United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Niles, MI, Employer
__________________________________________

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

Docket No. 17-1421
Issued: December 1, 2017

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 June 9, 2017 appellant filed a timely appeal from a January 13, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an occupational
disease causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On April 5, 2016 appellant then a 55-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed occupational stress as a result of going through
testing. She first became aware of her condition on February 11, 2016 and realized it was
1

5 U.S.C. § 8101 et seq.

causally related to factors of her federal employment on February 23, 2016. Appellant did not
stop work.2
Appellant submitted a February 26, 2016 report from Dr. Neethl Surai, a Board-certified
internist, who noted that appellant was under his care since 2015. Dr. Surai recommended that
appellant avoid lifting greater than 15 to 20 pounds until she was evaluated by an orthopedist. A
March 4, 2016 cervical spine magnetic resonance imaging (MRI) scan revealed hypertrophy at
C3-4, edema with disc protrusion, foraminal stenosis, displacement of the left C4 nerve root, disc
extrusion at C6-7, spinal stenosis, and displacement of the left C7 nerve root.
Appellant was treated by Dr. Paul A. Smucker, a Board-certified orthopedist, on March 1,
2016 for cervical pain. She reported a three-week history of cervicalgia, left-sided shoulder
girdle pain, and pain and paresthesia radiating into the left arm and left hand. Dr. Smucker noted
findings on examination of normal gait and station; muscle tenderness and spasm in the left
trapezius; no trigger points; normal muscle strength, reflexes, and sensation; and radicular
symptoms into the left arm. He noted that x-rays of the cervical spine revealed diminished
intervertebral disc space at C6-7 consistent with degenerative disc disease and cervical
spondylosis. Dr. Smucker diagnosed a three-week history of cervicalgia and left arm pain and
paresthesia, cervical degenerative disc disease, and cervical radiculopathy. He recommended a
cervical spine MRI scan and epidural steroid injections.3 On March 22, 2016 Dr. Smucker
treated appellant for cervical pain after a steroid injection. Appellant reported being pain free for
two days, but her symptoms returned to their original state. She complained of left-sided
shoulder girdle pain with numbness and tingling radiating down the left arm to her fingers.
Dr. Smucker noted findings that included muscle tenderness and spasm in the left trapezius, and
radicular symptoms into the left arm. He diagnosed cervical radiculopathy with persistent
cervicalgia, left arm pain, and motor weakness. Dr. Smucker recommended a repeat epidural
steroid injection.
On April 12, 2016 Dr. Smucker related that appellant reported no relief from the second
steroid injection and complained of neck pain radiating down the left arm. Appellant reported
that she had been a letter carrier for 19 years and her condition was work related, although there
was no specific incident. Dr. Smucker noted findings on examination that included muscle
tenderness and spasm in the left trapezius as well as radicular symptoms into the left arm. He
diagnosed persistent cervical radiculopathy with persistent cervicalgia, left upper extremity pain,
and motor weakness. Dr. Smucker opined that he did not know if appellant’s condition was
work related and indicated that he could not make a definitive statement. In an April 12, 2016
attending physician’s report (Form CA-20), he diagnosed cervicalgia and cervical disorder.
Dr. Smucker noted that it was undeterminable as to whether appellant’s conditions were caused
or aggravated by an employment activity. He returned appellant to regular duty on
2

On April 8, 2016 appellant clarified that her claim form that was sent to OWCP by her Supervisor P.S. was
incorrect. She indicated that she and P.S. had a difficult time understanding each other because of his limited
knowledge of English. Appellant noted that he typed and submitted the form in an attempt to help her. She advised
that she intended to claim an occupational disease for a neck and left arm condition. OWCP thereafter developed
appellant’s claim for a neck and arm condition.
3

On March 9 and 30, 2016 Dr. Smucker provided interlaminar epidural steroid injections and diagnosed cervical
radiculopathy.

2

April 12, 2016. In an April 12, 2016 progress note, Dr. Smucker reiterated that he was unable to
determine if appellant’s diagnosis of cervicalgia was caused or aggravated by her job as a mail
carrier. He also provided an April 12, 2017 preliminary office clinical summary noting
appellant’s diagnoses and a duty status report of the same date releasing her to full-time regular
work.
In a March 27, 2016 statement, appellant indicated that she first had neck pain in
February 2016 which worsened into left arm and shoulder pain. She noted her cervical spine
MRI scan revealed vertebra that were pinching her nerves. Appellant related that Dr. Smucker
determined that her condition was caused by repetitive motion, twisting, and turning in her job.
In an undated statement, she noted that the left side of her body, shoulders, arm, and elbows hurt
all day long. Appellant reported casing mail, loading her truck, repeatedly entering and exiting
her vehicle four to five hours a day, opening and closing doors and windows, moving heavy
metal trays back and forth, and repeatedly reaching for mail and packages. She sought medical
treatment when her pain gradually increased over time.
On April 21, 2016 OWCP advised appellant of the type of evidence needed to establish
her claim, particularly a physician’s reasoned opinion addressing causal relationship between her
claimed condition and specific work factors.
Appellant submitted an April 21, 2016 report from Dr. Deepak Reddy, a Board-certified
orthopedist, who treated her for neck pain radiating into her left arm that began in
February 2016. She reported being treated conservatively with anti-inflammatories and C6-7
transforaminal injections. Dr. Reddy noted findings on examination of full range of motion of
the left shoulder girdle and arm, muscle strength of 4/5 at the biceps and 4/5 at the triceps,
decreased triceps reflex on the left, and numbness and tingling from the shoulder laterally to the
hand. He diagnosed C6-7 disc disorder with radiculopathy, C6-7 cervical disc displacement, and
weakness. Dr. Reddy noted x-rays revealed loss of normal cervical lordosis, arthritic spondylotic
changes, spondylolisthesis at C3-4, disc degeneration, and osteophyte formation at C6-7. He
opined that appellant had left C6-7 disc herniation that was abutting the C7 nerve root causing
foraminal stenosis, arm pain, and weakness. Dr. Reddy recommended surgery. On April 28,
2016 he advised that appellant had a C6-7 disc herniation. Dr. Reddy opined that he was unable
to determine, with medical certainty, whether the C6-7 disc herniation was caused by appellant’s
work as a mail carrier. However, he opined that appellant’s existing disc herniation was
exacerbated by her work as a mail carrier.
In a letter dated April 29, 2016, the employing establishment indicated that appellant did
not indicate that her neck and upper back issues were work related until February 2016.
Appellant’s job duties consisted of lifting packages up to 70 pounds up to six hours a day,
pushing full hampers of mail to load in a mail truck, and bending and stooping up to one hour a
day. The employing establishment indicated that to minimize the effects of lifting activities
employees were encouraged to seek help from coworkers and management with heavy packages,
to use a dolly or contact the customer to pick up the package. It indicated that appellant did not
have a lot of twisting and turning as she was assigned a right-hand drive mail truck which
permitted her to drive and service curbside mailboxes without having to twist or turn frequently.

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In a letter dated April 29, 2016, appellant reiterated the history of her neck injury and
subsequent medical treatment. She indicated that she required surgery and requested that her
claim be accepted so that she could undergo surgery.
On June 16, 2016 OWCP acknowledged receipt of Dr. Reddy’s April 28, 2016 report
which opined that her existing disc herniation was exacerbated by her work as a mail carrier.
However, it indicated that Dr. Reddy was not specific in explaining which work duties appellant
had performed caused the exacerbation of the disc herniation. OWCP requested that appellant
submit a medical report which provided a rationalized objective opinion explaining how her
federal work duties directly exacerbated her disc herniation.
Appellant submitted a June 30, 2016 report from Dr. Reddy who opined that he was
unable to determine with medical certainty if appellant’s C6-7 disc herniation was caused by her
work as a mail carrier. Dr. Reddy opined that appellant’s disc herniation was exacerbated by her
work as a mail carrier by performing work activities such as lifting, bending, twisting, and
driving a mail truck which would aggravate the disc herniation.
In a July 5, 2016 decision, OWCP denied appellant’s claim for compensation because she
failed to submit sufficient medical evidence to establish that the medical conditions were
causally related to the accepted work factors.
On July 30, 2016 appellant requested a review of the written record by an OWCP hearing
representative.
In a decision dated January 13, 2017, OWCP’s hearing representative affirmed the
July 5, 2016 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim. When an employee claims an injury in the performance of
duty, the employee must submit sufficient evidence to establish that he or she experienced a
specific event, incident, or exposure occurring at the time and place, and in the manner alleged.
The employee must also establish that such event, incident, or exposure caused an injury.5
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.6 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
4

Supra note 1.

5

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
6

S.P., 59 ECAB 184, 188 (2007).

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condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.7
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.8
ANALYSIS
It is undisputed that appellant’s daily work duties as a rural carrier included casing mail,
lifting packages that weigh up to 70 pounds, pushing full hampers of mail to load in a mail truck,
placing trays of mail in the back of a mail truck, bending, and stooping. The Board finds,
however, that appellant did not submit sufficient medical evidence to establish that her diagnosed
medical conditions are causally related to these accepted factors of her federal employment.
Appellant submitted an April 21, 2016 report from Dr. Reddy who diagnosed C6-7 disc
disorder with radiculopathy, C6-7 cervical disc displacement, and weakness. Dr. Reddy opined
that appellant had left C6-7 disc herniation abutting the C7 nerve root causing foraminal stenosis,
arm pain, and weakness and recommended surgery. In an April 28, 2016 report, he diagnosed
C6-7 disc herniation. Dr. Reddy opined that he was unable to determine whether the C6-7 disc
herniation was caused by appellant’s work, but he believed appellant’s existing disc herniation
was exacerbated by her work as a mail carrier. Similarly, on June 30, 2016 he advised that he
was unable to determine if appellant’s C6-7 disc herniation was caused by her work, but he felt
that her disc herniation was exacerbated by her work duties including lifting, bending, twisting,
and driving a mail truck. The Board finds that, although Dr. Reddy supported that appellant’s
work as a mail carrier exacerbated her herniated disc condition, he failed to provide any medical
rationale explaining the basis of his conclusory opinion regarding causal relationship.9
Dr. Reddy did not explain the process by which repetitively lifting, bending, twisting, and
driving a mail truck would aggravate the diagnosed conditions and why the conditions would not
be related to nonwork-related conditions, like age-related degenerative changes. Therefore, his
medical reports are insufficient to establish appellant’s claim.
Appellant also provided evidence from Dr. Smucker. In April 12, 2016 reports,
Dr. Smucker provided diagnoses and opined that he did not know if appellant’s condition was
7

R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

8

Solomon Polen, 51 ECAB 341 (2000).

9

See T.M., Docket No. 08-0975 (issued February 6, 2009) (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).

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work related and indicated that he could not opine with certainty that it was. The Board finds
that these reports are insufficient to establish appellant’s claim as Dr. Smucker advised that was
unable to opine if appellant’s condition was work related. Other reports from Dr. Smucker are of
limited probative value and insufficient to establish the claim as he did not specifically address
whether appellant’s condition was caused or aggravated by employment factors.10
Appellant submitted a report from Dr. Surai dated February 26, 2016 who noted that
appellant had been under his care since 2015. Dr. Surai recommended that appellant avoid
lifting greater than 15 to 20 pounds until she was evaluated by an orthopedist. His report is
insufficient to establish the claim as he did not provide a history of injury11 or specifically
address whether appellant’s work duties had caused or aggravated a diagnosed medical
condition.12 Likewise, other medical reports of record are of limited probative value as they fail
to provide a physician’s opinion on the causal relationship between appellant’s employment
factors and her diagnosed conditions.13 For these reasons, the medical evidence of record is
insufficient to meet appellant’s burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an
occupational disease causally related to the accepted factors of her federal employment.

10

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
11

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
12

A.D., supra note 10.

13

Id.

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ORDER
IT IS HEREBY ORDERED THAT the January 13, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 1, 2017
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
__________________________________________
C.C., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISIONS, FEDERAL
CORRECTIONAL INSTITUTION, Miami, FL,
Employer
__________________________________________

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

Docket No. 19-1622
Issued: May 28, 2020

Case Submitted on the Record

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

JURISDICTION
On July 26, 2019 appellant filed a timely appeal from a January 30, 2019 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from the last merit decision dated January 12, 2018, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 24, 2004 appellant, then a 36-year-old cook supervisor, filed a traumatic injury
claim (Form CA-1) alleging that on August 20, 2004 he sustained severe ankle and knee sprains
when he slipped and fell when opening the bakery door while in the performance of duty. He
stopped work on August 21, 2004. OWCP accepted the claim for right knee and ankle sprains,
and right knee and lower leg contusions. It paid appellant wage-loss compensation on the
supplemental rolls from October 6, 2004 through January 22, 2015, and on the periodic rolls
commencing January 23, 2015.
In a letter dated May 11, 2011, OWCP advised appellant that it proposed to reduce his
wage-loss compensation based on his capacity to earn wages as a customer service representative.
In a June 17, 2011 loss of wage-earning capacity (LWEC) determination, it finalized the May 11,
2011 proposal to reduce his wage-loss compensation.
On November 12, 2013 OWCP referred appellant, medical record, and statement of
accepted facts (SOAF) to Dr. Peter J. Millheiser, a second opinion Board-certified orthopedic
surgeon, for an assessment of his work-related condition.2 It requested that Dr. Millheiser provide
an opinion as to whether appellant continued to have residuals and disability due to his accepted
August 20, 2004 employment injury.
In progress notes dated December 23, 2013, Dr. Mauricio Herrera, Board-certified in
orthopedic surgeon and orthopedic sports medicine, opined that appellant’s severe ankle sprain
had healed. He, in a December 23, 2013 visit summary, related a diagnosis of right ankle sprain.
In a report dated January 10, 2014, Dr. Millheiser reviewed appellant’s history of injury,
the SOAF and the medical record. He related appellant’s physical examination findings and
diagnosed post right ankle sprain, rule out possible osteochondral lesion. Dr. Millheiser opined
that appellant was capable of performing his regular work duties without restrictions based on
review of a January 2, 2014 MRI scan and examination findings. In a supplemental report dated
March 7, 2014, he opined that appellant’s right ankle and knee injuries had resolved.
In a preliminary notice dated April 15, 2014, OWCP advised appellant of its proposal to
modify the June 17, 2011 LWEC determination and terminate his wage-loss compensation and
medical benefits. It found the medical evidence from Dr. Millheiser and Dr. Herrera established
that he no longer had any disability or residual due to the accepted August 20, 2004 employment
injury.
By decision dated June 2, 2014, OWCP modified the June 17, 2011 LWEC to zero and
finalized the April 15, 2014 proposed notice and terminated appellant’s wage-loss compensation
and medical benefits effective that day.

2

OWCP also referred appellant for a magnetic resonance imaging (MRI) scan of his right ankle. A January 2, 2014
MRI scan revealed diffuse soft tissue swelling, no fracture, joint effusion or bone marrow edema, and no acute
ligamentous injury.

2

Appellant requested reconsideration on May 8, 2015.3 OWCP, by decision dated May 27,
2015, denied modification finding the evidence he submitted was insufficient to establish that he
had disability or residuals due to the accepted August 20, 2004 employment injury. It also found
that the opinion of Dr. Millheiser constituted the weight of the medical opinion evidence that his
accepted August 20, 2004 employment injury had resolved without residuals or disability.
Appellant again filed a request for reconsideration on May 5, 2016.4 By decision dated
October 21, 2016, OWCP denied modification finding the additional evidence he had submitted
was insufficient to outweigh the opinion of Dr. Millheiser.
On October 17, 2017 appellant requested reconsideration.5
By decision dated January 12, 2018, OWCP denied modification finding that the additional
evidence appellant had submitted was of insufficient probative value to warrant modification.
On January 14, 2019 appellant requested reconsideration. In support of his request, he
submitted illegible copies of x-ray scans and a business card for Dr. Bernstein, a podiatrist.
Appellant also submitted a January 7, 2019 progress note, with an illegible signature,
which summarized his history of injury and provided examination findings. The assessment
included right ankle anterior talofibular (ATF) ligament tear and right knee ligament tear.
By decision dated January 30, 2019, OWCP denied appellant’s request for reconsideration.
It found the evidence submitted in support of his request was immaterial, irrelevant or
inconsequential to the underlying issue. OWCP further found that it was unable to determine if
the January 7, 2019 report was from a physician due to the illegible signature.

3

Appellant submitted a visit summary, progress notes, and a state workers’ compensation reporting form dated
December 23, 2013, progress notes dated November 17, 2014, and a November 17, 2014 letter from Dr. Herrera. In
the November 17, 2014 progress notes, Dr. Herrera provided examination findings and diagnosis of stable and
unchanged severe right ankle sprain. He, in the November 17, 2014 letter, opined that appellant’s injury was
permanent and work restrictions were unchanged. OWCP also received a December 17, 2014 summary of office visit
and findings with an illegible signature.
4

In support of his request, appellant submitted reports dated December 27, 2014 and March 7, 2016 from Dr. Scott
Bernstein, a podiatrist. He also submitted state workers’ compensation reporting forms dated December 23, 2013 and
November 17, 2014, December 23, 2013, November 17, 2014 and September 30, 2015 progress notes, and March 1,
2016 report from Dr. Herrera. Dr. Herrera, in the September 30, 2015 progress notes, diagnosed right ankle pain and
discomfort, possible rotator cuff tear, and rotator cuff arthropathy. In the March 1, 2016 report, he noted that appellant
had not fully healed from his ankle injury and that an error was made in the report where he indicated it had healed.
Dr. Herrera opined that appellant had permanent conditions and work restrictions.
5

The evidence submitted with his request included a June 23, 2017 report from Dr. Michael M. Cohen, a podiatrist,
and Dr. Elliot A. Fialkoff, a podiatrist, an October 11, 2017 report by Dr. Patrick Martyka, a podiatrist, who all
diagnosed right peroneal nerve entrapment.

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LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. It may review an award for or against payment
of compensation at any time based on its own motion or on application.6
A claimant seeking reconsideration of a final decision must present arguments or provide
evidence which: (1) shows that OWCP erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes
relevant and pertinent new evidence not previously considered by OWCP.7 If OWCP determines
that at least one of these requirements is met, it reopens and reviews the case on its merits.8 If the
request is timely, but fails to meet at least one of the requirements for reconsideration, OWCP will
deny the request for reconsideration without reopening the case for review on the merits.9
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
The most recent merit decision of OWCP was the January 12, 2018 decision. One year
from January 12, 2018 elapsed on January 12, 2019. As January 12, 2019 fell on a Saturday,
appellant had until the next business day on Monday, January 14, 2019 to file his reconsideration
request.10 As OWCP received appellant’s request for reconsideration on January 14, 2019 it was
timely filed.
With his timely request for reconsideration appellant did not show that OWCP erroneously
applied or interpreted a specific point of law, nor did he advance a relevant legal argument not
previously considered by OWCP. Accordingly, he is not entitled to a review of the merits of his
claim based on the first and second above-noted requirements under section 10.606(b)(3).11
Additionally, appellant has not submitted relevant and pertinent new evidence not
previously considered by OWCP. The underlying issue in this case is whether he had continuing
disability or residuals of his accepted right knee and ankle sprains and right knee and right lower
leg contusions after June 2, 2014, the date OWCP terminated his wage-loss compensation and
medical benefits. Because the underlying issue in this case is medical in nature, it must be
addressed by relevant medical evidence. The evidence appellant submitted in support of his
6

Supra note 1.

7

20 C.F.R. § 10.606(b)(3); see also M.S., Docket No. 18-1041 (issued October 25, 2018); C.N., Docket No. 081569 (issued December 9, 2008).
8

Id. at § 10.608(a); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

9

Id. at § 10.608(b); A.G., Docket No 19-0113 (issued July 12, 2019); K.H., 59 ECAB 495 (2008).

10

P.H., Docket No. 19-1354 (issued March 13, 2020).

11

Supra note 7 at at § 10.606(b)(3) (i) and (ii).

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request for reconsideration consisted of a January 7, 2019 progress note with an illegible signature,
unsigned illegible x-ray interpretations, and a business card for Dr. Bernstein, a podiatrist. The
Board notes that unsigned reports and reports that bear illegible signatures cannot be considered
probative medical evidence because they lack proper identification.12 Moreover, while this
evidence was new, it did not address the relevant issue in this claim as to whether appellant
established continuing residuals or disability of his accepted conditions after June 2, 2014.
Therefore, this evidence does not constitute relevant and pertinent new evidence.13 Accordingly,
appellant is not entitled to a review of the merits of his claim based on the third above-noted
requirements under section 10.606(b)(3).
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.14
Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

12

L.D., Docket No. 18-1468 (issued February 11, 2019).

13

Id.

14

See S.M., Docket No. 18-0673 (issued January 25, 2019); A.R., Docket No. 16-1416 (issued April 10, 2017);
M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006) (when an application for reconsideration does not
meet at least one of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the application
for reconsideration without reopening the case for a review on the merits).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated January 23, 2019 is affirmed.
Issued: May 28, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Trenton, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1106
Issued: December 28, 2011

Case Submitted on the Record

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

JURISDICTION
On April 1, 2011 appellant, through his representative, filed a timely appeal from the
December 21, 2010 merit decision of the Office of Workers’ Compensation Programs, which
denied his emotional injury claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant’s emotional condition is causally related to his accepted
employment injuries.
FACTUAL HISTORY
On December 31, 2007 appellant, a 42-year-old letter carrier, sustained an injury in the
performance of duty when he stood from a bending position and felt a cracking in his knee.
1

5 U.S.C. § 8101 et seq.

OWCP accepted his claim for right knee and leg sprain and derangement of the posterior horn of
the right medial meniscus. It also accepted a January 7, 2008 recurrence of medical condition.
On August 8, 2008 appellant underwent a partial medial meniscectomy.
The record establishes that appellant sustained another injury in the performance of duty
on December 11, 2008, when he fell down steps and injured his back. OWCP accepted the claim
for lumbar strain and contusion of the left forearm.2
In 2010 appellant asked OWCP to accept the December 31, 2007 injury to include
anxiety and depression. In a May 14, 2010 report, Dr. Barry Belt, a licensed clinical
psychologist, related appellant’s history. He noted work-related accidents on December 31,
2007 when appellant slipped and fell and injured his right knee,3 and on December 11, 2008
when he fell from a porch and injured his lower back. Appellant reported severe pain after his
accidents, pain that continued to trouble him. He reported herniated discs in his lower back and
ongoing excruciating pain. Appellant also reported pain reactive to right knee surgery. He
reported that the pain interfered with his ability to sit or stand for extended periods; he had to
shift his position every 15 minutes to ease the pain. Appellant also reported tinnitus, which he
stated was work related. He had trouble falling asleep and maintaining sleep due to his pain.
Appellant was no longer able to work to support his family, and his pain interfered with his
ability to engage in household and leisure activities. He was no longer able to enjoy watching
baseball on television. Appellant reported that his family was a top priority and was distressed
over his current condition. He reported symptoms of anxiety and indicated that his main concern
was not being able to support his family. Appellant stated that he felt useless because “work was
[his] life.” He also acknowledged depressive symptoms, including sadness, loss of interest in
activities he once found pleasurable, social withdrawal and increased irritability.
Dr. Belt described the results of his mental status examination and assessment
tests/checklists. He offered a primary diagnosis of severe major depressive disorder without
psychotic features. Acute medical conditions and physical factors included headaches, back pain
and knee pain. Psychosocial and environmental factors contributing to the disorder included
occupational problems, problems with primary support group and financial problems.
Dr. Belt stated that appellant’s multiple work-injury symptoms had significantly
impacted his activities of daily living, his financial security and his overall quality of life. He
stated that it was clear appellant was on a downward spiral and was becoming increasingly
withdrawn and depressed. “In our opinion, to a reasonable degree of psychological certainty,
[appellant’s] current emotional problems are causally related to his work-related accidents
occurring on December 31, 2007 and December 11, 2008, and the treatment recommended is
necessary and reasonable.”
On July 30, 2010 OWCP denied expansion of appellant’s claim. It found that, while
Dr. Belt provided a lengthy report suggesting causal relationship, he provided no specific detail

2

OWCP File No. xxxxxx155.

3

This is not the history appellant provided on his workers’ compensation claim form.

2

or medical rational to support his conclusion aside from relating the history as reported by
appellant.
On December 21, 2010 an OWCP hearing representative affirmed the denial of
appellant’s emotional condition claim. The hearing representative found that Dr. Belt did not
address the medical evidence in the record indicating that appellant could work, that his
presentation appeared overblown and exaggerated with no evidence of ongoing right knee
aggravation, and that he was much more capable than he was leading the examining physician to
believe. The hearing representative also stated that Dr. Belt did not address other familial
stresses, such as the similar work stoppage of appellant’s wife. The hearing representative found
that Dr. Belt did not base his opinion on a full factual and medical background.
On appeal, appellant’s representative argued that Dr. Belt’s report was prima facie
evidence of causal relationship. He asks the Board to reverse the hearing representative’s
December 21, 2010 decision and remand the case for acceptance of appellant’s emotional
condition. In the alternative, appellant’s representative asks the Board to vacate the decision and
remand the case for further development of the medical evidence.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his duty.4 A claimant seeking benefits under FECA
has the burden of proof to establish the essential elements of his claim by the weight of the
evidence,5 including that he sustained an injury in the performance of duty and that any specific
condition or disability for work for which he claims compensation is causally related to that
employment injury.6
The evidence generally required to establish causal relationship is rationalized medical
opinion evidence. The claimant must submit a rationalized medical opinion that supports a causal
connection between his claimed condition and the employment injury. The medical opinion must
be based on a complete factual and medical background with an accurate history of the claimant’s
employment injury, and must explain from a medical perspective how the claimed condition is
related to the injury.7
It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent, intervening cause attributable to the employee’s own intentional conduct.8
4

5 U.S.C. § 8102(a).

5

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

6

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

John A. Ceresoli, Sr., 40 ECAB 305 (1988).

8

John R. Knox, 42 ECAB 193 (1990); Lee A. Holle, 7 ECAB 448 (1955).

3

ANALYSIS
Appellant attributed his emotional condition to the accepted work injuries. He has the
burden of proof to establish a causal connection through rationalized medical opinion evidence.
Dr. Belt stated that appellant’s current emotional problems were causally related to his
work accidents. Dr. Belt mischaracterized what happened on December 31, 2007, and he did not
identify the accepted medical conditions resulting from appellant’s accidents. OWCP had
accepted the December 31, 2007 accident for right knee and leg sprain and derangement of the
posterior horn of the right medial meniscus, for which appellant underwent a partial
meniscectomy. It also had accepted the December 11, 2008 accident for lumbar strain and a
contusion of the left forearm. Appellant reported far more than this history to Dr. Belt. He
complained of herniated discs in his lower back, pain resulting from the right knee surgery and
tinnitus, none of which are established in the record as accepted employment-related injuries.
Medical conclusions based on inaccurate or incomplete histories are of little probative value.9
To the extent that Dr. Belt based his conclusion on a history of excruciating lumbar disc
herniations, a consequential surgical injury or tinnitus, his opinion has diminished probative
value.
Also, as the hearing representative noted, Dr. Belt did not address the medical evidence
in the record indicating that appellant could work, that his presentation was overblown and
exaggerated with no evidence of ongoing right knee aggravation, and that he was much more
capable than he was leading his examining physician to believe. Again, this goes to the accuracy
of the history upon which Dr. Belt gave his opinion.
Dr. Belt’s opinion also lacks a discussion of causal relationship. He related the history
and complaints, his findings, his diagnosis, and stated there was a connection. Dr. Belt did not
discuss the nature of appellant’s diagnosis or try to explain from a psychological point of view
how a torn meniscus, a partial meniscectomy or a lumbar strain can cause a severe major
depressive disorder. Medical conclusions unsupported by rationale are of little probative value.10
It is not necessary that the evidence be so conclusive as to suggest causal connection beyond all
possible doubt. The evidence required is only that necessary to convince the adjudicator that the
conclusion drawn is rational, sound and logical.11 Dr. Belt offered little explanation of how he
arrived at his conclusion.
Dr. Belt’s opinion, while generally supportive of appellant’s claim, is of diminished
probative value and is insufficient to establish the critical element of causal relationship. The
Board finds that appellant has not met his burden of proof. The Board will affirm OWCP’s
December 21, 2010 decision.
9

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).
10

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

11

Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein).

4

Appellant’s representative argues that Dr. Belt’s opinion is evidence of causal
relationship, but as noted, Dr. Belt based his opinion on an inaccurate and incomplete history.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden to establish that his emotional
condition is causally related to his accepted employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the December 21, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 28, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 16-1195
Issued: January 4, 2017

Case Submitted on the Record

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

JURISDICTION
On May 17, 2016 appellant, through counsel, filed a timely appeal from an April 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.
ISSUE
The issue is whether OWCP properly denied modification of a February 28, 2006 loss of
wage-earning capacity determination.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as
presented in the prior appeal are incorporated herein by reference. The relevant facts are as
follows.
Appellant, then a 30-year-old mail carrier, filed a traumatic injury claim (Form CA-1)
alleging that he twisted his left knee in the performance of duty on October 4, 1993. OWCP
accepted his claim for left knee medial meniscus tear and a left knee femoral condyle, and patella
fracture with a loose body. Appellant received supplemental and periodic rolls compensation
benefits.
Appellant accepted a job offer as a modified clerk and began work on July 5, 1997. By
decision dated September 5, 1997, OWCP adjusted his compensation to reflect his wage-earning
capacity in the modified clerk position based on actual weekly wages of $428.68. On
November 12, 1997 it granted a schedule award for 15 percent loss of use of the left leg.
On April 9, 2002 appellant filed a claim for a recurrence of disability (Form CA-2a),
commencing April 10, 2000, due to the October 4, 1993 employment injury. He explained that
he was no longer working for the employing establishment because the modified clerk position
ended on April 1, 1998. Appellant asserted that he was not rehired and when the job became
available again in March 2001, he was unable to accept the position because he had just
undergone surgery and moved from Florida. According to appellant, he was currently
participating in a federal work-study program with the Department of Veterans Affairs. By
decision dated June 13, 2002, OWCP denied his claim for recurrence of disability commencing
in April 2000. Appellant filed a request for reconsideration. In a decision dated September 17,
2003, OWCP found his reconsideration request was untimely filed and failed to demonstrate
clear evidence of error.
Appellant appealed to the Board on November 19, 2003. On June 3, 2004 the Board
affirmed the September 17, 2003 OWCP decision. The Board found that the evidence from an
attending Board-certified orthopedic surgeon, Dr. Frank Phillips, was not relevant to demonstrate
clear evidence of error.4
Appellant underwent arthroscopic left knee surgery on April 22, 2003. The record
indicates that he began receiving compensation for wage loss on the periodic compensation rolls
as of April 20, 2003. Appellant continued to receive wage-loss compensation.
In a report dated September 3, 2004, Dr. Phillips indicated that appellant had reported
bilateral knee pain, but his left knee showed improvement from preoperative status. He reported
that it was unlikely appellant would be able to return to work requiring anything more than
sedentary duties.

3

Docket No. 04-0327 (issued June 3, 2004).

4

Id.

2

OWCP referred appellant for vocational rehabilitation services. In a report dated
May 25, 2005, a rehabilitation counselor indicated that the plan was for appellant to work as an
employment interviewer (Department of Labor, Dictionary of Occupational Titles No. 166.267010) or mortgage loan underwriter (DOT No. 186.267-026). A job classification for the
employment interviewer position indicated it was a sedentary position with occasional lifting of
10 pounds. On May 31, 2005 the rehabilitation counselor indicated that the position was
available in appellant’s area with entry-level wages of $583.20 per week.
In a letter of proposed reduction dated January 24, 2006, OWCP advised appellant that it
found he was capable of performing the duties of the selected position of employment
interviewer. It found that he was capable of earning $583.20 per week in the selected position,
which was greater than or equal to the current pay of his date-of injury position.
By decision dated February 28, 2006, OWCP reduced appellant’s compensation to zero.
It found he had no loss of wage-earning capacity based on his ability to work as an employment
interviewer. OWCP indicated that the termination of wage-loss compensation benefits would
take effect on March 19, 2006.
Appellant underwent left knee arthroscopic surgery on February 27, 2012. He filed a
claim for compensation (Form CA-7) commencing February 27, 2012. OWCP began paying
compensation for wage loss as of February 27, 2012.
In a report dated April 19, 2012, Dr. Phillips reported that the left knee surgery appeared
to be successful although appellant was still using a walker. He indicated that appellant could do
sedentary work with no squatting, kneeling, or bending, and he should be allowed to stand 15
minutes every 2 hours. In a report dated October 3, 2012, Dr. Phillips noted that he had been
asked to comment on whether appellant could continue to perform the functional requirements of
an employment interviewer. He reported that he had filled out a work tolerance form.5
OWCP prepared a statement of accepted facts (SOAF) dated December 20, 2012 and
referred appellant for a second opinion examination by Dr. William L. Lehman, Jr., a Boardcertified orthopedic surgeon. Dr. Lehman was asked whether appellant could perform the dateof-injury position, and if not, whether he could perform the functional requirements of the
employment interviewer position.
In a report dated January 14, 2013, Dr. Lehman provided a history and results on
examination. He opined that appellant could not work as a mail carrier, but it appeared the
position of employment interviewer “would be possible.” Dr. Lehman noted “the functional
requirements of this position have not specifically been provided for me,” but appellant had
reported performing similar activity in 1999 and 2000.6 He completed a work capacity

5

It is not clear from the record of evidence what work tolerance form Dr. Phillips was referring to in this regard.

6

Dr. Lehman reported the employment interviewer position “falls within the South Carolina Employment
Security Commission,” without further explanation. The record contains a copy of the DOT No. 166.267-010 job
classification for employment interviewer, but it is unclear whether Dr. Lehman reviewed the job classification.

3

evaluation form report with work restrictions. Dr. Lehman indicated that appellant could lift 10
pounds for one hour.
By decision dated August 19, 2013, OWCP terminated appellant’s wage-loss
compensation, effective August 25, 2013. It found that he was capable of “performing the
position for which [he was] previously rated in.”
In a letter dated October 20, 2014, OWCP advised appellant that it had “reinstated” the
February 28, 2006 loss of wage-earning capacity determination. Appellant was advised to
pursue appeal rights attached to that decision.
Appellant, through counsel, requested an oral hearing before an OWCP hearing
representative, which was held on June 12, 2015. By decision dated August 11, 2015, the
hearing representative affirmed the October 20, 2014 decision. He found that appellant had been
off work only from February 27, 2012 for “a brief, closed period following the surgery” and
therefore the February 28, 2006 loss of wage-earning capacity determination did not need to be
modified and remained in effect. OWCP found that appellant had not established that
modification of the 2006 loss of wage-earning capacity determination.
By letter dated January 26, 2016 and received by OWCP on February 3, 2016, appellant,
through counsel, requested reconsideration. He submitted additional medical evidence regarding
his continuing left knee condition.
In a decision dated April 25, 2016, OWCP reviewed the merits of appellant’s claim and
denied modification of the August 11, 2015 decision. It found that the evidence failed to
establish a worsening of his condition such that he would be totally disabled from performing the
duties of the constructed employment interviewer position.
LEGAL PRECEDENT
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
If a formal loss of wage-earning capacity 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, OWCP will need to evaluate the request according to the customary criteria for
modifying a formal loss of wage-earning capacity.8
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
7

See Sharon C. Clement, 55 ECAB 552 (2004).

8

Katherine T. Kreger, 55 ECAB 633 (2004); Federal (FECA) Procedure Manual, Part 2 -- Claims, Modifications
of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.4 (June 2013).

4

rehabilitated, or the original determination was, in fact, erroneous.9 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.10
The Board has held that OWCP may accept a limited period of disability without
modifying a standing wage-earning capacity determination.11 This occurs when there is a
demonstrated temporary worsening of a medical condition of insufficient duration and severity to
warrant modification of a wage-earning capacity determination.12 This narrow exception is only
applicable for brief periods of medical disability.13 OWCP procedures provide, “If the claimant
is off work for a brief period due to his/her temporary inability to perform the duties of the rated
position, this period of medical disability can be paid without modification of the loss of wageearning capacity determination, e.g., a brief recovery period after surgery or an injection with a
subsequent day of disability.”14
ANALYSIS
OWCP issued a loss of wage-earning capacity determination in this claim on
February 28, 2006. It found the selected position of employment interviewer represented
appellant’s wage-earning capacity. On February 27, 2012 appellant underwent left knee
arthroscopic surgery, and OWCP began paying compensation for total disability. OWCP
continued to pay compensation for total disability through August 24, 2013.
OWCP determined that appellant’s loss of wage-earning capacity determination need not
be modified as he was off work for a limited period of time and the medical evidence showed he
could continue to perform the selected position of employment interviewer. The Board finds that
the evidence of record, however, does not establish that this was a “brief period” of disability.
As noted, appellant received wage-loss compensation for approximately 18 months from
February 27, 2012.
OWCP did not properly develop the medical evidence on the issue. As noted above, if
the medical evidence shows a temporary worsening of a condition, and a resultant inability to
perform the duties of the constructed position, OWCP may deny modification of the loss of
wage-earning capacity determination. The evidence in this case, however, does not clearly
address whether there was a temporary worsening after the February 27, 2012 surgery, or
whether there was a material change in the nature and extent of the employment-related
condition.
9

Sue A. Sedgwick, 45 ECAB 211 (1993).

10

Id.

11

See Katherine T. Kreger, supra note 8.

12

See supra note 7.

13

K.H., Docket No. 08-2392 (issued April 21, 2009).

14

Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.1501.10 (June 2013). See also Calvin G. Wilson,
Docket No. 97-1029 (issued March 8, 1999) wherein the claimant’s brief period of total disability was noted to
encompass less than three weeks.

5

Appellant underwent left knee surgery on February 27, 2012 and there was no indication
at that time how long disability would last. The attending physician, Dr. Phillips reported on
April 19, 2012 that appellant was using a walker but could do some sedentary work. However,
he did not specifically address the constructed position. In an October 3, 2012 report,
Dr. Phillips indicated that he had been asked to comment on appellant’s ability to perform the
employment interviewer position. The record does not contain an opinion from Dr. Phillips that
specifically addressed appellant’s ability to work as an employment interviewer after the
February 27, 2012 surgery.
OWCP sent appellant for a second opinion examination with Dr. Lehman. One of the
issues presented to Dr. Lehman was whether appellant could perform the duties of an
employment interviewer. In his January 24, 2013 report, Dr. Lehman noted that he was not
provided with a job description that included the functional requirements of the employment
interviewer position. He speculated the position “would be possible,” but his report is of
diminished probative value.15 In view of Dr. Lehman’s assertion that appellant did not have the
functional requirements of the position, OWCP should have requested that he review the
available evidence and provide a clarifying opinion. The Board finds Dr. Lehman failed to
provide a rationalized medical opinion, based on a complete background, that resolves the
medical issues regarding modification of a loss of wage-earning capacity determination.
As OWCP had further developed the medical evidence, they should have properly
resolved the issues with respect to the wage-earning capacity determination. When it refers a
claimant for a second opinion evaluation and the report does not adequately address the relevant
issues, OWCP should secure an appropriate report on the relevant issues.16 OWCP requested
that Dr. Lehman provide an opinion as to whether appellant could work as an employment
interviewer, but his January 24, 2013 report did not resolve the issue presented.
The Board finds that OWCP did not properly deny modification of the loss of wageearning capacity determination in this case. The case will be remanded to OWCP for further
development. On return of the case record, OWCP should properly prepare a SOAF that
includes a detailed description of the employment interviewer position. It should secure a
rationalized medical opinion as to whether there was a temporary worsening after the
February 27, 2012 surgery, or whether there was a material change in appellant’s employmentrelated condition that prevented her from performing the employment interviewer position.
After such further development as is deemed necessary, OWCP shall issue a de novo decision on
the issue of modification of the loss of wage-earning capacity determination.
CONCLUSION
The Board finds the case is not in posture for decision and is remanded to OWCP for
additional development.
15

Medical opinions that are speculative and not supported by medical rationale are generally entitled to little
probative value. Carolyn F. Allen, 47 ECAB 240 (1995).
16

See Robert Kirby, 51 ECAB 474, 476 (2000); Mae Z. Hackett, 34 ECAB 1421 (1983); Richard W. Kinder, 32
ECAB 863 (1981).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 25, 2016 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: January 4, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.W., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Los Angeles, CA,
Employer
__________________________________________

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

Docket No. 07-2363
Issued: March 6, 2008

Case Submitted on the Record

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

JURISDICTION
On September 18, 2007 appellant timely appealed the August 21, 2007 merit decision of
the Office of Workers’ Compensation Programs, which denied her claim for recurrence of
disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the
merits of the claim.1
ISSUE
The issue is whether appellant sustained a recurrence of disability on May 16, 2007
causally related to her September 5, 2001 employment injury.

1

The record on appeal includes evidence received after the Office issued the August 21, 2007 decision. The
Board’s appellate review is limited to the evidence in the case record which was before the Office at the time of its
final decision. 20 C.F.R. § 10.501.2(c) (2007).

FACTUAL HISTORY
Appellant, a 52-year-old mail handler, injured her back at work on September 5, 2001.
The Office accepted her claim for lumbar strain and disc herniation at L4-5.2 Appellant resumed
work following her injury, but in a light-duty capacity.3 On August 11, 2006 the Office granted
her a schedule award for permanent impairment of both lower extremities due to her
September 5, 2001 back injury. Appellant sustained another employment-related injury on
September 17, 2006 when she slipped on a wet floor. The Office accepted this injury for a left
knee sprain file number 13-2159313. Appellant resumed her light-duty assignment following the
September 17, 2006 injury.4
On May 25, 2007 appellant filed a claim for recurrence of disability beginning
May 16, 2007. She stated that she had never fully recovered from her September 5, 2001 back
injury. Dr. Curtis W. Spencer III, a Board-certified orthopedic surgeon, examined appellant on
May 9, 2007. He reported that she was experiencing numbness and tingling in her right foot.
Dr. Spencer noted that recent x-rays revealed degenerative disc disease at L4-5 and L5-S1;
however, this condition had not accelerated since the x-rays obtained two years prior.
During a follow-up visit on May 16, 2007, Dr. Spencer noted that appellant was having
increased right leg pain. On physical examination there was positive straight leg raising signs
and numbness over the lateral aspect of the calf. Dr. Spencer believed that appellant had a flareup of her sciatica, which manifested itself with pain in the low back and right leg. He adjusted
appellant’s medication, ordered a repeat lumbar magnetic resonance imaging (MRI) scan and
placed appellant off work for two weeks. Dr. Spencer subsequently extended appellant’s period
of temporary total disability to June 11, 2007.
On June 5, 2007 the Office wrote to appellant advising her of the medical and factual
information necessary to support her claimed recurrence of disability. The Office afforded her
30 days to submit the required information.
The Office subsequently received June 7, 2007 treatment records from Dr. Spencer, who
advised that appellant was to remain off work until June 28, 2007. He reported continuing
problems with appellant’s knee, low back and sciatica. Dr. Spencer diagnosed lumbago, sciatica
and lumbar degenerative disc disease. He explained that appellant was not quite ready to return
to work and she still needed to obtain another lumbar MRI scan. Dr. Spencer anticipated
returning appellant to work on June 28, 2007. However, when he saw her that day, he reported
2

Appellant also has lumbar degenerative disc disease with spinal stenosis. The Office, however, has not accepted
this condition as employment related.
3

As of December 2005, appellant’s treating physician imposed restrictions that included no pushing, no pulling
and no lifting over 15 pounds. Additionally, appellant could tolerate sitting for 40 minutes at a time and standing for
20-minute intervals. On her May 25, 2007 claim form appellant identified her limitations as no bending and
squatting, no lifting over 15 pounds, no pushing, no pulling and no standing longer than 15 minutes.
4

The employing establishment described appellant’s rehabilitation assignment as processing waste mail. For
eight hours each day, she sat at a table and sorted through mail marked as waste. Appellant was responsible for
insuring that no First Class mail was mixed in with the waste mail.

2

that she remained disabled. Dr. Spencer advised that he would reevaluate appellant after she
obtained another MRI scan.
A June 29, 2007 lumbar MRI scan revealed asymmetric discogenic disease at L4-5, with
a disc protrusion and stenosis. There was also evidence of mild central canal compromise at
L3-4 due to a broad disc bulge.
By decision dated August 21, 2007, the Office denied appellant’s claim for recurrence of
disability.5
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.6 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to her work-related
injury or illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force) or when the physical requirements of such
an assignment are altered so that they exceed her established physical limitations.7 Moreover,
when the claimed recurrence of disability follows a return to light-duty work, the employee may
satisfy her burden of proof by showing a change in the nature and extent of the injury-related
condition such that she was no longer able to perform the light-duty assignment.8
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, she has the burden of establishing that the recurrence of disability is causally
related to the original injury.9 This burden includes the necessity of furnishing evidence from a
qualified physician who concludes, on the basis of a complete and accurate factual and medical
history, that the condition is causally related to the employment injury.10 The medical evidence
must demonstrate that the claimed recurrence was caused, precipitated, accelerated or aggravated
by the accepted injury.11

5

Appellant submitted an August 9, 2007 treatment note which was not reviewed by the Office in the August 21,
2007 decision. The Board may not review the report for the first time an appeal. See 20 C.F.R. § 501.2(c).
6

20 C.F.R. § 10.5(x).

7

Id.

8

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

9

20 C.F.R. § 10.104(b); Carmen Gould, 50 ECAB 504 (1999); Helen K. Holt, 50 ECAB 279, 382 (1999);
Robert H. St. Onge, 43 ECAB 1169 (1992).
10

See Helen K. Holt, supra note 9.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (June 1995).

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ANALYSIS
Appellant has not alleged that her claimed recurrence of disability was the result of a
change in the nature and extent of her light-duty assignment. There is no evidence that the
employing establishment either withdrew the light-duty assignment or otherwise altered her job
requirements prior to her May 16, 2007 work stoppage. Therefore, appellant must establish a
change in the nature and extent of her employment-related condition.12
Beginning May 9, 2007, Dr. Spencer reported increased symptoms affecting appellant’s
right lower extremity. When he saw her a week later, he believed that appellant’s low back and
right leg pain were indicative of a flare-up of her sciatica. Dr. Spencer placed appellant off work
for two weeks beginning May 16, 2007 and recommended obtaining a repeat lumbar MRI scan.
The June 29, 2007 MRI scan was reported as showing a disc protrusion and stenosis. None of
Dr. Spencer’s treatment records addressed how appellant’s current low back and right leg
complaints were related to the September 5, 2001 employment injury. Also absent from his
treatment records is any discussion of how or why appellant’s current condition precluded her
from performing her light-duty assignment processing waste mail. Furthermore, it is not clear
whether Dr. Spencer was familiar with the type of work appellant had been performing when he
took her off work beginning May 16, 2007. Without this pertinent information, Dr. Spencer’s
treatment records are of limited probative value. They are insufficient that appellant experienced
an employment-related recurrence of disability.
The medical evidence does not demonstrate a change in the nature and extent of
appellant’s injury-related condition such that she was no longer able to perform her light-duty
assignment beginning May 16, 2007. The Office, therefore, properly denied her recurrence
claim.
CONCLUSION
Appellant has not established that she sustained a recurrence of disability on May 16,
2007, causally related to her September 5, 2001 employment injury.

12

Theresa L. Andrews, supra note 8.

4

ORDER
IT IS HEREBY ORDERED THAT the August 21, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 6, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0422
Issued: March 16, 2022

Case Submitted on the Record

ORDER GRANTING REMAND
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On January 28, 2021 appellant filed a timely appeal from a December 16, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 By that decision, OWCP
denied his traumatic injury claim (Form CA-1) that he sustained COVID-19 on March 10, 2020
causally related to the accepted employment exposure. The Clerk of the Appellate Boards assigned
Docket No. 21-0422 to appellant’s appeal.2
On August 30, 2021, the Director of OWCP filed a motion to remand with the Clerk of the
Appellate Boards. The Director noted that OWCP has conceded that appellant is a covered
1

The Board notes that, following the December 16, 2020 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.
2

The Board notes that OWCP subsequently issued a March 22, 2021 decision, which vacated the December 16,
2020 merit decision. However, appellant had already filed the current appeal to the Board on January 28, 2021. OWCP
may not simultaneously have jurisdiction over the same issue. Consequently, the March 22, 2021 decision is set aside
as null and void. See 20 C.F.R. § 10.626; see also A.C., Docket No. 18-1730 (issued July 23, 2019); M.C., Docket
No. 18-1278, n.1 (issued March 7, 2019); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB
880 (1990).

employee under the American Rescue Plan Act of 2021 (ARPA) and that he is entitled to
appropriate benefits under FECA. The Director requested that the December 16, 2020 decision be
set aside. The Director further advised that, upon remand, OWCP wou ld reissue its decision on
appellant’s entitlement to FECA benefits for exposure to COVID-19 while in the performance of
her federal duties, and authorize the payment of appropriate benefits as claimed.
The Clerk of the Appellate Boards served appellant with a copy of the Director’s motion
to remand. No reply was received.
The Board, having duly considered this matter, grants the Director’s motion. On remand
OWCP shall reissue its decision on appellant’s entitlement to FECA benefits for exposure to
COVID-19 while in the performance of his federal duties, and authorize the payment of
appropriate FECA benefits as claimed by appellant.
IT IS HEREBY ORDERED THAT the motion to remand is granted. The decision of
OWCP dated December 16, 2020 is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 16, 2022
Washington, DC

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

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, SOUTH TROOST
STATION, Kansas City, MO, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1669
Issued: March 22, 2017

Case Submitted on the Record

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

JURISDICTION
On August 18, 2016 appellant, through counsel, filed a timely appeal from a March 14,
2016 merit decision and an August 10, 2016 nonmerit decision of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant met her burden of proof to establish more than
seven percent permanent impairment of the right arm and five percent permanent impairment of
the left arm, for which she previously received schedule awards; and (2) whether OWCP
properly denied appellant’s request for reconsideration of the merits of her claim, pursuant to 5
U.S.C. § 8128(a).
On appeal counsel generally asserts that OWCP improperly denied an additional schedule
award.
FACTUAL HISTORY
On December 13, 2011 appellant, then a 50-year-old city letter carrier, filed a traumatic
injury claim (Form CA-1), alleging that on September 20, 2011 she injured her right arm while
picking up a tub of flats. OWCP initially accepted sprain of the shoulder and upper arm,
supraspinatus, right, and later expanded the claim to include right upper extremity conditions of
sprain of superior glenoid labrum lesion, complete rotator cuff rupture, and ankyloses of
shoulder joint, and left upper extremity conditions of impingement syndrome and rotator cuff
sprain on the left.
Dr. John A. Gillen, II, a Board-certified orthopedic surgeon, performed right shoulder
operative procedures on March 22 and June 25, 2012, and procedures on the left on October 3,
2013, and January 21, 2014. Appellant received wage-loss compensation for surgical recovery
and for attendance at medical treatment appointments. She returned to modified duty on
October 3, 2014.
In a report dated June 18, 2014, Dr. Gillen advised that he began treating appellant in
February 2012. He described her treatment thereafter and advised that, in accordance with the
fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides),3 appellant had 48 percent right shoulder permanent
impairment and 29 percent left shoulder permanent impairment.
In September 2014 OWCP referred appellant to Dr. Kala Danushkodi, a Board-certified
physiatrist, for an impairment evaluation in accordance with the sixth edition of the A.M.A.,
Guides.4 In a September 30, 2014 report, Dr. Danushkodi advised that, under Table 15-5 of the
sixth edition, Shoulder Regional Grid, appellant had seven percent upper extremity permanent
impairment on the right, and five percent upper extremity permanent impairment on the left
based on the diagnosis-based impairment (DBI) methodology for diagnosis of full-thickness
rotator cuff tear. Dr. Daniel D. Zimmerman, a Board-certified orthopedic surgeon and an OWCP
medical adviser, concurred with Dr. Danushkodi’s impairment analysis.

3

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

4

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

2

By decision dated November 3, 2014, OWCP granted appellant a
seven percent permanent impairment of the right shoulder and five
impairment of the left shoulder. Appellant timely requested a hearing with
Hearings and Review.5 She retired on Office of Personnel Management
January 13, 2015.

schedule award for
percent permanent
OWCP’s Branch of
disability, effective

At the hearing, held before an OWCP hearing representative on June 17, 2015, appellant
described her employment and medical histories. Counsel maintained that appellant had
preexisting carpal tunnel syndrome that should have been considered in the impairment analysis
and that, at a minimum, a conflict in medical evidence had been created between the opinions of
Dr. Gillen and Dr. Danushkodi.
Following the hearing, appellant submitted a July 17, 2015 report in which Dr. Robert P.
Poetz, an osteopath, described her work and medical history, and complaints of neck and
bilateral, radiating shoulder pain. Upper extremity examination included decreased shoulder
range of motion (ROM) and positive Phalen’s and Tinel’s signs at the wrists bilaterally.
Dr. Poetz diagnosed right shoulder rotator cuff tear, subacromial impingement, anterior and
posterior glenoid labral tears, partial tear of the biceps tendon, subclavicular impingement, and
adhesive capsulitis; left shoulder rotator cuff tear, subacromial impingement, partial tears of
biceps tendon, mild glenohumeral osteoarthritis, and adhesive capsulitis; and bilateral carpal
tunnel syndrome. He evaluated impairment in accordance with the sixth edition of the A.M.A.,
Guides, noting that for decreased right and left shoulder ROM, under section 15.7g, appellant
had 23 percent impairment bilaterally which, after adding modifiers, yielded 24 percent
permanent impairment of each upper extremity under the ROM methodology. For the diagnosis
of carpal tunnel syndrome, Dr. Poetz utilized Table 15-3, wrist regional grid. He found that
appellant had one percent permanent impairment of each upper extremity due to carpal tunnel
syndrome. Dr. Poetz combined the bilateral 1 percent impairment for carpal tunnel syndrome
with the 24 percent for loss of shoulder motion, and concluded that appellant had 25 percent
permanent impairment of each upper extremity.
By decision dated August 11, 2015, an OWCP hearing representative remanded the case
to OWCP for referral of Dr. Poetz’s report to an OWCP medical adviser for review regarding
appellant’s bilateral upper extremity impairment, to be followed by a de novo decision.
Dr. Zimmerman, OWCP’s medical adviser, reviewed Dr. Poetz’s report on
September 7, 2015. He indicated that Dr. Poetz’s shoulder impairment ratings were not
acceptable because they were not in compliance with the requirements of the A.M.A., Guides.
The medical adviser further noted that, as carpal tunnel syndrome had not been accepted, it need
not be rated. He concluded that Dr. Poetz’s report provided no medically acceptable basis upon
which to revise appellant’s previous schedule award.
In a September 25, 2015 decision, OWCP found that appellant had not established
entitlement to permanent impairment greater than that previously received.

5

Thomas R. Uliase, Esq., began representing appellant in December 2014.

3

Appellant, through counsel, timely requested a hearing.
At the hearing on
February 8, 2016, counsel maintained that the September 7, 2015 report by Dr. Zimmerman was
insufficient because he had not applied the A.M.A., Guides to Dr. Poetz’s findings. He further
asserted that, as carpal tunnel syndrome was preexisting, it should have been considered.
By decision dated March 14, 2016, an OWCP hearing representative found that OWCP
properly accorded weight to the opinions of Dr. Danushkodi and Dr. Zimmerman and affirmed
the September 25, 2015 decision. He noted that the medical record did not establish preexisting
carpal tunnel syndrome.
On June 28, 2016 appellant, through counsel, requested reconsideration of the March 14,
2016 decision. He submitted a May 18, 2016 report in which Dr. Poetz asserted that he properly
interpreted the A.M.A., Guides in finding loss of bilateral upper extremity motion.
In a decision dated August 10, 2016, OWCP denied appellant’s request for
reconsideration of the merits.
LEGAL PRECEDENT -- ISSUE 1
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.6 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.7 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.8
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled, “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).9 The Board has approved the use by OWCP of the A.M.A.,
6

See 20 C.F.R. §§ 1.1-1.4.

7

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
8

5 U.S.C.

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

9

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

4

Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.10
ANALYSIS -- ISSUE 1
The issue on appeal is whether appellant met her burden of proof to establish that she has
more than seven percent permanent impairment of the right upper extremity and five percent
permanent impairment of the left upper extremity for which she previously received schedule
awards on November 3, 2014. The accepted right upper extremity conditions are, sprain of
shoulder and upper arm, supraspinatus, right, sprain of superior glenoid labrum lesion, complete
rotator cuff rupture, and ankyloses of shoulder joint. Accepted left upper extremity conditions
are impingement syndrome and rotator cuff sprain.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.11
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.12 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.13
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment.
In order to ensure consistent results and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the March 4, 2016 decision. Following
OWCP’s development of a consistent method for calculating permanent impairment for upper
extremities to be applied uniformly, and such other development as may be deemed necessary,

10

Isidoro Rivera, 12 ECAB 348 (1961).

11

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

12

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

13

Supra note 11.

5

OWCP shall issue a de novo decision on appellant’s claim for an additional right upper extremity
schedule award.
In light of the Board’s disposition regarding Issue 1, Issue 2 is rendered moot.
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 14, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: March 22, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6