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

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

Docket No. 09-690
Issued: December 29, 2009

Case Submitted on the Record

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

JURISDICTION
On January 14, 2009 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ December 17, 2008 schedule award decision. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant has more than 13 percent permanent impairment of
his right foot, for which he received a schedule award; and (2) whether the Office used the
correct pay rate for compensation purposes.
FACTUAL HISTORY
On December 19, 2001 appellant, then a 50-year-old letter carrier, filed an occupational
disease claim alleging that he sustained an injury to the great toe, and the second, third and
fourth toes of his right foot while delivering mail. He did not stop work but began modified duty
within restrictions. The Office accepted appellant’s claim for aggravation of a preexisting great
toe deformity, right foot metatarsalgia, second, third and fourth toes, hammer toe, right great toe

and right foot hammer toe. It also accepted nonunion of a previous arthrodesis of the
metatarsophalangeal joint, right foot.1 Appellant received appropriate compensation benefits.2
On April 27, 2004 appellant filed a Form CA-7 claim for a schedule award. In a report
dated July 22, 2004, Dr. Scott Free, a Board-certified orthopedic surgeon, advised that appellant
reached maximum medical improvement. In a November 15, 2004 report, he diagnosed
nonunion of the right first metatarsophalangeal joint. Dr. Free recommended a revision
arthrodesis.
In a letter dated December 3, 2004, appellant contended that he should receive a 50
percent benefit for his right great toe and a 33 percent benefit for his foot. This was based on his
physical work performance evaluation, which reflected that he was able to function at a medium
work level. On January 9, 2006 appellant indicated that he had not undergone the recommended
surgery.
On January 12, 2007 the Office referred appellant with a statement of accepted facts, a
set of questions and the medical record to Dr. Joseph Burkhardt, a Board-certified orthopedic
surgeon and osteopath. In a February 28, 2007 report, Dr. Burkhardt reviewed appellant’s
history and utilized the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides). He noted that appellant had restricted
movement in the first metatarsophalangeal joint after fusion comprised of zero degrees of motion
of the metatarsophalangeal (MP) joint. Dr. Burkhardt found that appellant had normal motion in
the second, third and fourth MP joints with metatarsal head discomfort with palpation. Appellant
also had complete ankylosis of the first metatarsophalangeal joint. He had subjective pain
complaints in the second, third and fourth metatarsal heads. Appellant referred to Table 17-303
for ankylosis of toes and 10 percent impairment to the lower extremity impairment.
Dr. Burkhardt indicated that appellant was at maximum medical improvement.
In an April 12, 2007 report, Dr. Free opined that appellant had reached maximum
medical improvement. Appellant had metatarsalgia-related symptoms as the mechanics of his
great toe had been altered by the necessity of surgery.
In a letter dated June 11, 2007, Kathryn V. Hundley, a health and human resource
management specialist at the employing establishment, noted that appellant’s current pay rate
was $49,219.00 per year. She indicated that the pay rate for the same grade and step from
December 6, 2001 was equal to $46,401.00 per year.

1

The record reflects that appellant had a previous surgery to the great right toe, which was not employment
related. Appellant had surgery on September 5, 2003 to remove a failed implant of the right great toe and to correct
a right second hammer toe. He also had surgery on May 17, 2006 to refuse the right great toe.
2

The record reflects that the Office issued wage-earning capacity decisions dated December 19, 2005 and
August 14, 2007 reducing his compensation to zero upon determining that his actual earnings as a modified city
carrier fairly and reasonably represented his wage-earning capacity.
3

A.M.A., Guides 543.

2

In an August 25, 2007 report, an Office medical adviser referred to Table 17-30 to find
that appellant had nine percent impairment of the right leg.4 The Office medical adviser
explained that his report differed from that of Dr. Burkhardt because the physician did not note
that the joint was fused in full extension. He explained that surgical fusion did not typically
result in full extension; instead, it resulted in more of a position of function as indicated in Table
17-30.5 The Office medical adviser recommended 9 percent impairment instead of 10 percent.
He advised that appellant reached maximum medical improvement on February 28, 2007, the
date of Dr. Burkhardt’s examination.
On September 28, 2007 the Office granted appellant a schedule award for nine percent
permanent impairment of the right lower extremity. The award covered a period of 25.92 weeks
from February 28 to August 28, 2007. The pay rate for compensation purposes was $924.58 per
week based on appellant’s pay rate on February 28, 2007.
On August 20, 2008 appellant filed a claim for an increased schedule award. He asked to
be compensated for the partial loss of use of his right foot. Appellant submitted a November 5,
2007 report from Dr. Richard Ilka, Board-certified in preventative medicine, who found that
appellant had an eight centimeter long dorsal surgical scar along the length of his right great toe
which was ankylosed at the MP joint. Dr. Ilka noted that the second toe was straight but the
third and fourth had hammertoes. He indicated that he had hammertoes on toes two through five.
Dr. Ilka advised that appellant had a 13 percent impairment to the right foot due to ankylosis of
the right great toe in the position of function according to Table 17-30.6 He explained that the
A.M.A., Guides do not provide a great toe rating, only whole person, lower extremity and of the
foot. Dr. Ilka explained that all of the lesser toes could be extended more than 10 degrees at the
metatarsal-phalangeal joints and they would not be entitled to impairment as they moved beyond
the range of motion impairments pursuant to Table 17-14.7 He noted that 13 percent impairment
of the right foot was equal to 9 percent of the right leg.
In an October 15, 2008 report, the Office medical adviser reviewed the evidence and
referred to Table 17-308 and explained that ankylosis of the MP joint of the right big toe in
positioning function was equal to 13 percent of the right big toe or foot. He also indicated that
this was equal to nine percent of the lower extremity.
On November 13, 2008 the Office requested clarification with regard to whether there
was 13 percent impairment of the right big toe or 13 percent impairment of the right foot. In a
December 12, 2008 report, the Office medical adviser clarified his opinion. He explained that
appellant’s right big toe was the only toe that was ankylosed in the position of function. The

4

Id.

5

Id.

6

Id. at 543.

7

Id. at 537. While he indicated 17-4, this appears to be a typographical error.

8

Id. at 543.

3

Office medical adviser clarified that according to Table 17-309 appellant would be entitled to 4
percent of the whole person, or 9 percent of the lower extremity or 13 percent of the foot. He
concluded that appellant’s impairment of the right big toe resulted in 13 percent of the right foot.
In a December 16, 2008 memorandum to the file, the Office noted that appellant was
previously awarded a nine percent permanent impairment of the right lower extremity on
September 28, 2007. It determined that the new medical evidence supported an award of the
right foot only. The Office determined that the 9 percent to the right lower extremity should be
subtracted from the 13 percent to the right foot. It subtracted the number of days (181.44)
previously paid for the 9 percent of the lower extremity from the number of days payable for 13
percent to the right foot (186.55) and determined that appellant was owed an additional 5.11 days
of compensation. The Office utilized the established pay rate of $924.58 (weekly) and divided
this amount by seven days per week. It multiplied this by 5.11 days and arrived at the amount of
$674.94.
On December 17, 2008 the Office granted appellant an amended schedule award for 13
percent permanent impairment of the right foot. The award covered the period August 29 to
September 4, 2007. The Office indicated that appellant was previously paid 181.44 days of
compensation for nine percent to the right lower extremity. It indicated that appellant would be
entitled to 186.55 days for 13 percent to the foot and subtracted the previous amount paid for the
lower extremity (181.44) days and determined that appellant was entitled to receive an additional
5.11 days. The effective date of the pay rate for compensation purposes was based on
appellant’s pay rate on February 28, 2007, the date of maximum medical improvement.10
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act11 and its
implementing regulations12 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.13
The standards for evaluating the percentage of impairment of extremities under the
A.M.A., Guides are based primarily on loss of range of motion. In determining the extent of loss
of motion, the specific functional impairments, such as loss of flexion or extension, should be
9

Id. at 543.

10

The employing establishment confirmed his pay rate remained at $924.58 per week.

11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404.

13

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

4

itemized and stated in terms of percentage loss of use of the member in accordance with the
tables in the A.M.A., Guides.14 However, all factors that prevent a limb from functioning
normally should be considered, together with the loss of motion, in evaluating the degree of
permanent impairment.15
ANALYSIS -- ISSUE 1
The Board finds that appellant has not shown that he sustained more than 13 percent
permanent impairment of his right foot, for which he received a schedule award.
In the present case, the Board finds that the Office medical adviser and appellant’s
treating physician, Dr. Ilka, properly applied the fifth edition of the A.M.A., Guides. They both
referred to Table 17-3016 and explained that ankylosis of the MP joint of the right big toe in
positioning function was equal to 13 percent of the right foot. They also indicated that this was
equal to nine percent of the lower extremity.
Appellant is not entitled to receive two awards for injury to the same body part. The
Board has held that, when impairment residuals of an injury to a member of the body specified in
the schedule extend into an adjoining area of a member also enumerated in the schedule, such as
an injury of a finger into the hand, of a hand into the arm, or of a foot into the leg, the schedule
award should be made on the basis of the percentage loss of use of the larger member, not both
members.17 However, where impairment of the foot would yield more compensation than the
impairment to the larger member, the leg, appellant should be given the benefit of the more
favorable allowance.18
Section 8107(c) of the Act provides 288 weeks of compensation for total loss of a leg and
205 weeks for total loss of a foot. For the leg, 288 weeks times 9 percent impairment equals
25.92 weeks of compensation. For the foot, 205 weeks times 13 percent impairment equals
26.65 weeks compensation. The award to the foot is the more favorable and is what appellant
received. Appellant has not submitted any other reports to establish a greater impairment.
On appeal, appellant alleges that he is entitled to receive a schedule award to his leg and
to his foot concurrently. However, as noted, appellant is not entitled to two awards for injury to
the same body part, only to the more favorable allowance. In this case, it was for impairment to
the right foot.

14

See William F. Simmons, 31 ECAB 1448 (1980); Richard A. Ehrlich, 20 ECAB 246, 249 (1969) and cases cited
therein.
15

Bernard A. Babcock, Jr., 52 ECAB 143 (2000); see also Paul A. Toms, 28 ECAB 403 (1987).

16

A.M.A., Guides 543.

17

See Sam Jones, 25 ECAB 163 (1974).

18

Cf. FECA Program Memorandum No. 134 (issued February 3, 1971) (where the cumulative allowances for the
digits is greater than the value of the percentage loss of the hand or foot, the employee should have the benefit of the
more favorable award and be compensated in accordance with the scheduled allowances for the sum of the digits).

5

LEGAL PRECEDENT -- ISSUE 2
Section 8101(4) of the Federal Employees’ Compensation Act defines monthly pay as
“the monthly pay at the time of injury, or the monthly pay at the time disability begins, or the
monthly pay at the time compensable disability recurs if the recurrence begins more than six
months after the injured employee resumes regular full-time employment with the United States,
whichever is greater.”19 When the injury is caused by exposure to an occupational hazard, the
date of injury is the date the employee was last exposed to the hazardous condition.20
If it is determined after payment of a schedule award that the claimant is entitled to a
greater percentage of loss, an amended award should be issued. The pay rate will remain the
same, and the revised award will begin on the day following the end of the award issued
previously.21 Where exposure to work factors continues, the date of injury is the date of relevant
medical evaluation, i.e., the date of the medical examination upon which the extent of permanent
impairment has been determined.22
ANALYSIS -- ISSUE 2
Regarding appellant’s pay rate, the record reflects that appellant received an amended
award for the difference between the previous award of 9 percent to the right lower extremity
and 13 percent to the right foot. The Office utilized the same pay rate in effect as that of the
previous award, in the amended award. In a December 16, 2008 memorandum to the file, the
Office noted that the 9 percent schedule award previously issued for the right lower extremity
should be subtracted from the 13 percent award to the right foot. As noted above, this properly
represents the more favorable allowance.23 The Office subtracted the number of days (181.44)
previously paid for the 9 percent of the lower extremity from the number of days payable for 13
percent to the right foot (186.55) and determined that appellant was owed an additional 5.11
days. It utilized the established pay rate of $924.58 (weekly) and divided this amount by seven
days per week. The Office multiplied this by 5.11 days and arrived at the amount of $674.94.
The revised award began on August 29, 2007, the day following the end of the award issued
previously.24
On appeal, appellant argues that his schedule award should be based on a weekly pay rate
of $959.75 that is retroactive to November 25, 2006. Based on the evidence of record, there is
no indication that the pay rate used by the Office is inappropriate. The Office calculated
appellant’s pay rate as of February 28, 2007, the date appellant reached maximum medical
19

5 U.S.C. § 8101(4).

20

Manuel Carbajal, 37 ECAB 216 (1985).

21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.7.b(1) (November 1998).
22

R.S., 58 ECAB ___ (Docket No. 06-1346, issued February 16, 2007).

23

See supra note 18.

24

See supra note 21.

6

improvement. The Board notes that Dr. Burkhardt, the second opinion physician, and the Office
medical adviser agreed that appellant reached maximum medical improvement on
February 28, 2007. The amended award also utilized the pay rate in effect at the time of the
original award.25 The amended award was based on the determinations from the subsequent
physicians that appellant should receive the more favorable award to the foot as opposed to the
leg. The employing establishment provided the requested information regarding appellant’s pay
rate on August 14, 2007. The Board finds no probative evidence of error regarding the pay rate
for compensation purposes.
The Board notes that, subsequent to the Office’s December 17, 2008 decision, appellant
submitted additional evidence. This evidence includes information pertaining to the pay scale
for letter carriers. The Board has no jurisdiction to review this evidence for the first time on
appeal.26 However, to the extent that appellant is arguing that there is new information pertinent
to his pay rate, he may wish to seek reconsideration before the Office.27
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained more than a 13 percent permanent impairment of his right foot, for which he received a
schedule award. The Board also finds that the Office used the correct pay rate for compensation
purposes.

25

Id.

26

20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952).

27

Appellant also has another appeal pending before the Board, Docket No. 09-1296, that shall proceed to
adjudication separately from the present matter.

7

ORDER
IT IS HEREBY ORDERED THAT the December 17, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 29, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.U., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Honolulu, HI, Employer
__________________________________________

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

Docket No. 08-1894
Issued: June 15, 2009

Case Submitted on the Record

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

JURISDICTION
On June 20, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated May 8, 2008. Pursuant to 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 is entitled to compensation for additional permanent
impairment following the termination of his compensation benefits on March 12, 2008 on the
grounds that he refused an offer of suitable work.
FACTUAL HISTORY
This is the second appeal in this case. On August 15, 1980 appellant, then a 34-year-old
letter carrier, injured his left wrist while trying to close the backdoor of a mail truck. The Office
accepted his claim for fracture of the left wrist, stylyoidectomy, radial grafting nonunion corpeal
navicular and left wrist surgery, Darrach procedure. Appellant received a schedule award for 12

percent impairment of his left upper extremity on September 19, 1983 and for an additional 38
percent impairment of the left upper extremity on September 18, 1986.
In a letter dated February 4, 1998, the Office informed appellant that the employing
establishment had provided him with a suitable work position as a modified mail distribution
clerk. Appellant had 30 days to accept the position and was advised that, under section 8106(c)
of the Federal Employees’ Compensation Act, if he refused this position “his compensation
benefits for wage loss or schedule award will be terminated.” By decision dated March 12,
1998, the Office terminated appellant’s compensation benefits effective that date on the grounds
that he refused a suitable work position. The Branch of Hearings and Review affirmed this
decision on August 17, 1998.
Appellant underwent a total left wrist fusion on January 25, 2000. The Office authorized
compensation for the period January 29 to March 31, 2000. By decision dated December 3,
2001, the Office found that appellant had received an overpayment in the amount of $6,680.23 as
he was not entitled to further compensation benefits after March 12, 1998 and that appellant was
at fault in the creation of the overpayment. Appellant requested an appeal. By decision dated
October 2, 2002, the Board affirmed the Office’s December 3, 2001 decision.1 The facts and the
circumstances of the case as set out in the Board’s prior decision are adopted herein by
reference.2
Appellant requested an additional schedule award on March 1, 2004 and submitted
medical evidence. By decision dated August 16, 2007, the Office denied appellant’s request for
a schedule award finding that the medical evidence did not establish more than 50 percent
impairment of his left upper extremity for which he had previously received schedule awards.
Appellant requested an oral hearing on August 27, 2007. He testified on March 26, 2008
that he had never refused a position at the employing establishment. By decision dated May 8,
2008, the hearing representative found that, due to his refusal of an offer of suitable work in
contravention of section 8106(c)(2) of the Act, appellant was not entitled to further compensation
for his accepted left wrist conditions including an additional schedule award.3
LEGAL PRECEDENT
Section 8106(c) of the Act4 provides that a partially disabled employee who refuses or
neglects to work after suitable work is offered to, procured by, or secured for the employee is not
1

Docket No.02-904 (issued October 2, 2002).

2

In his June 11, 2008 appeal letter, appellant disagreed with this overpayment decision. The Board issued a final
decision on the fact, amount and fault issues regarding this overpayment on October 2, 2002. This decision became
final on November 1, 2002. 20 C.F.R. § 501.6(d). This decision is not subject to further review.
3

Following appellant’s June 20, 2008 appeal to the Board, the Branch of Hearings and Review issued a decision
on August 20, 2008 denying appellant’s request for a second oral hearing. As this decision was issued after the date
of appellant’s appeal to the Board and as it does not address the merit issue before the Board, the Board will not
address this decision in this appeal. 20 C.F.R. § 501.2(c).
4

5 U.S.C. § 8106(c)(2).

2

entitled to compensation. The Office’s regulations further provide that, after the Office has
provided an employee with the appropriate two notices, then the Office “will terminate the
employee’s entitlement to further compensation under 5 U.S.C. [§§] 8105,5 81066 and 8107,7 as
provided by 5 U.S.C. [§] 8106(c)(2). However, the employee remains entitled to medical
benefits as provided by 5 U.S.C. [§] 8103.”8 The Board has affirmed these determinations
beginning in Stephen R. Lubin.9 The Board has found that a refusal to accept suitable work
constitutes a bar to receipt of a schedule award for any impairment which may be related to the
accepted employment injury.10
ANALYSIS
The Office accepted that appellant sustained a fracture of the left wrist, stylyoidectomy,
radial grafting nonunion corpeal navicular and left wrist surgery, Darrach procedure due to his
August 15, 1980 employment injury. Appellant received a schedule award for 12 percent
impairment of his left upper extremity on September 19, 1983 and a schedule award for an
additional 38 percent impairment of the left upper extremity on September 18, 1986. The Office
terminated his compensation benefits on March 12, 1998 on the basis that he refused a suitable
work position.
Appellant filed a claim for an additional schedule award on March 1, 2004. By decision
dated May 8, 2008, the hearing representative found that the Office’s March 12, 1988
termination decision under section 8106(c)(2) of the Act, precluded appellant from further
schedule award compensation for his accepted left wrist conditions. The Board finds that this
decision is appropriate. As appellant underwent additional left wrist surgery in 2000, it is clear
that he reached maximum medical improvement after March 12, 1998, the date on which his
compensation benefits were terminated. Based on his refusal of suitable work, the Act and its
implementing regulations bar appellant from receiving further monetary benefits, including
compensation granted under 5 U.S.C. § 8107 for a schedule award.
CONCLUSION
The Board finds that appellant is not entitled to an additional schedule award as his date
of maximum medical improvement occurred after his compensation benefits were terminated in
1988 in accordance with section 8106(c) of the Act.

5

This section of the Act addresses claims for total disability.

6

This section of the Act addresses claims for partial disability.

7

This section of the Act addresses claims for schedule awards.

8

20 C.F.R. § 10.517(b).

9

43 ECAB 564 (1992).

10

D.S., 60 ECAB ___ (Docket No. 08-885, issued March 27, 2009); Lizzie M. Greer, 49 ECAB 681 (1998);
Sandra A. Sutphen, 49 ECAB 174 (1997).

3

ORDER
IT IS HEREBY ORDERED THAT the May 8, 2008 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 15, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


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

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

Docket No. 21-0016
Issued: April 21, 2021

Case Submitted on the Record

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

JURISDICTION
On October 7, 2020 appellant filed a timely appeal from a September 4, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a right foot/toe
condition causally related to the accepted June 20, 2020 employment incident.
FACTUAL HISTORY
On June 29, 2020 appellant, then a 31-year-old postal support employee, filed a traumatic
injury claim (Form CA-1) alleging that on June 20, 2020, as she was opening up a pallet, a heavy

1

5 U.S.C. § 8101 et seq.

package fell and hit her foot/toe. On the reverse side of the claim form her supervisor indicated
that appellant was injured in the performance of duty. Appellant stopped work on June 20, 2020.
In support of her claim, appellant submitted a report dated June 20, 2020 from Jessica
Price, a nurse practitioner. Ms. Price indicated that appellant related that a heavy box fell onto her
right foot on June 20, 2020 and caused pain, swelling, and bruising to occur. She also noted that
appellant started to develop some ecchymosis to the lateral aspect of the foot, the location of the
pain, and that appellant denied any previous injury to her foot. Appellant was diagnosed with a
nondisplaced unspecified fracture to her right lesser toe caused by a falling object.
Appellant submitted a form report dated June 20, 2020 completed by Ms. Price. Ms. Price
indicated that a heavy box fell on appellant’s right foot and she diagnosed a lateral fracture of the
right toe, the fifth digit. She indicated that appellant should remain off work until June 24, 2020
and thereafter returned to sedentary work.
Appellant submitted an x-ray imaging report dated June 20, 2020 from Dr. Corey J. Weiner
a Board-certified diagnostic radiology specialist. Dr. Weiner noted that appellant’s right midfoot
and hindfoot regions were intact. He diagnosed a subtle acute nondisplaced fracture at the base of
the fused distal phalanx in the fifth digit of the right foot.
In a letter dated July 6, 2020, Susan Carlisle, a physician assistant, related that appellant
was seen in the Guthrie clinic on July 6, 2020. She noted that appellant could return to work on
July 8, 2020 for eight hours a day and that appellant must wear a supportive sneaker until further
notice.
In a development letter dated July 30, 2020, OWCP advised appellant that additional
factual and medical evidence was necessary to establish her claim. It requested that appellant
provide a statement indicating which foot/toe was injured. OWCP also requested that appellant
submit a narrative medical report from her attending physician, which includes the physician’s
opinion supported by a medical explanation as to how the reported employment incident caused
or aggravated the claimed injury. It afforded appellant 30 days to submit the necessary evidence.
In response, appellant resubmitted documents dated June 20, 2020 from Ms. Price and
Dr. Weiner.
OWCP also received a report dated August 19, 2020 from Ms. Carlisle, who indicated that
appellant returned for a follow-up visit for fracture of her right fifth toe. Ms. Carlisle related that
appellant had no swelling and a full range of motion with no pain. She concluded that appellant
could return to work with no restrictions.
By decision dated September 4, 2020, OWCP accepted that the June 20, 2020 employment
incident occurred, as alleged, but denied appellant’s claim as causal relationship was not
established between a diagnosed medical condition and the accepted employment incident. It
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
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.
There are two components involved in establishing fact of injury. 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 component is whether the employment incident
caused a personal injury and can be established only by medical evidence.6
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.7 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.8

2

Id.

3

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4
L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
7

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
8
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right foot/toe
condition causally related to the accepted June 20, 2020 employment incident.
Appellant submitted an x-ray report dated June 20, 2020 from Dr. Weiner in which he
diagnosed her with a subtle acute nondisplaced fracture at the base of the fused distal phalanx in
the fifth digit of the right foot. The Board has held that diagnostic tests, standing alone, lack
probative value on the issue of causal relationship as they do not address the relationship between
the accepted employment factors and a diagnosed condition.9 For this reason, Dr. Weiner’s report
is insufficient to meet appellant’s burden of proof.
Appellant submitted two reports dated June 20, 2020 in which Ms. Price, a nurse
practitioner, indicated that appellant had related that a heavy box fell onto her right foot on
June 20, 2020. Ms. Price noted that appellant was diagnosed with a nondisplaced unspecified
fracture to her right lesser toe caused by a falling object. Certain healthcare providers such as
physician assistants, nurse practitioners, and physical therapists are not considered physicians as
defined under FECA.10 Consequently, Ms. Price’s reports will not suffice for purposes of
establishing entitlement to FECA benefits.11
Appellant submitted a letter dated July 6, 2020 in which Ms. Carlisle, a physician assistant,
related that appellant could return to work on July 8, 2020 for eight hours a day. She also submitted
a report dated August 19, 2020 from Ms. Carlisle, which indicated that appellant returned for a
follow-up visit for fracture of her right fifth toe. However, as noted above, physician assistants
are not considered physicians as defined under FECA.12 Consequently, Ms. Carlisle’s letter and
report will not suffice for purposes of establishing entitlement to FECA benefits.13
As there is no medical evidence of record establishing that appellant’s diagnosed right toe
fracture was causally related to the accepted employment incident, the Board finds that appellant
has not met her burden of proof to establish a diagnosed medical condition causally related to the
accepted June 20, 2020 employment incident.

9

See W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

5 U.S.C. § 8101(2) provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law,”
20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013); see also M.F., Docket No. 19-1573 (issued March 16, 2020); N.B., Docket No. 19-0221
(issued July 15, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA).
10

11

See M.C., Docket No. 19-1074 (issued June 12, 2020) (nurse practitioners are not considered physicians under
FECA).
12

Supra note 10.

13

Supra note 11.

4

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right foot/toe
condition causally related to the June 2, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the September 4, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 21, 2021
Washington, DC

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

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

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

5


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

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

Docket No. 11-612
Issued: September 23, 2011

Case Submitted on the Record

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

JURISDICTION
On January 13, 2011 appellant filed a timely appeal from the December 14, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his claim for a
March 20, 2006 work injury. Pursuant to the Federal Employees’ Compensation Act (FECA)1
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty on March 20, 2006.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In an April 16, 2008 decision,2 the
Board affirmed an April 9, 2007 OWCP decision finding that appellant did not sustain an
employment injury on March 20, 2006. The Board agreed with OWCP’s determination that,
although appellant established the occurrence of an employment incident on March 20, 2006, he
did not submit a rationalized medical report showing that he sustained a medical condition due to
that incident.3 In a January 25, 2010 decision,4 the Board affirmed OWCP’s April 1, 2009
decision denying appellant’s claim that he sustained an employment injury on March 20, 2006.
The Board discussed the new medical evidence submitted by appellant and found that it did not
contain a rationalized medical opinion relating his claimed condition to the accepted March 20,
2006 employment incident. In a December 18, 2008 report, Dr. Martin Fritzhand, an attending
Board-certified preventive medicine physician, noted that appellant reported that he injured his
back during military service 10 years prior but had been “basically pain-free” from 2003 until the
March 20, 2006 employment incident. He posited that on March 20, 2006 appellant sustained an
aggravation of degenerative joint disease and facet arthropathy with chronic low back pain. As
part of its determination that Dr. Fritzhand’s opinion on causal relationship lacked adequate
medical rationale, the Board noted that his opinion was not based on an accurate factual and
medical history. The Board stated that Dr. Fritzhand placed great emphasis on his understanding
that appellant did not complain of any notable back pain between 2003 and the March 20, 2006
incident, but indicated that the medical evidence of record actually showed that appellant
complained of significant back pain between 2003 and 2006.5 The facts and the circumstances
of the case up to that point are set forth in the Board’s prior decisions and are incorporated herein
by reference.
On June 17, 2010 appellant, through counsel, requested reconsideration of the denial of
his claim for a March 20, 2006 employment injury. He submitted a March 2, 2010 letter of
Dr. Fritzhand (addressed to his counsel) and asserted that the letter established a causal
relationship between the March 20, 2006 injury and his ongoing low back pain.
In his March 20, 2006 letter, Dr. Fritzhand stated that when he evaluated appellant on
December 18, 2008 he reported that he sustained a low back injury about 10 years prior but
indicated that whatever symptoms he had experienced were negligible at the time of his
March 2006 injury. He stated that whether appellant “was pain-free or had some minimal
2

Docket No. 07-1415 (issued April 16, 2008). On April 4, 2006 appellant, then a 35-year-old letter carrier, filed
a traumatic injury claim alleging that he injured his low back on March 20, 2006 when he slipped on ice while
walking his postal route. He indicated that he did not fall to the ground but that he twisted his back. Appellant
stopped work on April 4, 2006.
3

The Board noted that appellant sustained injury to his low back while in military service, but that the medical
evidence did not provide an adequate explanation of how the March 20, 2006 incident aggravated or contributed to
the degenerative disc disease of his low back.
4

Docket No. 09-1189 (issued January 25, 2010).

5

The Board noted that appellant had submitted a July 23, 2008 report of Dr. Girija Gopalswamy, an attending
Board-certified internist, who noted that appellant reported that, from the time of his discharge from the military
until March 20, 2006, his back pain stayed about the same at 5 out of a scale of 10.

2

symptoms is only splitting hairs and not clinically relevant.” Dr. Fritzhand indicated that
appellant did sustain a well-documented low back injury in March 2006 and noted that his
response to facet injections was certainly indicative of an inflammatory response to his injury.
He stated:
“There is certainly a causal relationship between the March 20, 2006 injury and
[appellant’s] ongoing low back pain. [Appellant’s] current condition is
temporally related and has been caused by the March 20, 2006 injury. I am
perplexed as to the need for ‘any notable discussion of his medical history,
including examination and testing findings, prior to March 20, 2006. We do have
a factual history of [appellant’s] current injury and the studies obtained shortly
thereafter. This should certainly be sufficient. In addition, I am equally
perplexed about the comment concerning my report that ‘his opinion on causal
relationship is not based on an accurate factual and medical history.’ Is my report
based on inaccuracies? I hardly think so. Thus, it is my medical opinion that,
first, there has been sufficient evidence submitted to establish that [appellant]
actually experienced the employment incident at the time, place and in the manner
alleged. Second, medical evidence has been submitted to establish that the
employment incident caused a personal injury. [Appellant] has sustained a
traumatic injury in the performance of duty. I certainly hope that his injury will
be allowed through [FECA].”
In a December 14, 2010 decision, OWCP denied appellant’s claim on the grounds that he
did not submit sufficient medical evidence to show that he sustained an injury in the performance
of duty on March 20, 2006. It determined that the March 2, 2010 letter of Dr. Fritzhand was not
sufficiently well rationalized to establish that appellant sustained an employment injury on
March 20, 2006.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.6 These are the essential elements of each compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the “fact of injury” has been
established. There are two components involved in establishing the fact of injury. First, the
employee must submit sufficient evidence to establish that he actually experienced the

6

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

7

Delores C. Ellyett, 41 ECAB 992, 998-99 (1990); Ruthie M. Evans, 41 ECAB 416, 423-27 (1990).

3

employment incident at the time, place and in the manner alleged.8 Second, the employee must
submit evidence, in the form of medical evidence, to establish that the employment incident
caused a personal injury.9 The term “injury” as defined by FECA, refers to some physical or
mental condition caused by either trauma or by continued or repeated exposure to or contact
with, certain factors, elements or conditions.10
ANALYSIS
Appellant alleged that he injured his low back on March 20, 2006 when he slipped on ice
while walking to his postal route. He indicated that he did not fall to the ground but that he
twisted his back. In April 16, 2008 and January 25, 2010 decisions, the Board affirmed OWCP’s
prior denials of appellant’s claim for a March 20, 2006 employment injury. The Board agreed
with its determination that, although he established the occurrence of an employment incident on
March 20, 2006, appellant did not submit a rationalized medical report showing that he sustained
a medical condition due to that incident.
In June 2010 appellant requested reconsideration of his claim and submitted a March 2,
2010 letter in which Dr. Fritzhand, an attending Board-certified preventive medicine physician,
asserted that appellant suffered an employment injury on March 20, 2006. Dr. Fritzhand stated
that appellant sustained a well-documented low back injury on March 20, 2006 because his
current condition was “temporally related” and his response to facet injections was “certainly
indicative of an inflammatory response to his injury.”
The Board finds that Dr. Fritzhand did not provide sufficient medical rationale in support
of his opinion on causal relationship and OWCP properly found that his March 2, 2010 letter did
not establish that appellant sustained an employment injury on March 2, 2006.
Dr. Fritzhand suggested that appellant sustained an aggravation of preexisting
degenerative disc disease of his low back, but he did not describe the medical process of how the
March 20, 2006 incident could have aggravated appellant’s underlying back condition. He noted
that appellant sustained a service-related back injury about 10 years prior, but he did not provide
any notable discussion of appellant’s medical history, including examination and testing
findings, prior to March 20, 2006. Dr. Fritzhand did not describe the March 20, 2006
employment incident in any detail and did not explain how this incident, which involved twisting
of the back without a fall to the ground, could have caused the claimed injury to appellant’s low
back. He made reference to appellant’s response to facet injections but did not explain how this
response showed that he had sustained an employment injury on March 20, 2006. Dr. Fritzhand
did not explain why appellant’s continuing low back problems were not solely due to the
progression of his nonwork-related back condition.
8

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (June 1995).
9

John J. Carlone, 41 ECAB 354, 356-57 (1989); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact
of Injury, Chapter 2.803.2a (June 1995).
10

Elaine Pendleton, supra note 6; 20 C.F.R. § 10.5(a)(14).

4

In his March 2, 2010 letter, Dr. Fritzhand took issue with the Board’s characterization of
his December 18, 2008 opinion as not being based on an accurate factual and medical history. In
a January 25, 2010 decision, the Board had noted that Dr. Fritzhand placed great emphasis on his
understanding that appellant did not complain of any notable back pain between 2003 and the
March 20, 2006 incident, but indicated that the medical evidence of record actually showed that
he complained of significant back pain between 2003 and 2006.11 In his March 2, 2010 letter,
Dr. Fritzhand did not discuss the medical evidence showing that appellant complained of
significant back pain between 2003 and 2006 and did not explain why he continued to assert that
appellant was pain-free or had minimal back symptoms between 2003 and March 20, 2006.
Appellant did not submit any other medical evidence in support of his June 2010 reconsideration
request and OWCP properly denied his claim that he sustained an employment injury on
March 20, 2006.
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 his burden of proof to establish that he
sustained an injury in the performance of duty on March 20, 2006.

11

For example, Dr. Gopalswamy, an attending Board-certified internist, noted in a July 23, 2008 report that
appellant reported that, from the time of his discharge from the military until March 20, 2006, his back pain stayed
about the same at 5 out of a scale of 10.

5

ORDER
IT IS HEREBY ORDERED THAT the December 14, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 23, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF THE AIR FORCE, TRAVIS
AIR FORCE BASE, CA, Employer
__________________________________________

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

Docket No. 07-2288
Issued: March 3, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 5, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ April 20 and August 24, 2007 merit decisions denying her claim as
untimely filed. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over these issues.
ISSUE
The issue is whether the Office properly determined that appellant’s claim for
compensation was barred by the applicable time limitation provisions of the Federal Employees’
Compensation Act.
FACTUAL HISTORY
On January 18, 2007 appellant, then a 74-year-old retired cook, filed two occupational
disease claims which were administratively combined. In the first claim, she alleged that she
developed carpal tunnel syndrome as a result of repetitive work activities, which included
chopping, dicing and slicing vegetables and meat and lifting heavy pots and pans. Appellant first

became aware of her condition in 1980 or 1981 and of its relationship to her employment by
May 15, 1987. In her second claim, appellant alleged that she sustained injuries to her hips as a
result of walking on a concrete floor eight hours per day and lifting heavy pots and pans.
Appellant indicated that she first became aware of her hip condition in 1989 and of its
relationship to her employment in 1990. In both instances, she stated that her delay in filing was
due to failure on the part of her supervisor to inform her of the requirement to file a claim.
Appellant retired from her job at the employing establishment in 1998.
In statements dated January 15, 2007, appellant contended that her duties as a cook for
the employing establishment from 1977 until her retirement in 1998 were responsible for her
carpal tunnel syndrome. Her pain became increasingly worse over time, culminating in right
hand surgery in 1990. In a January 16, 2007 statement, appellant expressed her belief that
walking on a concrete floor and lifting and carrying heavy pots and pans caused her hip
condition, which began in 1985 and worsened over the years. Noting that she had no hip
problems prior to working at the employing establishment, appellant stated that she underwent
total left and right hip replacement surgeries, for which she used sick leave.
Documents submitted by appellant included, a July 21, 2006 request for access to Kaiser
Permanente medical records; progress notes from Kaiser Permanente for the period June 18,
1980 through March 26, 1991; an August 13, 1990 operative report from Dr. Linda Specht, a
Board-certified orthopedic surgeon; and a November 2, 1990 physical therapy report. On
January 31, 2007 the Office informed appellant that the information submitted was insufficient to
establish her claim and that more evidence was required as to its timeliness and the causal
relationship between her diagnosed conditions and her federal employment. It advised her to
submit a written statement, as well as any supporting documentation, that her supervisor was
actually aware of her alleged conditions.
On February 25, 2007 appellant informed the Office that all coworkers and supervisors
with whom she had worked at the employing establishment had retired. Therefore, she was
unable to obtain any information supporting the employing establishment’s awareness of her
diagnosed conditions or their relationship to her employment. Appellant asserted that she had
informed her supervisor of the problems she was having with her arms and hands and that the
supervisor had advised her to see a doctor. She stated that it was “obvious” that her employer
was aware of her illness and how it was related to her job, because appellant was given time off
from work prior to and after her carpal tunnel syndrome release surgery.
Appellant submitted a February 14, 2007 report from Dr. Jeffrey Lee Gao, a Boardcertified general practitioner specializing in occupational medicine. He diagnosed carpal tunnel
syndrome. Appellant also submitted requests to access copies of medical records and signed
authorizations to release medical documents. Operative reports from Dr. William Refvem, a
Board-certified orthopedic surgeon, noted a total left hip arthroplasty on August 31, 1995 and a
right hip arthroplasty on October 17, 2000.
By decision dated April 20, 2007, the Office denied appellant’s claim on the grounds that
it was not timely filed. It advised appellant that the date of injury was the date of her last
occupational exposure, namely October 1, 1998 the date of her retirement and that appellant
should have been aware of a relationship between her employment and the claimed condition by

2

that date. As her claim was filed on January 18, 2007, more than eight years after the date of
injury, the Office found that it was untimely filed. It further found that there was no evidence
that her supervisor had actual knowledge of her condition within 30 days.
On July 13, 2007 appellant requested reconsideration, contending that it was unfair to
deny her claim on the grounds that it was not timely filed. She contended that it was the
responsibility of her supervisor who did not properly inform her of the rules regarding the filing
of claims. Appellant argued that the “three-year rule” was outdated and did not conform to the
real world.
By decision dated August 24, 2007, the Office denied modification of its April 20, 2007
decision. It found that, although appellant had advanced a relevant legal argument not
previously considered, she had failed to establish that she filed her claim in a timely manner or
that she was unable to do so due to incompetence or exceptional circumstances.
LEGAL PRECEDENT
A claimant seeking compensation under the Act1 has the burden of establishing the
essential elements of her claim by the weight of the reliable, probative and substantial evidence2
including that she is an employee within the meaning of the Act3 and that she filed her claim
within the applicable time limitation.4
In cases of injury on or after September 7, 1974, section 8122(a) of the Act provides that
an original claim for compensation for disability or death must be filed within three years after
the injury or death.5 Compensation for disability or death, including medical care in disability
cases, may not be allowed if a claim is not filed within that time unless: (1) the immediate
superior had actual knowledge of the injury or death within 30 days. The knowledge must be
such as to put the immediate superior reasonably on notice of an on-the-job injury or death; or
(2) written notice of injury or death as specified in section 8119 was given within 30 days.6

1

5 U.S.C. §§ 8101-8193.

2

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

3

Kenneth W. Grant, 39 ECAB 208 (1987); James E. Lynch, 32 ECAB 216 (1980); Emiliana de Guzman (Mother
of Elpedio Mercado), 4 ECAB 357 (1951); see 5 U.S.C. § 8101(1).
4

Paul S. Devlin, 39 ECAB 715 (1988); Emmet L. Pickens, 33 ECAB 1807 (1982); Kathryn A. O’Donnell, 7
ECAB 227 (1954).
5

5 U.S.C. § 8122(a).

6

Section 8119 provides that a notice of injury or death shall be given within 30 days after the injury or death; be
given to the immediate superior of the employee by personal delivery or by depositing it in the mail properly
stamped and addressed; be in writing; state the name and address of the employee; state the year, month, day and
hour when and the particular locality where the injury or death occurred; state the cause and nature of the injury or
in the case of death, the employment factors believed to be the cause; and be signed by and contain the address of,
the individual giving the notice.

3

Section 8122(b) provides that, in a case of latent disability, the time for filing a claim
does not begin to run until the employee has a compensable disability and is aware, or by
exercise of reasonable diligence should have been aware, of the causal relationship of the
compensable disability to his employment. In such a case, the time for giving notice of injury
begins to run when the employee is aware, or by the exercise of reasonable diligence should have
been aware, that his condition is causally related to his employment, whether or not there is a
compensable disability.7 Where the employee continues in the same employment after he
reasonably should have been aware that he has a condition which has been adversely affected by
factors of federal employment,8 the time limitation begins to run on the date of the last exposure
to the implicated factors.9 The requirement to file a claim within three years is the claimant’s
burden and not that of the employing establishment.10
The time limitations in section 8122(a) and (b) do not (1) begin to run against a minor
until he reaches 21 years of age or has had a legal representative appointed, (2) run against an
incompetent individual while he is incompetent and has no duly appointed legal representative,
or (3) run against any individual whose failure to comply is excused by the Secretary on the
ground that such notice could not be given because of exceptional circumstances.11
ANALYSIS
Appellant claimed that she sustained injuries to her hips and developed carpal tunnel
syndrome due to conditions of her employment. By decisions dated April 20 and August 24,
2007, the Office denied her claim on the grounds that it was untimely filed. The Board finds that
appellant’s claim for compensation is barred by the applicable time limitation provisions of the
Act.
Although she was last exposed to repetitive working conditions on October 1, 1998,
when she retired, appellant acknowledged on her CA-2 forms that she first became aware that
her carpal tunnel syndrome condition was caused by her employment as early as May 15, 1987
and was aware of the relationship between her hip condition and her employment by 1990.
Appellant did not deny her awareness that her conditions were caused by her employment, but
rather blamed her delay in filing on the failure of her supervisor to inform her of the requirement
to file a claim. Appellant asserted that it was “obvious” that her employer was aware of her
illness and how it was related to her job, as evidenced by the fact that she was given time off
from work for injury-related surgery. The Board finds that the evidence establishes that she

7

5 U.S.C. § 8122(b).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6 (March 1993); see James A.
Sheppard, 55 ECAB 515 (2004).
9

Id.

10

Debra Young Bruce, 52 ECAB 315 (2001).

11

5 U.S.C. § 8122(d).

4

knew or reasonably should have known of a relationship between her claimed conditions and
factors of her employment at the time of her last exposure.12
Appellant stated that she was aware of the relationship between her employment and her
carpal tunnel and hip conditions by 1987 and 1990, respectively. However, where the employee
continues in the same employment after she reasonably should have been aware that she has a
condition which has been adversely affected by factors of federal employment,13 the time
limitation begins to run on the date of the last exposure to the implicated factors.14 Therefore,
the time limitations in this case began to run on October 1, 1998 appellant’s last day of work and
exposure to the implicated employment factors. Since appellant did not file a claim until
January 18, 2007 her claim was filed outside the three-year limitation period.
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of the Act if
her immediate supervisor had actual knowledge of the injury within 30 days of her last exposure
to the implicated employment factors on October 1, 1998.15 Additionally, the claim would be
deemed timely if written notice of injury had been provided within 30 days pursuant to 5 U.S.C.
§ 8119.16 In the instant case, there is no indication that appellant provided written notice of
injury prior to January 18, 2007, the date she filed her claim or that her immediate supervisor had
actual knowledge of her claimed conditions. Although appellant contends that she informed her
supervisor that she suffered from employment-related conditions, there is no evidence of record
to corroborate her claim. The fact that she was given time off from work when she underwent
surgery does not establish that appellant’s supervisor was aware that her conditions were
causally related to her employment.
Appellant contends that the employing establishment was obligated to inform her of the
requirement to file a claim. However, the requirement to file a claim within three years is the
claimant’s burden and not that of the employing establishment.17 Therefore, appellant’s
argument is without merit. Additionally, she has not alleged or established that her failure to file
a timely claim was due to her incompetence or exceptional circumstances.18

12

The Board notes that appellant stated in her occupational disease claim form that she first became aware of her
carpal tunnel syndrome condition in 1980 or 1981 and of its relationship to her employment by May 15, 1987.
Appellant also stated that she became aware of her hip condition in 1989 and of its relationship to her employment
in 1990.
13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6 (March 1993); see James A.
Sheppard, supra note 8.
14

Id.

15

Larry E. Young, 52 ECAB 264 (2001). See Federal (FECA) Procedure manual, Part 2 -- Claims, Time, Chapter
2.801.3 (March 1993).
16

5 U.S.C. §§ 8122(a).

17

Debra Young Bruce, supra note 10.

18

5 U.S.C. § 8122(d).

5

CONCLUSION
The Board finds that the Office properly determined that appellant’s claim for
compensation is barred by the applicable time limitation provisions of the Act.
ORDER
IT IS HEREBY ORDERED THAT the August 24 and April 20, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 3, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 18-1061
Issued: November 9, 2018

Case Submitted on the Record

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

JURISDICTION
On May 1, 2018 appellant filed a timely appeal from a February 15, 2018 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 her burden of proof to establish permanent
impairment of her left lower extremity due to her October 10, 2014 employment injury.
FACTUAL HISTORY
OWCP accepted that on October 10, 2014 appellant, then a 44-year-old rural carrier,
sustained a right foot sprain due to twisting her right ankle/foot while delivering mail on that date.

1

5 U.S.C. § 8101 et seq.

Appellant stopped work on October 10, 2014 and returned to limited-duty work on
December 13, 2014.2 She returned to her regular-duty job on January 2, 2015.
In a January 30, 2015 report, Dr. Paul Dowdy, an attending Board-certified orthopedic
surgeon, indicated that appellant reported that her right foot/ankle pain had improved and that her
right ankle did not give way. Appellant also reported that she had been performing her regular
duty. Dr. Dowdy detailed the findings of his January 30, 2015 physical examination of appellant’s
right ankle/foot, noting that there was no swelling of appellant’s right ankle/foot and normal
alignment of the hindfoot. Appellant had no deformity of the ankle/foot and she was nontender
laterally and medially. Dr. Dowdy reported that range of motion of the right ankle was plantar
flexion to 60 degrees and dorsiflexion to 10 degrees with normal subtalar motion. There was no
tenderness over the peroneal tendons and no evidence of subluxation of these tendons. Dr. Dowdy
diagnosed right ankle sprain and indicated that appellant could perform full-duty work.
In a January 26, 2017 report, Dr. Samy F. Bishai, an attending Board-certified orthopedic
surgeon, noted that appellant presented complaining of right ankle/foot pain and swelling. He
advised that his physical examination revealed that appellant had swelling in her right ankle and
foot located on the medial, lateral, and anterior sides. Appellant had right ankle range of motion
of dorsiflexion to 10 degrees, plantar flexion to 20 degrees, inversion to 20 degrees, and eversion
to 5 degrees. Dr. Bishai advised that appellant walked with an antalgic gait and she limped on the
right side. He diagnosed severe sprain of the right ankle/foot, and ruled out torn ligaments of the
right ankle/foot. Dr. Bishai noted that he was evaluating appellant’s right lower extremity
permanent impairment using the range of motion (ROM) rating method found in Table 22 on page
549 of the sixth edition of the A.M.A., Guides.3 He found that appellant’s dorsiflexion of 10
degrees equaled 7 percent right lower extremity impairment and that her plantar flexion of 20
degrees also equaled 7 percent right lower extremity impairment. Dr. Bishai combined these
values to conclude that appellant had a total permanent impairment rating for her right lower
extremity of 14 percent.4
On March 13, 2017 appellant filed a schedule award claim (Form CA-7) due to her
accepted October 10, 2014 employment injury.
In a March 17, 2017 development letter, OWCP requested that appellant submit additional
evidence in support of her schedule award claim, including a report in which an attending physician
evaluated her permanent impairment under the standards of the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5
2

Appellant received continuation of pay for 45 days and OWCP paid her partial disability compensation on the
daily rolls for the period November 24 to December 12, 2014.
3

Dr. Bishai indicated that he was using the ROM rating method to rate appellant’s permanent impairment because
the diagnosis-based impairment (DBI) rating method would not compensate appellant for range of motion deficits in
her right ankle/foot, a problem which affected all activities of her daily living and work.
4

Dr. Bishai found that appellant reached maximum medical improvement (MMI) on January 26, 2017, the date of
his examination.
5

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

2

Appellant submitted an April 6, 2017 report in which Dr. Bishai noted that his physical
examination on that date showed swelling in the right ankle and foot located on the medial, lateral,
and anterior sides. Appellant had right ankle range of motion of dorsiflexion to 10 degrees, plantar
flexion to 20 degrees, inversion to 20 degrees, and eversion to 5 degrees. Dr. Bishai advised that
appellant walked with an antalgic gait and she limped on the right side. He diagnosed severe sprain
of the right ankle/foot, and ruled out torn ligaments of the right ankle/foot. Dr. Bishai again noted
that he was evaluating appellant’s right lower extremity permanent impairment using the ROM
rating method found in Table 22.6 He found that appellant’s dorsiflexion of 10 degrees equaled 7
percent right lower extremity impairment and that her plantar flexion of 20 degrees also equaled 7
percent right lower extremity impairment. Therefore, appellant had a total permanent impairment
rating for her right lower extremity of 14 percent.7
On April 18, 2017 OWCP referred appellant’s case to Dr. Michael M. Katz, a Boardcertified orthopedic surgeon, to serve in his capacity as an OWCP medical adviser. It requested
that Dr. Katz review Dr. Bishai’s April 4, 2017 report and provide his own calculation of
appellant’s right lower extremity permanent impairment under the sixth edition of the A.M.A.,
Guides.
In an April 21, 2017 report, Dr. Katz indicated that he had reviewed Dr. Bishai’s April 4,
2017 report. He determined that there was a conflict in medical opinion/information between the
findings of Dr. Bishai and Dr. Dowdy which could not be resolved on the basis of a medical record
review.8 Therefore, Dr. Katz recommended that appellant be referred for a second opinion
examination by an orthopedic surgeon or physical medicine and rehabilitation physician who is
familiar with the sixth edition of the A.M.A., Guides.
On September 15, 2017 OWCP referred appellant for a second opinion examination to
Dr. Richard C. Smith, a Board-certified orthopedic surgeon. It requested that Dr. Smith provide
an opinion on appellant’s right lower extremity permanent impairment using the sixth edition of
the A.M.A., Guides.
In an October 12, 2017 report, Dr. Smith discussed appellant’s factual and medical history
and noted that she presented with complaints of right ankle/foot pain. He reported the findings of
the physical examination he conducted on that date, noting that appellant had no swelling, warmth,
erythema, induration, or deformity in her right ankle/foot. Appellant had normal alignment of her
right ankle/foot and there was no instability. Dr. Smith found that appellant had normal range of
motion of the right ankle upon dorsiflexion, plantar flexion, inversion, and eversion. He did not
find tenderness to palpation in any muscle group of the right ankle/foot and he did not record motor
strength less than 5/5 in any of these muscle groups. In the permanent impairment rating portion
of his report, Dr. Smith advised that appellant did not have objective findings to support the pain
6

With respect to his use of the ROM rating method, Dr. Bishai indicated that the A.M.A., Guides provides that, if
more than one method is available for rating a particular condition under the A.M.A., Guides, the method producing
the higher rating must be used.
7

Dr. Bishai again found that appellant reached MMI on January 26, 2017, the date of his earlier examination.

8
Dr. Katz noted that, on January 30, 2015, Dr. Dowdy recorded that appellant had 60 degrees of right ankle
dorsiflexion, but that Dr. Bishai later recorded that appellant had only 20 degrees of right ankle dorsiflexion.

3

complaints in her right ankle/foot. He found that, given these findings, applying the DBI rating
method under Table 16-2 meant that appellant’s right ankle/foot sprain fell under class 0 and
equaled zero percent permanent impairment of her right lower extremity. Dr. Smith determined
that appellant had reached MMI as of October 12, 2017, the date of his examination.
OWCP referred Dr. Smith’s October 12, 2017 report to Dr. Katz for review and evaluation
in his capacity as an OWCP medical adviser. In a January 24, 2018 report, Dr. Katz indicated that
he agreed with Dr. Smith’s opinion that appellant had no right lower extremity permanent
impairment under the DBI rating method found in Table 16-2 of the sixth edition of the A.M.A.,
Guides. He also considered whether appellant had a right lower extremity permanent impairment
under the ROM rating method. However, Dr. Katz found that the ROM rating method was not
available as an alternative to the DBI rating method because the key diagnostic factor in this case,
i.e., appellant’s right ankle sprain, was not eligible for ROM rating method under Table 16-2. He
found that appellant had reached MMI on October 12, 2017, the date of Dr. Smith’s examination.
By decision dated February 15, 2018, OWCP found that appellant had not met her burden
of proof to establish permanent impairment of her right lower extremity due to her October 10,
2014 employment injury. It found that the opinions of Dr. Smith and Dr. Katz showed that she
had no such permanent impairment.
LEGAL PRECEDENT
The schedule award provisions of FECA,9 and its implementing federal regulations,10 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.11 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.12
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the foot/ankle, the relevant portion of the leg for the present case,
reference is made to Table 16-2 (Foot and Ankle Regional Grid) beginning on page 501.13 After the
class of diagnosis (CDX) is determined from the Knee Regional Grid (including identification of
a default grade value), the net adjustment formula is applied using the grade modifier for functional
history (GMFH), grade modifier for physical examination (GMPE) and grade modifier for clinical
9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

11

Id.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
13

See A.M.A., Guides 501-08 (6th ed. 2009).

4

studies (GMCS). The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCSCDX).14
OWCP procedures provide that an OWCP medical adviser’s primary medical functions are
evaluating medical evidence and interpreting physician reports. An OWCP claims examiner seeks
evaluation from OWCP’s medical adviser in order to proceed with developing and weighing the
medical evidence.15
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of her right lower extremity due to her October 10, 2014 employment injury.
OWCP accepted appellant’s claim for a right ankle sprain sustained at work on
October 10, 2014. In March 2017 appellant filed a claim for compensation seeking a schedule
award due to her accepted October 10, 2014 employment injury. OWCP denied her claim on
February 15, 2018 based on the opinions of Dr. Smith, OWCP’s referral physician, and Dr. Katz,
OWCP’s medical adviser.
The Board finds that the reports of Dr. Smith and Dr. Katz show that appellant has no
permanent impairment of her right lower extremity and appellant has not submitted probative
medical evidence establishing that she has permanent impairment of that extremity.
In his October 12, 2017 report, Dr. Smith properly found that appellant had no right lower
extremity permanent impairment under the relevant standards.16 He advised that appellant did not
have objective findings to support the pain complaints in her right ankle/foot.17 Dr. Smith found
that, given these findings, applying the DBI rating method under Table 16-2 meant that appellant’s
right ankle/foot sprain fell under class 0 and equaled zero percent permanent impairment of her
right lower extremity.18
Dr. Katz supported Dr. Smith’s permanent impairment determination in his January 24,
2018 report. He also properly found appellant had no right lower extremity permanent impairment
under the DBI rating method found in Table 16-2 of the sixth edition of the A.M.A., Guides.
14

Id. at 515-22.

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.8(b), (c) (September 2010).
16

The Board notes that it was proper for Dr. Katz, in his role as OWCP medical adviser, to recommended referral
of appellant to a second opinion examiner given the contrasting findings in the case record regarding appellant’s right
ankle/foot condition. See supra note 15 regarding the role of the medical adviser.
17
Dr. Smith reported that, upon examination, appellant had no swelling, warmth, erythema, induration, or deformity
in her right ankle/foot. The results for range of motion testing of appellant’s right ankle were normal, motor strength
was 5/5 throughout her right ankle/foot, and there was no tenderness to palpation.
18
See A.M.A., Guides 501-07, Table 16-2. Dr. Smith determined that appellant had reached MMI as of October 12,
2017, the date of his examination.

5

Dr. Katz considered whether appellant had a right lower extremity permanent impairment under
the ROM rating method. He correctly opined that the ROM rating method was not available as an
alternative to the DBI rating method because the key diagnostic factor in this case, i.e., appellant’s
right ankle sprain, was not eligible for ROM rating method under Table 16-2.19
On appeal appellant argues that Dr. Bishai’s January 26 and April 6, 2017 evaluations,
which applied the ROM method of rating permanent impairment, establish that she has 14 percent
permanent impairment of her right lower extremity. However, as noted above, Dr. Katz explained
that use of the ROM rating method would be improper in appellant’s case because, under the
A.M.A., Guides, the ROM rating method was not available as an alternative to the DBI rating
method for appellant’s ankle/foot diagnosis. Therefore, Dr. Bishai’s opinion on permanent
impairment is of limited probative value. The Board has held that an opinion on permanent
impairment is of limited probative value if it is not derived in accordance with the standards
adopted by OWCP and approved by the Board as appropriate for evaluating schedule losses.20
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of her right lower extremity due to her October 10, 2014 employment injury.

19

Id. Dr. Katz found that appellant reached MMI on October 12, 2017, the date of Dr. Smith’s examination.

20

See James Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding that an opinion which is not based upon the standards
adopted by OWCP and approved by the Board as appropriate for evaluating schedule losses is of little probative value
in determining the extent of a claimant’s permanent impairment).

6

ORDER
IT IS HEREBY ORDERED THAT the February 15, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 9, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Chamblee, GA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-0167
Issued: May 3, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On October 28, 2019 appellant filed a timely appeal from an October 18, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate
Boards docketed the appeal as No. 20-0167.2
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On May 18, 2010 appellant, then a 31-year-old airway transportation systems specialist,
filed a traumatic injury claim (Form CA-1) alleging that on that date he injured his right wrist
1

The Board notes that appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules
of Procedure. 20 C.F.R. § 501.5(b). Given the disposition of the case, appellant’s request for oral argument is denied.
2

The Board notes that during the pendency of this appeal, OWCP issued an April 30, 2020 decision, which vacated
and remanded the October 18, 2019 decision, and a de novo August 10, 2020 decision. The April 30 and August 10,
2020 decisions, however, are null and void as the Board and OWCP may not simultaneously have jurisdiction over
the same issue. As the Board had jurisdiction over the wage-loss compensation issue, OWCP may not issue a decision
regarding the same issue on appeal before the Board. See 20 C.F.R. § 10.626; see also Terry L. Smith, 51 ECAB 182
(1999); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990).
3

Docket No. 15-1530 (issued January 14, 2016).

when he fell due to a jet blast while in the performance of duty. He stopped work and returned on
May 24, 2010. OWCP accepted appellant’s claim for right wrist sprain and subsequently
expanded acceptance of his claim to include aggravation of osteoarthritis, primarily involving the
hand/wrist, and post-traumatic stress disorder (PTSD).
On March 18, 2011 appellant stopped work again. On August 24, 2014 appellant returned
to full-time, modified duty at the employing establishment at the downgraded position of
transportation assistant. OWCP paid wage-loss compensation for his loss of wage-earning
capacity (LWEC) beginning August 24, 2014. Effective November 12, 2014 appellant retired
from federal employment due to disability.
On February 15 and 26, 2018 appellant filed claims for wage-loss compensation (Forms
CA-7) requesting wage-loss compensation for total disability for the period April 4, 2011 through
April 16, 2012 and for “other wage loss” from June 28, 2013 through August 23, 2014 due to
“downgrade.” He asserted that he had returned to work at a lower-paying job.
In an April 17, 2018 decision, OWCP denied appellant’s claims for wage-loss
compensation for total disability for the period April 4, 2011 through April 16, 2012 and for “other
wage loss” due to a downgrade position for the period June 28, 2013 through August 23, 2014.
On May 15, 2018 appellant requested a hearing before a representative of OWCP’s Branch
of Hearings and Review. He submitted a settlement agreement from the Merit Systems Protection
Board (MSPB), which cancelled appellant’s removal, effective March 1, 2014, and reassigned him
to the position of transportation assistant. The agreement further indicated that appellant was
entitled to five months of back pay for the period March 9 through August 25, 2014.
By decision dated July 11, 2019, an OWCP hearing representative affirmed the April 17,
2018 decision with modification. He affirmed the denial of appellant’s wage-loss compensation
for total disability from April 4 through November 10, 2011, but determined that appellant was
entitled to wage-loss compensation for total disability for the periods November 11, 2011 through
April 16, 2012 and from June 28, 2013 through March 8, 2014 because the evidence of record was
insufficient to support that the employing establishment had light-duty work for appellant within
his physical restrictions prior to the August 24, 2014 job offer.4 The hearing representative also
found that appellant was entitled to wage-loss compensation for loss of wage-earning capacity for
the period March 8 through August 23, 2014 when he received back wages based on a reduced
salary as a transportation assistant. He remanded the case for further development of the factual
evidence from the employing establishment regarding appellant’s specific earnings and
withholdings for the period March 8 through August 23, 2014.
By de novo decision dated October 18, 2019, OWCP indicated that, based on the
information provided by the employing establishment, appellant was entitled to wage-loss
compensation for the periods March 11 through March 22, 2014 and April 6 through
August 9, 2014. It denied appellant’s wage-loss compensation claim for the periods March 23
through April 5, 2014 and August 10 through 23, 2014, finding that the evidence of record failed
to establish that appellant sustained a loss of wage-earning capacity during that period.

4

The hearing representative correctly noted that appellant was not entitled to wage-loss compensation for the period
from April 17, 2012 through June 27, 2013 because he had been awarded a schedule award for the same period.

2

The Board, having duly considered this matter, finds that this case is not in posture for
decision.
Section 8124 of FECA provides that OWCP shall determine and make a finding of fact and
make an award for or against payment of compensation.5 Its regulations at 20 C.F.R. § 10.126
provide that the decision of the Director of OWCP shall contain findings of fact and a statement
of reasons.6 As well, OWCP’s procedures provide that the reasoning behind OWCP’s evaluation
should be clear enough for the reader to understand the precise defect of the claim and the kind of
evidence which would overcome it.7
The Board finds that in its October 18, 2019 decision, OWCP failed to properly explain
the findings with respect to the issue presented so that appellant could understand the basis for the
decision, i.e., why he was not entitled to wage-loss compensation for loss of wage-earning capacity
for the periods March 23 to April 5, 2014 and August 10 to 23, 2014. OWCP merely noted that
appellant’s pay rate for the date-of-injury job was greater than the current pay of the job held at
the time of injury. OWCP’s procedures indicate that if a claimant is entitled to compensation for
partial wage loss after return to work, the claims examiner should compute entitlement using the
principles developed in the Albert C. Shadrick8 decision, now codified at 20 C.F.R. § 10.403, in
order to calculate the adjustment in the employee’s compensation.9 The Board finds, however,
that in this case, OWCP did not explain in detail nor provide its calculations, consistent with
OWCP’s procedures, of how appellant’s wage-earning capacity was calculated, such that appellant
could determine that the calculation was correct.10 Accordingly, the Board will set aside the
October 18, 2019 decision and remand the case for OWCP to make its findings of facts and provide
reasons for its decision pursuant to the standards set forth in 20 C.F.R. § 10.403.11 After such
further development as OWCP deems necessary, it shall issue a de novo decision.

5

5 U.S.C. § 8124(a).

6

20 C.F.R. § 10.126.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

8

5 ECAB 376 (1953).

9

Federal (FECA) Procedure Manual, supra note 8, Determining Wage-Earning Capacity Based on Actual Earnings
Chapter 2.815.3(b) (June 2013). See P.B., Docket No. 19-0329 (issued December 31, 2019); C.Y., Docket No. 180263 (issued September 14, 2018).
10

See C.M., Docket No. 19-1852 (issued October 22, 2020); see also B.F., Docket No. 17-0317 (issued
June 7, 2017).
11

See R.S., Docket No. 19-1605 (issued May 28, 2020).

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IT IS HEREBY ORDERED THAT the October 18, 2019 merit decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: May 3, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4