United States Department of Labor
Employees’ Compensation Appeals Board

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H.L., Appellant
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and
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DEPARTMENT OF LABOR, OFFICE OF
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WORKERS’ COMPENSATION PROGRAMS,
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Washington, DC, Employer
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 12-510
Issued: August 15, 2012

Case submitted on the record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 10, 2012 appellant filed a timely appeal from a September 30, 2011 Office of
Workers’ Compensation Programs’ (OWCP) schedule award decision. 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 her claim for a schedule award.
ISSUE
The issue is whether appellant has impairment caused by her accepted lumbar condition
that would entitle her to a schedule award.
FACTUAL HISTORY
On August 6, 2009 appellant, then a 43-year-old workers’ compensation specialist, filed
an occupational disease claim for an aggravation of a preexisting herniated disc of the low back
1

5 U.S.C. § 8101 et seq.

and pain in the neck, shoulders and both arms and legs. She did not stop work. OWCP accepted
the claim for aggravation of lumbosacral radiculitis, aggravation of displacement of lumbar
intervertebral disc without myelopathy L5-S1, aggravation of cervical radiculitis C6-7,
aggravation of degeneration of cervical intervertebral disc C6-7 and aggravation of cervical facet
syndrome. It paid appropriate compensation benefits.
An August 5, 2009 x-ray read by Dr. Maya Reiser, a Board-certified diagnostic
radiologist, revealed a transitional lumbosacral vertebral body and narrowing of the L5-S1 disc
space. A rotator levoscoliosis of the spine was noted and no spondylolisthesis was seen.
Dr. Reiser diagnosed levoscoliosis and degenerative disc disease at L5-S1.
On October 20, 2010 appellant filed a claim for a schedule award.
By letter dated October 26, 2010, OWCP advised appellant that it was unable to process
her claim for a schedule award. It advised her to submit medical evidence in support of her
claim based on the American Medical Association, Guides to the Evaluation of Permanent
Impairment, (A.M.A., Guides) (6th ed. 2008). Appellant was also advised that the medical
evidence did not establish that her condition had reached maximum medical improvement.
In a December 12, 2010 report, Dr. Victor E. Herry, an internist, noted that appellant
presented for a follow-up evaluation with complaints of chronic joint pain and noted that this
was a chronic condition aggravated by her work-related activities. He diagnosed degenerative
disc disease and indicated that appellant “may have reached a plateau of maximum medical
improvement.” Dr. Herry noted that he would continue to treat and monitor her condition in an
effort to alleviate pain and maintain her current level of health.
By letter dated March 22, 2011, OWCP advised appellant that the medical evidence was
insufficient to establish her claim for a schedule award as Dr. Herry had not provided an opinion
on permanent impairment. It advised her of the requirements for obtaining a schedule award.
In a March 27, 2011 report, an OWCP medical adviser explained that he was unable to
provide an impairment rating as the medical evidence did not contain any physical findings by
which an impairment rating could be made.
In a letter dated April 20, 2011, appellant advised OWCP that her physician was unable
to provide an impairment rating as he was unfamiliar with the rating process. She requested that
OWCP schedule an appointment for her examination.
By letter dated April 25, 2011, OWCP referred appellant for a second opinion, together
with a statement of accepted facts, a set of questions and the medical record, to Dr. Willie
Thompson, a Board-certified orthopedic surgeon.
In a report dated May 10, 2011, Dr. Thompson described appellant’s history of injury and
medical treatment. He found a full range of motion of the cervical spine. There was no
tenderness, no paraspinous muscle spasm, no palpable cervical nodes and no masses. Appellant
had full range of motion of the arms with no wasting or atrophy. Dr. Thompson also determined
that she had full range of motion of the lumbar spine with no tenderness and no paraspinous
muscle spasms. He determined that appellant was capable of heel and toe walking with no
2

difficulty. Furthermore, appellant’s straight leg raising was negative bilaterally and there were
no motor or sensory deficits in the lower extremities. Dr. Thompson reviewed the August 5,
2009 lumbar spine x-ray and noted that she had mild scoliosis and degenerative disc disease at
L5-S1 with no evidence of disc herniation or spinal stenosis. He found no evidence of any
radiculopathy. Dr. Thompson explained that appellant underwent electromyography for possible
cervical radiculopathy but it was not supported based on testing or on physical examination. He
advised that the neurological examination was completely within normal limits. Dr. Thompson
opined that “[i]n fact, there are no objective findings whatsoever.” He explained that according
to the A.M.A., Guides there was no basis for a rating of permanency. Dr. Thompson indicated
that appellant reached maximum medical improvement on December 22, 2010.
By decision dated May 26, 2011, OWCP denied appellant’s claim for a schedule award.
It found that the medical evidence of record did not support any permanent impairment to a
scheduled member or function of the body.
By letter dated August 5, 2011, appellant requested reconsideration. In an August 2,
2011 report, Dr. Robert W. Macht, a Board-certified surgeon, noted her history and findings. On
examination, appellant had decreased sensation to light touch about the left great toe, pain with
motion of her left leg and straight leg raising was positive on the left at 20 degrees. There was
no atrophy and her legs were nontender. Appellant had minimal weakness of flexion and
extension of the left ankle. The left elbow had pain with motion. Dr. Macht found moderate
weakness of both hand grips and mild weakness of the intrinsic muscles of both hands. Range of
motion of the arms was intact with no atrophy and a negative Tinel’s sign. Appellant had slight
pain with flexion of her back and had limited motion of the neck and back. Dr. Macht diagnosed
occupational injury to the neck and back region with radiculopathy. He noted that appellant had
nerve studies of the lower extremities in April 2011, which revealed evidence of moderate acute
left L5 radiculopathy. Nerve conduction studies (NCS) of the upper extremities in January 2010
revealed evidence of moderate acute right C6 and C7 radiculopathy.2 Dr. Macht referred to the
sixth edition of the A.M.A., Guides and stated that a patient in appellant’s condition without
nerve study evidence of radiculopathy would have class 1 impairment of the cervical and lumbar
region. But because of her documented radiculopathy, she qualified for class 3 cervical
impairment and class 2 lumbar impairment. Appellant’s QuickDash questionnaire for right arm
was 59 out of 100 and 78 on the left. Under Table 15-7,3 she qualified was a grade modifier 2
for functional history for the right arm and grade modifier 3 for the left aim. Based on this,
Dr. Macht opined that the default position was proper for the radiculopathy finding of her arms.
He explained that her class 3 impairment was based on Table 17-24 and opined that she had “19
percent impairment of the whole person for a class 1 impairment” and also that she had “six
percent whole person impairment.” Dr. Macht explained that the difference between these two
ratings was 13 percent whole person impairment. For the lumbar spine regional grid, he
2

The record contains January 14, 2010 NCS that indicated evidence of moderate acute C6 and C7 radiculopathy
on the right. Dr. Macht also referenced April 11, 2011 NCS, which revealed evidence of moderate acute L5
radiculopathy on the left.
3

A.M.A., Guides 406 (sixth edition).

4

Id at 570.

3

determined that appellant had a class 1 impairment based on her history without nerve study
findings and opined that she had a class 2 impairment based on the nerve study. Dr. Macht noted
that she filled out the lower limb questionnaires and scored 43 out of 100 on the right and 71 on
the left, which qualified for grade modifier 2 for the right leg and grade modifier 3 for the left leg
based on Table 16-6.5 He selected the D column for the current lumbar spine impairment, class
2 according to Table 17-4.6 Dr. Macht opined that appellant had 13 percent whole person
impairment due to her back condition and radiculopathy under that table. He advised that, if
there was no evidence of radiculopathy, she would have a seven percent rating under Table 17-4.
Dr. Macht advised that the A.M.A., Guides conversion tables converted 13 percent whole
person impairment to 21 percent impairment of the right arm while six percent whole person
impairment translated to 15 percent impairment of the left leg. He also noted that, despite
appellant’s complaints, the nerve studies did not show evidence of radiculopathy in right leg and
left arm and that she had no ratable impairment for either of those extremities. Dr. Macht
referred to Table 3-1 on page 40 of the A.M.A., Guides and advised that there was a moderate
degree of pain-related impairment of the right leg and a severe degree of pain-related impairment
of the left arm based on her questionnaires and functional history scores. He opined that
appellant had three percent permanent impairment of the left arm and two percent impairment of
her right leg. Dr. Macht advised that she reached maximum medical improvement on
June 30, 2011.
In an August 30, 2011 report, an OWCP medical adviser stated that Dr. Macht’s report
did not include a detailed history or physical as discussed on pages 28 to 30 of the A.M.A.,
Guides. He explained that, absent a detailed history and physical examination findings, an
impairment rating could not be processed. The medical adviser noted that Dr. Macht advised
that his ratings for radicular symptoms and/or signs were derivable for the upper and lower
extremities utilizing the tables from Chapter 17; but the ratings from Chapter 17 were applicable
for axial skeletal conditions and there was “no way that an upper or lower extremity impairment
rating could be derived using any table in Chapter 17 which all contain body as a whole ratings.”
He opined that the impairment ratings provided by Dr. Macht were not sufficient to establish
upper or lower extremity impairment conforming to the standards of OWCP.
By decision dated September 30, 2011, OWCP denied modification of its May 26, 2011
decision.
LEGAL PRECEDENT
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.7

5

Id. at 516.

6

Id. at 570.

7

Veronica Williams, 56 ECAB 367 (2005).

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Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.8 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice for all claimants under
the law, good administrative practice requires the use of uniform standards applicable to all
claimants.9 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.10 Effective May 1, 2009, schedule awards
are determined in accordance with the sixth edition of the A.M.A., Guides.11
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.12 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.13
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as impairments of the extremities. Recognizing that FECA allows ratings
for extremities and precludes ratings for the spine, The Guides Newsletter offers an approach to
rating spinal nerve impairments consistent with sixth edition methodology.14 OWCP has
adopted this approach for rating impairment to the upper or lower extremities caused by a spinal
injury.15
ANALYSIS
The Board finds that the evidence of record is insufficient to establish that appellant
sustained permanent impairment of either her upper or lower extremities in accordance with the
sixth edition of the A.M.A., Guides. OWCP accepted her claim for aggravation of lumbosacral
radiculitis, aggravation of displacement of lumbar intervertebral disc without myelopathy L5-S1,

8

5 U.S.C. § 8107.

9

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

10

20 C.F.R. § 10.404.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700.2 and Exhibit 1 (January 2010); J.B., Docket No. 09-2191 (issued May 14, 2010).
12

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

13

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

14

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

15

Supra note 11 at Chapter 3.700, Exhibit 4 (January 2010).

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aggravation of cervical radiculitis C6-7, aggravation of degeneration of cervical intervertebral
disc C6-7 and aggravation of cervical facet syndrome.
The medical evidence from Dr. Macht is of reduced probative value or the issue of
permanent impairment to appellant’s arms or legs as he did not follow the A.M.A., Guides in
rating permanent impairment. The report from him referred to Tables 15-7, 17-2 and 17-4 of the
A.M.A., Guides and assigned a 13 percent whole person impairment rating for acute right C6
and 7 radiculopathy affecting both arms. FECA does not authorize schedule awards for loss of
use of the spine or the body as a whole.16 The Board also finds that he failed to rate appellant’s
impairment using the A.M.A., Guides Newsletter standard for spinal nerve root injuries
involving the extremities. OWCP’s procedures provide that The Guides Newsletter is the
appropriate method of determining impairment in this case. The Guides Newsletter provides a
specific method for determining impairments for conditions such as radiculopathy from a spinal
nerve injury. It explains that, in the sixth edition, impairment for radiculopathy is reflected in the
diagnosis-based impairment for the spinal region. In developing an alternative approach to
rating isolated radiculopathy, it is important to provide consistency in impairment ratings
between the chapters.17 Dr. Macht did not discuss the July/August 2009 Guides Newsletter.
Furthermore, it is unclear how he arrived at the finds of radiculopathy in light of the earlier
findings from Dr. Thompson, the second opinion physician, who explained that findings on
examination did not support evidence of radiculopathy that would support an impairment rating.
Dr. Thompson explained that the electromyogram and nerve conduction testing was not
supported by his findings upon physical examination. Dr. Macht rated pain under Table 3-1 on
page 40 of the A.M.A., Guides which quantifies whole person impairment based on pain
disability questionnaire scores. As noted, FECA does not authorize schedule awards for
permanent impairment of the whole person. Dr. Macht failed to rate impairment to appellant’s
arms or legs.
Board precedent is well settled, that when an attending physician’s report gives an
estimate of permanent impairment and mentions the A.M.A., Guides, but does not base that
estimate upon correct application of the identifiable sections, grading schemes, tables or figures,
OWCP may follow the advice of its medical adviser or consultant where he or she has properly
utilized the A.M.A., Guides.18
An OWCP medical adviser explained that Dr. Macht did not provide a detailed history or
physical findings. He noted ratings from Chapter 17 were applicable for axial skeletal conditions
and there was “no way that an upper or lower extremity impairment rating could be derived
using any table in Chapter 17 which all contain body as a whole ratings.” The medical adviser
concluded that the impairment ratings provided by Dr. Macht did not conform to OWCP
protocols. As noted FECA does not authorize schedule awards for loss of use of the spine or the
body as a whole.19 Appellant did not submit any other medical evidence to support that she was
16

D.A., Docket No. 10-2172 (issued August 3, 2011); J.Q., 59 ECAB 366 (2008).

17

See supra notes 13-14.

18

See Ronald J. Pavlik, 33 ECAB 1596 (1982); Robert R. Snow, 33 ECAB 656 (1982); Quincy E. Malone, 31
ECAB 846 (1980).
19

See supra note 17.

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entitled to a schedule award, under the sixth edition of the A.M.A., Guides, for a scheduled
member of the body under FECA. The Board finds that she has not permanent impairment to her
legs due to her accepted cervical or lumbar conditions.
On appeal, appellant contented that Dr. Macht’s report contained documentation of a
detailed history and physical finding and that he was familiar with the A.M.A., Guides. As noted
Dr. Macht’s report did not comport with the A.M.A., Guides and OWCP’s procedures and is
insufficient to establish the extent of permanent impairment.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she has an
impairment caused by her accepted employment injuries that would entitle her to a schedule
award.
ORDER
IT IS HEREBY ORDERED THAT the September 30, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 15, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Augusta, GA, Employer
__________________________________________

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

Docket No. 13-854
Issued: July 24, 2013

Case Submitted on the Record

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

JURISDICTION
On February 26, 2013 appellant, through her attorney, filed a timely appeal from a
January 16, 2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her reconsideration request. As more than 180 days elapsed from the most recent merit
decision of April 30, 2012 to the filing of this appeal, pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for
reconsideration of the merits under 5 U.S.C. § 8128(a).
On appeal, appellant’s counsel contends that OWCP’s decision is contrary to fact and
law.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 30, 2011 appellant, then a 60-year-old nurse, filed an occupational disease
claim alleging pain in her left shoulder and arm with tingling and numbness in her fingers as a
result of her federal duties. Her job involved repetitive movements, such as cleaning patients,
changing beds, hanging IVs, transporting patients and repositioning patients. The employing
establishment controverted the claim. It noted that appellant had been temporarily detailed to a
mostly administrative role with minimal patient lifting or repositioning.
In support of her claim, appellant submitted the results of a July 27, 2011 magnetic
resonance imaging (MRI) scan, an August 10, 2011 duty status report and an April 15, 2011
memorandum by the employing establishment with regard to the duration of temporary lightduty assignments.
By decision dated October 4, 2011, OWCP denied appellant’s claim. It found that she
did not establish a causal relationship between the accepted factors of her employment and her
left arm condition. In a decision dated April 30, 2012, an OWCP hearing representative affirmed
the denial of appellant’s claim.
By letter dated May 9, 2012, appellant requested reconsideration. She resubmitted the
July 27, 2011 MRI scan report, August 10, 2011 duty status report and August 15, 2011
memorandum of the employing establishment. In a February 27, 2012 letter, Dr. Arlon H.
Jahnke, a Board-certified orthopedic surgeon, advised that she was seen in his office on
February 22, 2012 and that she could return to work on February 25, 2012 with restrictions of no
lifting over 10 pounds and no reaching above shoulder level. She also submitted a May 9, 2012
duty status report from Dr. Jahnke, who listed her work restrictions.
By decision dated January 16, 2013, OWCP denied reconsideration without conducting a
merit review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.3 When a claimant fails to meet one
of the above standards, OWCP will deny the application for reconsideration without reopening
the case for review on the merits.4

2

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.608(b).

2

ANALYSIS
In the present case, appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law nor has she advanced a relevant legal argument not previously
considered by OWCP. The July 27, 2011 MRI scan, the August 10, 2011 duty status report and
the April 15, 2011 employing establishment document were previously of record and considered
by OWCP in the October 4, 2011 decision. Evidence which repeats or duplicates evidence
already in the case record has no evidentiary value and does not constitute a basis for reopening a
case.5 The remaining evidence is not pertinent to the issue of whether appellant established a
causal relationship between the accepted factors of her employment injury and her diagnosis.
The duty status report of May 9, 2012 and the February 27, 2012 letter of Dr. Jahnke address
only her work restrictions; neither addresses causal relationship.
Appellant’s reconsideration request failed to show that OWCP erroneously applied or
interpreted a point of law nor did it advance a point of law or fact not previously considered by
OWCP. The Board finds that OWCP did not abuse its discretion in refusing to reopen her claim
for a review on the merits.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review
of her claim.

5

See J.P., 58 ECAB 289 (2007); Richard Yadron, 57 ECAB 207 (2005).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 16, 2013 is affirmed.
Issued: July 24, 2013
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE AIR FORCE,
San Pedro, CA, Employer
__________________________________________

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

Docket No. 09-1483
Issued: January 25, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 26, 2009 appellant filed a timely appeal from a November 25, 2008 merit
decision of the Office of Workers’ Compensation Programs denying his traumatic injury claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
appellant’s claim.
ISSUE
The issue is whether appellant satisfied his burden of proof to establish that he sustained
an injury in the performance of duty on October 2, 2008.
FACTUAL HISTORY
On October 17, 2008 appellant, a 35-year-old police officer, filed a traumatic injury claim
(Form CA-1) for “possible exposure” to the hepatitis C virus. He alleged that on October 2,
2008, while applying handcuffs, he was exposed to the blood of an individual who told him that
he was infected with the hepatitis C virus. Appellant’s claim form contained a witness
statement, signed by Officer Smith, who stated that he saw appellant searching and handling the
belongings of a “possible hepatitis C suspect” on the date in question.

In a letter dated October 24, 2008, the Office informed appellant that the information
submitted was insufficient to establish his claim. It advised him to provide a medical narrative,
which contained a diagnosis and an explanation as to how the diagnosed condition was causally
related to the claimed event.
Appellant was treated by Dr. Ashkan Naraghi, a treating physician. On October 17, 2008
Dr. Naraghi provided a history of injury reflecting that appellant had contact with the blood of a
“possible hepatitis C suspect and drug user, while he was applying handcuffs during an arrest on
October 2, 2008.” Appellant had washed his hands thoroughly and was “doing fine,” except for
a respiratory infection, which was resolving. The form contains the notation, “hepatitis,
unspecified.” In a separate report of the same date, Dr. Naraghi repeated his history of injury
and diagnosed “exposure to potentially hazardous bodily fluids.” In follow-up reports dated
October 22 and 24, 2008, he again diagnosed “exposure to potentially hazardous bodily fluids.”
By decision dated November 25, 2008, the Office denied appellant’s claim because the
evidence he submitted was insufficient to establish that he sustained an injury as defined by the
Federal Employees’ Compensation Act. The Office found the medical evidence of record
insufficient, as it did not contain a definitive diagnosis that could be causally related to the
established October 2, 2008 incident.
LEGAL PRECEDENT
An employee seeking benefits under the Act1 has the burden of establishing the essential
elements of his claim, including the fact that the individual is an employee of the United States
within the meaning of the Act; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged; and that any disability
and/or specific condition for which compensation is claimed are causally related to the
employment injury. 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.2
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. Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.3
Section 10.303(a) of the Office regulations provides that simple exposure to a workplace
hazard, such as an infectious agent, does not constitute an injury entitling an employee to
medical treatment under the Act unless the employee has sustained an identifiable injury or

1

5 U.S.C. §§ 8101-8193.

2

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Joe D. Cameron, 41 ECAB 153 (1989).

3

Id.

2

medical condition as a result of that exposure.4 Section 10.313(b) provides that the Office can
authorize treatment where there is actual or probable exposure to a known contaminant due to an
injury, requiring disease specific measures against the infection.5 The Office procedure manual
addresses high-risk employment, notes that certain kinds of employment routinely present
situations, which may lead to infection by contact with animals, human blood, bodily secretions
and other substances. Conditions such as HIV (human immunoficiency virus) infection and
hepatitis B more commonly represent a work hazard in health care facilities, correctional
institutions and drug treatment centers, among others, than in federal workplaces as a whole. For
claims based on transmission of a communicable disease where the means of transmission and
the incubation period are medically feasible, the Office should, if the source of infection is a
known or probable carrier of the disease, accept the case for the physical injury involved and
authorize prophylactic treatment.6
The Office procedure manual provides that the Act does not authorize preventive
measures such as vaccines and inoculations and, in general, preventive treatment is the
responsibility of the employing establishment except that preventive care can be authorized by
the Office for complications of preventive measures which are provided or sponsored by the
agency, such as adverse reaction to prophylactic immunization and/or an injury involving actual
or probable exposure to a known contaminant.7
ANALYSIS
The Office accepted that on October 2, 2008 appellant was exposed to the blood of an
individual who may have been infected with the hepatitis C virus. However, the medical
evidence does not establish that the exposure caused or aggravated an injury or illness.
Dr. Naraghi stated that appellant had contact with the blood of a “possible hepatitis C
suspect and drug user, while he was applying handcuffs during an arrest on October 2, 2008.”
Although he described the work incident and assessed “exposure to potentially hazardous bodily
fluids,” he did not address whether appellant’s exposure caused or aggravated a diagnosed

4

20 C.F.R. § 10.303(a). This regulation at section (b) provides:

“Employers may be required under other statutes or regulations to provide their employees with medical
testing and/or services in situations described in paragraph (a) of this section. For example, regulations
issued by the Occupational Safety and Health Administration at 29 C.F.R. Chapter XVII require
employers to provide their employees with medical consultations and/or examinations when they either
exhibit symptoms consistent with exposure to a workplace hazard, or when an identifiable even such as a
spill, leak or explosion occurs and results in the likelihood of exposure to a workplace hazard.”
5

Id. at § 10.313(b).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.8 (October 1995).

7

Id. at Chapter 3.400.7 (April 1992).

3

medical condition.8 Appellant also does not assert that the exposure to his blood caused any
specific injury or illness. Consequently, the medical evidence does not support that the
October 2, 2008 exposure caused an injury.
The Office’s regulations provide that simple exposure to a workplace hazard, such as an
infectious agent, does not constitute a work-related injury entitling an employee to medical
treatment under the Act unless the employee has sustained an identifiable injury or medical
condition as a result of that exposure.9 In this case, there is no identifiable injury or medical
condition that appellant sustained as a result of his exposure. This is also not a case where
appellant worked in the type of employment, such as a health care facility, correctional
institution, or drug treatment facility, which could routinely present a situation that could lead to
infection by contact with animals, human blood, bodily secretions or other substances.10
Furthermore, this is not a case where there was a known contaminant.11 The medical evidence is
insufficient to establish that appellant sustained an identifiable and compensable injury, or that
he was otherwise entitled to reimbursement for his medical expenses under Office regulations or
procedures.
CONCLUSION
The Board finds that appellant has not satisfied his burden of proof to establish that he
sustained an injury in the performance of duty on October 2, 2008.

8

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009) (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).
The Board notes that Dr. Naraghi diagnosed an upper respiratory infection, which he did not relate to appellant’s
exposure to hepatitis C.
9

See supra note 3. See also B.A., Docket No. 08-1542 (issued February 11, 2009). Compare Joseph Kripp, 55
ECAB 121 (2003).
10

See supra notes 5 and 6. See also J.F., 61 ECAB ___ (Docket No. 09-1061, issued November 17, 2009); N.S.,
Docket No. 09-1652 (March 18, 2008).
11

See supra notes 5 and 6. The Board notes that the record does not contain conclusive evidence, such as test
results, that the blood to which appellant was exposed was infected with hepatitis C.

4

ORDER
IT IS HEREBY ORDERED THAT the November 25, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.12
Issued: January 25, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

12

The Board notes that appellant submitted additional evidence after the Office rendered its November 18, 2005
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its
final decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c);
Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chesterfield, VA, Employer
__________________________________________

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Appearances:
Stephen D. Scavuzzo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1872
Issued: January 11, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 11, 2015 appellant, through counsel, filed a timely appeal from a
March 16, 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.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained a medical condition on March 13, 2012 other than the accepted cervical sprain and
contusion of her right shoulder and upper arm; and (2) whether appellant met her burden of proof
to establish disability from March 15 to April 18, 2014 due to her March 13, 2012 work injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 13, 2012 appellant, then a 41-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that she sustained injury to her right arm on that date. She
indicated that she was delivering mail to a mailbox when her postal vehicle was struck from
behind by a customer’s vehicle.2 Appellant stopped work on March 13, 2012 but shortly
thereafter she returned to her regular work for the employing establishment.
OWCP accepted that appellant sustained a cervical sprain and contusion of her right
shoulder and upper arm on March 13, 2012.
The findings of March 13, 2012 x-rays of appellant’s cervical spine were reported as
negative. There was no evidence of acute fracture or subluxation, the vertebral body alignment
was appropriate, and the prevertebral soft tissues were within normal limits. The findings did
not show significant degenerative change. Computerized tomography testing of appellant’s head
on March 15, 2012 revealed no intracranial abnormality.
In periodic (Form CA-17) duty status reports dated beginning in March 2012,
Dr. Jerome G. Smith, an attending Board-certified internist, diagnosed such conditions as
cervical sprain and right arm contusion.3 In a narrative report dated March 14, 2012, Dr. Smith
diagnosed head contusion with headache, cervical sprain, and right forearm contusion. By
July 2012, he began to diagnose headaches on the duty status reports, either in the clinical
findings section of the reports or in the portion for “other disabling conditions,” i.e., those
conditions not related to the reported March 13, 2012 injury.4 By early 2013, Dr. Smith stopped
providing the diagnosis of headaches on these form reports. In a duty status report dated
December 27, 2013, he diagnosed cervical disc protrusion due to the March 13, 2012 injury.
In a November 18, 2013 report, Dr. Charles E. Sutton, Jr., an attending Board-certified
neurologist, indicated that appellant was reevaluated for her ability to work for the employing
establishment. He reported that she continued to complain of paresthesias and paresis in her
right hand and neck pain which intermittently radiated into her right shoulder. Dr. Sutton
indicated that his neurologic evaluation revealed decreased sensation of the right hand over the
ventral and dorsal aspects, and 4/5 motor strength of the biceps and triceps muscles in both arms
and the deltoid muscles in the right arm. He reported that appellant had a disc protrusion at C6-7
with mild stenosis and noted, “[Appellant’s] neurologic sequelae remain unresolved after greater
than one year.” Dr. Sutton recommended that she continue anti-inflammatory, muscle relaxant
medications on a perneeded basis and that she avoid exacerbating activities. Appellant’s
neurologic treatment remained palliative and conservative in nature.

2

An emergency medical services report of the March 13, 2012 accident indicates that appellant’s postal vehicle
sustained minor damage of the rear bumper and rear driver’s side door and that appellant was able to exit her postal
vehicle and walk to a nearby location.
3

Some of the reports contained a diagnosis of head contusion.

4

In a narrative report dated March 14, 2012, Dr. Smith diagnosed head contusion with headache, cervical sprain,
and right forearm contusion.

2

Appellant stopped work on March 13, 2014 and on April 17, 2014, she filed a claim for
compensation (Form CA-7) alleging that she had disability from March 15 to April 18, 2014 due
to her March 13, 2012 work injury. She indicated that she was off work during this period due to
“physicians’ orders.”5 Appellant did not submit any additional medical evidence at the time she
filed her claim.
By letter dated April 29, 2014, OWCP requested that appellant submit additional factual
and medical evidence in support of her claim. It advised her that the condition of cervical disc
herniation had not been accepted as work related and that she would have to submit a
rationalized medical report relating this or any additional medical condition, other than the
accepted conditions, to the March 13, 2012 work injury.
In a May 22, 2014 report, Dr. Smith noted that he had treated appellant for injuries
sustained in a March 13, 2012 vehicular accident. He indicated that she had a prior injury to her
neck and right shoulder due to a September 5, 2011 automobile accident. Appellant reported that
symptoms related to the September 5, 2011 injury had long resolved prior to the accident of
March 13, 2012 and that she experienced improvement of her symptoms due to undergoing
physical therapy after March 13, 2012. She complained of persistent neck pain, headaches, and
right forearm pain. Dr. Smith noted that appellant had been referred to Dr. Sutton for evaluation
of persistent headaches and right hand numbness, and that Dr. Sutton performed an
electroencephalogram test which showed normal results and a June 13, 2013 magnetic resonance
imaging scan of the cervical spine which showed a small sub-ligamentous disc protrusion at
C6-7 and mild canal stenosis. Dr. Sutton reported on November 19, 2013 that appellant had
persistence of paresthesias and paresis of her right upper extremity and that her neurological
sequelae remained unresolved after more than one year. Dr. Smith noted, “It is my medical
opinion that, unless there is evidence of a preexisting condition, … [appellant’s] clinical findings
of chronic headache, neck pain, paresthesias, and paresis of the right hand are resultant from the
automobile accident [of March 13, 2012].”
Appellant submitted (Form CA-17) duty status reports dated April 29 and May 27, 2014
in which Dr. Smith again diagnosed cervical disc protrusion due to the reported March 13, 2012
work injury. She also submitted a third-party questionnaire form completed on April 22, 2014
and descriptions of modified-duty jobs offered by the employing establishment.
In a June 3, 2014 decision, OWCP denied appellant’s disability claim because she did not
submit sufficient medical evidence to establish disability from March 15 to April 18, 2014 due to
her March 13, 2012 work injury. In reaching this determination, it also found that she did not
establish that she sustained a medical condition on March 13, 2012 other than the accepted
cervical sprain and contusion of her right shoulder and upper arm. OWCP found that the
medical evidence appellant submitted did not contain a rationalized opinion on causal
relationship.

5

Appellant generally claimed that she sustained injuries on March 13, 2012 other than the accepted cervical
sprain and contusion of her right shoulder and upper arm.

3

Appellant requested a review of the written record by an OWCP hearing representative
with respect to the June 3, 2014 decision. She resubmitted the November 18, 2013 report of
Dr. Sutton and the May 22, 2014 report of Dr. Smith.
By decision dated March 16, 2015, the hearing representative affirmed OWCP’s June 3,
2014 decision, finding that appellant had not established that she sustained a medical condition
on March 13, 2012 other than the accepted cervical sprain and contusion of her right shoulder
and upper arm or that she had disability from March 15 to April 18, 2014 due to her March 13,
2012 work injury.
LEGAL PRECEDENT -- ISSUE 1
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 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 specific condition and/or disability for which compensation is claimed are causally
related to the employment injury.6 Where an employee claims that a condition not accepted or
approved by OWCP was due to an employment injury, he or she bears the burden of proof to
establish that the condition is causally related to the employment injury.7
The medical evidence required to establish a causal relationship between a claimed
period of disability and an employment injury is rationalized medical opinion evidence. 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 a detailed
medical discussion explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the claimant.8
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a cervical sprain and contusion of her right
shoulder and upper arm due to an employment-related vehicular accident on March 13, 2012.
Appellant claimed that she also sustained additional injuries on March 13, 2012. The Board
finds that she did not submit sufficient medical evidence to establish that she sustained a medical
condition on March 13, 2012 other than the accepted cervical sprain and contusion of her right
shoulder and upper arm.
Appellant submitted reports of Dr. Smith, in which he indicated that she sustained
conditions on March 13, 2012 other than the accepted cervical sprain and contusion of her right
shoulder and upper arm. In a May 22, 2014 report, Dr. Smith noted that he had treated her for
injuries sustained in a March 13, 2012 vehicular accident and noted that she had a prior injury to
6

J.F., Docket No. 09-1061 (issued November 17, 2009).

7

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

8

See E.J., Docket No. 09-1481 (issued February 19, 2010).

4

her neck and right shoulder due to a September 5, 2011 automobile accident. He indicated that
appellant complained of persistent neck pain, headaches, and right forearm pain. Dr. Smith
discussed diagnostic testing of record and her treatment by other physicians and noted, “It is my
medical opinion that, unless there is evidence of a preexisting condition, … [appellant’s] clinical
findings of chronic headache, neck pain, paresthesias, and paresis of the right hand are resultant
from the automobile accident [of March 13, 2012].” In a number of (Form CA-17) duty status
reports dated beginning in December 2013, he diagnosed cervical disc protrusion due to the
March 13, 2012 injury.
The Board finds, however, that these reports are of limited probative value because they
do not contain medical rationale supporting their conclusions that appellant sustained medical
conditions on March 13, 2012 other than the accepted cervical sprain and contusion of her right
shoulder and upper arm. The Board has held that a medical report is of limited probative value on
the issue of causal relationship if it contains a conclusion regarding causal relationship which is
unsupported by medical rationale.9 Dr. Smith did not describe the March 13, 2012 employmentrelated accident in any detail or explain how it could have been competent to cause the conditions
he diagnosed. Moreover, his March 22, 2014 opinion on causal relationship is equivocal in nature
because it appears to be dependent on him gaining a greater understanding of appellant’s medical
conditions which preexisted the March 13, 2012 employment-related accident. The Board has
held that an opinion which is equivocal is of limited probative value regarding the issue of causal
relationship.10 With respect to Dr. Smith’s opinion that appellant sustained a cervical disc
protrusion on March 13, 2012 the provision of medical rationale is especially necessary because he
did not diagnose this condition until December 2013, i.e., more than a year and a half after the
March 13, 2012 employment-related accident. For these reasons, his reports do not establish that
she sustained a medical condition on March 13, 2012 other than the accepted cervical sprain and
contusion of her right shoulder and upper arm.
In a November 18, 2013 report, Dr. Sutton, an attending Board-certified neurologist,
reported that appellant continued to complain of paresthesias and paresis in her right hand and
neck pain which intermittently radiated into her right shoulder. He indicated that she had a disc
protrusion at C6-7 with mild stenosis and noted, “[Appellant’s] neurologic sequelae remain
unresolved after greater than one year.” In this report, Dr. Sutton did not provide any mention of
the March 13, 2012 employment-related accident and, although he indicated that appellant had
long-standing symptoms, he did not provide a clear opinion that she sustained a medical
condition on March 13, 2012 other than the accepted cervical sprain and contusion of her right
shoulder and upper arm.
On appeal, appellant’s counsel asserted that the medical evidence of record established
that appellant sustained medical conditions on March 13, 2012 other than the accepted cervical
sprain and contusion of her right shoulder and upper arm. The Board notes that he did not
explain how the medical evidence supported this assertion.

9

C.M., Docket No. 14-88 (issued April 18, 2014).

10

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962); James P. Reed, 9 ECAB 193, 195 (1956).

5

LEGAL PRECEDENT -- ISSUE 2
As explained above, an employee who claims disability for a given period must establish
that an injury was sustained in the performance of duty as alleged and that any specific disability
for which compensation is claimed is causally related to the employment injury.11 For each
period of disability claimed, the employee has the burden of proving that she was disabled for
work as a result of the accepted employment injury.12 Whether a particular injury causes an
employee to be disabled for employment and the duration of that disability are medical issues
which must be proved by a preponderance of the reliable, probative, and substantial medical
evidence.13 The medical evidence required to establish a causal relationship between a claimed
period of disability and an employment injury is rationalized medical opinion evidence.14
ANALYSIS -- ISSUE 2
Appellant stopped work on March 13, 2014 and on April 17, 2014, she filed a claim for
compensation (Form CA-7) alleging that she had disability from March 15 to April 18, 2014 due
to her March 13, 2012 work injury.15 OWCP denied her disability claim because she failed to
submit sufficient medical evidence in support of her claim.
The Board finds that appellant did not submit sufficient medical evidence to establish
disability from March 15 to April 18, 2014 due to her March 13, 2012 work injury. Appellant
did not submit any medical report that contained an opinion that she sustained disability from
March 15 to April 18, 2014 due to her March 13, 2012 work injury.16 The medical reports of
record, including the above described reports of Dr. Smith and Dr. Sutton, do not contain any
such opinion. Therefore, appellant did not meet her burden of proof to establish that her
March 13, 2012 work injury caused disability for the period March 15 to April 18, 2014.
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 did not meet her burden of proof to establish that she
sustained a medical condition on March 13, 2012 other than the accepted cervical sprain and
contusion of her right shoulder and upper arm. The Board further finds that she did not meet her
11

See supra notes 6 and 8.

12

William A. Archer, 55 ECAB 674 (2004).

13

Fereidoon Kharabi, 52 ECAB 291 (2001).

14

See supra note 8.

15

Appellant returned to her regular work after the March 13, 2012 employment-related accident.

16

Appellant indicated on her (Form CA-7) that she was off work during this period due to “physicians’ orders,”
but she did not submit copies of such orders.

6

burden of proof to establish disability from March 15 to April 18, 2014 due to her March 13,
2012 work injury.
ORDER
IT IS HEREBY ORDERED THAT the March 16, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 11, 2016
Washington, DC

Christopher J. Godfrey, 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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JESSE BROWN MEDICAL CENTER,
Chicago, IL, Employer
__________________________________________

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

Docket No. 15-1542
Issued: February 8, 2017

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 July 6, 2015 appellant filed a timely appeal from a January 13, 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 to
review the merits of the case.
ISSUE
The issue is whether appellant has more than five percent permanent impairment of his
right upper extremity.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 18, 2013 appellant, a 60-year-old health technician, sustained a traumatic
injury in the performance of duty while defending himself from a patient. OWCP accepted his
claim for a right rotator cuff sprain.
On September 25, 2013 appellant underwent a right shoulder arthroscopy, full-thickness
rotator cuff repair, and subacromial decompression. Dr. Daryl L. O’Connor, the Board-certified
orthopedic surgeon, who performed the operation, saw appellant on January 17, 2014. He
released appellant to return to work without restrictions but noted the following: “I would expect
gradual improvement in his overhead strength and [range of motion] ROM. Date of maximum
medical improvement remains estimated at six months postoperative. I will see him again as
needed.”
Appellant filed a claim for a schedule award. Dr. Anatoly Rozman, a Board-certified
physiatrist and attending physician, evaluated impairment on February 7, 2014. It was his
understanding that appellant had reached maximum medical improvement as per Dr. O’Connor’s
January 17, 2014 note. Dr. Rozman rated impairment using the ROM method, citing to Table
15-34, page 475, of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (6th ed.) (shoulder ROM). He explained that he was not able to use Table 15-5, page
403 (shoulder regional grid), because the diagnosis-based impairment method required normal
motion, which appellant did not have.
Flexion was 80 degrees. Extension was zero percent impairment. Abduction was 70
degrees. Adduction was preserved at zero percent impairment. Internal rotation was a four
percent impairment of the upper extremity. External rotation was 60 degrees, or no impairment.
Using the Combined Values Chart on page 604, Dr. Rozman calculated 17 percent permanent
impairment of appellant’s right upper extremity due to loss of motion.
An OWCP medical adviser reviewed Dr. Rozman’s evaluation and noted, quoting the
A.M.A., Guides: “ROM is used primarily as a physical examination adjustment factor and only
to determine actual impairment values in the rare case when it is not possible to otherwise define
impairment; this is a significant change from prior editions.” The medical adviser concluded,
therefore, that Dr. Rozman’s rating based on ROM should be disregarded.
Instead, the medical adviser used the diagnosis-based impairment method on Table 15-5,
page 403, of the A.M.A., Guides. He noted that a five percent rating was awarded for a
diagnosis of full-thickness rotator cuff tear with residual findings. The medical adviser added
that, based on the physical examination findings of Dr. O’Connor, there would be no change due
to the net adjustment formula. He concluded that appellant had five percent permanent
impairment of his right upper extremity based on the diagnosis of full-thickness rotator cuff tear.
The medical adviser indicated the date of maximum medical improvement was January 17, 2014,
the date Dr. O’Connor last saw appellant.
On June 26, 2014 OWCP issued a schedule award for five percent permanent impairment
of appellant’s right upper extremity. After a request for a review of the written record, an
OWCP hearing representative on January 13, 2015 affirmed the June 26, 2014 schedule award.

2

On appeal, appellant argues that the ROM method of evaluating impairment is
permissible in his case.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of the Office of Workers’
Compensation Programs.2 Section 8107 of FECA sets forth the number of weeks of
compensation to be paid for the permanent loss of use of specified members, functions, and
organs of the body.3 FECA, however, does not specify the manner by which the percentage loss
of a member, function, or organ shall be determined. To ensure consistent results and equal
justice under the law, good administrative practice requires the use of uniform standards
applicable to all claimants. Through its implementing regulations, OWCP adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate
standard for evaluating schedule losses.4
The sixth edition of the A.M.A. Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).5 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.6
ANALYSIS
The issue on appeal is whether appellant has more than five percent permanent
impairment of his right upper extremity.
The Board finds that this case is not in posture for decision.

2

See 20 C.F.R. §§ 1.1-1.4.

3

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).
4

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

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
6

Isidoro Rivera, 12 ECAB 348 (1961).

3

The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the diagnosis-based
impairment or the ROM methodology when assessing the extent of permanent impairment for
schedule award purposes.7 The purpose of the use of uniform standards is to ensure consistent
results and to ensure equal justice under the law to all claimants.8 In T.H., the Board concluded
that OWCP physicians are at odds over the proper methodology for rating upper extremity
impairment, having observed attending physicians, evaluating physicians, second opinion
physicians, impartial medical examiners, and district medical advisers use both diagnosis-based
impairment and ROM methodologies interchangeably without any consistent basis.
Furthermore, the Board has observed that physicians interchangeably cite to language in the first
printing or the second printing when justifying use of either ROM or diagnosis-based impairment
methodology. Because OWCP’s own physicians are inconsistent in the application of the
A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent results and equal
justice under the law for all claimants.9
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the January 13, 2015
decision. Following OWCP’s development of a consistent method for calculating permanent
impairment for upper extremities to be applied uniformly, and such other development as may be
deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper
extremity schedule award.
CONCLUSION
The Board finds this case not in posture for decision.

7

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

8

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

9

Supra note 7.

4

ORDER
IT IS HEREBY ORDERED THAT the January 13, 2015 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: February 8, 2017
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.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
TRAINING CENTER, Great Lakes, IL,
Employer
__________________________________________

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

Docket No. 16-0237
Issued: March 23, 2016

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 November 23, 2015 appellant, through counsel, filed a timely appeal from an
October 22, 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 appellant has met his burden of proof to establish that he sustained
permanent impairment of either lower extremity, warranting a schedule award.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 24, 2004 appellant, then a 61-year-old security guard, filed a traumatic
injury claim (Form CA-1) under File No. xxxxxx938 alleging that he injured his left shoulder
and the left side of his back and neck when he slipped and fell on ice at work on that day. On
April 3, 2006 OWCP accepted his claim for lumbar sprain/strain and sprain/strain in an
unspecified area of the left arm.
On May 27, 2005 appellant filed another Form CA-1 under File No. xxxxxx394, alleging
that he hurt his lower back while getting into a van at work on that day. The driver of the van
drove off before he could get in the van. On October 26, 2005 OWCP accepted appellant’s
claim for lumbar sprain/strain, lumbosacral sprain/strain, and aggravation of lumbar spondylosis
with myelopathy. On February 2, 2007 it accepted his claim under File No. xxxxxx938 for
aggravation of left carpal tunnel syndrome and authorized left carpal tunnel release performed on
February 16, 2007.
On March 28, 2011 appellant filed a claim for a schedule award (Form CA-7) in both
claims. He submitted an August 12, 2011 medical report from Dr. William N. Grant, an
attending Board-certified internist, who found that appellant, had 22 percent impairment of the
left upper extremity and 25 percent impairment of each lower extremity under the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).
On December 18, 2011 and February 20, 2012 Dr. David H. Garelick, an OWCP medical
adviser who is a Board-certified orthopedic surgeon, reviewed the medical record, including
Dr. Grant’s findings and determined that appellant had one percent impairment of the left arm
and two percent impairment of each leg under the sixth edition of the A.M.A., Guides. He
determined that Dr. Grant’s evaluation was of limited value as he did not cite objective medical
evidence and was not an orthopedist. Dr. Garelick concluded that appellant reached maximum
medical improvement on December 10, 2008 the date of an examination performed by
Dr. Thomas F. Gleason, a Board-certified orthopedic surgeon.2
In a May 8, 2012 decision, OWCP granted appellant a schedule award for one percent
impairment of the left upper extremity, based on its medical adviser’s opinion as the weight of
the evidence. It paid him compensation for 3.12 weeks from December 10 to 31, 2008.
By letter dated May 14, 2012, appellant, through counsel, requested a telephone hearing
with an OWCP hearing representative.
In a June 22, 2012 decision, an OWCP hearing representative set aside the May 8, 2012
decision and remanded the case to OWCP. She directed OWCP to combine appellant’s claims
under File Nos. xxxxxx938 and xxxxxx394, prepare a new statement of accepted facts
2

In a December 10, 2008 report, Dr. Gleason diagnosed neck pain with cervical spondylosis, questionable lumbar
radicular syndrome post prior surgeries in 1980 and 1983 with report of more recent onset of radiculopathy related
to the accepted December 24, 2004 employment injury and more recent increased symptoms with
electromyogram/nerve conduction studies that suggested bilateral S1 radiculopathy, more on the right, and
degenerative disc disease, and recent postoperative changes that were exacerbated and stable. He concluded that
appellant had reached maximum medical improvement on the date of his examination, December 10, 2008.

2

addressing the mechanism of injury for the accepted work injuries and noting appellant’s
complete medical history, and to refer him for a second opinion examination on whether his
current medical conditions and any permanent impairment under the sixth edition of the A.M.A.,
Guides were causally related to his accepted December 24, 2004 and May 27, 2005 employment
injuries.
On remand, OWCP doubled File Nos. xxxxxx938 and xxxxxx394, with File No.
xxxxxx938 as the master file.
By letter dated July 19, 2012, OWCP notified appellant that he was scheduled for an
August 21, 2012 appointment for a second opinion with Dr. Allan Brecher, a Board-certified
orthopedic surgeon.
In an August 21, 2012 report, Dr. Brecher reviewed the statement of accepted of facts and
medical record and provided appellant’s medical and social background. A review of appellant’s
systems revealed fatigue, eye and hearing problems, nose bleeds, heart trouble, shortness of
breath, wheezing, frequent diarrhea and urination, abdominal pain, and musculoskeletal
problems including, joint and back pain, weakness, and difficulty with walking. Neurologically,
he had light-headedness, dizziness, numbness, and tingling sensations, problems with paralysis,
possible memory loss, confusion, and depression. On examination, findings included a healed
anterior cervical scar and a healed back scar. Appellant’s toe touch was two feet from the floor.
He had a normal gait, and heel and toe walking. Appellant’s quadriceps and hamstrings were
each five minus out of five. The extensor halluces longus was normal. Sensibility was intact.
Appellant had normal hip, knee, and ankle motion. Dr. Brecher assessed diabetes, a history of
cervical and lumbar spondylosis, and fusions in both regions. Appellant’s current symptoms
suggested claudication. Dr. Brecher noted the December 2004 and May 27, 2005 work injuries.
The latter work injury resulted in appellant’s lumbosacral sprain and aggravation of lumbar
spondylosis. Dr. Brecher noted that appellant returned to full-duty work on April 19, 2005.
In response to OWCP questions, Dr. Brecher stated that appellant had sprains of the
lumbar spine with underlying spondylosis and a shoulder sprain. Appellant underwent a left
rotator cuff repair and now that shoulder was the better shoulder. He had minimal weakness, but
he had claudication. Dr. Brecher believed that this was a progression of his underlying
degenerative spine disease which was not related to the accepted December 24, 2004 and
May 27, 2005 lumbar and cervical sprains and shoulder sprain. He advised that appellant’s
continuing problem was not related to the accepted conditions. Appellant actually had more
problems with his right shoulder which was not an injured member. Regarding appellant’s
work-related permanent or partial impairment, Dr. Brecher advised that his sprains were not high
velocity injuries. He noted that, after the first injury, appellant was returned to full-duty work
the next year. Appellant’s second injury was only an injury to his back that was a temporary
aggravation of his underlying spondylosis. Dr. Brecher believed that appellant had continued
progression of his spondylosis which caused claudication-like symptoms unrelated to his work
injuries. He advised that appellant’s residual weakness was not related to the work injuries.
Dr. Brecher concluded that appellant had two percent impairment of the arm due to tendinitis and
weakness and five percent permanent impairment of both legs and arms due to weakness under
the sixth edition of the A.M.A., Guides.

3

In an October 15, 2012 decision, OWCP denied appellant’s claim for a schedule award.
It found that the weight of the evidence rested with Dr. Brecher’s opinion that appellant’s current
conditions and resulting impairment were not related to his accepted December 24, 2004 and
May 27, 2005 employment injuries.
By letter dated October 19, 2012, appellant, through counsel, requested a telephone
hearing with an OWCP hearing representative.
In a January 9, 2013 decision, an OWCP hearing representative set aside the October 15,
2012 decision and remanded the case to OWCP to obtain a supplemental report from
Dr. Brecher, who was to provide rationale to support his opinion that the aggravation of
appellant’s lumbar spondylosis was temporary, and address whether appellant’s tendinitis and
weakness in his left shoulder were due to his accepted December 24, 2004 work injuries and
whether he had any residuals or impairment related to his accepted conditions under the sixth
edition of the A.M.A., Guides.
Following OWCP’s request, on October 16, 2013, Dr. Brecher explained why the
aggravation of appellant’s lumbar spondylosis was temporary. He noted that appellant had a
history of multiple lumbar surgeries and chronic failed back syndrome, but after the aggravation
appellant returned to full-duty work on April 19, 2005. This reflected that appellant’s
lumbosacral sprain and aggravation of lumbar spondylosis had returned to baseline. Dr. Brecher
noted that this did not mean that appellant was without pain. Appellant had chronic pain and
underwent multiple back surgeries. Dr. Brecher advised that the temporary aggravation resolved
when appellant returned to work. He further advised that appellant’s tendinitis and weakness of
the left shoulder resulted from his December 24, 2004 employment-related fall. Dr. Brecher
found no impairment for appellant’s employment-related left carpal tunnel syndrome and left
small trigger finger under the sixth edition of the A.M.A., Guides as his physical examination
findings did not reveal any signs of these conditions.
On December 31, 2013 OWCP accepted appellant’s claim for temporary aggravation of
lumbar spondylosis that resolved as of April 19, 2005 and left small trigger finger.
On January 5, 2014 Dr. Christopher Gross, an OWCP medical adviser who is Boardcertified in psychiatry and neurology, reviewed the medical record, including the reports of
Drs. Brecher and Garelick, and Dr. Sanjai K. Shukla, an OWCP medical adviser and a Boardcertified orthopedic surgeon.3 He utilized the sixth edition of the A.M.A., Guides and The
Guides Newsletter July/August 2009 to rate appellant’s impairment.
Dr. Gross noted
Dr. Brecher’s October 16, 2013 findings and determined that resolved pathologies were class 0
diagnoses with no impairment. He determined that appellant reached maximum medical
improvement on December 10, 2008 the date of Dr. Gleason’s evaluation. Regarding the
bilateral lower extremities, Dr. Gross related that neither Dr. Brecher nor Dr. Shukla used the
preferred The Guides Newsletter July/August 2009 for disabilities relating to the spine.
Dr. Shukla noted S1 sensory loss while Dr. Brecher’s most recent examination noted full
sensation, but mild (5-/5) quadriceps weakness. Dr. Gross found that appellant had a grade 1
3

In a December 18, 2011 report, Dr. Shukla found that appellant had two percent impairment of each lower
extremity. He also found that appellant reached maximum medical improvement on December 10, 2008, the date of
Dr. Gleason’s examination.

4

diagnosis for right L4 radiculopathy with mild motor loss (The Guides Newsletter
July/August 2009, Table 2). Based on Table 16-6, page 516, he had a mild functional problem
without an antalgic gait which represented a grade l modifier. Physical examination was not
relevant as the neurologic findings were used to define impairment ranges. Clinical studies were
also not relevant. Dr. Gross determined that appellant had a net adjustment of zero. He had five
percent bilateral leg permanent impairment. Dr. Gross noted, however, Dr. Brecher’s finding
that appellant had residual weakness not related to his injuries and that his lumbosacral pain and
aggravation of lumbar spondylosis had returned to baseline. Therefore, he determined that since
appellant’s weakness was attributed to preexisting conditions, appellant had no bilateral lower
extremity impairment for his accepted conditions. This differed from Dr. Shukla’s rating since
new medical evidence demonstrated that there were no sensory deficits. Dr. Gross concluded
that appellant reached maximum medical improvement on August 21, 2012, the date of
Dr. Brecher’s last examination.4
In a February 12, 2014 decision, OWCP denied appellant’s claim for a schedule award.
It found that the weight of the evidence rested with Dr. Brecher’s opinion.
By letter dated February 19, 2014, appellant, through counsel, requested a telephone
hearing with an OWCP hearing representative.
In an October 9, 2014 decision, an OWCP hearing representative set aside the
February 12, 2014 decision and remanded the case to OWCP. She directed OWCP to clarify
whether appellant’s claim had been accepted for lumbar spondylosis or an aggravation of lumbar
spondylosis as Dr. Brecher had advised that the aggravation of the lumbar spondylosis had
resolved, but found that there was impairment related to the underlying condition.
By decision dated February 2, 2015, OWCP denied appellant’s schedule award claim for
the lower extremities. It found that his claim under File No. xxxxxx938 was accepted for
temporary aggravation of lumbar spondylosis that had resolved as of April 19, 2005. OWCP
noted that it had not accepted appellant’s claim for an underlying spondylosis condition and,
therefore, there was no need for its medical adviser to review his schedule award claim.
In a February 11, 2015 letter, appellant, through counsel, requested a telephone hearing
with an OWCP hearing representative. A telephone hearing was held on August 5, 2015.
In an October 22, 2015 decision, an OWCP hearing representative affirmed the
February 2, 2015 decision. She found that Dr. Brecher’s opinion established that appellant
sustained a work-related temporary aggravation of his underlying spondylosis condition and that
he did not sustain any permanent impairment entitling him to a schedule award for his lower
extremities. The hearing representative noted that appellant’s underlying lumbar condition had
not been accepted by OWCP.

4

It appears that Dr. Gross inadvertently listed the date of maximum medical improvement as August 21, 2013
rather than August 21, 2012 as he accurately described Dr. Brecher’s August 21, 2012 examination findings.

5

LEGAL PRECEDENT
The schedule award provision of FECA,5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.7 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.8 Effective May 1, 2009,
FECA adopted the sixth edition of the A.M.A., Guides9 as the appropriate edition for all awards
issued after that date.10
The sixth edition requires identifying the impairment class for the diagnosed condition
Class of Diagnosis (CDX), which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).11 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12
No schedule award is payable for a member, function, or organ of the body not specified
in FECA or in the regulations.13 Because neither FECA nor the regulations provide for the
payment of a schedule award for the permanent loss of use of the back,14 no claimant is entitled
to such an award.15 However, 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. As the schedule award provision of FECA includes the extremities, a

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

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

8

Supra note 7; Mark A. Holloway, 55 ECAB 321, 325 (2004).

9

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

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); see also, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5(a)
(February 2013).
11

A.M.A., Guides 494-531.

12

Id. at 521.

13

Henry B. Floyd, III, 52 ECAB 220 (2001).

14

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

15

Thomas Martinez, 54 ECAB 623 (2003).

6

claimant may be entitled to a schedule award for permanent impairment to an extremity even
though the cause of the impairment originated in the spine.16
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.17
ANALYSIS
OWCP accepted that appellant sustained lumbar sprain/strain, sprain/strain in an
unspecified area of the left arm, aggravation of lumbar spondylosis with myelopathy,
aggravation of left carpal tunnel syndrome, and left small trigger finger. It paid him a schedule
award for one percent permanent impairment of the left upper extremity, which was set aside by
an OWCP hearing representative. Subsequently, OWCP denied appellant’s claim for a schedule
award for both lower extremities. The Board finds that he has not met his burden of proof to
establish permanent impairment to either lower extremity due to his accepted conditions.18
The Board finds that the well-rationalized opinion of Dr. Brecher, an OWCP referral
physician, constitutes the weight of the medical evidence regarding the extent of impairment to
appellant’s bilateral lower extremities. It does not establish that appellant is entitled to schedule
award compensation for either lower extremity. In an August 21, 2012 report, Dr. Brecher
provided normal findings on examination of the lower extremities. While he advised that
appellant had a continued progression of his underlying lumbar spondylosis which caused
claudication-like symptoms and resulted in five percent impairment of each leg under the sixth
edition of the A.M.A., Guides, Dr. Brecher opined that these conditions were not related to the
accepted employment-related injuries.19 In his supplemental report dated October 16, 2013,
Dr. Brecher clarified that appellant’s temporary aggravation of lumbar spondylosis had resolved
as of April 19, 2005, the date he returned to full-duty work. He explained that this reflected that
appellant’s accepted lumbosacral sprain and aggravation of lumbar spondylosis had returned to
baseline.
On January 5, 2014 Dr. Gross, an OWCP medical adviser, reviewed Dr. Brecher’s
He determined that appellant reached maximum medical improvement on
reports.20
August 21, 2012 the date of Dr. Brecher’s examination. The medical adviser found that
appellant had no impairment to the lower extremities under the sixth edition of the A.M.A.,
16

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

17

See supra note 10 at Chapter 2.808.6(f) (February 2013). See C.K., Docket No. 09-2371 (issued August 18,
2010); Frantz Ghassan, 57 ECAB 349 (2006).
18

An employee seeking a schedule award has the burden of proof to establish permanent impairment. See
Denise D. Cason, 48 ECAB 530 (1997).
19

See Veronica Williams, 56 ECAB 367 (2005) (a schedule award can be paid only for a condition related to an
employment injury; the claimant has the burden of proving that the condition for which a schedule award is sought
is causally related to his or her employment).
20

See supra note 17.

7

Guides resulting from either employment injury. He explained that Dr. Brecher attributed
appellant’s residual weakness to a preexisting condition and not to the accepted employment
injuries and found that appellant’s employment-related aggravation of lumbar spondylosis had
returned to baseline. Dr. Gross further explained that the new medical evidence demonstrated
that appellant had no sensory deficits.
The Board finds that appellant has not shown that he is entitled to schedule award
compensation for his lower extremities and, thus, he has not met his burden of proof.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law. For
reasons stated above, the Board finds that the weight of the medical evidence does not establish
that appellant sustained permanent impairment to either lower extremity, warranting a schedule
award.
Appellant may request a schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained permanent impairment of either lower extremity, warranting a schedule award.

8

ORDER
IT IS HEREBY ORDERED THAT the October 22, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 23, 2016
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

9


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

)
)
)
)
)
)
)
)

Appearances:
William H. Brawner, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1773
Issued: March 9, 2012

Case Submitted on the Record

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

JURISDICTION
On July 22, 2011 appellant, through her representative, filed a timely appeal from the
Office of Workers’ Compensation Programs’ (OWCP) merit decision dated May 4, 2011
terminating her compensation and medical benefits. 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 met its burden of proof to terminate appellant’s
compensation and medical benefits.
FACTUAL HISTORY
On April 7, 2008 appellant, then a 29-year-old city letter carrier, filed an occupational
disease claim alleging that she sustained a right foot injury as a result of employment activities.
1

5 U.S.C. § 8101 et seq.

OWCP accepted her claim for right ankle sprain and rupture of the right tibialis anterior tendon.
Appellant was placed on the periodic rolls and received appropriate compensation benefits.
On March 31, 2011 OWCP issued a notification of proposed termination of
compensation and medical benefits on the grounds that appellant no longer had work-related
residuals of her accepted condition. It informed her that, if she did not present additional
evidence or argument relevant to her case within 30 days, her benefits would be terminated.
The record contains a letter dated March 10, 2011 whereby appellant designated
William H. Brawner, Esquire as her personal representative. The letter was received by OWCP
on April 11, 2011. In a letter dated April 10, 2011, appellant’s representative requested a copy
of all documents relating to appellant’s claim.
In a letter dated April 13, 2011, OWCP acknowledged receipt of appellant’s statement
designating Mr. Brawner as her personal representative and his request for a copy of the file. It
stated that a copy would be provided when it became available.
By decision dated May 4, 2011, OWCP terminated appellant’s medical and compensation
benefits. A copy of the final termination decision was sent to appellant and her representative.
In a letter dated May 9, 2011, OWCP informed appellant’s representative that it could
take up to 30 days for appellant to receive a copy of the entire case file, but it was sending him a
hard copy of the March 31, 2011 proposed notice of termination and the May 4, 2011 final
decision terminating her compensation benefits.
LEGAL PRECEDENT
Section 10.127 of the regulations directs OWCP to mail a copy of any decision it may
issue to claimant’s last known address. If the claimant has a designated representative, then a
copy of the decision must also be mailed to the representative.2
A properly appointed representative who is recognized by OWCP may make a request or
give direction to OWCP regarding the claims process, including a hearing. This authority
includes presenting or eliciting evidence, making arguments on facts or the law and obtaining
information from the case file, to the same extent as the claimant. Any notice requirement

2

20 C.F.R. § 10.127 (1999). (“A copy of the decision shall be mailed to the employee’s last known address. If
the employee has a designated representative before OWCP, a copy of the decision will also be mailed to the
representative. Notification to either the employee or the representative will be considered notification to both. A
copy of the decision will also be sent to the employer.”) Travis L. Chambers, Docket No. 02-1650 (issued April 17,
2003), reaff’d, 55 ECAB 138 (2003), holding that section 10.127 requires that a copy of an OWCP decision be sent
to the authorized representative and that any other interpretation of the language of the regulations would be
inconsistent with the clear language of its initial provisions. See also Federal (FECA) Procedure Manual, Part 2 -Claims, File Maintenance and Management, Chapter 2.400.12 (October 1998) stating, “Any letter intended for a
claimant should be sent to the authorized attorney or other legal representative” and Part 2 -- Claims, Initial
Development of Claims, Chapter 2.800.3c(1) (April 1993) stating, “[OWCP] must provide information about
procedures involved in establishing a claim, including detailed instructions for developing the required evidence to
all interested parties (the claimant, the employing establishment and the representative, if any).”

2

contained in the regulations or FECA is fully satisfied if served on the representative and has the
same force and effect as if it had been sent to the claimant.3
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.4 A claimant has a property interest in not having his benefits
terminated5 and failure to notify the authorized representative effectively denies appellant’s
property interest in not having her benefits terminated.6
ANALYSIS
The Board finds that OWCP was required to notify appellant’s representative of its intent
to terminate appellant’s benefits. Failure to provide notice effectively denied appellant’s
property interest in not having her benefits terminated.
On March 31, 2011 OWCP proposed to terminate appellant’s compensation and medical
benefits. As appellant was not represented by counsel at that time, OWCP forwarded a copy of
the proposed termination notice to her. In a document dated March 10, 2011 and received by
OWCP on April 11, 2011, appellant designated William H. Brawner, Esquire as her personal
representative. In a letter dated April 10, 2011 and received by OWCP on April 11, 2011, her
representative requested a copy of all documents relating to her claim.
In a letter dated April 13, 2011, OWCP acknowledged receipt of appellant’s statement
designating Mr. Brawner as her personal representative and his request for a copy of the file,
indicating that a copy would be provided when it became available. It did not, however, provide
her representative with a copy of the notice of proposed termination at that time. Instead, OWCP
terminated appellant’s medical and compensation benefits on May 4, 2011, without prior notice
to her designated representative.
As the Board stated in Chambers,7 the language of the statute must be read with due
regard for the remedial nature of FECA, and the Board must attempt to interpret the language to
reach a consistent and harmonious result.8 The applicable section of the Code of Federal
Regulations grants significant powers to the representative, including the ability to resubmit legal
argument or new evidence prior to termination of benefits.9 When OWCP fails to notify a
claimant’s representative of a proposed termination, the claimant is deprived of the opportunity
to have her representative exercise the powers granted by the Code of Federal Regulations. The
3

20 C.F.R. § 10.700(c) (1999).

4

Franklin H. Brydon, 49 ECAB 227, 227 (1997); see also Mohamed Yunis, 42 ECAB 325, 334 (1991).

5

See Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818, 823 (1992).

6

See Franklin H. Brydon, supra note 4 at 229.

7

See Travis L. Chambers, supra note 2.

8

Id.

9

See 20 C.F.R. § 541.

3

Board has held, even in the face of contradictory language, that section 10.127 requires that a
copy of an OWCP decision be sent to the authorized representative. OWCP procedures also
mandate notice to a representative of decisions and information. To accept an interpretation that
does not require notice to a representative would be contrary to the clear intent of FECA, the
regulations and OWCP procedures.10
In this case, OWCP failed to notify appellant’s representative of its intent to terminate
benefits. Although appellant had not designated Mr. Brawner as her personal representative on
the date OWCP issued the notice of proposed termination, she did so only 10 days thereafter. In
its April 13, 2011 letter to counsel, OWCP acknowledged the designation and his request for a
copy of the entire file. It did not, however, provide appellant’s representative with copies of any
documents related to the termination of appellant’s benefits and thereby denied her the
opportunity to present evidence to protect her interest. Once OWCP was advised of appellant’s
representation, it was obligated to inform counsel of information relating to her proposed
termination.
In Stephanie P. Efflandt,11 the Board found that OWCP’s notification of proposed
termination of benefits was a “determination” in accordance with the regulations. The Board
further found that OWCP’s failure to notify the representative of its intent to terminate benefits
denied appellant’s property interest in not having her benefits terminated.” The principle of
Efflandt applies in the present case.12
Under principles of fairness and in accordance with the remedial nature of FECA,
appellant was entitled to an opportunity to attempt to retain her benefits with the assistance of
counsel and was denied the right to do so. Therefore, the May 4, 2011 decision must be
reversed.
CONCLUSION
The Board finds that OWCP’s failure to send a copy of the proposed termination of
benefits to the authorized representative effectively denied appellant’s property interest in not
having her benefits terminated.

10

See supra note 2.

11

Docket No. 04-2088 (issued January 28, 2005).

12

See Franklin H. Brydon, 49 ECAB 227 (1997) (where the Board found that the notification of the suitability of
a position was a “determination” in accordance with the regulation, that notification to the claimant’s authorized
representative was required and that failure to notify the authorized representative effectively denied appellant’s
property interest in not having her benefits terminated. Finding that OWCP violated its own procedures, the Board
reversed OWCP’s decision.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 4, 2011 is reversed.
Issued: March 9, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5