board on this appeal.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP improperly calculated appellant’s loss of wage-earning
capacity. Further development is warranted.

4

ORDER
IT IS HEREBY ORDERED THAT the December 5, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: July 9, 2013
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.G., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Washington, DC,
Employer
__________________________________________

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

Docket No. 08-2202
Issued: April 15, 2009

Case Submitted on the Record

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

JURISDICTION
On August 6, 2008 appellant filed a timely appeal from the merit decision of the Office
of Workers’ Compensation Programs dated June 27, 2008, denying his claim for a schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction to review
the merits of this case.
ISSUE
The issue is whether appellant established that he was entitled to a schedule award.
FACTUAL HISTORY
On February 24, 1998 appellant, then a 37-year-old laborer, filed a traumatic injury claim
alleging that, on February 17, 1998, he twisted his right wrist while pulling trash. The Office
accepted appellant’s claim for right carpal tunnel syndrome and wrist sprain. Treatment included
physical therapy, splints and decompression surgery.

On January 24, 2007 appellant filed a claim for a schedule award. In a report dated
March 2, 2007, Dr. Hampton J. Jackson, appellant’s treating Board-certified orthopedic surgeon,
stated:
“There is obvious atrophy that has prompted manual muscle testing examination
which clearly shows weakness to pinch and grip. Therefore, a dynamometer was
used to measure the pinch and grip and the values were rated to [T]ables 16-32,
16-33 and 16-34 [of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides) (5th ed. 2001)]. His pinch and grip
strength rates a 20 percent impairment of the upper extremity. [Appellant] indeed
does have diminished light touch with two-point discrimination of the thumb and
index finger. Thus, according to [T]able 16-10, [appellant] rates a [G]rade [3]
neurosensory deficit or peripheral nerve disorder and obvious deceased motor
strength rating [G]rade [4]. When the grades are then utilized on [T]able 16-5,
[appellant] then has a 23.4 percent impairment due to pain, discomfort and
sensory alteration and a 2.5 percent impairment due to muscle weakness. There
has been a good range of motion of the wrist.
“Therefore, when [appellant’s] various impairments are combined on the
[C]ombined [V]alues [C]hart, which is on page 604 of the [A.M.A., Guides], his
impairment of his right upper extremity related to his carpal tunnel syndrome is
52 percent impairment of the right upper extremity. This is based on his present
impairment, which may change with future surgery and the total rate of his right
upper extremity.
By memorandum dated July 16, 2007, the Office forwarded Dr. Jackson’s report to the
Office medical adviser and asked his comments with regard to appellant’s eligibility for a
schedule award. By letter dated July 19, 2007, the Office medical adviser replied that in order to
rate appellant for residuals of carpal tunnel syndrome, he must have updated electromyogram
(EMG) and nerve conduction studies (NCS) done by an independent physician.
The Office referred appellant to Dr. Kenneth Eckman, a Board-certified neurologist, to
perform EMG and NCS for the purpose of determining an impairment rating for a schedule
award for the right upper extremity resulting from carpal tunnel syndrome. It noted that it was
not necessary that Dr. Eckman provide an impairment rating. In a report dated October 3, 2007,
after conducting a physical examination, Dr. Eckman found that the NCS were in the normal to
upper normal range and that the needle EMG component was normal in both upper extremities.
He noted that, on the basis of this study, there was no definite electrophysiological evidence of
carpal tunnel syndrome on either side, nor was there evidence of cervical radiculopathy.
Dr. Eckman then indicated that the current assessment, including clinical evaluation and
NCS/EMG show no evidence of carpal tunnel syndrome on the right side and that based on this,
he would “conclude that there is no evidence of carpal tunnel syndrome in this case at the present
time.”
On January 30, 2008 the Office referred appellant’s case to the Office medical adviser for
comments with regard to his claim for a schedule award. In a response dated February 11, 2008,
the Office medical adviser found that appellant’s impairment rating to his right upper extremity

2

was zero percent because the EMG and NCS were negative. He noted that, pursuant to the
A.M.A., Guides, Chapter 16, page 495, there was no basis for rating of permanency of the nerve
as it adequately decompressed and had recovered.
In a decision dated June 27, 2008, the Office denied appellant’s claim for a schedule
award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 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 A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.
Office procedures3 provide that upper extremity impairment secondary to carpal tunnel
syndrome and other entrapment neuropathies should be calculated using section 16.5d and
Tables 16-10, 16-11 and 16-15.4 Chapter 16 of the fifth edition of the A.M.A., Guides provides
the framework for assessing upper extremity impairments.5 Regarding carpal tunnel syndrome,
the A.M.A., Guides provide:
“If, after an optimal recovery time following surgical decompression, an
individual continues to complain of pain, paresthesias and/or difficulties in
performing certain activities, three possible scenarios can be present:
(1) Positive clinical findings of median nerve dysfunction and electrical
conduction delay(s): the impairment due to residual CTS is rated
according to the sensory and/or motor deficits as described earlier.6
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(June 2003). See also Cristeen Falls, 55 ECAB 420 (2004).
4

A.M.A., Guides 491, 482, 484, 492, respectively; see Joseph Lawrence, Jr., 53 ECAB 331 (2002).

5

A.M.A., Guides 433-521.

6

Section 16.5b of the A.M.A., Guides describes the methods for evaluating upper extremity impairments due to
peripheral nerve disorders and provides that the severity of the sensory or pain deficit and motor deficit should be
classified according to Tables 16-10a and 16-11a respectively. The impairment is evaluated by multiplying the
grade of severity of the sensory or motor deficit by the respective maximum upper extremity value resulting from
sensory or motor deficits of each nerve structure involved. When both sensory and motor functions are involved,
the impairment values derived for each are combined. Id.

3

(2) Normal sensibility and opposition strength with abnormal sensory
and/or motor latencies or abnormal EMG [electromyogram] testing of the
thenar muscles: a residual CTS is still present and an impairment rating
not to exceed five percent of the upper extremity may be justified.
(3) Normal sensibility (two-point discrimination and Semmes-Weinstein
monofilament testing), opposition strength and nerve conduction studies:
there is no objective basis for an impairment rating.”7 (Emphasis in the
original.)
The A.M.A., Guides further provides that, “In compression neuropathies, additional
impairment values are not given for decreased grip strength.”8 Carpal tunnel syndrome is an
entrapment/compression neuropathy of the median nerve.9
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 in accordance with the A.M.A., Guides, with the Office medical
adviser providing rationale for the percentage of impairment specified.10
ANALYSIS
The Office accepted appellant’s claim for right carpal tunnel syndrome and wrist sprain
causally related to his February 17, 1998 work injury. Appellant’s treatment included
decompression surgery. Appellant filed a claim for a schedule award.
The A.M.A., Guides on page 495 provide three scenarios for determining the permanent
impairment due to carpal tunnel syndrome after an optimal recovery time following surgical
decompression. Utilizing these scenarios, the Board finds that the medical evidence does not
establish that appellant was entitled to a schedule award.
In support of his claim for a schedule award, appellant submitted the report of
Dr. Jackson, his Board-certified orthopedic surgeon, who opined that appellant had 52 percent
impairment of his right upper extremity causally related to his accepted injury. The Board finds
that Dr. Jackson’s assessment is not well rationalized or supported by the A.M.A., Guides.
Initially, the Board notes that Chapter 16 of the A.M.A., Guides provide a detailed grading
scheme and procedures for determining impairments of the upper extremities due to pain,
discomfort, loss of sensation, or loss of strength.11 However, Dr. Jackson does not adequately
7

A.M.A., Guides 495.

8

Id. at 494; see also FECA Bulletin No. 01-05 (issued January 29, 2001).

9

A.M.A., Guides 492.

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
11

A.M.A., Guides 433-521 (5th ed.), Chapter 16, The Upper Extremities.

4

explain his conclusion that appellant had 23.4 percent impairment due to pain, discomfort and
sensory alteration and 2.5 percent impairment due to muscle weakness. The Board further finds
that Dr. Jackson’s conclusion that appellant had pinch and grip strength rates of 20 percent
impairment of the upper extremity is improper. The Board notes that the A.M.A., Guides do not
encourage the use of grip or pinch strength as an impairment factor because strength
measurements are functional tests influenced by subjective factors that are difficult to control.
The A.M.A., Guides for the most part is based on anatomic impairment. Only in rare cases
should grip strength be used and only when it represents an impairing factor that has not been
otherwise considered adequately. The A.M.A., Guides state that, otherwise, the impairment
rating based on objective anatomic findings take precedence.12 Accordingly, as Dr. Jackson does
not properly support his finding that appellant had 52 percent impairment of the right upper
extremity, his opinion is entitled to diminished weight.
On the other hand, the second opinion physician, Dr. Eckman noted that as appellant’s
NCS/EMG showed no evidence of carpal tunnel syndrome on the right side, there was no
evidence of carpal tunnel syndrome at this time. The Office medical adviser reviewed these
findings and opinions and concluded that appellant was entitled to an impairment rating to the
right upper extremity of zero percent because the EMG and NCS studies were negative. He
further noted that there was no definitive electrophysiological evidence of carpal tunnel
syndrome on either side, nor was there any evidence of cervical radiculopathy. Finally, the
medical adviser noted that there was no basis for a rating of permanency of the nerve as it had
adequately decompressed and recovered.
The Board finds that the weight of the medical evidence, as represented by the opinions
of Dr. Eckman and the Office medical adviser, establishes that appellant has not shown that he is
entitled to a schedule award. Accordingly, the Office properly denied his claim for a schedule
award.
CONCLUSION
The Board finds that appellant has not established that he was entitled to a schedule
award.

12

See A.M.A., Guides, 507-08, 16.8 Strength Evaluation, Principles; Phillip H. Conte, 56 ECAB 213 (2004). See
also T.A., 59 ECAB ___ (Docket No. 07-1836, issued November 20, 2007) (the Board has found that the fifth
edition of the A.M.A., Guides provides that impairment for carpal tunnel syndrome be rated on motor and sensory
deficits only).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 27, 2008 is affirmed.
Issued: April 15, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.O., JR., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hickory, NC, Employer
__________________________________________

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Appearances:
Daniel F. Read, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1149
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On July 22, 2021 appellant, through counsel, filed a timely appeal from a February 26,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the
Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider 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

The Board notes that, following the February 26, 2021 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
3

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective January 24, 2018; and (2) whether appellant has
met his burden of proof to establish continuing disability or residuals on or after January 24, 2018.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances as set forth
in the Board’s prior order are incorporated herein by reference. The relevant facts are as follows.
On May 20, 1997 appellant, then a 51-year-old distribution clerk, filed an occupational
disease claim (Form CA-2) alleging that he injured his shoulders and left finger due to factors of
his federal employment. OWCP accepted the claim for right shoulder adhesive capsulitis, bilateral
rotator cuff sprain/strain, left brachial neuritis or radiculitis, and left trigger finger. It paid appellant
wage-loss compensation on the supplemental rolls, commencing November 5, 2003, and on the
periodic rolls, commencing July 3, 2011.
Appellant underwent authorized surgeries for left trigger thumb release on February 27,
1997; left ulnar nerve transposition on October 8, 1997; left shoulder arthroscopy and rotator cuff
repair on January 25, 1998; right shoulder arthroscopy on November 5, 2003; right shoulder
examination under anesthesia on May 30, 2004; and repair of a right rotator cuff tear on
September 22, 2010.5
In reports dated August 15, 2016 and June 12, 2017, appellant’s attending physician,
Dr. Stephen Sladicka, a Board-certified orthopedic surgeon, noted his history of injury beginning
on May 19, 1997 and listed the accepted conditions including right shoulder adhesive capsulitis,
right brachial neuritis, radiculitis, sprain of the left shoulder, upper arm, left trigger finger, and
bilateral rotator cuff injuries. He noted that appellant had difficulty lifting with pain in his right
shoulder. Dr. Sladicka also described his date-of-injury position and found that he was
permanently totally disabled due to his accepted conditions.
On July 6, 2017 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a series of questions to Dr. Joseph Estwanik, a Board-certified orthopedic surgeon,
for a second opinion examination and evaluation.
In a July 28, 2017 report, Dr. Estwanik discussed appellant’s factual and medical history
and reported the findings of his physical examination. He found that his trigger finger symptoms
had resolved, but that he continued to have residual loss of motion of his shoulders. Dr. Estwanik
determined that appellant required no further medical treatment for the accepted conditions. He
opined that he exhibited multiple concurrent non-work-related disabilities. Dr. Estwanik found
that appellant was totally disabled from work.

4

Order Remanding Case, Docket No. 20-0142 (issued September 29, 2020).

5

On August 10, 2000 OWCP granted appellant a schedule award for 25 percent permanent impairment of his left
arm. On January 11, 2005 it granted an additional schedule award for 13 percent permanent impairment of his right
upper extremity.

2

On August 10, 2017 OWCP requested a supplemental report from Dr. Estwanik to clarify
his opinion on the issue of appellant’s employment-related residuals and disability.
In an August 23, 2017 supplemental report, Dr. Estwanik opined that appellant’s right
shoulder adhesive capsulitis had resolved, and referred to his prior report. He further opined that
he had excellent internal and external rotation, but his restricted efforts at forward flexion and
abduction supported a finding of full range of motion (ROM) of the right shoulder without
adhesions. Dr. Estwanik determined that appellant had attempted to demonstrate loss of ROM.
He further found that, while appellant was totally disabled from work due to non-employmentrelated conditions, he was capable of full-duty work based only on his accepted employment
injuries.
In a notice dated December 15, 2017, OWCP advised appellant that it proposed to
terminate his wage-loss compensation and medical benefits because he no longer had residuals or
disability causally related to his accepted employment-related conditions. It found that the weight
of the medical evidence rested with Dr. Estwanik, who found that he had no objective findings to
support further ongoing disability or residuals caused by his employment-related conditions.
OWCP afforded appellant 30 days to submit evidence challenging the proposed terminatio n action.
No response was received.
By decision dated January 24, 2018, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective that date.
On February 7, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on
July 10, 2018.
Following the oral hearing, appellant provided additional evidence, including an April 17,
2018 report from Ian Welliver, a physician assistant.
Appellant underwent a right shoulder magnetic resonance imaging (MRI) scan on May 16,
2018, which demonstrated severe hypertrophic AC joint changes, possible tears of the anterior
supraspinatus, and infraspinatus tendons and labrum tears.
In a July 27, 2018 note, Dr. Carey McKain, a Board-certified orthopedic surgeon, found
marked loss of ROM of the shoulders with a positive Speed test bilaterally. He reviewed
diagnostic studies and found deteriorated rotator cuffs on both sides with multiple partial tearings,
significant arthrosis, and severe arthritis with spurs in both acromioclavicular (AC) joints.
By decision dated September 17, 2018, the hearing representative affirmed OWCP’s
January 24, 2018 termination decision.
On August 11, 2015 Dr. Michael P. Bunch, a Board-certified orthopedic surgeon, noted
that appellant’s shoulder pain did not improve with epidural spinal injections.
On April 18, 2019 appellant, through counsel, requested reconsideration. Counsel
provided a series of notes dated September 13, 2017 through May 16, 2018 from nurse
practitioners.

3

In treatment notes dated November 21, 2016 through February 26, 2018, Dr. David L.
Cabral, an internist, noted appellant’s history of repetitive motion injuries to the shoulders and left
elbow at work and resultant surgeries. He reviewed his bilateral shoulder x-rays and found AC
joint osteophytosis. Dr. Cabral also reported left elbow calcific tendinopathy.
In an undated narrative report, Dr. Karyn Weston Rahn, Board-certified in occupational
medicine, noted reviewing appellant’s history of work-related injuries of his bilateral shoulders
and his medical history. She described his job duties and current bilateral shoulder symptoms. On
physical examination Dr. Rahn found that appellant gave full and reasonable effort. She found no
atrophy in appellant’s right shoulder, but tenderness over the AC joint, subacromial region,
supraspinatus and infraspinatus capsule with limited ROM and decreased strength. Dr. Rahn
reported positive Speed’s and active compression test, positive Hawkins, Neer, and infraspinatus
tests. She found that appellant continued to have significant impairments of the left and right
shoulders, which were directly related to his work duties. Dr. Rahn explained using his shoulders
repetitively hundreds of times a day to throw, sort, and carry mail resulted in significant damage
to the bilateral shoulder joints and surrounding tissues including rotator cuff and labral tears. She
found that appellant was totally disabled from work due to his accepted bilateral shoulder
conditions and required bilateral shoulder replacements. Dr. Rahn further explained her
disagreement with Dr. Estwanik’s findings and conclusions regarding appellant’s adhesive
capsulitis.
By decision dated July 2, 2019, OWCP denied modification of its prior decisions.
Appellant appealed to the Board. By order dated September 29, 2020, the Board directed
OWCP to review the additional medical evidence in support of the April 18, 2019 reconsideration
request, including new medical reports dated November 2016 to February 2018 by Dr. Cabral and
issue a de novo decision.6
By decision dated February 26, 2021, OWCP again denied modification of its prior
decisions.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it has the burden of proof to
justify termination or modification of an employee’s benefits.7 The right to medical benefits for
an accepted condition is not limited to the period of entitlement for disability compensation. 8 To
terminate authorization for medical treatment, OWCP must establish that appellant no longer has
residuals of an employment-related condition, which require further medical treatment.9 OWCP’s

6

Id.

7

L.L., Docket No. 18-1426 (issued April 5, 2019); C.C., Docket No. 17-1158 (issued November 20, 2018); I.J., 59
ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541 (1986).
8

A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58
ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); Furman G. Peake, 41 ECAB 361, 364 (1990).
9

See A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

4

burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background. 10
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination. 11 For a conflict to arise, the opposing physicians’ opinions must be of
virtually equal weight and rationale. 12 In situations where the case is properly 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 background, must be given special
weight.13
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective January 24, 2018.
Dr. Estwanik noted in his July 28 and August 23, 2017 reports that appellant had no
objective signs of right shoulder adhesive capsulitis, left trigger finger, bilateral rotator cuff
sprain/strain, and left brachial neuritis or radiculitis. He concluded that appellant had no disability
or need for further medical treatment due to the accepted employment-related conditions.
Dr. Estwanik further concluded that appellant was totally disabled from work due to
nonemployment-related conditions.
On June 12, 2017 Dr. Sladicka noted appellant’s history of injury on May 19, 1997 and
listed the accepted conditions including right shoulder adhesive capsulitis, right brachial neuritis,
radiculitis, sprain of the left shoulder, upper arm, left trigger finger, and bilateral rotator cuff
injuries and found that he was totally disabled.
As Dr. Estwanik concluded that appellant was able to resume his date-of-injury position
without restrictions and Dr. Sladicka concluded that he remained totally disabled for work, there
is an unresolved conflict in the medical evidence. OWCP should have resolved the conflict of
medical opinion evidence before terminating compensation. 14 As it failed to resolve the conflict
of medical opinion evidence, the Board finds that OWCP did not meet its burden of proof to
terminate appellant’s wage-loss compensation and medical benefits, effective January 24, 2018.

10

See M.C., Docket No. 20-1396 (issued November 22, 2021); R.P., Docket No. 17-1133 (issued January 18, 2018).

11

5 U.S.C. § 8123(a); see E.L., Docket No. 20-0944 (issued August 30, 2021); R.S., Docket No. 10-1704 (issued
May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).
12

M.C., supra note 10; P.R., Docket No. 18-0022 (issued April 9, 2018).

13

See D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31
ECAB 1010 (1980).
14

M.C., supra note 10; K.L., Docket No. 19-0729 (issued November 6, 2019); P.P., Docket No. 17-0023 (issued
June 4, 2018).

5

CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective January 24, 2018.15
ORDER
IT IS HEREBY ORDERED THAT the February 26, 2021 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 15, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

15

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.T., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SHIPYARD, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 07-913
Issued: July 12, 2007

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 13, 2007 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ schedule award decisions dated October 26, 2006 and
February 8, 2007. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the schedule award decisions.
ISSUE
The issue is whether appellant has more than a 10 percent binaural hearing loss for which
he received a schedule award.
FACTUAL HISTORY
On September 26, 2005 appellant, a 59-year-old equipment mechanic, filed a claim
alleging that he sustained a binaural hearing loss causally related to factors of his federal
employment. A statement of accepted facts dated April 20, 2006 indicated that appellant had
been exposed to hazardous noise while working for the employing establishment in various
positions.

In an audiologic and otologic evaluation dated June 5, 2006, Dr. John E. Biteman, Boardcertified in otolaryngology, noted findings based on an audiological evaluation of that date. At
the frequencies of 500, 1,000, 2,000 and 3,000 hertz (Hz), the following thresholds were
reported: right ear -- 25, 40, 25 and 35 decibels; and left ear -- 30, 40, 30 and 40 decibels.
Dr. Biteman concluded that appellant had a binaural hearing loss of 10 percent, which he
attributed to noise exposure in appellant’s federal employment.
In a memorandum dated August 14, 2006, an Office medical adviser agreed with
Dr. Biteman that appellant had a 10 percent binaural hearing loss.
On October 26, 2006 the Office granted appellant a schedule award for a 10 percent
binaural hearing loss for the period June 5 to October 26, 2006, a total of 20 weeks of
compensation.
On November 13, 2006 appellant requested reconsideration of the October 26, 2006
decision. He submitted a copy of an October 19, 2006 audiogram. The audiogram was not
certified as accurate by a physician.
By decision dated February 8, 2007, the Office denied modification of the October 26,
2006 schedule award, finding that he failed to submit medical evidence establishing that he had
greater impairment due to his employment-related hearing loss.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and the
implementing federal regulation2 set forth the number of weeks of compensation to be paid for
permanent loss of use of specified members, functions and organs of the body listed in the
schedule.3 However, neither the Act nor the regulations specify the manner in which the
percentage loss of a member, function or organ shall be determined. The method of determining
this percentage rests in the sound discretion of the Office.4 To ensure consistent results and
equal justice under the law to all claimants, good administrative practice requires the use of
uniform standards applicable to all claimants.5
Under the American Medical Association, Guides to the Evaluation of Permanent
Impairment, hearing loss is evaluated by determining decibel loss at the frequency levels of 500,
1,000, 2,000 and 3,000 Hz. The losses at each frequency are added up and averaged and a
“fence” of 25 decibels is deducted since, as the A.M.A., Guides points out, losses below 25
1

5 U.S.C. § 8107 et seq.

2

20 C.F.R. § 10.304.

3

See Donald A. Larson, 41 ECAB 947 (1990); Danniel C. Goings, 37 ECAB 781 (1986); Richard Beggs, 28
ECAB 387 (1977).
4

Id.

5

Henry King, 25 ECAB 39, 44 (1973); August M. Buffa, 12 ECAB 324, 325 (1961).

2

decibels result in no impairment in the ability to hear everyday speech in everyday conditions.6
Then the remaining amount is multiplied by 1.5 to arrive at the percentage of monaural loss. The
binaural loss is determined by calculating the loss in each ear using the formula for monaural
loss. The lesser loss is multiplied by five, then added to the greater loss and the total is divided
by six to arrive at the amount of binaural hearing loss.7
ANALYSIS
The Board finds that appellant has no more than a 10 percent binaural hearing loss, for
which he received an award. With regard to his right ear, Dr. Biteman’s June 5, 2006 audiogram
indicated that, at the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the following thresholds
were reported -- 25, 40, 25 and 35 decibels. These decibels totaled 125 and when divided by 4,
obtains an average hearing loss at those cycles of 31.25 decibels. The average of 31.25 decibels,
when reduced by 25 decibels (the first 25 decibels were discounted as discussed above), equals
6.5 decibels, which when multiplied by the established factor of 1.5, totals a 9.4 percent hearing
loss in the right ear.
Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 Hz,
revealed decibel losses of 30, 40, 30 and 40 respectively. These decibels total 140 which, when
divided by 4, obtains an average hearing loss at those cycles of 35 decibels. The average of 35
decibels, reduced by 25 decibels (the first 25 decibels were discounted as discussed above),
equals 10 decibels, which when multiplied by the established factor of 1.5 totals a 15 percent
hearing loss in the left ear.
To determine the binaural loss the lesser loss of 9 decibels was multiplied by 5 to equal
45 decibels and then added to the greater loss of 15 decibels to equal 60 decibels. This sum was
then divided by 6 to reach a total binaural loss of 10 percent. The Office medical adviser
properly determined that appellant had a 10 percent binaural hearing loss.
The Board notes that both Dr. Biteman and the Office medical adviser properly applied
the applicable standards of the A.M.A., Guides to determine that appellant had a 10 percent
binaural hearing loss. The Board will affirm this award. There is no other probative evidence of
record establishing that he sustained any greater impairment.8
Following the October 26, 2006 decision, appellant requested reconsideration and
submitted the October 19, 2006 audiogram. However, it was not certified by a physician as
being accurate. It is well established that the Office does not have to review every uncertified
audiogram submitted to the record.9 It is appellant’s burden to submit a properly certified
6

A.M.A., Guides 250 (5th ed. 2001).

7

Id. See also Danniel C. Goings, supra note 3.

8

The record contains several audiograms obtained by the employing establishment, but none of these were
certified by a physician as accurate. The Board has held that, if an audiogram is prepared by an audiologist it must
be certified by a physician as being accurate before it can be used to determine the percentage of hearing loss.
Joshua A. Holmes, 42 ECAB 231, 236 (1990).
9

See Robert E. Cullison, 55 ECAB 570 (2004); James A. England, 47 ECAB 115 (1995).

3

audiogram for review. The Office is not required to rely on this evidence in determining the
degree of appellant’s hearing loss. The Board therefore affirms the February 8, 2007 and
October 26, 2006 Office decisions.
CONCLUSION
The Board finds that appellant has no more than a 10 percent binaural hearing loss.
ORDER
IT IS HEREBY ORDERED THAT the February 8, 2007 and October 26, 2006
decisions of the Office of Workers’ Compensation Programs be affirmed.
Issued: July 12, 2007
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hollis, NY, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1246
Issued: December 9, 2016

Case Submitted on the Record

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

JURISDICTION
On May 25, 2016 appellant, through counsel, filed a timely appeal from a February 25,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective April 17, 2015, because he ceased to
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.

have residuals of his work injuries after that date; and (2) whether appellant met his burden of
proof to establish that he had continuing disability or need for medical care due to his work
injuries after April 17, 2015.
FACTUAL HISTORY
On March 5, 2012 appellant, then a 42-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date he sustained injury due to a fall at work. OWCP
accepted his claim for a lumbar sprain and metacarpophalangeal sprain of his right hand.
Appellant stopped work on March 5, 2012 and returned to light-duty work on a part-time basis
on March 15, 2012. He received disability compensation on the daily rolls beginning
April 24, 2012.
OWCP had previously accepted, under OWCP File No. xxxxxx208, that on July 2, 2005
appellant sustained a lumbar sprain. After a period of disability, appellant returned to light-duty
work in February 2009. He was referred in July 2009 to Dr. Arnold Goldman, a Board-certified
orthopedic surgeon, for an impartial medical examination and opinion to resolve a conflict in the
medical opinion evidence regarding the nature and extent of his work-related medical residuals
and disability. On July 16, 2009 Dr. Goldman diagnosed lumbar strain and noted that appellant
had a mild disability related to the July 2, 2005 work injury. He saw no evidence of a permanent
residual of the accepted condition. Dr. Goldman indicated that appellant could perform lightduty work on a full-time basis for six weeks, after which appellant could wean himself back to
full duties.3
OWCP also previously accepted, under OWCP File No. xxxxxx821, that on July 8, 2009
appellant sustained a traumatic injury in the form of a lumbar sprain. Appellant returned to lightduty work on February 3, 2010. On July 11, 2011 he participated in a second opinion
examination conducted by Dr. Leon Sultan, a Board-certified orthopedic surgeon. In a July 11,
2011 report, Dr. Sultan indicated that appellant did not continue to have disabling residuals of his
July 8, 2009 work injury. He noted that appellant required no further treatment for the work
injury. In a supplemental report dated August 16, 2011, Dr. Sultan provided work restrictions
that were intended to last for six weeks. He examined appellant again on November 7, 2011.
Dr. Sultan noted that appellant had underlying L4-5 and L5-S1 disc herniations with
degenerative changes, but indicated that he was capable of performing light-duty work on a fulltime basis subject to restrictions. Appellant continued to work six hours per day under the
restrictions assigned by Dr. Sultan. On September 20, 2011 he returned to light-duty work for an
average of five hours per day.
The files for appellant’s July 2, 2005 and July 8, 2009 injuries were administratively
combined with the present file for his March 5, 2012 work injury. On March 15, 2015 appellant
returned to part-time light-duty work.

3

Dr. Goldman examined appellant again on November 5, 2009. He diagnosed lumbosacral sprain/strain and
noted that appellant suffered a new work injury on July 8, 2009, resulting in an exacerbation of his prior condition.
Dr. Goldman noted that appellant was disabled as a result of the new incident, but indicated that he could perform
light-duty work on a full-time basis.

2

In several reports dated between March and September 2014, Dr. Robert Donadt, an
attending Board-certified orthopedic surgeon, generally indicated that appellant remained
partially disabled due to the accepted lumbar and right hand sprains. He opined that appellant
could perform light-duty work for three hours per day.
In October 2014, OWCP referred appellant to Dr. Sultan for examination and an opinion
on the nature and extent of appellant’s employment-related medical residuals and disability.4 In
a November 12, 2014 report, Dr. Sultan detailed appellant’s factual and medical background,
noted the medical records he reviewed, and provided physical examination findings. He found
no objective findings in appellant’s right hand due to the March 5, 2012 work injury. The
thoracolumbar examination was unremarkable with intact range of motion and intact lower
extremity neurological functions. Dr. Sultan noted that the examination did not confirm
disabling residuals of any of the accepted conditions or related disability. He indicated that
appellant could return to full regular duties. Dr. Sultan further noted that the orthopedic
examination of appellant’s right hand and thoracolumbar spine did not confirm any ongoing
disability causally related to the March 5, 2012 work injury. He completed a work capacity
evaluation (Form OWCP-5) indicating that appellant could return to full unrestricted duties.
In brief reports dated in early 2015, Dr. Donadt continued to opine that appellant could
perform only three hours per day of light-duty work due to his right hand sprain, lumbar sprain,
and radiculopathy.
In a March 16, 2015 letter, OWCP advised appellant that it proposed to terminate his
wage-loss compensation and medical benefits because he ceased to have residuals of his work
injuries. It informed him that the weight the medical opinion evidence rested with the
November 12, 2014 opinion of Dr. Sultan, OWCP’s referral physician, who determined that his
injury-related medical residuals and disability had ceased. OWCP afforded appellant 30 days to
submit evidence and argument challenging the proposed termination action. No response was
received within the time allotted.
In a decision dated April 20, 2015, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective April 17, 2015 because he ceased to have residuals
of his work injuries. It found that the weight of the medical opinion evidence rested with the
November 12, 2014 opinion of Dr. Sultan, the referral physician. OWCP noted that the reports
of Dr. Donadt were not well rationalized.
Appellant disagreed with OWCP’s April 20, 2015 decision and, by letter postmarked
May 12, 2015, he requested a hearing with an OWCP hearing representative.
Appellant submitted numerous reports dated between mid-2014 and mid-2015, i.e., a
period after the April 2015 termination of compensation, in which Dr. Donadt generally
described his complaints and recommended light-duty work of three hours per day. Dr. Donadt
diagnosed lumbar sprain with spondylosis and disc herniations with stenosis, left greater than
right leg radiculopathy, and right hand sprain.
4

Dr. Sultan was provided with a statement of accepted facts that described the three work injuries and noted his
prior examination of appellant on July 11, 2011.

3

During the hearing held on December 17, 2015, counsel asserted that the November 12,
2014 report of Dr. Sultan was not sufficiently rationalized. He argued that Dr. Sultan had a
reputation for denying workers’ claims. Appellant testified that he was unable to work due to his
accepted work injuries.
By decision dated February 25, 2016, OWCP’s hearing representative affirmed the
April 20, 2015 decision of OWCP. She found that OWCP met its burden of proof to terminate
appellant’s wage-loss compensation and medical benefits, effective April 17, 2015, because he
ceased to have residuals of his work injuries after that date. The hearing representative further
noted that the reports of Dr. Donadt submitted by appellant after the April 2015 termination
action were not well rationalized and did not meet appellant’s burden to establish work-related
residuals after April 17, 2015.
LEGAL PRECEDENT -- ISSUE 1
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.5 OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.6
OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.7
ANALYSIS -- ISSUE 1
In connection with the present claim, OWCP accepted that appellant sustained a lumbar
sprain and metacarpophalangeal sprain of his right hand on March 5, 2012. It had previously
accepted that he sustained a lumbar sprain on July 2, 2005 and another lumbar sprain on
July 8, 2009. OWCP paid compensation for periods of disability, but terminated appellant’s
wage-loss compensation and medical benefits, effective April 7, 2015, based on a November 12,
2014 opinion of Dr. Sultan, an OWCP referral physician.
The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Sultan, OWCP’s referral physician. The November 12, 2014
report of Dr. Sultan establishes that appellant had no disability due to his work injuries after
April 17, 2015.
In his November 12, 2014 report, Dr. Sultan detailed appellant’s factual and medical
background, noted the medical records he reviewed, and provided physical examination findings.
He found no objective findings in appellant’s right hand due to the March 5, 2012 work injury.
Dr. Sultan noted that the examination did not confirm residuals of any of the three accepted work
injuries (dated July 2, 2005, July 8, 2009, and March 5, 2012) and indicated that appellant could
return to full, regular duties. He opined that the orthopedic examination of appellant’s right hand
5

I.J., 59 ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541, 546 (1986).

6

Charles E. Minniss, 40 ECAB 708, 716 (1989).

7

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

4

and thoracolumbar spine did not confirm any ongoing disability causally related to the March 5,
2012 work injury. Dr. Sultan completed a Form OWCP-5 noting that appellant could return to
full, unrestricted duties.
The Board has carefully reviewed the November 12, 2014 opinion of Dr. Sultan and finds
that it has reliability, probative value, and convincing quality with respect to its conclusions
regarding the relevant issue of the present case. Dr. Sultan provided a thorough factual and
medical history and accurately summarized the relevant medical evidence.8 He provided
medical rationale for his opinion by explaining that appellant no longer had objective evidence of
his July 2, 2005, July 8, 2009, or March 5, 2012 work injury.
In several reports dated between early-2014 and early-2015, Dr. Donadt generally
indicated that appellant remained partially disabled due to the accepted lumbar and right hand
sprains. However, these reports are of limited probative value because Dr. Donadt did not
provide any medical rationale in support of his opinions. The Board has held that a medical
report is of limited probative value on the issue of causal relationship if it contains a conclusion
regarding causal relationship which is unsupported by medical rationale.9 A mere conclusory
opinion provided by a physician without the necessary rationale explaining how and why the
incident or work factors were sufficient to result in the diagnosed medical condition or period of
disability is insufficient to meet a claimant’s burden of proof.10
On appeal, counsel argues that OWCP engaged in physician shopping by referring
appellant to Dr. Sultan for a second time and asserted that OWCP went to Dr. Sultan in order to
get “the report they sought.” However, he did not articulate why it was improper to refer
appellant to Dr. Sultan and his suggestion that Dr. Sultan is biased against workers is not
supported by any evidence of record.
For these reasons, OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective April 17, 2015, as he ceased to have residuals of
his work injuries after that date.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation benefits shifts to appellant. In
order to prevail, appellant must establish by the weight of the reliable, probative, and substantial
evidence that he had an employment-related disability, which continued after termination of
compensation benefits.11

8

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

9

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

10

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

11

Wentworth M. Murray, 7 ECAB 570, 572 (1955).

5

ANALYSIS -- ISSUE 2
Following OWCP’s April 20, 2015 decision terminating appellant’s wage-loss
compensation and medical benefits, effective April 17, 2015, he submitted additional medical
evidence, which he alleged was sufficient to establish that he was entitled to compensation after
April 17, 2015 due to residuals of his work injuries. Given that the Board has found that OWCP
properly relied on the opinion of OWCP’s referral physician, Dr. Sultan, in terminating
appellant’s compensation effective April 17, 2015, the burden shifts to appellant to establish that
he is entitled to compensation after that date.
The Board has reviewed the additional evidence submitted by appellant and finds that it
is not of sufficient probative value to establish that he had residuals of his work injuries after
April 17, 2015. Appellant submitted numerous reports dated between mid-2014 and mid-2015,
i.e., a period after the April 2015 termination of compensation, in which Dr. Donadt generally
described his complaints and recommended light-duty work of three hours per day. Dr. Donadt
diagnosed lumbar sprain with spondylosis and disc herniations with stenosis, left greater than
right leg radiculopathy, and right hand sprain. The Board notes, however, that none of these
reports contains a rationalized medical opinion that appellant had work-related disability or need
for medical care after April 17, 2015. Therefore, the Board finds that he has not met his burden
of proof to establish that he had disability or need for medical care due to his work injuries after
April 17, 2015.
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 met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective April 17, 2015, because he ceased to have residuals
of his work injuries after that date. The Board further finds that he has not met his burden of
proof to establish that he had disability or need for medical care due to his work injuries after
April 17, 2015.

6

ORDER
IT IS HEREBY ORDERED THAT the February 25, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 9, 2016
Washington, DC

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

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

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

7