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

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

Docket No. 07-2355
Issued: April 2, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 725, 2007 appellant filed an appeal from decisions of the Office of
Workers’ Compensation Programs dated March 23 and August 23, 2007. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant was not entitled
to reimbursement for chiropractic expenses; and (2) whether the Office met its burden of proof to
terminate appellant’s compensation benefits effective June 15, 2007.
FACTUAL HISTORY
On January 17, 2006 appellant, then a 38-year-old express mail clerk, filed a
Form CA-2a, recurrence of disability claim, alleging disability due to a March 1, 1999
employment injury on November 7, 2005 when he injured his back picking up express mail. He
stopped work that day and the employing establishment indicated that he had been working full
duty since July 15, 2002. The Office adjudicated the claim as a new traumatic injury with an

Office file number 022518586.1 On September 29, 2006 the Office accepted that appellant
sustained a lumbar sprain and a lumbar (lower back) syndrome. He received wage-loss
compensation beginning November 8, 2005.
In reports beginning September 19, 2005, Dr. Ilyce Maranga, a chiropractor, noted
treating appellant for radiating back pain caused by his employment injuries of March 1, 1999
and November 7, 2005. She noted examination findings, diagnosed lumbosacral derangement
with bilateral neuritis and provided restrictions to appellant’s physical activity. By report dated
January 17, 2007, Dr. Maranga noted physical findings of paraspinal tenderness and decreased
range of motion. She diagnosed subluxation at L1 on L2 and L2 on L3 confirmed by x-ray dated
July 5, 2006. The chiropractor advised that appellant was totally disabled for employment for
six to eight weeks. A lumbar spine and pelvis x-ray dated July 5, 2006 was read by Dr. Mark
Shapiro, a radiologist, as demonstrating moderate degenerative changes, most significant at L1,
2, 3 and mild scoliosis.
Dr. Scott T. Gray, an attending Board-certified orthopedic surgeon, submitted a report
dated January 5, 2006. He noted the history of injury, findings on examination and diagnosed
lower back syndrome, rule-out herniated disc. On December 21, 2006 he provided physical
restrictions of no bending, squatting, pushing, pulling or lifting and advised that appellant was
totally disabled due to chronic back pain. He recommended that appellant continue physical
therapy.
By decision dated March 23, 2007, the Office found that chiropractic services were not
authorized. Although, Dr. Maranga diagnosed subluxations by x-ray, she did not provide an
explanation of the connection between the subluxations and appellant’s November 7, 2005
employment injury.
On May 10, 2007 the Office referred appellant to Dr. Robert Israel, Board-certified in
orthopedic surgery, for a second opinion evaluation. In a June 15, 2007 report, he reviewed the
medical record, the history of injury, and appellant’s complaints of low back symptoms.
Examination of the lumbar spine demonstrated no spasms or tenderness over the paraspinal
musculature. Sitting Lasegue’s and sitting and supine straight leg raising tests were normal
bilaterally. Spinal range of motion was normal, and bilateral patella and deep tendon reflexes
were symmetric. Proprioception was normal with no sensory deficit on light touch and pinprick
and no radiation of pain, numbness or tingling. Muscle strength in both lower extremities was
5/5, and no atrophy was present. Dr. Israel concluded that appellant had no objective findings,
and his examination was entirely within normal limits. He diagnosed a resolved employmentrelated sprain of the lumbar spine and advised that appellant had no limitations and no further
need for orthopedic treatment. In an attached work capacity evaluation, Dr. Israel advised that
appellant had reached maximum medical improvement and could perform his usual job without
restrictions.
By letter dated July 3, 2007, the Office proposed to terminate appellant’s compensation
benefits on the grounds that Dr. Israel found that the accepted medical condition had resolved.
1

The March 1, 1999 injury was adjudicated under Office file number 020755083 and on March 23, 2007 the
claims were doubled.

2

In a decision dated November 8, 2006, the Office terminated appellant’s compensation
effective June 15, 2007.
LEGAL PRECEDENT -- ISSUE 1
Section 8103(a) of the Federal Employees’ Compensation Act2 states in pertinent part:
“The United States shall furnish to an employee who is injured while in the performance of duty,
the services, appliances, and supplies prescribed or recommended by a qualified physician,
which the Secretary of Labor considers likely to cure, give relief, reduce the degree or the period
of disability, or aid in lessening the amount of the monthly compensation.”3 In interpreting this
section 8103, the Board has recognized that the Office has broad discretion in approving services
provided under the Act. The only limitation on the Office’s authority is that of reasonableness.4
To be entitled to reimbursement of medical expenses, a claimant has the burden of
establishing that the expenditures were incurred for treatment of the effects of an employmentrelated injury or condition.5 Proof of causal relationship in a case such as this must include
supporting rationalized medical evidence.6
In assessing the probative value of chiropractic evidence, the initial question is whether
the chiropractor is considered a physician under section 8101(2) of the Act. A chiropractor is not
considered a physician under the Act unless it is established that there is a spinal subluxation as
demonstrated by x-ray to exist.7 Services rendered by chiropractors are generally not
reimbursable by the Office except to the extent that their reimbursable services are limited to
treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist.8
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.9 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a 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
2

5 U.S.C. §§ 8101-8193.

3

5 U.S.C. § 8103; see Sean O’Connell, 56 ECAB 195 (2004).

4

D.C., 58 ECAB ___ (Docket No. 06-2161, issued July 13, 2007).

5

T.F., 58 ECAB ___ (Docket No. 06-1186, issued October 19, 2006).

6

Cathy B. Millin, 51 ECAB 331 (2000).

7

5 U.S.C. § 8102(2); see Mary A. Ceglia, 55 ECAB 626 (2004).

8

Sean O’Connell, supra note 3.

9

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

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condition and the specific employment factors identified by the claimant.10 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.11
ANALYSIS -- ISSUE 1
Appellant sustained injury on November 7, 2005, accepted by the Office for a lumbar
sprain and lower back syndrome. He submitted reports beginning September 19, 2005 from
Dr. Maranga, an attending chiropractor. In a January 17, 2007 report, Dr. Maranga diagnosed
subluxation at L1 on L2 and L2 on L3 confirmed by x-ray films dated July 5, 2006. Based on
her x-ray diagnosis, she meets the statutory definition of a physician under the Act,12 and
therefore her reports constitute medical evidence.13 However, Dr. Maranga did not provide an
opinion as to the cause of the diagnosed spinal subluxation.
The mere fact that a condition manifests itself during a period of employment or the
claimant’s belief that the condition was caused or aggravated by employment conditions is
insufficient to establish a causal relationship.14 Dr. Maranga provided no opinion that
appellant’s diagnosed spinal subluxations were due to the November 7, 2005 injury. Medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.15 Appellant did not submit a reasoned
medical opinion explaining how the diagnosed spinal subluxations were caused by his
employment. He has not established that he is entitled to reimbursement for chiropractic care.16
LEGAL PRECEDENT -- ISSUE 2
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. The Office may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.17 The Office’s burden of proof in terminating compensation includes the necessity

10

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

11

Dennis M. Mascarenas, 49 ECAB 215 (1997).

12

A chiropractor may interpret his or her x-rays to the same extent as any other physician. The Office will not
necessarily require the submittal of the x-ray or x-ray report, but it must be made available for submittal on request.
20 C.F.R. § 10.311(c).
13

Id.

14

Dennis M. Mascarenas, supra note 11.

15

Willie M. Miller, 53 ECAB 697 (2002).

16

T.F., supra note 5.

17

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

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of furnishing rationalized medical opinion evidence based on a proper factual and medical
background.18
ANALYSIS -- ISSUE 2
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits effective June 15, 2007. The accepted conditions in this case are lumbar
sprain and lower back syndrome. In a December 21, 2006 report, Dr. Grant provided restrictions
to appellant’s physical activity and advised that he was totally disabled due to chronic back pain.
However, he did not provide a rationalized explanation as to how appellant’s disability was due
to the accepted lumbar injuries. In a January 17, 2007 report, Dr. Maranga also advised that
appellant was totally disabled, but she too provided no rationale for her conclusion.
The weight of the medical evidence rests with the opinion of Dr. Israel who performed a
second opinion evaluation for the Office. In a June 15, 2007 report, Dr. Israel noted his review
of the medical record, the history of injury, and provided findings on physical examination. He
noted no spasms or tenderness over the lumbar spine, negative straight leg raising, normal range
of motion and no atrophy. Dr. Israel advised that the examination was entirely within normal
limits. He diagnosed an employment-related sprain of the lumbar spine that had resolved and
advised that appellant had no limitations, no further need for orthopedic treatment, and that he
could perform his usual job without any physical restrictions.
Whether a particular injury causes an employee to be disabled for work and the duration
of that disability, are medical issues that must be proved by a preponderance of the reliable,
probative and substantial medical evidence.19 In assessing medical evidence, the number of
physicians supporting one position or another is not controlling; the weight of such evidence is
determined by its reliability, its probative value and its convincing quality. The factors that
comprise the evaluation of medical evidence include the opportunity for and the thoroughness of
physical examination, the accuracy and completeness of the physician’s knowledge of the facts
and medical history, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.20 Neither Dr. Grant nor Dr. Maranga specifically addressed
the cause of their diagnosed conditions or related the conditions to appellant’s employment
injuries or provided adequate explanation as to why appellant remained totally disabled. Their
reports are of diminished probative value.21 The Office met its burden of proof in terminating
appellant’s compensation benefits based on the medical opinion of Dr. Israel.22

18

Id.

19

Tammy L. Medley, 55 ECAB 183 (2003).

20

Nicolette R. Kelstrom, 54 ECAB 570 (2003).

21

Robert Broome, 55 ECAB 389 (2003).

22

Jaja K. Asaramo, supra note 17.

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CONCLUSION
The Board finds that appellant is not entitled to reimbursement for chiropractic treatment.
The Office met its burden of proof to terminate appellant’s compensation benefits effective
June 15, 2007.23
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 23 and March 23, 2007 are affirmed.
Issued: April 2, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

23

The Board notes that appellant submitted evidence to the Office, found in Office file number 020755083,
subsequent to the August 23, 2007 decision, and with his appeal to the Board. The Board cannot consider this
evidence, however, as its review of the case is limited to the evidence of record which was before the Office at the
time of its final decision. 20 C.F.R. § 501.2(c). Appellant retains the right to request reconsideration with the
Office.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 09-2142
Issued: June 3, 2010

Case Submitted on the Record

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

JURISDICTION
On August 20, 2009 appellant filed a timely appeal from an April 30, 2009 merit decision
of the Office of Workers’ Compensation Programs concerning a schedule award. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant established that she has any permanent impairment
causally related to her accepted bilateral carpal tunnel or bilateral trigger finger conditions.
FACTUAL HISTORY
On December 9, 2004 appellant, then a 54-year-old general clerk, filed an occupational
disease claim for bilateral carpal tunnel syndrome due to repetitive job duties. The Office
assigned file number xxxxxx127 and accepted the claim for bilateral aggravation of carpal tunnel
syndrome. It paid compensation and authorized left-side carpal tunnel surgery in March 2006
and right-side carpal tunnel surgery in July 2006 performed by Dr. James Plettner, a Boardcertified hand surgeon.
Appellant returned to regular full-time duty work on

December 28, 2007. She later claimed a bilateral trigger finger condition for which she
underwent a right trigger thumb release on July 3, 2007 and left middle finger trigger release on
November 20, 2007. These surgeries were also performed by Dr. Plettner. Under file number
xxxxxx589, the Office accepted bilateral trigger finger conditions and combined the two claims
under file number xxxxxx127.
On January 30, 2008 Dr. Plettner noted appellant’s complaints of soreness and discomfort
over the wrists with increased activities. On examination, he could not find any objective
findings of pathology over either hand. Dr. Plettner advised appellant that there was nothing
further he could do regarding her carpal tunnel and trigger finger releases. He recommended
over-the-counter anti-inflammatory medication and that she be seen on an as needed basis.
On September 2, 2008 appellant filed a schedule award claim. On September 8, 2008 the
Office requested that Dr. Plettner provide a report addressing any permanent impairment under
the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment. Dr. Plettner did not respond and on September 25, 2008 it authorized appellant to
obtain an impairment evaluation from Dr. Mohab Foad, a Board-certified hand surgeon, who had
also previously treated her. Dr. Foad did not respond.1
On December 18, 2008 the Office referred appellant with a statement of accepted facts to
Dr. E. Gregory Fisher, a Board-certified orthopedic surgeon, for an impairment evaluation based
on the A.M.A., Guides (5th ed. 2001). In a January 8, 2009 report, Dr. Fisher provided a detailed
summary of appellant’s work injuries and treatment. He reviewed the statement of accepted
facts and medical evidence. On examination, Dr. Fisher found appellant had full range of motion
of the elbows, forearms and wrists bilaterally with some soreness and discomfort over the wrists
bilaterally more on the right side. Range of motion of each wrist revealed flexion of 65 degrees,
extension of 60 degrees, radial deviation of 25 degrees and ulnar deviation of 30 degrees
bilaterally. Dr. Fisher indicated that there was some mild soreness over each wrist on the dorsal
side and volar aspect on flexion and extension with some referred pain going up the arm. He
noted there was no soft tissue swelling, thickening or pitting edema and the healed scars were not
tender or painful. There was no thenar or hypothenar atrophy over either hand and intrinsic
muscles were intact. Dr. Fisher found full flexion and extension of all the finger joints as well as
the thumbs of each hand with no evidence of any triggering or locking effect of the fingers on
either hand. While he noted some soreness over the volar aspect at the base of the right long
finger, there was no thickening of the tendon sheath or discomfort noted on palpation of the
remaining flexor tendons. The Tinel’s and Phalen’s signs were bilaterally negative as was the
compression testing over the nerves. Appellant was noted to have normal flexion of the hands
and fingers as well as normal pinch strength testing.
Dr. Fisher advised that appellant had subjective findings of intermittent aches and pains
over the wrists with referred pain up to the elbows noted on increased activity. Under the criteria
found in Table 16-29 of the A.M.A., Guides, he found that appellant had no digit impairment as
she had full range of motion of all fingers and thumbs without any triggering effect. For bilateral
carpal tunnel syndrome, Dr. Fisher found no muscle atrophy, muscle loss or weakness, the
1

In a prior July 22, 2008 report, Dr. Foad declined to address whether appellant had permanent impairment.

2

sensation over the median nerve distribution was intact to light touch, the Tinel’s sign, Phalen’s
tests were all negative bilaterally. Under Table 16-10 and 16-11, he found that appellant was
classified as Grade 5 deficit for sensory and motor loss in the median nerve distribution which
resulted in no impairment to the upper extremities. Dr. Fisher advised under page 494 of the
A.M.A., Guides, hand grip was not used for neuropathy. Under Figure 16-28 and 16-31 of the
A.M.A., Guides, he found that appellant would have no impairment for loss of range of motion
of the upper extremity as her wrist range of motion was full bilaterally in all planes. Dr. Fisher
concluded that appellant had no impairment for the accepted conditions of bilateral carpal tunnel
syndrome and bilateral trigger finger.
In a January 28, 2009 report, an Office medical adviser reviewed appellant’s medical
record. He opined that appellant reached maximum medical improvement on December 28,
2007, the date she returned to work full duty. Based on Dr. Fisher’s findings on examination and
the A.M.A., Guides, the Office medical adviser agreed that appellant had no impairment of either
her right or left upper extremity due to her accepted conditions.
In an April 30, 2009 decision, the Office denied appellant’s claim for a schedule award
finding the medical evidence did not establish she sustained any permanent impairment due to
her accepted conditions.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation to be paid for
permanent loss, or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.4 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.5 A
claimant may seek an increased schedule award if the evidence establishes that she sustained an
increased impairment at a latter date causally related to her employment injury.6
Not all medical conditions accepted by the Office result in permanent impairment to a
scheduled member.7 It is the claimant’s burden to establish that he or she sustained a permanent
impairment of a scheduled member or function as a result of an employment injury.8 Office
2

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

3

20 C.F.R. § 10.404.

4

5 U.S.C. § 8107(c)(19).

5

Supra note 3.

6

Linda T. Brown, 51 ECAB 115 (1999).

7

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

8

Tammy L. Meehan, 53 ECAB 229 (2001).

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procedures provide that, to support a schedule award, the file must contain competent medical
evidence which shows that the impairment has reached a permanent and fixed state and indicates
the date on which this occurred (date of maximum medical improvement), describes the
impairment in sufficient detail to include, where applicable, the loss in degrees of active and
passive motion of the affected member or function, the amount of any atrophy or deformity,
decreases in strength or disturbance of sensation or other pertinent description of the impairment
and the percentage of impairment should be computed in accordance with the A.M.A., Guides.9
ANALYSIS
The Office accepted that appellant sustained bilateral carpal tunnel and bilateral trigger
finger conditions and authorized surgical repair for each condition. Appellant subsequently
claimed a schedule award due to these accepted conditions. The Board finds that the medical
evidence of record is insufficient to establish that her accepted conditions caused any permanent
impairment to her upper extremities under the A.M.A., Guides.
The Office referred appellant to Dr. Fisher for a second opinion evaluation. In a
January 8, 2009 report, Dr. Fisher properly determined that appellant had no ratable impairment
for her accepted bilateral trigger fingers under Table 16-29, page 507 of the A.M.A, Guides. He
found had a full range of motion of all finger and thumb joints without any triggering effect. For
bilateral carpal tunnel syndrome, Dr. Fisher also determined appellant had no ratable impairment
under the A.MA., Guides. Under Tables 16-10 and 16-11, page 482 and 484 of the A.M.A,
Guides, he classified that appellant was Grade 5 or zero percent for sensory and motor deficit of
the median nerve distribution.10 There was not evidence of muscle atrophy, muscle loss or
weakness, intact light sensation over the median nerve distribution, and negative Tinel’s sign,
Phalen’s test and compression test bilaterally. Dr. Fisher found no basis to rate sensory or motor
deficit of the median nerve. Under Figure 16-28, page 467 and Figure 16-31, page 469 of the
A.M.A., Guides, he advised that appellant had no impairment based on loss of range of motion
of the upper extremities. Appellant demonstrated full range of motion of the wrists bilaterally in
all planes. The Board finds that Dr. Fisher conducted a thorough examination of appellant’s
upper extremities and found no basis on which to note permanent impairment to her arms under
the A.M.A., Guides. An Office medical adviser reviewed the medical evidence of record and
concurred with Dr. Fisher’s opinion.
The Office requested that Dr. Plettner, appellant’s treating physician, provide a report
addressing any permanent impairment. Dr. Plettner did not respond to the Office’s request. The
Office also authorized appellant to obtain an impairment evaluation from Dr. Foad, but he did

9

J.P., 60 ECAB ___ (Docket No. 08-832, issued November 13, 2008); see also Federal (FECA) Procedure
Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6 (August 2002).
10

Under Table 16-15 page 492, maximum percent upper extremity impairment for median nerve distribution
below midforearm is 39 percent for sensory deficit and 10 percent for motor deficit. However, with a Grade 5 or
zero percent deficit under Tables 16-10 (sensory impairment) and 16-11 (motor deficit), this yields no sensory or
motor impairment as the procedure in Tables 16-10 and 16-11 provide for multiplying the zero percent deficit by the
maximum impairment allowed for the nerve. Zero multiplied by thirty-nine and zero multiplied by ten both yield
zero.

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not respond. There is no medical evidence from these physicians on which an impairment rating
may be based.
The medical evidence of record does not establish impairment of a scheduled member,
attributable to appellant’s accepted bilateral carpal tunnel and bilateral trigger finger conditions.
For these reasons, the Office denied her claim for a schedule award.
CONCLUSION
The Board finds that appellant failed to establish that she sustained any permanent
impairment of her upper extremities causally related to her accepted bilateral carpal tunnel and
bilateral trigger finger conditions.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 30, 2009 is affirmed.
Issued: June 3, 2010
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
DEPARTMENT OF THE ARMY,
UNITED STATES MILITARY ACADEMY,
West Point, NY, Employer
__________________________________________

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

Docket No. 21-0134
Issued: January 28, 2022

Case Submitted on the Record

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

JURISDICTION
On November 2, 2020 appellant filed a timely appeal from an October 20, 2020 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 his burden of proof to establish greater than four
percent permanent impairment of the right middle finger, for which he previously received a
schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 18, 2010 appellant, then a 58-year-old maintenance mechanic, filed a traumatic
injury claim (Form CA-1) alleging that on that date he fractured his right middle finger when a
three-inch steel pipe that he was loading onto a rack at work slipped and fell on to his right hand.
He stopped work on the date of injury, returned to full-time, limited-duty work on March 24, 2010,
and was released to full-time, full-duty work on May 13, 2010. On April 27, 2010 OWCP
accepted appellant’s claim for comminuted fracture of the third distal phalanx.
On March 15, 2011 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
OWCP, in an August 8, 2011 development letter, requested that appellant submit a medical
report from his attending physician, which addressed whether he had reached maximum medical
improvement (MMI) and, if so, to evaluate permanent impairment in accordance with the standards
of the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).2 It afforded him 30 days to submit the requested information. No
additional evidence was received.
By decision dated February 6, 2012, OWCP denied appellant’s schedule award claim,
finding that he had not established permanent impairment of a scheduled member or function of
the body in accordance with the A.M.A., Guides. It noted that he had not submitted medical
evidence in response to its August 8, 2011 development letter.
On February 27, 2012 appellant requested reconsideration.
By decision dated March 6, 2012, OWCP denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
OWCP thereafter received medical evidence, including reports dated November 26, 2012
through February 4, 2014, by Dr. Surinder P. Jindal, an attending Board-certified neurologist, who
addressed appellant’s right middle finger and right hand conditions.
By decision dated March 4, 2014, OWCP again denied appellant’s schedule award claim,
finding that the medical evidence of record was insufficient to establish permanent impairment of
a scheduled member or function of the body as a result of his accepted March 18, 2010
employment injury. It noted that Dr. Jindal had failed to provide a permanent impairment rating
based on the sixth edition of the A.M.A., Guides.
On April 28, 2014 appellant requested reconsideration.
By decision dated May 7, 2014 decision, OWCP denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

2

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

2

On August 23, 2016 appellant resubmitted a copy of his March 15, 2011 Form CA-7 claim.
In response, OWCP, by development letter dated September 2, 2016, again advised appellant of
the type of medical evidence needed to establish his schedule award claim. It afforded him 30
days to submit the requested evidence.
OWCP received an additional report dated by Dr. Jindal who continued to note appellant’s
right middle finger and hand conditions.
In an October 5, 2016 decision, OWCP continued to deny appellant’s schedule award claim
as the medical evidence of record failed to provide a permanent impairment rating based on the
A.M.A., Guides.
On October 17, 2016 and February 6, 2017 appellant again requested reconsideration.
By decisions dated January 13 and February 24, 2017, OWCP denied appellant’s requests
for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
OWCP subsequently received an additional report dated July 5, 2019 by Dr. Jindal.
Dr. Jindal noted that he examined appellant on June 5, 2019. He diagnosed displaced fracture of
the right middle finger distal phalanx. Dr. Jindal used the range of motion (ROM) rating method
found in the sixth edition of the A.M.A., Guides and determined that appellant had two percent
permanent impairment of his right middle finger. He also determined that appellant had 20 percent
“regional impairment” due to loss of use of his right hand due to his right middle finger fracture
of the distal phalanx.
On November 19, 2019 Dr. Morley Slutsky, a Board-certified occupational medicine
physician, serving as a district medical adviser (DMA), reviewed a statement of accepted facts
(SOAF) and the medical record, including Dr. Jindal’s July 5, 2019 findings and
electromyogram/nerve conduction velocity (EMG/NCV) studies of the right wrist which were
performed on June 23, 2017. He determined that appellant had three percent permanent
impairment of his right upper extremity under the sixth edition of the A.M.A., Guides. Utilizing
the diagnosis-based impairment (DBI) rating method, the DMA determined that the most
impairing diagnosis for appellant’s right middle finger was fracture of the distal phalanx, which
was a class of diagnosis (CDX) of 1 with a default value of C or six percent permanent impairment.
He noted that Dr. Jindal found two percent permanent impairment of the right middle finger due
to loss of ROM and 20 percent permanent impairment of the right upper extremity despite the
absence of documented valid ROM measurements and calculations in support of his impairment
ratings. The DMA advised that digit impairment was the correct level of impairment as only one
digit was involved and this did not extend into the hand. He related that he did not have a copy of
Dr. Jindal’s June 5, 2019 clinical note in which he used his examination findings of appellant’s
right middle finger to rate permanent impairment of the finger. The DMA requested to review
Dr. Jindal’s June 5, 2019 report. He applied Table 15-2 to determine that appellant had six percent
impairment of the middle finger. The DMA then determined, based on Table 15-12, that the six
percent right middle finger impairment rating converted into one percent permanent impairment
of the right upper extremity. The DMA assigned a grade modifier for functional history (GMFH)
of 1 under Table 15-7 on page 406 because appellant was still symptomatic. He assigned a grade
modifier for physical examination (GMPE) of 1 under Table 15 -8 on page 408 based on his

3

examination findings. The DMA indicated that a grade modifier for clinical studies (GMCS) was
not applicable as clinical studies were used to establish the diagnosis. Using the net adjustment
formula (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), he calculated that appellant had a net
adjustment of (1-1) + (1-1) + (1-1) = 0, which resulted in a grade C or one percent permanent
impairment of the right middle finger. The DMA also provided an impairment rating for
appellant’s preexisting nonwork-related right carpal tunnel syndrome (CTS), explaining that the
preexisting condition affected his right upper extremity permanent impairment. He determined
that he had two percent permanent impairment of his right upper extremity due to CTS. The DMA
referred to Table 15-23 (Entrapment/Compression Neuropathy Impairment) on page 449, and
assigned a grade modifier 1 for GMFH, GMPE, and GMCS. He averaged the grade modifiers to
find a default value of two percent. The DMA noted that a QuickDASH score was not performed
as appellant had mild findings and, thus, had a mild functional score. He concluded that appellant
had two percent permanent impairment of his right upper extremity. The DMA utilized the
Combined Values Chart on page 604 to combine the one percent impairment rating for a fractured
right middle finger and two percent impairment rating for CTS and concluded that appellant had
three percent permanent impairment of his right upper extremity. He advised that appellant had
reached MMI on July 5, 2019, the date of Dr. Jindal’s impairment evaluation.
OWCP, in a December 10, 2019 letter, requested that Dr. Jindal review Dr. Slutsky’s
findings and provide an addendum report.
In reports dated December 16, 2019, February 27, and March 26, 2020, Dr. Jindal
discussed examination findings and provided clinical impressions of neuropathic myofascial pain,
paresthesia, and fracture of distal phalanx of right middle ﬁnger.
On May 8, 2020 DMA Dr. Slutsky reviewed Dr. Jindal’s June 5, 2019 and February 27
and March 26, 2020 reports and noted that there was no significant change in the clinical findings
in these three evaluations. He determined that, based on the DBI method, appellant’s right middle
finger fracture of the distal phalanx was a CDX of 1 with a default value of C or four percent
permanent impairment. The DMA noted that this was a change from his prior finding of six
percent permanent impairment because he had accidently read the wrong column in Table 15-2 on
page 393 for appellant’s diagnosis. Using Table 15-12 on page 421, he converted the four percent
right middle finger impairment to one percent impairment of the right upper extremity. The DMA
reiterated why Dr. Jindal’s two percent right middle finger permanent impairment rating due to
loss of ROM and 20 percent permanent impairment of the right upper extremity were not
acceptable under the A.M.A., Guides. He reiterated his prior calculations based on a diagnosis of
preexisting nonwork-related right CTS and concluded that appellant had two percent right upper
extremity permanent impairment. The DMA again used the Combined Values Chart on page 604
to combine the one percent right middle finger impairment rating and two percent impairment
rating for CTS and concluded that appellant had three percent permanent impairment of his right
upper extremity. He determined that appellant reached MMI on June 5, 2019, the date of
Dr. Jindal’s impairment evaluation.
By decision dated October 20, 2020, OWCP granted appellant a schedule award for four
percent permanent impairment of the right middle finger. The award ran for one week from June 5
through 11, 2019 and was based on the May 8, 2020 impairment rating of DMA Dr. Slutsky.

4

LEGAL PRECEDENT
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury.3
The schedule award provisions of FECA 4 and its implementing regulations 5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses. 6 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).7 The Board has approved the use
by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.9 Under the sixth edition, the evaluator
identifies the CDX, which is then adjusted by grade modifiers of GMFH, GMPE, and GMCS. 10
The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).11
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
3

See T.H., Docket No. 19-1066 (issued January 29, 2020); D.F., Docket No. 18-1337 (issued February 11, 2019);
Tammy L. Meehan, 53 ECAB 229 (2001).
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5.a (March 2017).
8

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

9

Supra note 2 at page 3, section 1.3(a).

10

Id. at 494-531.

11

Id. at 411.

5

determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used. (Emphasis in the original.)
“If the rating physician provided an assessment using the DBI method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the [claims examiner] CE.
“If the medical evidence of record is not sufficient for the DMA to render a rating
on ROM where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DMA method, if possible, given the available
evidence.”12
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with OWCP’s DMA providing rationale
for the percentage of impairment specified.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish greater than four
percent permanent impairment of the right middle finger for which he previously received a
schedule award.
In support of his schedule award claim, appellant submitted a July 5, 2019 report from
Dr. Jindal who noted that he examined appellant on June 5, 2019 and found two percent permanent
impairment due to a diagnosis of displaced fracture of the right middle finger distal phalanx under
the ROM methodology set forth in the sixth edition of the A.M.A., Guides and 20 percent
permanent impairment of the right upper extremity due to loss of use of his right hand.
OWCP properly routed Dr. Jindal’s report to its DMA, Dr. Slutsky.14 In a November 19,
2019 report, he utilized the DBI rating method and found that the most impairing diagnosis for
12

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

13

See supra note 7 at Chapter 2.808.6(f) (March 2017); see D.J., Docket No. 19-0352 (issued July 24, 2020).

14

Id.

6

appellant’s right middle finger was fracture of the distal phalanx, which was a CDX of 1 with a
default value of C or six percent permanent impairment. Utilizing Table 15-12 on page 421 (39194), the DMA converted the six percent right middle finger impairment rating into one percent
permanent impairment of the right upper extremity. He assigned grade modifiers and applied the
net adjustment formula and found a net adjustment of zero, resulting in no movement from the
default value of C and corresponding to a one percent right middle finger permanent impairment.
The DMA explained that Dr. Jindal’s two percent ROM impairment rating for the right middle
finger and 20 percent impairment for the right upper extremity were improper as he failed to
document valid ROM measurements and provide calculations and rationale to support his
impairment ratings. He noted that digit impairment was the correct level of impairment as only
one digit was involved and this did not extend into the hand. The DMA requested to review
Dr. Jindal’s June 5, 2019 clinical note. He also found that appellant had two percent permanent
impairment of his right upper extremity due to his preexisting nonwork-related CTS demonstrated
on the June 23, 2017 EMG/NCV study. The DMA explained that he rated this condition because
it affected his right upper extremity permanent impairment. He assigned grade modifiers and
applied the net adjustment formula and found a net adjustment of zero, resulting in no movement
from the default value of C and corresponding to two percent permanent impairment due to right
CTS. The DMA referred to the Combined Values Chart on page 604 and determined that appellant
had a combined three percent permanent impairment of his right upper extremity.
In a May 8, 2020 supplemental report, the DMA reviewed additional reports by Dr. Jindal,
including his missing June 5, 2019 report, and found no significant change in Dr. Jindal’s clinical
findings. He again utilized the DBI method under Table 15-2 on page 393, and determined that
appellant’s right middle finger fracture of the distal phalanx was a CDX of 1 with a default value
of C or four percent permanent impairment of the right middle finger. The DMA related that his
four percent impairment rating differed from his prior six percent right middle finger impairment
rating because he had accidently read the wrong column in Table 15-2 for appellant’s diagnosis.
The Board finds that the DMA’s opinion constitutes the weight of the medical evidence
with respect to the permanent impairment of appellant’s right middle finger because he properly
applied the appropriate standards of the A.M.A., Guides.15 Thus, appellant has not met his burden
of proof.
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 permanent impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish greater than four
percent permanent impairment of the right middle finger for which he previously received a
schedule award.

15

See O.F., Docket No. 19-0986 (issued February 12, 2020); M.C., Docket No. 15-1757 (issued March 17, 2016)
(the DMA’s opinion constituted the weight of the medical evidence as his report was the only one of record that
demonstrated a proper application of the A.M.A., Guides).

7

ORDER
IT IS HEREBY ORDERED THAT the October 20, 2020 decision of the Off ice of
Workers’ Compensation Programs is affirmed.
Issued: January 28, 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

8


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

)
)
)
)
)
)
)
)

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

Docket No. 16-0058
Issued: February 5, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 13, 2015 appellant filed a timely appeal from a July 28, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation effective
July 26, 2015 for failure to submit a Form EN1032, as requested.
On appeal appellant asks that the Board reconsider its previous decisions issued
December 2, 2010, Docket Nos. 10-419 and 10-1526. She particularly requests that the Board
review her pay rate for compensation purposes.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a decision dated April 20, 1998, the
Board set aside a September 11, 1995 OWCP decision with respect to appellant’s pay rate for
compensation purposes.2 By decision dated May 6, 1998, the Board determined that an OWCP
decision regarding an overpayment of compensation was not in posture for decision until the
issue of appellant’s pay rate had been resolved.3 In a February 20, 2001 decision, the Board
found that OWCP properly determined appellant’s pay rate for compensation purposes as the pay
rate on the date of injury, March 20, 1985. The Board further found that appellant was not
entitled to waiver of recovery of an overpayment of compensation in the amount of $1,206.22
and that OWCP had properly denied appellant’s request for merit review.4 By decision dated
June 18, 2003, the Board found that appellant did not have more than 20 percent permanent
impairment of her right upper extremity.5 In a May 15, 2006 decision, the Board found that
OWCP properly computed appellant’s retroactive compensation and that OWCP had properly
refused to reopen appellant’s case for further consideration of the merits of her claim pursuant to
5 U.S.C. § 8128(a).6
By decision dated December 2, 2010, the Board found that OWCP properly denied
appellant’s request for reconsideration under 5 U.S.C. § 8128(a) because it was untimely filed
and failed to demonstrate clear evidence of error, and affirmed a May 7, 2009 OWCP decision.7
In a second December 2, 2010 decision, the Board affirmed a January 14, 2010 OWCP decision
and found that OWCP had properly reduced appellant’s compensation under section 8113(b) of
FECA for failing, without good cause, to cooperate with vocational rehabilitation.8 In an order
dated February 10, 2012, the Board dismissed appellant’s petition for reconsideration of its
December 2, 2010 decisions as it was untimely. In a September 17, 2012 decision, the Board
found that appellant had failed to meet her burden of proof to establish more than 20 percent
impairment of the right arm, for which she had received schedule awards.9 The facts and
circumstances following the previous Board decisions and orders are incorporated herein by
reference.
Appellant, who is now 64 years old, was employed as a distribution clerk and filed a
claim for a March 20, 1985 right shoulder injury that occurred while she was throwing mail.
OWCP accepted the claim for strain, chronic tendinitis, acromioclavicular arthrosis, arthritis,
2

Docket No. 96-460 (issued April 20, 1998).

3

Docket No. 97-776 (issued May 6, 1998).

4

Docket No. 99-2221 (issued February 20, 2001), petition for recon. denied (issued July 31, 2001).

5

Docket No. 02-2350 (issued June 18, 2003).

6

Docket No. 05-832 (issued May 15, 2006).

7

Docket No. 10-419 (issued December 2, 2010).

8

Docket No. 10-1526 (issued December 2, 2010).

9

Docket No. 12-1360 (issued September 17, 2012).

2

traumatic arthropathy of the right shoulder, and right upper extremity mononeuritis. Appellant
had right shoulder surgery in December 1985 and worked intermittently until May 15, 1989. She
has not returned to work. On August 8, 1992 OWCP accepted that appellant sustained
employment-related right carpal tunnel syndrome, and underwent a right carpal tunnel release on
September 25, 2001. Appellant has been on the periodic compensation rolls since 1986.
In a January 29, 2015 letter, OWCP informed appellant, as it had informed her each year
she had been on the periodic rolls, that federal regulations required her to provide an affidavit of
earnings and/or employment during the previous year, and that a Form EN1032 was enclosed for
that purpose. It notified her that she had to fully answer all questions on the form and return the
statement within 30 days or her benefits would be suspended. The letter was mailed to
appellant’s address of record in Lanham, Maryland. Appellant did not return the required
EN1032 form.10
By decision dated July 28, 2015, OWCP suspended appellant’s compensation benefits,
effective July 26, 2015, for failing to meet the requirements associated with receiving
compensation on the periodic rolls. It noted that her compensation benefits would be restored
retroactively to the date they were suspended if she completed and returned an enclosed copy of
the form.
LEGAL PRECEDENT
FECA authorizes the Secretary of Labor to require a partially disabled employee to report
his or her earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies.11
Under section 10.528 of OWCP’s implementing federal regulations, an employee in
receipt of compensation benefits must complete an affidavit as to any work or activity indicating
an ability to work which the employee has performed for the prior 15 months.12 If an employee
who is required to file such a report fails to do so within 30 days of the date of the request, his or
her right to compensation for wage loss is suspended until OWCP receives the requested report.
At that time, OWCP will reinstate compensation retroactive to the date of suspension if the
employee remains entitled to compensation.13

10

Following the January 29, 2015 notice, in correspondence dated March 18, May 7, and July 22, 2015,
appellant’s senator forwarded appellant’s inquiries regarding her pay rate. None of the inquiries or information
forwarded was in regard to the EN1032 form. Appellant telephoned OWCP on May 11, 2015 regarding her health
benefits.
11

Supra note 1; 20 C.F.R. § 10.528; see P.M., Docket No. 15-0674 (issued July 10, 2015).

12

Id.

13

P.M., supra note 11.

3

ANALYSIS
On January 29, 2015 OWCP provided appellant with a EN1032 form. It explained that
federal regulations required her to complete the form and answer all questions concerning her
employment or earnings while she was on the periodic rolls. OWCP properly notified appellant
that, if she did not completely answer all questions and return the statement within 30 days, her
benefits would be suspended. The record reflects that the letter was properly sent to her address
of record. Appellant failed to respond prior to the July 28, 2015 OWCP decision. Based on the
evidence of record, the Board finds that OWCP properly suspended her compensation benefits
pursuant to 20 C.F.R. § 10.528.14
As to appellant’s request that the Board reconsider its December 2, 2010 decisions,
section 501.7(a) of its procedures provide that any petition for reconsideration of a Board
decision must be filed within 30 days from the date of issuance of that decision.15 In the instant
case, appellant’s current appeal was received by the Board on October 13, 2015, which is more
than 30 days after the issuance of the Board’s decisions on December 2, 2010. Thus, appellant’s
request for review of the Board’s December 2, 2010 decisions does not constitute a timely
petition for reconsideration of those appeals.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits
effective July 26, 2015 for failure to submit a Form EN1032, as required.

14

Supra note 11.

15

20 C.F.R. § 501.7(a). See also 20 C.F.R § 501.6(d) (the decisions and orders of the Board are final as to the
subject matter appealed, and such decisions are not subject to review, except by the Board; the decisions and orders
will be final upon the expiration of 30 days from the date of issuance unless the Board has fixed a different period of
time therein).

4

ORDER
IT IS HEREBY ORDERED THAT the July 28, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 5, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 14-847
Issued: August 7, 2014

Case Submitted on the Record

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

JURISDICTION
On February 27, 2014 appellant filed a timely appeal from a December 16, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic
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 met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on October 24, 2013.
FACTUAL HISTORY
On October 29, 2013 appellant, then a 46-year-old mail processing clerk, filed a
traumatic injury claim (Form CA-1) alleging that on October 24, 2013 he sustained a back injury
when he bent over to pick up a letter tray weighing 15 pounds. He notified his supervisor and
first sought medical treatment on October 28, 2013.
1

5 U.S.C. § 8101 et seq.

In an October 29, 2013 report, Dr. Aki Oshita, a treating chiropractor, reported that
appellant sought treatment on October 28, 2013 for middle and lower back pain. He provided
appellant with work restrictions.
By letter dated November 15, 2013, OWCP informed appellant that the evidence of
record was insufficient to support his claim. Appellant was advised that a chiropractor did not
qualify as a physician under FECA unless he diagnosed a spinal subluxation as demonstrated by
x-ray to exist. He was further instructed on the medical and factual evidence needed and
provided 30 days to respond.
In an October 30, 2013 attending physician’s report (Form CA-20), Dr. Oshita reported
that on October 24, 2013 appellant was lifting letter trays and gradually began to feel middle and
lower back pain. He noted findings of myospasm of the thoracic muscle and subluxation.
Dr. Oshita diagnosed dorsalgia, lumbalgia and hypertonicity and checked the box marked “yes”
when asked if he believed appellant’s condition was caused by his employment activity. In an
October 30, 2013 duty status report (Form CA-17), he noted clinical findings of hypertonicity
and diagnosed dorsalgia, lumbalgia and myospasm. Appellant was provided with work
restrictions. Neither report made reference to whether x-rays were obtained. In a November 15,
2013 note, Dr. Oshita released appellant back to work without restrictions.
By decision dated December 16, 2013, OWCP denied appellant’s claim. It found that the
medical evidence of record failed to provide a firm medical diagnosis which could be attributed
to the accepted October 24, 2013 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 or specific condition for which compensation is claimed are causally related to the
employment injury.2 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.3
In order to determine whether an employee actually sustained an 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 which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.

2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Elaine Pendleton, supra note 2.

2

To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.5 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. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion.6
ANALYSIS
OWCP accepted that the October 24, 2013 incident occurred as alleged. The issue is
whether appellant submitted sufficient medical evidence to establish that the employment
incident caused a middle or low back injury. The Board finds that he did not submit sufficient
medical evidence to support that he sustained an injury causally related to the October 24, 2013
employment incident.7
In support of his claim, appellant submitted reports dated October 29 through
November 15, 2013 from Dr. Oshita, a treating chiropractor. In an October 20, 2013 Form CA20, Dr. Oshita reported findings of myospasm of the thoracic muscle and subluxation. He
diagnosed dorsalgia, lumbalgia and hypertonicity and checked the box marked “yes” when asked
if he believed appellant’s condition was caused by his employment activity. Dr. Oshita did not
state that the diagnosis of subluxation was based on x-rays of the spine.
In assessing the probative value of chiropractic evidence, the initial question is whether
the chiropractor is a physician as defined under 5 U.S.C. § 8101(2). A chiropractor is not
considered a physician under FECA unless it is established that there is a spinal subluxation as
demonstrated by x-ray to exist.8 The evidence does not reflect that Dr. Oshita diagnosed
subluxation based on an x-ray. There is no indication in the record that he obtained or reviewed
x-rays when diagnosing a subluxation.9 While Dr. Oshita provided a diagnosis of dorsalgia,

5

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

6

James Mack, 43 ECAB 321 (1991).

7

See Robert Broome, 55 ECAB 339 (2004).

8

See Kathryn Haggerty, 45 ECAB 383 (1994). See 20 C.F.R. § 10.311(c). A chiropractor may interpret his or
her x-rays to the same extent as any other physician. To be given any weight, the medical report must state that
x-rays support the finding of spinal subluxation.
9

Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. The term ‘physician’ includes chiropractors only to the extent that their reimbursable services are
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by
x-ray to exist and subject to regulation by the Secretary.” See Merton J. Sills, 39 ECAB 572, 575 (1988).

3

lumbalgia and hypertonicity, this does not constitute probative medical evidence as he does not
meet the statutory definition of physician.10
In the instant case, the record is without rationalized medical evidence from a physician
establishing a diagnosed medical condition causally related to the accepted October 24, 2013
employment incident. OWCP advised appellant of the medical evidence required to establish his
claim; however, he failed to submit such evidence.
An award of compensation may not be based on surmise, conjecture, speculation or on
the employee’s own belief of causal relation.11 To establish a firm medical diagnosis and causal
relationship, appellant must submit a physician’s report in which the physician reviews those
factors of employment alleged to have caused his condition and, taking these factors into
consideration, as well as findings upon examination and appellant’s medical history, explain how
these employment factors caused or aggravated any diagnosed condition, and present medical
rationale in support of his opinion.12 Thus, appellant has failed to meet his burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 and 10.607.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a back injury in the performance of duty on October 24, 2013.

10

L.S., Docket No. 07-560 (issued June 22, 2007). See also Alberta S. Williamson, 47 ECAB 569 (1996) (the
Board has held that an opinion on causal relationship which consists only of a physician checking “yes” on a
medical form report without further explanation or rationale is of diminished probative value).
11

D.D., 57 ECAB 734 (2006).

12

Supra note 3.

4

ORDER
IT IS HEREBY ORDERED THAT the December 16, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 7, 2014
Washington, DC

Alec J. Koromilas, Alternate 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
__________________________________________
K.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

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

Docket No. 10-1645
Issued: June 21, 2011

Case Submitted on the Record

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

JURISDICTION
On May 26 2010 appellant, through her attorney, filed a timely appeal of a December 9,
2009 Office of Workers’ Compensation Programs’ (OWCP) merit decision denying her claim for
employment-related injury. Pursuant to the Federal Employees’ Compensation Act (FECA)1
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the
case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
sustained a left arm injury in the performance of duty on July 10, 2008, as alleged.
FACTUAL HISTORY
Appellant, a 32-year-old clerk, filed a traumatic injury claim alleging that she injured her
left elbow on June 7, 2008 when as she was changing racks on a machine, her arm became stuck
1

5 U.S.C. § 8101 et seq.

between the racks. The form is signed on July 10, October 29 and November 19, 2008. On the
reverse of the form, appellant’s supervisor indicated that he received notice of the injury on
November 19, 2008.
Dr. Susan J. Liu, a Board-certified orthopedic surgeon, completed a note on October 10,
2008 and stated that appellant sustained a work-related injury on June 7, 2008 when she “banged
her left elbow between two racks.” She noted that appellant’s initial diagnosis was carpal tunnel
syndrome and then mild left ulnar nerve neuropathy. Dr. Liu found a positive Tinel’s tap at the
left ulnar groove with radiating pain into her fourth and fifth digits. Appellant had no atrophy in
the hypothenar eminence and intact sensation, while electrodiagnostic testing revealed mild left
ulnar entrapment neuropathy across the elbow. Dr. Liu examined appellant on October 29 and
November 13, 2008 and diagnosed traumatic left ulnar neuropathy “as a result of the
work-related injury on June 7, 2008.” On November 14, 2008 she repeated the diagnosis and
indicated that appellant hit her elbow on the rack of an automation machine on June 11, 2008.
On December 4 and 24, 2008 Dr. Liu again diagnosed left ulnar neuropathy and indicated that
appellant required additional treatment.
In a letter dated February 13, 2009, OWCP requested additional factual and medical
evidence from appellant in support of her claim. It stated that the evidence was not sufficient to
establish that she actually experienced the employment incident and allowed 30 days for a
response.
Dr. Liu completed a report on March 2, 2009 and again diagnosed ulnar neuropathy as a
result of her work-related injury on June 7, 2008.
Appellant stated that she had advised her supervisor of the incident on June 7, 2008. She
stated that she was setting up the machine to run the mail which was not within her regular duties
without assistance. Appellant alleged that she attempted to adjust the racks when her arm
became wedged between the rack she was lifting and the last rack of the machine. She stated
that she experienced an immediate sharp pain and that a few seconds later her arm and hand went
numb. Appellant wiggled her arm and sensation returned with no pain. She stated that she
attempted to secure an appointment with her physician, who was out on vacation for two weeks.
Appellant scheduled an appointment with “Patient First” on July 11, 2008. She detailed her
medical treatment.
Appellant submitted notes from Patient First beginning on July 11, 2008 which listed her
date of injury as June 11, 2008, noted this was a workers’ compensation visit summary and
diagnosed carpal tunnel syndrome. She sought additional treatment on July 21, August 5 and
October 5 and 9, 2008. Dr. Johannes Riem, a Board-certified neurologist, completed testing on
September 23, 2008, which demonstrated a mild left ulnar entrapment neuropathy across the
elbow and no evidence of carpal tunnel syndrome. Appellant also submitted a note from
Dr. Richard D. Kinnard, a Board-certified orthopedic surgeon, dated October 3, 2008 diagnosing
mild left ulnar neuropathy. Dr. Kinnard noted that she underwent electrodiagnostic studies,
which demonstrated mild left ulnar nerve entrapment neuropathy.
Dr. Liu completed a duty status report on April 3, 2009 and indicated that appellant hit
her left elbow on a rack and diagnosed left ulnar neuropathy.

2

By decision dated May 13, 2009, OWCP stated that although appellant had filed a timely
claim establishing that on June 7, 2008 while performing her job duties, her left arm became
stuck between two racks it further found that the medical evidence did not establish that the
claimed medical condition resulted from the accepted employment incident. Appellant, through
her attorney, requested a telephonic hearing on May 18, 2009.
Appellant testified at the hearing on September 22, 2009 and again described her
employment injury. She stated that she was adjusting steel racks which were eight by four feet,
when a rack rolled back pinning her elbow against another rack. Appellant asserted that she had
provided a consistent history of injury.
Following the oral hearing, appellant submitted a form report diagnosing carpal tunnel
syndrome bilateral as well as traumatic ulnar neuropathy of the left elbow. This form was signed
by an orthopedic surgeon whose signature is illegible on October 8, 2008. Appellant also
submitted additional documentation from Patient First indicating that her first visit was July 11,
2008 and that she returned on July 21 and 29, 2008 as well as October 5 and 9, 2008. She sought
treatment from Dr. Kinnard on August 29, 2008 and he found bilateral hand pain greater on the
left and numbness of two months’ duration. Dr. Kinnard listed appellant’s history of striking the
medial aspect of her left elbow two months previously and stated that the radiating pain was
resolving. Appellant also reported left hand pain associated with paresthesias and numbness in
the second, third and fourth fingers. Dr. Kinnard found no gross motor deficits, but a positive
Phalen’s test on the left and a minimally positive Tinel’s sign at the ulnar nerve and the medial
aspect of the left elbow. He diagnosed carpal tunnel syndrome and traumatic ulnar neuropathy
of the left elbow. Dr. Kinnard recommended electrodiagnostic testing and stated, “I think the
ulnar nerve symptoms are likely a result of the mild trauma and it should resolve with time.”
By decision dated December 9, 2009, the hearing representative affirmed OWCP’s
May 13, 2009 decision denying appellant’s claim finding that the medical evidence did not meet
her burden of proof.
LEGAL PRECEDENT
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”2 An employee
seeking benefits under FECA has the burden of establishing the essential elements of his or her
claim by the weight of the reliable, probative and substantial evidence, including the fact that the
individual is an “employee of the United States” within the meaning of FECA and that the claim
was timely filed within the applicable time limitation period of FECA, that an injury was
sustained in the performance of duty as alleged and that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.3 These are the

2

20 C.F.R. § 10.5(ee).

3

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

3

essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.5 Second, the
employee must submit sufficient evidence, generally only in the form a medical evidence, to
establish that the employment incident caused a personal injury.6 A medical report is of limited
probative value on a given medical question if it is unsupported by medical rationale.7 Medical
rationale includes a physician’s rationalized opinion on the issue of whether these is a causal
relationship between the claimant’s diagnosed condition and the implicated employment activity.
The opinion of the physician must be based on a complete factual and medical background of the
claim, 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 specific
employment activity or factors identified by the claimant.8
ANALYSIS
OWCP has accepted that the employment incident occurred as alleged on June 7, 2008
when appellant’s left elbow was impacted by the racks she was moving in the performance of
duty. The issue before the Board is whether the medical evidence is sufficient to establish that
this incident resulted in a diagnosed injury.
Appellant initially sought treatment from Patient First beginning in July 2008. The
physicians of this practice diagnosed carpal tunnel syndrome. Appellant has not claimed that she
developed carpal tunnel syndrome as a result of the accepted employment incident and these
reports do not support any additional condition.
Appellant next sought treatment from Dr. Kinnard who examined her on August 29 and
October 3, 2008. On August 29, 2008 Dr. Kinnard noted her employment incident of left elbow
trauma and the resulting radiating pain. He performed a physical examination finding a positive
Phalen’s test on the left and a minimally positive Tinel’s sign at the ulnar nerve and the medial
aspect of the left elbow. Dr. Kinnard diagnosed carpal tunnel syndrome as well as traumatic
ulnar neuropathy of the left elbow. He stated, “I think the ulnar nerve symptoms are likely a
result of the mild trauma and it should resolve with time.”

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

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

6

J.Z., 58 ECAB 529 (2007).

7

T.F., 58 ECAB 128 (2006).

8

A.D., 58 ECAB 149 (2006).

4

Dr. Kinnard has reported appellant’s history of injury, provided physical findings and
opined that the diagnosed condition of traumatic ulnar neuropathy of the left elbow was the
result of her left elbow employment incident. While this report is supportive of her claim, he did
not offer any medical reasoning in support of his opinion explaining how the employment
incident resulted in diagnosed condition of ulnar neuropathy. Dr. Kinnard did not explain why
and how he believed that appellant’s employment incident resulted in the diagnosed condition.
Due to this defect, his report is not sufficient to meet her burden of proof.
Appellant also submitted a series of notes from Dr. Liu diagnosing left ulnar neuropathy.
Dr. Liu first provided a history that appellant sustained a work-related injury on June 7, 2008
when she banged her left elbow between two racks or hit her elbow on the rack of an automation
machine. Appellant reported findings on physical examination including a positive Tinel’s tap at
the left ulnar groove with radiating pain into her fourth and fifth digits, but no atrophy of the
hypothenar eminence.
Dr. Riem completed testing on September 23, 2008, which demonstrated a mild left ulnar
entrapment neuropathy across the elbow and no evidence of carpal tunnel syndrome. He did not
provide a history of injury nor medical opinion attributing appellant’s diagnosed condition to her
employment. Dr. Riem’s report is, therefore, not sufficient to meet her burden of proof.
Dr. Liu reviewed Dr. Riem’s electrodiagnostic findings and diagnosed traumatic left
ulnar neuropathy “as a result of the work-related injury on June 7, 2008.” Like Dr. Kinnard,
Dr. Liu provided a consistent history of injury and diagnosis of left ulnar neuropathy. She also
opined that appellant’s condition was due to appellant’s accepted employment incident. Dr. Liu,
however, also failed to provide medical rationale explaining how appellant’s diagnosed condition
arose from the accepted employment incident. Without medical reasoning explaining how the
employment incident resulted in the diagnosed condition, this report is not sufficient to meet her
burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to submit the necessary rationalized medical
opinion evidence to establish a causal relationship between her accepted employment incident
and her diagnosed condition of left ulnar neuropathy and has, therefore, failed to meet her burden
of proof.

5

ORDER
IT IS HEREBY ORDERED THAT the December 9, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 21, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.Z., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AIR MARSHAL SERVICE,
East Elmhurst, NY, Employer
__________________________________________

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

Docket No. 17-0679
Issued: May 9, 2019

Case Submitted on the Record

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

JURISDICTION
On February 6, 2017 appellant, through counsel, filed a timely appeal from a December 5,
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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On April 19, 2013 appellant, then a 49-year-old federal air marshal, filed a notice of
recurrence (Form CA-2a) of a spinal injury that occurred on April 10, 2013 while working light
duty subsequent to his original October 10, 2012 work injury (OWCP File No. xxxxxx565). He
claimed that he rose up out of his chair, turned, and then immediately felt pain in his neck and
lower back. In an April 23, 2013 letter, OWCP notified appellant that it had accepted his claim as
a new claim for a traumatic injury because it was caused by a specific event within a single day or
work shift and assigned the current case number, File No. xxxxxx112. By decision dated June 5,
2013, it accepted the new claim for lumbar back sprain and aggravation of neck sprain. Appellant
returned to work in a full-time, limited-duty capacity on September 23, 2013.3
In an August 13, 2013 report, Dr. Edward S. Rubin, a Board-certified anesthesiologist and
pain medicine specialist, diagnosed lumbosacral radiculitis and cervical radiculopathy. He
asserted that appellant’s conditions began on April 10, 2013 after a work accident when standing
up from a chair and turning quickly. Dr. Rubin indicated that the pain was improved by nothing
and aggravated by walking, lifting, and movement. He found that a magnetic resonance imaging
(MRI) scan of the cervical spine showed disc bulges at C4-7 and an MRI scan of the lumbar spine
was positive for L5-S1 disc herniation. Dr. Rubin administered an epidural steroid injection.
On August 13, 2015 appellant, through counsel, filed a claim for a schedule award (Form
CA-7).
In a July 20, 2015 report, Dr. Kumar S. Reddy, a Board-certified orthopedic surgeon,
reviewed the medical evidence of record and conducted a physical examination, noting that
appellant’s range of motion was obtained using a goniometer. He found right cervical
radiculopathy, but no tenderness about the cervical spine and no paravertebral muscle spasm.
Appellant’s cervical range of motion was 40 degrees flexion and extension, 60 degrees right and
left rotation, and 30 degrees right and left lateral flexion. An examination of the lumbar spine
revealed no sacroilic joint tenderness, no scoliosis or kyphosis, and no paravertebral muscle spasm.
Straight-leg raising test was to 50 degrees on the left and 70 degrees on the right. Dr. Reddy
indicated that there was left sciatica present. Appellant’s lumbar range of motion was 60 degrees
flexion, 20 degrees extension, and 20 degrees right and left lateral flexion. Neurological
examination of the upper and lower extremities revealed muscle strength of 5/5. Dr. Reddy
diagnosed “lumbar L4-5 and L5-S1 herniated discs left radiculopathy resolved with residuals.” He
determined that appellant had reached maximum medical improvement (MMI) and opined that he
had 10 percent permanent impairment of the lumbar spine based on the sixth edition of the
3

On July 30, 2014 the employing establishment notified appellant that it could no longer offer him a limited-duty
assignment. On August 12, 2014 appellant filed a notice of recurrence (Form CA-2a) and, in a decision dated
August 12, 2014, OWCP accepted his claim for a recurrence of disability beginning August 3, 2014 due to withdrawal
of limited-duty work. Additionally, OWCP paid appellant disability compensation for the period August 3 to 9, 2014.

2

American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter
A.M.A., Guides).
In an August 20, 2015 development letter, OWCP notified appellant of the deficiencies of
his schedule award claim and requested a medical report from a physician assessing any permanent
impairment of his affected extremities under The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (The Guides Newsletter) (July/August 2009). It
noted that the opinion from Dr. Reddy was not probative because schedule awards were not
payable for permanent impairment of the spine.
In response, appellant submitted a September 16, 2015 addendum report from Dr. Reddy
who explained that his diagnosis was based on his examination findings and continued to find that
appellant had 10 percent permanent impairment of the lumbar spine. He also submitted two reports
dated November 6, 2013 from Dr. Rubin who continued to diagnose lumbar radiculopathy and
administer epidural steroid injections.
OWCP subsequently referred the case to its district medical adviser (DMA), Dr. Morley
Slutsky, who is Board-certified in occupational medicine.
In a February 15, 2016 report, Dr. Slutsky explained that appellant’s accepted conditions
of lumbar back sprain and aggravation of neck sprain did not result in permanent lower extremity
or upper extremity sensory and motor deficits and, therefore, there was no basis for lower or upper
extremity impairment under The Guides Newsletter. He noted that Dr. Reddy likewise did not find
lower or upper extremity deficits related to appellant’s lumbar and cervical conditions. Dr. Slutsky
further explained that appellant had preexisting lumbar and cervical conditions that were not
employment related. He determined that the date of MMI was September 16, 2015, the date of the
impairment examination performed by Dr. Reddy. Utilizing the diagnosis-based impairment
(DBI) method, Dr. Slutsky concluded that appellant’s accepted conditions had resolved at the time
of Dr. Reddy’s examination and he had no ratable permanent impairment of a scheduled member
under the sixth edition of the A.M.A., Guides.
By decision dated February 24, 2016, OWCP denied appellant’s schedule award claim on
the basis that the medical evidence did not establish a ratable impairment of a scheduled member.
On March 4, 2016 counsel requested a hearing before a representative of OWCP’s Branch
of Hearings and Review and submitted a July 28, 2016 report from Dr. Neil Allen, a Boardcertified internist and neurologist, who conducted an impairment examination. Dr. Allen’s
examination of appellant’s cervical spine found muscle strength of 5/5 for the bilateral C8 level
and 4/5 for the C5 (biceps), C6 (wrist flexors), and C7 levels (wrist extensors). Appellant’s
cervical range of motion was 60 degrees flexion, 70 degrees extension, 45 degrees right and left
lateral flexion, and 90 degrees right and left rotation. Examination of his lumbar spine revealed
tenderness and increased tone through the trapezius, left greater than right, and lumbar erectors.
Muscle strength was 5/5 for L4 level (quadriceps) on the right, L5 level (extensor hallicus longus)
bilaterally, and L1 level (ankle plantar flexors) bilaterally. Muscle strength was rated 4/5 for the
L4 level (quadriceps) on the left. Range of motion of appellant’s lumbar spine was 70 degrees
flexion, 30 degrees extension, 30 degrees right and left lateral flexion. Straight-leg raise was
positive for radicular pain into the right hip, anterior thigh, and proximal lower leg with right-sided
3

leg raise at 30 degrees. Appellant was negative for radicular complaints with left-sided leg raise.
Utilizing the range of motion (ROM) method, Dr. Allen calculated appellant’s impairment at each
spinal level based on a diagnosis of mild motor deficit and then concluded that he had a total of 29
percent permanent impairment of the upper extremities and 13 percent permanent impairment of
the left lower extremity under The Guides Newsletter.
A telephonic hearing was held before an OWCP hearing representative on
November 2, 2016. Appellant provided testimony and the hearing representative held the case
record open for 30 days for the submission of additional evidence.
Subsequently, appellant submitted a July 28, 2016 addendum report from Dr. Allen who
clarified his impairment ratings. Regarding his cervical condition, Dr. Allen explained that the
strength deficits of the upper extremity were observed to be bilateral and, therefore, he calculated
that appellant had 26 percent permanent impairment rating of the bilateral upper extremities.
Additionally, appellant had sensory deficits of the right upper extremity for which Dr. Allen added
an extra three (3) percent impairment, equaling a total of 29 percent permanent impairment of the
right upper extremity and 26 percent permanent impairment of the left upper extremity. Regarding
appellant’s lumbar condition, Dr. Allen found that the strength and sensory deficits of the lower
extremities were observed to be on the left, which equated to 13 percent permanent impairment of
the left lower extremity.
By decision dated December 5, 2016, OWCP’s hearing representative affirmed the
February 24, 2016 decision denying appellant’s schedule award claim.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim, including that he or she sustained an injury in the
performance of duty as alleged, and that an employment injury contributed to the permanent
impairment for which schedule award compensation is alleged.4
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for

4

See A.M., Docket No. 13-0964 (issued November 25, 2013) (where the employee claimed entitlement to a
schedule award for permanent impairment to the left lower extremity due to his employment-related lumbar condition,
the Board found that the medical evidence did not establish a ratable impairment to the lower extremity resulting from
his spinal condition and, therefore, denied his schedule award claim).
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

4

evaluating schedule losses.7 The effective date of the sixth edition of the A.M.A., Guides is
May 1, 2009.8 It is well established that in determining the amount of a schedule award for a
member of the body that sustained an employment-related permanent impairment, preexisting
impairments of the body are to be included.9 A schedule award is not payable under section 8107
of FECA for an impairment of the whole person.10
A schedule award is not payable for a member, function, or organ of the body not specified
in FECA or in the implementing regulations.11 As neither FECA nor the regulations provide for
the payment of a schedule award for the permanent loss of use of the back or spine, no claimant is
entitled to such an award.12 However, as FECA makes provision for the extremities, a claimant
may be entitled to a schedule award for permanent impairment to an extremity even though the
cause of the impairment originates in the spine, if the medical evidence establishes impairment as
a result of the employment injury.13
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified.14
The Board finds that the case is not in posture for decision.
OWCP properly referred the medical evidence of record to its DMA, Dr. Slutsky. In his
February 15, 2016 report, Dr. Slutsky explained that appellant’s accepted conditions of lumbar
back sprain and aggravation of neck sprain did not result in permanent lower extremity or upper
extremity sensory and motor deficits and, therefore, there was no basis for lower or upper extremity
impairment under The Guides Newsletter. He noted that Dr. Reddy likewise did not find any lower
or upper extremity deficits related to appellant’s lumbar and cervical conditions. Dr. Slutsky
further explained that appellant had preexisting lumbar and cervical conditions that were not
employment related. He determined that the date of MMI was September 16, 2015, the date of the
7

Id.

8

FECA Bulletin No. 09-03 (March 15, 2009).

9

See Raymond E. Gwynn, 35 ECAB 247, 253 (1983); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700.3(a)(3) (January 2010). This portion of OWCP’s procedure provides that the
impairment rating of a given scheduled member should include any preexisting permanent impairment of the same
member or function.
10

See Gordon G. McNeill, 42 ECAB 140, 145 (1990).

11

See Tania R. Keka, 55 ECAB 354 (2004).

12

See id. FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

13
See George E. Williams, 44 ECAB 530 (1993). In 1966, amendments to FECA modified the schedule award
provision 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.
14
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.6(f) (March 2017).

5

impairment examination performed by Dr. Reddy. Utilizing the DBI method, Dr. Slutsky
concluded that appellant’s accepted conditions had resolved at the time of Dr. Reddy’s
examination and he had no permanent impairment of a scheduled member under the sixth edition
of the A.M.A., Guides.
Appellant submitted Dr. Allen’s reports regarding the extent of his permanent impairment.
Regarding appellant’s cervical condition, he explained that the strength deficits of the upper
extremity were observed to be bilateral and, therefore, he calculated that appellant had 26 percent
permanent impairment of the bilateral upper extremities. Additionally, appellant had sensory
deficits of the right upper extremity, for which Dr. Allen added an extra 3 percent impairment, for
a combined total of 29 percent permanent impairment of the right upper extremity and 26 percent
permanent impairment of the left upper extremity. Regarding appellant’s lumbar condition,
Dr. Allen found that the strength and sensory deficits of the lower extremities were observed to be
on the left, which equated to 13 percent permanent impairment of the left lower extremity.
The Board notes that proceedings under FECA are not adversarial in nature, and OWCP is
not a disinterested arbiter. The claimant has the burden of proof to establish entitlement to
compensation. However, OWCP shares responsibility in the development of the evidence to see
that justice is done.15 Once it undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.16
The Board finds that OWCP should have routed Dr. Allen’s reports to a DMA for review.
The case must therefore be remanded. On remand, the case record should be referred to a DMA
for an opinion addressing whether appellant has permanent impairment in accordance with the
sixth edition of the A.M.A., Guides. Following this and such further development deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim for a schedule award.
CONCLUSION
The Board finds that the case is not in posture for decision.

15

T.R., Docket No. 17-1961 (issued December 20, 2018); William J. Cantrell, 34 ECAB 1223 (1983).

16

Id.; Richard F. Williams, 55 ECAB 343, 346 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the December 5, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 9, 2019
Washington, DC

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

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

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

7