United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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

Docket No. 19-0415
Issued: September 4, 2019

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 December 18, 2018 appellant, through counsel, filed a timely appeal from a
September 24, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish more than five
percent permanent impairment of each upper extremity, for which she previously received
schedule award compensation.
FACTUAL HISTORY
On July 5, 1990 appellant, then a 29-year-old postal clerk, filed an occupational disease
claim (Form CA-2) alleging that she sustained bilateral carpal tunnel syndrome and tendinitis due
to repetitive employment duties including keyboard usage. OWCP accepted her claim for bilateral
carpal tunnel syndrome, thoracic outlet syndrome (brachial plexus lesions), and depression, and
paid her wage-loss compensation for periods of work stoppage.3
On April 25, 2012 appellant filed a claim for a schedule award (Form CA-7) due to her
accepted employment-related conditions. By decision dated September 26, 2012, OWCP denied
her schedule award claim because she had not provided an impairment rating from her physician.
On October 9, 2012 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review. She submitted an October 10, 2012
report from Dr. John L. Dunne, an osteopath Board-certified in occupational medicine. Dr. Dunne
utilized Table 15-23 (Entrapment/Compression Neuropathy Impairment) on page 449 of the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).4 He indicated that appellant’s QuickDASH score was 43 and used that score
as the basis for a grade modifier of 3 for functional scale. Dr. Dunne found that the average of the
grade modifiers for test findings, history, and physical findings was 3. He calculated that, under
Table 15-23, this warranted an eight percent permanent impairment for each upper extremity due
to bilateral carpal tunnel syndrome. Dr. Dunne noted that there was zero percent permanent
impairment of the upper extremities for brachial plexus lesions because his physical examination
did not reveal evidence of brachial neuritis or brachial plexus lesion.
On November 1, 2012 OWCP referred appellant’s case to an OWCP district medical
adviser (DMA) for review.
Prior to a hearing being held, OWCP’s hearing representative issued a December 12, 2012
decision which set aside the September 26, 2012 decision and remanded the case for a de novo
decision upon receipt of a report from a DMA.
On remand, OWCP referred appellant’s case to Dr. Brian M. Tonne, a Board-certified
orthopedic surgeon, for review in his a capacity as a DMA.
In a May 13, 2013 report, Dr. Tonne advised that maximum medical improvement (MMI)
was reached on October 10, 2012. Utilizing Table 15-23 for each upper extremity, he derived a
3

Appellant retired on disability effective July 1, 1990.

4

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

2

grade modifier of 1 for test findings and grade modifiers of 3 for history and physical findings.
Dr. Tonne calculated the average of these grade modifiers to arrive at an average grade of 2.5 He
indicated that based upon the QuickDASH score of 43 noted by Dr. Dunne, the default value of
five percent applied for each upper extremity. Dr. Tonne concluded that appellant had five percent
permanent impairment of each upper extremity due to her bilateral carpal tunnel syndrome.
By decision dated June 7, 2013, OWCP granted appellant a schedule award for five percent
impairment of each upper extremity. The award ran for 31.2 weeks from October 10, 2012 to
May 16, 2013 and was based on the opinion of Dr. Tonne.
On November 21, 2015 appellant filed a claim for an additional schedule award (Form CA7) and submitted a November 24, 2015 report from Dr. Neil Allen, a Board-certified internist and
neurologist. Dr. Allen indicated that appellant reported undergoing electromyogram and nerve
conduction velocity (EMG/NCV) studies in 1994 which confirmed bilateral carpal tunnel
syndrome. However, he indicated that these studies were not available for review. Following his
physical examination Dr. Allen applied a grade modifier of 1 for test findings and grade modifiers
of 3 for history and physical findings, as derived from Table 15-23 on page 449. He noted that the
functional scale modifier was based on appellant’s QuickDASH score of 61. Dr. Allen concluded
that, according to the “Rating Process” associated with Table 15-23, appellant had six percent
permanent impairment of each upper extremity.
OWCP referred the case record, including Dr. Allen’s November 24, 2015 report, to
Dr. Jovito B. Estaris, a Board-certified occupational medicine physician, for review in his capacity
as a DMA. It requested that he provide an opinion on the extent of appellant’s upper extremity
impairment under the sixth edition of the A.M.A., Guides.
In a February 2, 2016 report, the DMA indicated that Dr. Allen had not reviewed any
particular EMG/NCV findings, but rather accepted the information from appellant that her
EMG/NCV studies showed bilateral carpal tunnel syndrome. Using Table 15-23, he assigned a
grade modifier of 0 for test findings and grade modifiers of 3 for history for both upper extremities.
For physical findings, the DMA applied a grade modifier of 2 for the right upper extremity (due
to no atrophy noted on examination and insignificant motor weakness) and a grade modifier of 3
for the left upper extremity (due to weakness without atrophy). With respect to the functional
scale modifier, he noted that the QuickDASH score by Dr. Allen was 61 and the QuickDASH score
by Dr. Dunne was 43. The DMA indicated that the determinations by these physicians were
inconsistent and that the QuickDASH score was therefore excluded from the grading process per
pages 406 and 407 of the A.M.A., Guides where it is noted, “If the functional history is determined
to be unreliable or inconsistent with other documentation, it is excluded from the grading process.”
He added the grade modifiers and obtained an average of 2 for each upper extremity.6 The DMA
concluded that appellant had five percent permanent impairment of each upper extremity.

5

Dr. Tonne rounded down to 2 from the average value of 2.33.

6

For the right upper extremity, Dr. Estaris rounded up to 2 from the average value of 1.66.

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By decision dated June 8, 2016, OWCP denied appellant’s claim for an additional schedule
award, noting that the DMA had properly applied the standards of the A.M.A., Guides.
On June 16, 2016 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review. Appellant submitted an August 3,
2016 addendum report from Dr. Allen and a report of June 30, 2016 EMG/NCV studies which
showed normal findings in both upper extremities. In his August 3, 2016 report, Dr. Allen
provided an assessment of appellant’s upper extremity permanent impairment which was similar
to the assessment he provided in his November 24, 2015 report. He disagreed with the DMA’s
exclusion of the functional scale in the grading process by explaining that there were no such
indications for said exclusion in A.M.A., Guides. Dr. Allen concluded that appellant had six
percent permanent impairment of each upper extremity.
During the hearing held on February 14, 2017, counsel argued that Dr. Allen’s August 3,
2016 supplemental report established that appellant had six percent permanent impairment of each
upper extremity.
By decision dated April 25, 2017, the hearing representative affirmed the June 8, 2016
decision, noting that the DMA had properly applied the standards of the A.M.A., Guides.
On April 3, 2018 appellant, through counsel, requested reconsideration of the April 25,
2017 decision.
Appellant submitted a July 26, 2017 report from Dr. Allen, who again disagreed with the
DMA’s exclusion of the functional scale score in the grading process. Dr. Allen indicated that it
was reasonable that an individual’s functional capacity might vary from week to week or from
month to month.
On July 20, 2018 OWCP referred Dr. Allen’s July 26, 2017 report to the DMA for review.
In a July 25, 2018 report, he referenced the report of June 30, 2016 EMG/NCV studies which
showed normal findings in both upper extremities. The DMA noted that, under Table 15-23, the
normal findings of these EMG/NCV studies meant that appellant fell under the grade modifier 0
category for each upper extremity and, therefore, appellant presently had no permanent impairment
of either upper extremity.
By decision dated September 24, 2018, OWCP denied modification of the April 25, 2017
decision.
LEGAL PRECEDENT
The schedule award provision of FECA7 and its implementing regulation8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404 (1999).

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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
sixth edition of the A.M.A., Guides has been adopted by OWCP as the appropriate standard for
evaluating schedule losses.9
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.10 In
Table 15-23, grade modifiers levels (ranging from 0 to 4) are described for the categories test
findings, history, and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on the functional scale modifier, an
assessment of impact on daily living activities.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish more than five
percent permanent impairment of each upper extremity, for which she previously received
schedule award compensation.
In a February 2, 2016 report, Dr. Estaris, the DMA, discussed his review of the medical
records and provided an opinion that appellant had five percent permanent impairment of each
upper extremity under the standards of the sixth edition of the A.M.A., Guides. He properly applied
these standards to calculate appellant’s upper extremity permanent impairment. The DMA correctly
made reference to Table 15-23 (Entrapment/Compression Neuropathy Impairment) on page 449
of the sixth edition of the A.M.A., Guides.12 For each upper extremity, he chose grade modifiers
from the table for the various categories, including test findings, history, and physical findings
based on Dr. Allen’s findings. The DMA then correctly averaged the grade modifiers and
identified the default value of five on Table 15-23 for the grade modifier 2 category. He then noted
that the QuickDASH score by Dr. Allen was 61 and the QuickDASH score by Dr. Dunne was 43
and properly determined that, because the determinations by these physicians were inconsistent,
that the functional scale score was therefore excluded from the grading process per pages 406 and
407 of the A.M.A., Guides.13 Therefore, the DMA determined that the functional scale analysis

9
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
and Exhibit 1 (January 2010).
10

See A.M.A., Guides 449, Table 15-23.

11

A survey completed by a given claimant, known by the name QuickDASH, may be used to determine the function
scale score. Id. at 448-49. However, if the functional history is determined to be unreliable or inconsistent with other
documentation, it is excluded from the grading process. Id. at 406-07.
12

Supra note 10.

13

See supra note 11.

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did not result in movement from the default value of five percent and concluded that appellant had
five percent permanent impairment of each upper extremity.
The Board notes that Dr. Allen provided assessments in several reports, including those
dated November 13, 2015 and August 3, 2016, that appellant had six percent permanent
impairment of each upper extremity. This higher rating was based on Dr. Allen’s opinion that the
functional scale score was not excluded from the grading process, but the Board has explained
why it was proper to exclude the functional scale score under the relevant standards. The Board
has held that an opinion on permanent impairment is of limited probative value if it is not derived
in accordance with the standards adopted by OWCP and approved by the Board as appropriate for
evaluating schedule losses.14 As such, Dr. Allen’s reports are of limited probative value.
Moreover, after the DMA produced his February 2, 2016 report, appellant submitted a
report of June 30, 2016 EMG/NCV studies which showed normal findings in both upper
extremities. In his July 25, 2018 report, the DMA referenced this June 30, 2016 report and
properly noted that, under Table 15-23, the normal findings of the EMG/NCV studies meant that
appellant fell under the grade modifier 0 category for each upper extremity and that she had no
permanent impairment of either upper extremity at that time.
As there is no medical evidence of record establishing that appellant has more than five
percent permanent impairment of each upper extremity, the Board finds that appellant has not met
her burden of proof to establish greater impairment than that previously awarded.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than five
percent permanent impairment of each upper extremity, for which she previously received
schedule award compensation.

14

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

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ORDER
IT IS HEREBY ORDERED THAT the September 24, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 4, 2019
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF LABOR, WAGE & HOUR
DIVISION, Dallas, TX, Employer
__________________________________________

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

Docket No. 14-707
Issued: August 15, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 10, 2014 appellant filed a timely appeal from a November 5, 20131 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her occupational
disease claim.2 Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

1

Appellant’s AB-1 form submitted with her appeal to the Board indicates that she is appealing a May 20, 2013
OWCP decision. The Board notes, however, that the record does not contain a final decision issued by OWCP on
that date.
2

Appellant timely requested oral argument before the Board. By letter dated March 28, 2014, the Clerk of the
Board requested that appellant submit the issues to be argued, as well as the reasons why oral argument was
necessary. Appellant was also requested to confirm that she would attend the oral argument in Washington, DC.
She did not respond to this request. The Board will decide the case as submitted on the record.
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant established that she sustained a bilateral wrist injury
causally related to factors of her federal employment.
On appeal, appellant contends that she was not given a fair chance regarding her workrelated claims which were denied regardless of the medical evidence. She further contends that
neither she nor her physicians were given an opportunity to address a request in a timely fashion.
FACTUAL HISTORY
On August 27, 2013 appellant, then a 46-year-old human resources compensation
specialist, filed an occupational disease claim alleging that she first became aware of her carpal
tunnel syndrome on August 7, 2007. She first realized that her condition was caused by her
repetitive work duties on September 21, 2012. Appellant stated that she typed tremendously and
loaded and unloaded files and boxes every day for the Federal Government for the past 14 years
at the Department of Veterans Affairs and the Social Security Administration and 11 years at the
Department of Labor (seven years as a “CSR” for OWCP and five years at the Wage and Hour
Division).
In a September 18, 2013 medical report, Dr. Stephen J. Becker, a Board-certified
physiatrist, found that an electromyogram (EMG) of appellant’s upper extremities revealed
evidence of active C6-7 cervical radiculopathy. He further found that nerve conduction velocity
(NCV) studies of both upper extremities revealed no evidence of generalized peripheral
neuropathy, plexopathy or entrapments.
By letter dated October 1, 2013, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It gave her 30 days to submit a factual statement
describing the employment factors that contributed to her wrist injury and a medical report from
a physician explaining how her employment activities caused, contributed to or aggravated her
condition. OWCP also requested that the employing establishment submit factual evidence
regarding appellant’s claim and medical evidence if she was treated at its medical facility.
In an October 18, 2013 memorandum, Deborah F. Hollis, a regional wage specialist,
stated that she was not appellant’s supervisor on August 7, 2007 and had no direct knowledge of
the alleged injury. The supervisor was no longer with the Wage and Hour Division. Ms. Hollis
stated that appellant reported to work on July 22, 2007 and was terminated on February 15, 2013.
She submitted a copy of appellant’s human resources compensation specialist position which
required the frequent use of a computer keyboard to enter, retrieve and process data, and to
prepare reports and other subsequent processes. The work required no special physical demands.
In an October 21, 2013 progress note, Dr. Pedro J. Loredo, III, a Board-certified surgeon,
noted appellant’s complaints of bilateral hand pain, weakness, numbness and tingling, the left
hand worse than the right hand, for over five years. Appellant’s symptoms were worse than the
past year. She stated that it was very difficult or almost impossible to perform her work
activities. Dr. Loredo obtained a history that she worked at the Department of Labor and a
history of appellant’s medical, family and social background. He listed findings on examination

2

of both hands and assessed bilateral carpal tunnel syndrome, thenar atrophy and a nerve injury
that involved abnormal two-point sensations of the digits due to median nerve damage from
carpal tunnel syndrome.
By decision dated November 5, 2013, OWCP denied appellant’s occupational disease
claim. It found that the evidence was insufficient to establish that the occupational exposure
occurred as alleged. OWCP also found that the medical evidence was not sufficiently
rationalized to establish that appellant’s wrist condition was causally related to her work
activities.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.7 Neither the fact that appellant’s
condition became apparent during a period of employment nor, his or her belief that the
condition was caused by his or her employment is sufficient to establish a causal relationship.8

4

5 U.S.C. §§ 8101-8193.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

6

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

7

I. J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 6 at 351-52.

8

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

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ANALYSIS
Appellant alleged that she sustained bilateral carpal tunnel syndrome in the performance
of duty due to typing, and loading and unloading files and boxes every day. A description of her
human resources compensation specialist position set forth the typing work duty. The Board
notes that there is insufficient evidence to establish that the claimed employment factor, typing,
did not occur. Consequently, the Board finds that appellant established that she typed at work.
The Board finds, however, that appellant did not submit sufficient medical evidence to
establish that her bilateral wrist condition was caused by the accepted employment factor.
The reports from Drs. Becker and Loredo did not provide a detailed description of
appellant’s employment duties or a reasoned medical opinion attributing her diagnosed C6-7
cervical radiculopathy, bilateral carpal tunnel syndrome, thenar atrophy or a nerve injury that
involved abnormal two-point sensations of the digits due to median nerve damage from carpal
tunnel syndrome to the established employment factor. Neither physician addressed the cause of
the diagnosed conditions.9 The Board has held that medical evidence that does not provide any
rationalized medical opinion, based on a full or accurate history explaining how the established
work-related duty caused or aggravated the claimed medical conditions is of diminished
probative value. Appellant did not meet her burden of proof.10
On appeal, appellant contends that she was not given a fair chance as her claim was
denied regardless of the medical evidence. She further contends that neither she nor her
physicians were given an opportunity to address a request in a timely fashion. Initially, appellant
submitted Dr. Becker’s September 18, 2013 NCV and EMG report. OWCP did not deny her
occupational disease claim based on this evidence. Rather, in an October 1, 2013 developmental
letter, it provided appellant an additional 30 days to submit medical evidence that addressed the
issue of causal relationship. The Board finds that appellant was provided ample opportunity to
submit the requested evidence. As noted, the reports of Drs. Becker and Loredo did not provide
any rationale to establish appellant’s occupational disease claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a bilateral wrist
injury causally related to factors of her federal employment.

9

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004);
Michael E. Smith, 50 ECAB 313 (1999).
10

See Robert J. Krstyen, 44 ECAB 227 (1992) (finding that appellant failed to submit sufficient medical evidence
to establish that specific work factors caused or aggravated his back condition).

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ORDER
IT IS HEREBY ORDERED THAT the November 5, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: August 15, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Norwood, CO, Employer
__________________________________________

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

Docket No. 18-0737
Issued: November 2, 2018

Case Submitted on the Record

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

JURISDICTION
On February 22, 2018 appellant filed a timely appeal from a November 7, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the claim.
ISSUE
The issue is whether appellant has met her burden of proof to establish a left knee condition
causally related to the accepted February 16, 2017 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 7, 2017 appellant, then a 49-year-old sales and distribution associate, filed a
traumatic injury claim (Form CA-1) alleging that on February 16, 2017 she sprained her left knee
when she stepped up on a bumper to use a scanner. She did not stop work.
The employing establishment provided an authorization for examination and/or treatment
Form CA-16 dated March 8, 2017.
By development letter dated March 13, 2017, OWCP advised appellant that the evidence
of record was insufficient to establish her claim. It advised her that she should submit a medical
report from her physician with an explanation as to how the alleged work incident caused or
aggravated the claimed condition. OWCP afforded appellant 30 days to submit the necessary
evidence.
In a March 6, 2017 report, Dr. David Olson, Board-certified in preventative medicine,
noted that appellant injured her left knee at work on February 15, 2017.2 He related that she had
a probable bucket handle tear of her left knee meniscus.
In a March 7, 2017 handwritten note, Kenneth Jenks, a physician assistant, indicated that
appellant was to limit her work to four hours daily with no extensive standing/walking. He noted
that he anticipated that she would have surgery in three weeks. In an attending physician’s report
portion of Form CA-16 Authorization for Examination and/or Treatment dated March 31, 2017,
Mr. Jenks noted that appellant sustained a tear of her medial meniscus when she stepped on a
bumper. He checked a box marked “yes” indicating that he believed that her injury was related to
the described employment activity.
In a March 9, 2017 report of a magnetic resonance imaging (MRI) scan of appellant’s left
knee, Dr. Patrick Messeril, a Board-certified radiologist, found a full thickness radial tear of the
root attachment of the posterior horn of the medial meniscus, with associated moderate sized bone
contusion of the media tibial plateau. He also noted a small joint effusion.
In a March 10, 2017 x-ray report, Dr. Thomas Sanders, a Board-certified orthopedic
surgeon, noted a negative examination of appellant’s left knee.
By decision dated April 13, 2017, OWCP denied appellant’s claim. It determined that she
had not submitted rationalized medical evidence establishing causal relationship between a
diagnosed medical condition and the accepted employment incident.
In an April 13, 2017 report, Mr. Walker noted that appellant developed left knee pain
approximately one month prior. He indicated that she worked for the employing establishment
and was stepping into a mail truck to get some mail on February 15, 2017, when her left leg locked
up, she felt a pop, and experienced pain. Mr. Walker assessed appellant with knee joint pain. He
noted that she had a left knee medial meniscus tear with associated bone contusion of the media
tibial plateau. Mr. Walker noted that appellant was unable to perform her activities of daily living
2

Dr. Olson and physician assistant James Walker misidentify the date of injury on the report.

2

or work, and that surgery was indicated. He indicated that a left knee arthroscopic procedure with
medial meniscectomy was scheduled for April 14, 2017.
On May 8, 2017 appellant requested a telephone hearing before an OWCP hearing
representative.
On May 12, 2017 appellant submitted Mr. Jenks’ full March 31, 2017 Form CA-16 which
contained a countersignature of Dr. Olson as well as a copy of the March 6, 2017 report originally
signed by Dr. Olson.
On April 14, 2017 Dr. Edwin Wyman, a Board-certified orthopedic surgeon, listed
appellant’s diagnoses as medial meniscus tear of left knee and degenerative joint disease left knee.
He performed a left knee arthroscopy with partial medial meniscectomy with debridement.
On July 25, 2017 OWCP received hospital records dated March 3, 2017. These records
noted appellant’s history of injury. Dr. Randall H. Gehl, a Board-certified radiologist, interpreted
an x-ray of her left knee as showing no joint effusion, no fracture, and moderate osteopenia.
During the hearing held on September 26, 2017, appellant testified that she lived in rural
Colorado and she was usually only able to seek treatment from a physician assistant. The hearing
representative indicated that she was keeping the record open for 30 days so that appellant could
submit relevant medical evidence. Appellant resubmitted the operative report dated April 14, 2017
and a light-duty activity restriction form dated May 25, 2017 which noted incapacity from April 13
to May 24, 2017.
By decision dated November 7, 2017, the hearing representative affirmed the denial of
appellant’s claim. She determined that although appellant established that the incident occurred
as alleged and that she had been diagnosed with a medical condition, she failed to establish causal
relationship between the accepted employment incident and the medical diagnosis.
LEGAL PRECEDENT
A claimant seeking benefits under FECA3 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.4
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.5 The second component is whether the employment incident caused a personal
3

Supra note 1.

4

S.S., Docket No. 16-1760 (issued January 23, 2018).

5

Elaine Pendleton, 40 ECAB 1143 (1989).

3

injury.6 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is causal relationship between the employee’s diagnosed condition and the
compensable employment factors.9 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty, and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left knee
condition causally related to the accepted February 16, 2017 employment incident.
On March 6, 2017 Dr. Olson diagnosed a probable bucket handle tear of appellant’s left
knee meniscus and Dr. Wyman performed a left knee arthroscopy on April 14, 2017. However,
neither of these physicians offered a rationalized opinion that the accepted employment incident
caused appellant’s left knee condition. Medical opinion evidence that does not offer an opinion
regarding the cause of an employee’s condition is of limited value on the issue of causal
relationship.11
Appellant also submitted diagnostic studies interpreted by Dr. Messeril, Dr. Sanders, and
Dr. Gehl in support of her claim. The Board has held that diagnostic studies are of limited
probative value as they do not address whether the employment incident caused any of the
diagnosed conditions.12

6

John J. Carlone, 41 ECAB 354 (1989).

7

Shirley Temple, 48 ECAB 404, 407 (1997).

8

E.J., Docket No. 18-0207 (issued July 13, 2018); A.D., Docket No. 149 (2006).

9

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2008).

10

I.J., 58 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

11

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

12

See C.L., Docket No. 17-0354 (issued July 10, 2018); J.S., Docket No. 17-1039 (issued October 6, 2017).

4

In support of her claim, appellant also submitted notes from physician assistants and a
nurse practitioner.13 Nurse practitioners14 and physician assistants15 are not considered physicians
as defined under FECA, and their opinions are therefore of no probative medical value
The Board finds that medical evidence of record is insufficient to establish that appellant
sustained a traumatic injury as a result of the February 16, 2017 employment incident. Causal
relationship is a medical question that must be established by probative medical opinion from a
physician.16 The mere fact that work activities may produce symptoms revelatory of an underlying
condition does not raise an inference of the employment relation. Such a relationship must be
shown by rationalized medical evidence which establishes a causal relation based upon a specific
and accurate history of employment conditions which are alleged to have caused or exacerbated a
disabling condition.17
On appeal, appellant contends that she has submitted evidence of a medical diagnosis and
that she was working at the time she injured her knee. However, as discussed, her claim was
denied based on her failure to establish a causal relationship between the accepted employment
incident and the medical diagnosis.18
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor the
belief that her condition was caused, precipitated, or aggravated by her employment is sufficient
to establish causal relationship.19 No matter how sincere her belief that an injury was sustained as
a result of her federal duties, causal relationship must be established by rationalized medical
opinion evidence and she failed to submit such evidence.20
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.

13

5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
14

D.C., Docket No. 16-1457 (issued May 18, 2017).

15

V.C., Docket No. 16-0542 (issued April 19, 2016); Allen C. Hundley, 53 ECAB 551 (2002).

16

M.B., Docket No. 16-1188 (issued January 10, 2017).

17

Patricia J. Bolleter, 40 ECAB 373 (1988).

18

Appellant submitted new evidence to the Board on appeal. The Board’s jurisdiction is limited to the evidence
that was before OWCP at the time of its final decision. Therefore, the Board is precluded from considering this new
evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1); Dennis E. Maddy, 47 ECAB 259 (1995); James C.
Campbell, 5 ECAB 35, 36 n.2 (1952).
19

R.B., Docket No. 15-1652 (issued October 9, 2015).

20

Id.

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury to her
left knee casually related to the accepted February 16, 2017 employment incident.21
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated November 7, 2017 is affirmed.
Issued: November 2, 2018
Washington, DC

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

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

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

21

The Board notes that the employing establishment issued a Form CA-16 Authorization for Medical Treatment.
A properly completed CA-16 form authorization may constitute a contract for payment of medical expenses to a
medical facility or physician, when properly executed. The form creates a contractual obligation, which does not
involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the
claim. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003).

6


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
W.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE
Lawrenceville, GA, Employer
_________________________________________

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

Docket No. 13-340
Issued: May 20, 2013

Case submitted on the record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 27, 2012 appellant’s representative filed a timely appeal from the Office
Workers’ Compensation Programs’ (OWCP) schedule award decision dated October 17, 2012.
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 appellant’s claim for a schedule award.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has an
impairment caused by his accepted employment injuries that would entitle him to a schedule
award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 2, 2004 appellant, then a 47-year-old mail handler, had left lower back
pain while pulling a bulk mail carrier. He did not initially stop work. OWCP accepted the claim
for a lumbar strain and paid appropriate compensation benefits.
A January 12, 2005 magnetic resonance imaging (MRI) scan read by Dr. Francis
Donahue, a Board-certified diagnostic radiologist, revealed: symmetric bulges at L1-2 and L2-3;
a posterior annular fissure centrally at Ll-2; symmetric disc bulge into both foramina at L3-4 and
mild facet and ligamentum flavum hypertrophy; L4-5 bilateral foraminal herniations, which
contact the left L4 nerve root; central posterior annular fissure; possible left anterior-inferior L4
nondisplaced fracture. There was bone marrow edema at L4 which was well demarcated. There
was markedly decreased marrow signal intensity on T1 in the left half of L5, which might
represent bony sclerosis with blastic metastasis. Additionally, there was no disc space
narrowing. Appellant advised that other possibilities include marrow infiltrative process.
On April 18, 2012 appellant filed a claim for a schedule award.2
By letter dated May 1, 2012, OWCP informed appellant of the type of evidence needed to
support his claim and requested that he submit such evidence within 30 days. Appellant was
advised that FECA does not allow for an award of permanent impairment to the spine. However,
it advised that such awards can be paid for impairment of the upper or lower extremities caused
by injury to a spinal nerve. OWCP asked that, if appellant had a work-related spinal nerve injury
which has caused impairment to the extremities, he should submit an impairment rating of the
affected extremities using the article entitled “Rating Spinal Nerve Extremity Impairment Using
the Sixth Edition” which was published in the July/August 2009 The Guides Newsletter, a
supplemental publication of the American Medical Association, Guides to the Evaluation of
Permanent Impairment, (A.M.A., Guides), which has been incorporated into OWCP’s procedure
manual and was available on OWCP’s website.
OWCP received reports dated May 30 to September 5, 2012 from Dr. Christopher
Wilson, a Board-certified internist. In a June 1, 2012 report, Dr. Wilson advised that appellant
had reached maximum medical improvement and noted certain findings. Regarding impairment
of the extremities, he stated that he was unable to furnish a rating and asked OWCP to refer
appellant to another physician for such an evaluation as he did not have access to The Guides
Newsletter. In a July 25, 2012 report, Dr. Wilson examined appellant and provided findings,
which included that he had “radicular aspects of pain at times but none currently.” In his
September 5, 2012 report, he treated appellant and determined that he did not have crepitation
defects, masses, effusions, contractures, subluxation or muscle atrophy in the limbs. Dr. Wilson
also determined that sensation was intact in all the major dermatomes of the lower limbs
bilaterally with the exception of continued hypesthesias over the L5 and S1 dermatomes of the

2

The record reflects that appellant previously filed a claim for a schedule award on June 7, 2005. On June 23,
2005 OWCP denied his claim for a schedule award. It found that the medical evidence of record did not support a
permanent impairment to a scheduled member or function of the body. On October 21, 2005 appellant requested
reconsideration. By decision dated January 19, 2006, OWCP denied modification of the prior decision.

2

bilateral toes distally over the feet. He diagnosed lumbar herniated nucleus pulposus, myofascial
pain, radiculitis, degenerative disc disease and spinal stenosis-lumbar.
An August 1, 2012 lumbar MRI scan read by Dr. S. Dixon Gilbert, a radiologist,
revealed: multilevel degenerative disc disease throughout the lumbar spine; no spinal stenosis;
neural foraminal stenosis at L4-5 and L5-SI; dorsal annular fissures at L2-3, L3-4 and L4-5;
abnormal signal intensity in the L5 vertebral body which is hypointense on the T1 weighted
sequence but not well visualized on the T2 weighted sequence.
In a September 6, 2012 report, an OWCP medical adviser noted appellant’s history of
injury and treatment, which included chronic low back pain with no leg pain. He determined that
the MRI scan revealed multilevel degenerative disc disease with neural foraminal stenosis at
L4-5 and L5-S1 with no motor or sensory deficits of the lower extremities. The medical adviser
indicated that appellant was treated at a pain clinic for intermittent tingling on the toes distally,
with opiates for the low back pain and no surgery. He opined that appellant had a zero percent
impairment for the right and left lower extremities.
On September 18, 2012 OWCP requested that another OWCP medical adviser provide an
impairment rating utilizing the A.M.A., Guides. In a September 18, 2012 report, another OWCP
medical adviser indicated that appellant had an exacerbation of preexisting multilevel
degenerative disc disease with foraminal stenosis at L4-5 and L5-S1. He noted that appellant
had pain in the lumbar spine to include radicular pain in the legs which was not currently present.
The medical adviser referred to The Guides Newsletter and explained that rating spinal nerve
extremity, using Table 2, spinal nerve impairment of the lower extremity qualified for class 0,
correlating to zero percent impairment for the right and left legs due to the fact that appellant did
not have radiculopathy.
By decision dated October 17, 2012, OWCP denied appellant’s claim for a schedule
award. It found that the medical evidence of record did not support a permanent impairment to a
scheduled member or function of the body.
LEGAL PRECEDENT
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.3
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.4 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice for all claimants under
the law, good administrative practice requires the use of uniform standards applicable to all

3

Veronica Williams, 56 ECAB 367 (2005).

4

5 U.S.C. § 8107.

3

claimants.5 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 Effective May 1, 2009, schedule awards
are determined in accordance with the sixth edition of the A.M.A., Guides.7
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.8 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.9
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as impairments of the extremities. Recognizing that FECA allows ratings
for extremities and precludes ratings for the spine, The Guides Newsletter offers an approach to
rating spinal nerve impairments consistent with sixth edition methodology.10 OWCP has
adopted this approach for rating impairment to the upper or lower extremities caused by a spinal
injury.11
ANALYSIS
The evidence of record is insufficient to establish that appellant is entitled to a schedule
award in accordance with the sixth edition of the A.M.A., Guides.
OWCP accepted appellant’s claim for a lumbar strain. When appellant claimed a
schedule award, it advised him on May 1, 2012 of the type of evidence needed to support his
claim. Appellant was advised that FECA does not allow for an award of permanent impairment
to the spine. However, it advised that an award could be paid for impairment of the upper or
lower extremities caused by a spinal nerve injury. OWCP asked that appellant submit an
impairment rating of the affected extremities using the article entitled “Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition” which was published in the July/August 2009
The Guides Newsletter. Appellant submitted reports from Dr. Wilson that did not offer any
5

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

6

20 C.F.R. § 10.404.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700.2 and Exhibit 1 (January 2010); J.B., Docket No. 09-2191 (issued May 14, 2010).
8

Pamela J. Darling, 49 ECAB 286 (1998).

9

Thomas J. Engelhart, 50 ECAB 319 (1999).

10

L.J., Docket No. 10-1263 (issued March 3, 2011).

11

Supra note 7 at Chapter 3.700, Exhibit 4 (January 2010).

4

impairment rating. In his June 1, 2012 report, Dr. Wilson advised that he was unable to provide
an impairment rating of the extremities as he did not have access to The Guides Newsletter.12 He
asked that OWCP refer appellant to another physician for an impairment evaluation. The Board
notes that appellant has the burden to establish entitlement to a schedule award.13 As
Dr. Wilson’s reports did not address extremity impairment under The Guides Newsletter or
otherwise under the A.M.A., Guides, his reports are insufficient to establish entitlement to a
schedule award.
In a September 6, 2012 report, the medical adviser noted appellant’s history of injury and
treatment, which included chronic low back pain with no leg pain. He determined that the MRI
scan revealed multilevel degenerative disc disease with neural foraminal stenosis at L4-5 and L5S1 with no motor or sensory deficits of the lower extremities. The medical adviser indicated that
appellant was treated at a pain clinic for intermittent tingling on the toes distally and no surgery.
He opined that appellant had a zero percent impairment for the right and left lower extremities.
Another medical adviser explained in his September 18, 2012 report that appellant had an
exacerbation of preexisting multilevel degenerative disc disease with foraminal stenosis at L4-5
and L5-S1. He noted that appellant had pain in the lumbar spine but no radiculopathy was
currently present. The medical adviser referred to The Guides Newsletter14 and explained that
rating spinal nerve extremity, using Table 2, spinal nerve impairment of the lower extremity
qualified for class 0, correlating to zero percent for the right and left legs due to the fact that
appellant did not have radiculopathy.
The Board notes that OWCP’s procedures indicate that The Guides Newsletter is the
appropriate method of determining extremity impairment in this case. The newsletter provides a
specific method for determining impairments such as radiculopathy from a spinal nerve injury.15
The Board finds that the medical advisers properly evaluated whether appellant had
ratable impairment of his legs. Both physicians reviewed the medical findings of record and
neither medical adviser found objective evidence to support impairment to the lower extremities.
Appellant did not submit any other medical evidence to support that he was entitled to a schedule
award, under the A.M.A., Guides or The Guides Newsletter, for a scheduled member of the body
under FECA. Accordingly, the Board finds that appellant has not established entitlement to a
schedule award.
Following issuance of OWCP’s October 17, 2012 decision, appellant submitted
additional evidence. However, the Board may not consider such evidence for the first time on
appeal as its review is limited to the evidence that was before OWCP at the time of its decision.16
12

OWCP’s May 1, 2012 letter to appellant, explaining the need to provide an extremity rating pursuant to The
Guides Newsletter, provided information on how to access The Guides Newsletter.
13

See supra note 3.

14

See supra notes 10 and 11.

15

See id.

16

See 20 C.F.R. § 501.2(c).

5

Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he has an
impairment caused by his accepted employment injuries that would entitle him to a schedule
award.
ORDER
IT IS HEREBY ORDERED THAT the October 17, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 20, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hammond, IN, Employer
__________________________________________

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

Docket No. 14-22
Issued: September 3, 2014

Case Submitted on the Record

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

JURISDICTION
On October 10, 2013 appellant filed a timely appeal from May 30 and September 6, 2013
merit decisions of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this appeal.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish modification
of the wage-earning capacity decision; (2) whether appellant received an overpayment of
compensation in the amount of $14,169.60 for the period July 29, 2012 through January 12,
2013; and (3) whether appellant was at fault in the creation of the overpayment.

1

The record also contains a May 30, 2013 decision regarding a $64.75 overpayment. Appellant has not appealed
this and OWCP declined to pursue collection of this overpayment.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been on appeal before the Board.3 In a March 10, 2008
decision, the Board found that OWCP properly determined that appellant’s position of a
modified letter carrier, which she had held since October 28, 2006, represented her wage-earning
capacity. However, the Board found that the case was not in posture regarding the rate of pay.
The facts and history contained in the prior appeal are incorporated by reference. The record
reflects that OWCP had accepted the claim for sprain of the hip and thigh, unspecified right,
lumbosacral spondylosis without myelopathy and lumbosacral spondylosis.
In an April 14, 2008 decision, OWCP reaffirmed that appellant’s actual earnings as a
part-time, modified letter carrier fairly and reasonably represented her wage-earning capacity and
amended the decision to reflect that at the time of the injury, she was a grade 02/Step C rather
than a grade 01/Step C, which was originally used to determine her loss of wage-earning
capacity (LWEC). It determined that the new computation rate each four weeks was $1,213.00.
OWCP accepted appellant’s claim for a recurrence on July 15, 2008, appellant at which
time underwent refusion surgery and later on March 24, 2009 she underwent removal of
instrumentation with reexploration on March 24, 2009. Appellant received compensation for
temporary total disability and was thereafter placed on the periodic rolls.
In a September 4, 2009 report, Dr. Edward J. Goldberg, a treating Board-certified
orthopedic surgeon, advised that appellant could return to work with restrictions. He noted that
she should utilize a cane for ambulation, lift five pounds occasionally with her right hand and
may sit, stand, walk up to one-half hour at any one time during the day. Dr. Goldberg indicated
that appellant could not do any ladder climbing; only engage in ground work with no crouching,
kneeling or squatting. He opined that she was at maximum medical improvement regarding the
lumbar spine.
In an April 11, 2011 report, Dr. Goldberg updated appellant’s work capacity to limit
carrying to 10 pounds and noted that she could only carry with one hand as she used a cane.
Appellant participated in vocational rehabilitation. In a November 25, 2011 letter,
OWCP advised her that the vocational rehabilitation counselor had determined that she was
capable of performing the duties of a medical record coder, which was a sedentary position and
that she would be provided 90 days of placement assistance. However, after 90 days of
placement services, appellant did not secure a job. In a report dated February 22, 2012, the
vocational rehabilitation counselor verified the availability of jobs in the market, completed a
vocational assessment and closed the file.
OWCP proposed to reduce appellant’s compensation, by notice dated May 24, 2012,
noting that the medical and factual evidence in her case established that she was no longer totally
disabled but partially disabled and now had the capacity to earn the wages of a medical record
coder, Department of Labor, Dictionary of Occupational Titles, DOT #079.262-014, at the rate
of $864.00 per week. OWCP explained that the position was sedentary, with exerting up to
3

Docket No. 07-1634 (issued March 10, 2008).

2

10 pounds of force occasionally or a negligible amount of force frequently to lift, carry, push or
otherwise move objects, including the human body.4 It noted that the physical requirements did
not exceed appellant’s accepted work tolerance restrictions.
In a letter dated June 4, 2012, appellant indicated that she disagreed with the proposed
reduction. She noted that her restriction was a five-pound lifting restriction and not a 10-pound
lifting restriction. Appellant also requested medical treatment from a physician in Texas.
By decision dated July 11, 2012, OWCP reduced appellant’s compensation entitlement
effective July 29, 2012, based on her capacity to earn wages in the selected position of medical
record coder. It further advised her that she was authorized to change physicians.
In an August 16, 2012 report, Dr. Stephen I. Esses, a Board-certified orthopedic surgeon,
noted spondylolisthesis at L5-S1 and recommended a magnetic resonance imaging (MRI) scan of
the lumbar spine. In a September 6, 2012 report, he noted that appellant had marked epidural
fibrosis and no significant stenosis or disc herniation.5
In an August 23, 2012 letter, the employing establishment advised that appellant had
been approved for administrative separation due to disability effective January 13, 2012.
In a September 21, 2012 report, Dr. Elias Benhamou, a Board-certified anesthesiologist,
noted appellant’s history and provided findings to include severe low back pain with radicular
symptoms. He recommended epidural steroid injections and physical therapy. In a November 8,
2012 report, Dr. Benhamou diagnosed lumbosacral neuritis, postlaminectomy syndrome and
lumbosacral spondylosis.
In a January 5, 2013 report, Dr. Mobeen Choudri, a physiatrist, noted that appellant was
injured on January 2, 2004 when she slipped on some ice and fell onto her buttocks. He
indicated that she underwent three lumbar spine surgeries with the last being performed in 2009.
Dr. Choudri advised that appellant underwent physical therapy and lumbar epidural steroid
injections to no avail. He diagnosed lumbar radiculitis/neuritis, lumbosacral spondylosis and
lumbar postlaminectomy syndrome. Dr. Choudri opined that these diagnoses were due to
appellant’s January 2, 2004 work injury. He advised that the effects of the work injury had not
ceased as she continued to have lower back pain with bilateral lower extremity radiation on a
daily basis. Dr. Choudri indicated that appellant’s complaints limited her ability to perform her
activities of daily living and “prevented [appellant’s] from maintaining any type of gainful
employment at this time. Until her chronic pain is under control I do not believe that she is a
candidate for any type of employment or work hardening programs.” He noted requesting
4

Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time.
Jobs may be defined as sedentary when walking and standing are required only occasionally and all other sedentary
criteria are met.
5

OWCP received diagnostic reports that included a July 25, 2012 x-ray of the right knee, which revealed
advanced osteoarthritis and an August 27, 2012 MRI scan of the lumbar spine that revealed a two millimeter annular
disc bulge at L3-4, moderate facet hypertrophic changes and hypertrophic ligaments, a prosthetic disc with spinal
fusion and hyperlordosis. Also received were laboratory reports; physical therapy notes, nurses’ notes and a
December 8, 2012 psychosocial assessment.

3

authorization for a trial of a spinal cord stimulator to treat her pain. Dr. Choudri recommended
medication management until the spinal cord stimulator was approved. He opined that “[a]t this
time I would consider [appellant] disabled and unable to perform any type of gainful
employment.”
In a January 10, 2013 report, Dr. Sebastian Villarreal, a neurosurgeon, recommended
epidural steroid injections. On January 25, 2013 appellant underwent an epidural steroid
injection.
On January 29, 2013 OWCP issued a preliminary determination that appellant had
received an overpayment of compensation in the amount of $14,169.60. The overpayment
occurred because her payment on the periodic rolls did not reflect the July 11, 2012 previous
wage-earning capacity decision. OWCP found that appellant was at fault in the creation of the
overpayment, as she accepted a payment she knew or should have known was incorrect. It
further informed appellant that she had 30 days to request a telephone conference, a final
decision based on the written evidence or a prerecoupment hearing on the issues of fault and a
possible waiver.
On January 31, 2013 OWCP received a request for reconsideration of the July 11, 2012
wage-earning capacity decision. Appellant also argued that her pay should not have been
reduced and she was not responsible for an overpayment.
In a February 12, 2013 letter, appellant requested that her pay rate not be reduced. She
explained that she recently had an epidural procedure due to the work injury and that she had
permanent nerve and tissue damage and bulging discs that directly irritated the sciatic nerve.
Appellant advised that she had constant pain down the length of the nerve and right ankle
swelling, which hindered her walking abilities. She argued that her benefits should not have
been reduced as OWCP was notified of her medical condition and her medical care was
approved by OWCP, thus she could not take the blame for any overpayment. Appellant
explained that she provided the reports from her physicians’ visits and OWCP was aware of her
medical condition. She stated that the overpayment was not her fault. Appellant also argued that
a reduction of pay should not have occurred. She provided an incomplete overpayment recovery
questionnaire, only noting $33.00 in social security benefits. Appellant noted that she had asked
for help with medical assistance due to her health. She stated, “I know my body and knew I
could not perform any type duty.” Appellant explained that she moved to a new area due to her
health and it was hard to get medical care, but OWCP authorized everything in her file.
In a March 8, 2013 report, Dr. Villarreal diagnosed severe low back pain and right ankle
pain. In a March 22, 2013 report, Dr. David J. Moeller, a Board-certified diagnostic radiologist,
noted that an MRI scan of the lumbar spine revealed postoperative changes of the anterior
interbody fusion at L5-S1 with bilateral laminectomy at L5. In an April 5, 2013 report,
Dr. Choudri diagnosed lumbosacral neuritis, postlaminectony syndrome, lumbosacral
spondylosis and joint ankle pain. He recommended a spinal cord stimulator trial and treatment
for depression.
The record reflects that the claimant elected OPM retirement benefits effective
May 14, 2013.

4

By decision dated May 30, 2013, OWCP denied appellant’s request for reconsideration of
the July 11, 2012 wage-earning capacity decision. It found the new medical evidence not
relevant to her ability to perform the constructed position of medical record coder.6
A prerecoupment hearing was held telephonically on June 17, 2013 as to the $14,169.60
overpayment. Appellant stated that she had moved from Indiana to Texas and it took time to
find a physician. She explained that a January epidural did not help her damaged sciatic nerve
and inflamed tissues and she was limited with her activities. Appellant noted that OPM finally
approved her disability with the same medical records in her file. She also indicated that she did
not question that she was getting the same amount of money after she received the July 11, 2012
decision but assumed that OWCP had all the information about her condition as it approved her
medical treatments. Appellant testified that she was only receiving $33.00 from social security
and approximately $93.00 from workers’ compensation, so she was living with her daughter.
She was advised of the requirement to submit complete financial information with supportive
documentation concerning monthly income and expenses, as well as any assets and that a waiver
was only applicable if she was found without fault.
By decision dated September 6, 2013, OWCP finalized its finding that appellant received
a $14,169.60 overpayment of compensation for the period July 29, 2012 through January 12,
2013, based on her receipt of full-time compensation for disability after receiving a wage-earning
capacity decision reducing her compensation benefits. It further found that she was at fault in
creating the overpayment as she accepted a payment which she knew or should have known was
incorrect.
LEGAL PRECEDENT -- ISSUE 1
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.7
OWCP’s procedures provide that, if a formal LWEC decision has been issued, the rating
should be left in place unless the claimant requests resumption of compensation for total wage
loss. In this instance the claims examiner will need to evaluate the request according to the
customary criteria for modifying a formal LWEC.8
The procedures contained provisions regarding the modification of a formal LWEC. The
relevant part provides that a formal LWEC will be modified when: (1) the original rating was in
error; (2) the claimant’s medical condition has changed; or (3) the claimant has been vocationally
rehabilitated. OWCP’s procedures further provided that the party seeking modification of a
formal LWEC decision has the burden to prove that one of these criteria has been met. If OWCP
6

See supra note 1.

7

Katherine T. Kreger, 55 ECAB 633 (2004).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (October 2009); see Chapter 2.1501.3 (June 2013).

5

is seeking modification, it must establish that the original rating was in error, that the injuryrelated condition has improved or that the claimant has been vocationally rehabilitated.9
ANALYSIS -- ISSUE 1
OWCP accepted sprain of the hip and thigh, unspecified right, lumbosacral spondylosis
without myelopathy and lumbosacral spondylosis. On April 14, 2008 it determined that
appellant’s duties of a part-time modified letter carrier fairly and reasonably reflected her wageearning capacity. On July 11, 2012 OWCP reduced her compensation effective July 29, 2012,
based upon her capacity to earn wages in the selected position of a medical record coder.
Appellant did not appeal this decision to the Board.
The burden for modifying a wage-earning capacity is on the party attempting to show
modification of the wage-earning capacity determination.10 This includes the production of
evidence in support of modification.11 The Board finds that appellant has not met her burden to
modify the July 11, 2012 wage-earning capacity determination.
On February 12, 2013 appellant noted that she sent a letter on June 4, 2012 requesting
that her pay rate not be reduced due to her ongoing health issues and constant pain. She
contended that she had a five-pound lifting restriction. Appellant also argued that a reduction of
pay should not have occurred and that OWCP failed to consider whether the wage-earning
capacity was reasonable. She referred to 5 U.S.C. § 8115(a).12 Appellant indicated that her age,
medical restrictions and lack of experience were not properly considered.
However, the Board notes that the vocational rehabilitation counselor utilized the
September 4, 2009 and April 11, 2011 reports of appellant’s physician, Dr. Goldberg, who
provided restrictions consistent with the duties of a medical record coder. Dr. Goldberg initially
provided a 5-pound restriction of occasional lifting but, on April 11, 2011, advised that appellant
could carry 10 pounds. On November 25, 2011 OWCP advised her that the vocational
rehabilitation counselor found that she met the requirements of a medical record coder, which
was a sedentary position. In a report dated February 22, 2012, the vocational rehabilitation
counselor verified the availability of jobs in the market. In determining an employee’s wageearning capacity based on a constructed position OWCP must determine whether the position is

9

Id.

10

Stanley B. Plotkin, 51 ECAB 700 (2000).

11

Id.

12

Section 8115(a) of FECA provides that in determining compensation for partial disability, the wage-earning
capacity of an employee is determined by his or her actual earnings, if his or her actual earnings fairly and
reasonably represent his or her wage-earning capacity. If the actual earnings of the employee do not fairly and
reasonably represent his or her wage-earning capacity or if the employee has no actual earnings, his or her wageearning capacity as appears reasonable under the circumstances is determined with, due regard to the nature of his or
her injury, the degree of physical impairment, his or her usual employment, his or her age, his or her qualifications
for other employment, the availability of suitable employment and other factors or circumstances which may affect
his or her wage-earning capacity in his or her disabled condition.

6

vocationally suitable, taking into account the employee’s education, age and prior experience.13
Because a rehabilitation counselor or specialist is an expert in the field of vocational
rehabilitation, OWCP may rely on his or her opinion as to whether a job was reasonably
available.14 Thus, the record does not show that the July 11, 2012 rating was in error.
Appellant provided a January 5, 2013 report from Dr. Choudri, who diagnosed lumbar
radiculitis/neuritis, lumbosacral spondylosis and lumbar postlaminectomy syndrome and opined
that all of these diagnoses were work related. Dr. Choudri advised that the effects of the work
injury had not ceased as she continued to have low back pain with radiation to the legs on a daily
basis. He indicated that appellant’s complaints “prevented her from maintaining any type of
gainful employment at this time.” Dr. Choudri indicated that, until her chronic pain was under
control, he did not believe that she was a candidate for any type of employment or work
hardening programs. He opined that “[a]t this time I would consider [appellant’s] disabled and
unable to perform any type of gainful employment.” However, the Board notes that Dr. Choudri
did not provide any examination findings or provide reasoning to explain how her condition had
worsened such that she was no longer able to meet the restrictions of the constructed position.
Appellant therefore did not meet her burden to modify the July 11, 2012 wage-earning capacity
determination on the grounds that her injury-related condition had materially changed. She
provided no other current medical evidence supporting that she was unable to work in the
selected position.
On appeal, appellant argued that Dr. Goldberg gave her a five-pound lifting restriction.
However, on April 11, 2011, he noted that she could carry up to 10 pounds.
Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
LEGAL PRECEDENT -- ISSUE 2
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.15 Section 8129(a) of FECA provides, in pertinent part, when an overpayment has been
made to an individual under this subchapter because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which an individual is entitled.16

13

20 C.F.R. § 10.403.

14

Supra note 8 at Chapter 2.814.11 (October 2009).

15

5 U.S.C. § 8102.

16

Id. at § 8129(a).

7

OWCP’s regulations provide that compensation for wage loss due to disability is
available only for any periods during which an employee’s work-related medical condition
prevents him or her from earning the wages earned before the work-related injury.17
ANALYSIS -- ISSUE 2
The Board finds that appellant received an overpayment of compensation in the amount
of $14,169.60. The record supports and appellant has not disputed, that she continued to receive
compensation after OWCP reduced her compensation on July 11, 2012, based upon her capacity
to earn wages in the constructed position of a medical record coder.
The record documents that appellant was paid $14,980.08 in compensation between
July 29, 2012 and January 12, 2013. The evidence further shows that, due to the March 20, 2002
wage-earning capacity decision, she was only entitled to receive $810.48 for this period. The
difference represents an overpayment of $14,169.60. The record establishes that appellant
received a $14,169.60 overpayment of compensation. As appellant was not entitled to
compensation after her compensation was reduced on July 11, 2012, OWCP properly found an
overpayment of compensation in the amount of $14,169.60.
LEGAL PRECEDENT -- ISSUE 3
Under section 8129 of FECA and its implementing regulations, an overpayment must be
recovered unless incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.18 Section 10.433 of the implementing regulations provide that OWCP may
consider waiving an overpayment if the individual to whom it was made was not at fault in
accepting or creating the overpayment.19 The regulations further provide that each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure that payments
he or she receives from OWCP are proper.20 Under the regulations, a recipient will be found to
be at fault with respect to creating an overpayment if he or she accepted a payment which he or
she knew or should have known to be incorrect.21 Whether OWCP determines that an individual
was at fault with respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment.22 The degree of care expected may vary with the complexity of
those circumstances and the individual’s capacity to realize that he or she is being overpaid.23

17

20 C.F.R. § 10.500(a).

18

Id. at § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

19

Id. at § 10.433(a).

20

Id.

21

Id. at § 10.433(a)(3).

22

Id. at § 10.433(b).

23

Id. at § 10.433(c).

8

ANALYSIS -- ISSUE 3
OWCP found appellant at fault in the creation of the $14,169.60 overpayment because
she accepted payments which she knew or should have known to be incorrect. It properly
determined that she was at fault in the creation of the overpayment.
Appellant received $14,980.08 in compensation between July 29, 2012 and January 12,
2013 but was only entitled to receive $810.48 for this period. She argued that her compensation
should not have been reduced, that OWCP was aware of her medical condition and continued to
approve medical care such that she was not to blame for the overpayment. The Board notes that
the record contains a July 11, 2012 final decision informing appellant of the specific details of
the reduction of her compensation effective July 29, 2012. The decision contained attached
appeal rights and was mailed to her address of record. Appellant’s contention that she was not
aware of the reduction of her compensation being reduced effective July 29, 2012 is without
merit. She received disability compensation at the higher rate after July 29, 2012 and knew or
should have known that this was incorrect. OWCP mistakenly failed to reduce her compensation
in accordance with its July 11, 2012 decision. Even though it may have been negligent in
continuing to issue wage loss for total disability after it reduced appellant’s compensation due to
a constructed wage-earning capacity determination, this does not excuse her acceptance of such
checks which she knew or should have been expected to know were incorrect.24 Given the
amount of compensation appellant received to which she was not entitled, as she was informed
that her compensation would be reduced 91 percent, as well the lengthy period in which she
received these payments, she accepted payments between July 29, 2012 and January 12, 2013,
which she knew or should have known were incorrect. Because she was at fault in creating the
overpayment, OWCP properly found that she is not entitled to waiver of recovery.25
CONCLUSION
The Board finds that appellant did not establish that modification of the wage-earning
capacity decision was warranted. The Board also finds that she received an overpayment of
compensation in the amount of $14,169.60 for the period July 29, 2012 through January 12,
2013; and she was at fault in the creation of the overpayment.

24

Robert W. O’Brien, 36 ECAB 541, 547 (1985).

25

The Board does not have jurisdiction to review the recovery of the overpayment. The Board’s jurisdiction is
limited to reviewing those cases where OWCP seeks recovery from continuing compensation under FECA. See 20
C.F.R. § 10.441(a); L.C., 59 ECAB 569 n.24 (2008) citing Ronald E. Ogden, 56 ECAB 278 (2005).

9

ORDER
IT IS HEREBY ORDERED THAT the September 6 and May 30, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: September 3, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

10