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

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

Docket No. 07-2329
Issued: March 13, 2008

Case Submitted on the Record

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

JURISDICTION
On August 23, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated March 8, 2007 finding that she had not
established an injury causally related to her federal employment. She also appealed a May 3,
2007 nonmerit decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merit and nonmerit issues of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof in establishing that she
developed a right shoulder condition due to factors of her federal employment; and (2) whether
the Office properly refused to reopen her case for further consideration of the merits pursuant to
5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 9, 2007 appellant, then a 52-year-old mail processor clerk, filed an
occupational disease claim alleging that she sustained a right shoulder injury. She first sustained

a right shoulder injury in 1995 and continued to experience pain. Appellant first became aware
of her current condition on May 18, 2006 and related the condition to her employment on that
date. In a letter dated January 25, 2007, the Office informed appellant that additional factual and
medical evidence was required to establish her claim. The Office allowed 30 days for a
response.
In a letter dated February 14, 2007, appellant stated that her original claim for right
shoulder injury had been destroyed by the Office. She stated that continued repetitive motion of
her right shoulder caused her current condition. Appellant noted that she verified trays of mail
weighing less than 10 pounds eight hours a day, five days a week. She stated that prior to the
1995 employment injury she lifted up to 25 pounds repetitively. Appellant submitted medical
evidence regarding her 1995 employment injury as well as notes from the employing
establishment health unit dated February 1995 through December 8, 2005. She submitted an
authorization for medical attention dated October 12, 2006 completed by a nurse and an
anesthesia record regarding right knee surgery on February 9, 2007.
By decision dated March 8, 2007, the Office denied appellant’s claim finding that she had
not submitted the necessary medical opinion evidence diagnosing a condition arising from her
current lifting requirements.
Appellant requested reconsideration on April 19, 2007 and resubmitted a portion of the
health unit records as well as the anesthesia record dated February 9, 2007 and submitted a
preanesthesia evaluation dated February 9, 2007.
By decision dated May 3, 2007, the Office declined to reopen appellant’s claim for
consideration of the merits on the grounds that she failed to submit relevant and pertinent new
evidence in support of her request for reconsideration.1
LEGAL PRECEDENT -- ISSUE 1
An occupational disease or illness means a condition produced by the work environment
over a period longer than a single workday or shift.2 To establish that an injury was sustained in
the performance of duty in an occupational disease claim, a claimant must submit the following:
(1) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; (2) a factual statement identifying the employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; and
(3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The medical opinion must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the

1

Following the Office’s May 3, 2007 decision, appellant submitted additional new evidence. As the Office did
not consider this evidence in reaching a final decision, the Board may not review the evidence for the first time on
appeal. See 20 C.F.R. § 501.2(c).
2

20 C.F.R. § 10.5(q).

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relationship between the diagnosed condition and the specific employment factors identified by
the claimant.3
ANALYSIS -- ISSUE 1
Appellant filed an occupational disease claim alleging that she developed a right shoulder
condition due to repetitive lifting during the course of her federal employment. She indicated
that she first became aware of the condition on May 18, 2006. The Office accepted that
appellant had identified those employment factors which she felt caused or contributed to her
right shoulder condition. However, the Office found that she did not submit sufficient medical
evidence to establish the relationship of her right shoulder condition to her federal employment
duties.
In support of her claim, appellant failed to submit any medical evidence addressing her
right shoulder condition on or after May 18, 2006. She submitted an authorization for medical
attention dated October 12, 2006 completed by a nurse. However, a nurse is not a “physician”
defined under the Federal Employees’ Compensation Act.4 It is well established that, to
constitute competent medical opinion evidence, the medical evidence submitted must be signed
by a qualified physician.5 Appellant has failed to submit any medical evidence to establish that
her right shoulder condition was caused or aggravated by her employment. The Office properly
denied her claim.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,6
the Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.7 When a claimant fails to meet
one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.8
ANALYSIS -- ISSUE 2
In support of her request for reconsideration, appellant resubmitted a portion of the health
unit records predating her current claim as well as an anesthesia record dated February 9, 2007.
3

Solomon Polen, 51 ECAB 341, 343-44 (2000).

4

Paul Foster, 56 ECAB 208, 212 (2004).

5

Vickey C. Randall, 51 ECAB 357, 360 (2000); Arnold A. Alley, 44 ECAB 912, 921 (1993). Merton J. Sills, 39
ECAB 572, 575(1988).
6

5 U.S.C. §§ 8101-8193, 8128(a).

7

20 C.F.R. § 10.606(b)(2).

8

20 C.F.R. § 10.608(b).

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As the Office reviewed these documents in reaching its March 8, 2007 decision, they do not
constitute new evidence and are not sufficient to require the Office to reopen appellant’s claim
for consideration of the merits.
Appellant did submit new evidence in the form of a preanesthesia evaluation dated
February 9, 2007. However, this document is not relevant or pertinent to her claim for a right
shoulder condition. The document did not address appellant’s right shoulder and did not provide
a diagnosis of any right shoulder condition. As the preanesthesia evaluation did not address the
central issue in appellant’s claim, whether there was medical evidence establishing the presence
of existence of a disease or condition for which compensation is claimed, this document is not
relevant or pertinent and not sufficient to require the Office to reopen appellant’s claim for
consideration of the merits.
CONCLUSION
The Board finds that appellant failed to submit any medical evidence establishing the
presence or existence of a disease or condition for which compensation is claimed and that
therefore she failed to meet her burden of proof in establishing that she developed a right
shoulder condition as a result of her accepted employment duties. The Board further finds that
appellant failed to submit relevant, pertinent new evidence in support of her request for
reconsideration requiring the Office to reopen her claim for consideration of the merits.
ORDER
IT IS HEREBY ORDERED THAT the May 3 and March 8, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 13, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE,PROCESSING AND
DISTRIBUTION CENTER, Philadelphia, PA,
Employer
__________________________________________
Appearances:
Russell T. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket Nos. 21-0577 and 210867
Issued: November 1, 2021

Case Submitted on the Record

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

On March 3, 2021 appellant, through counsel, filed a timely appeal from a January 11,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP
File No. xxxxxx261. The Clerk of the Appellate Boards docketed the appeal as No. 21-0577. On
May 20, 2021 appellant, through counsel, filed a timely appeal from a February 24, 2021 merit
decision of OWCP dated under OWCP File No. xxxxxx096. The Clerk of the Appellate Boards
docketed the appeal as No. 21-0867.
Under OWCP File No. xxxxxx261, appellant, then a 62-year-old mail handler equipment
operator, filed an occupational disease claim (Form CA-2) on December 3, 2020 alleging that he
sustained an unspecified shoulder injury due to factors of his federal employment, including
1

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

extensive pushing and pulling and movement of his arms and head to move containers and skids
and steer handles. He noted that he first became aware of his condition on September 28, 2019
and its relationship to his federal employment on December 14, 2019. By decision dated
January 11, 2021, denied appellant’s occupational disease claim, finding that the medical evidence
of record did not contain a medical diagnosis in connection with the accepted factors of his federal
employment. Consequently, it found that he had not met the requirements to establish an injury
as defined by FECA.
Under OWCP File No. xxxxxx096, appellant previously filed a traumatic injury claim
(Form CA-1) alleging that on December 12, 2017 he sustained a left upper back strain as a result
of pushing and pulling bulk mail containers and all-purpose containers while in the performance
of duty. On June 1, 2018 accepted that claim for left thoracic sprain and left upper arm and
shoulder strains.
The Board has duly considered the matter and concludes that both cases are not in posture
for decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files or when two
or more injuries occur to the same part of the body. 2 As both OWCP File Nos. xxxxxx096 and
xxxxxx261 allege injuries to appellant’s left shoulder, for a full and fair adjudication, the Board
finds that both cases must be returned to OWCP to administratively combine the case records.
This will allow OWCP to consider all relevant claim files in adjudicating appellant’s claims.3
Following this and other such further development as OWCP deems necessary, it shall issue a de
novo decision in each of appellant’s claims.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
3

Order Remanding Case, C.W., Docket Nos. 18-1764 and 19-0709 (issued August 27, 2020); Order Remanding
Case, P.G., Docket No. 17-1461 (issued February 7, 2019).

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IT IS HEREBY ORDERED THAT the January 11 and February 24, 2021 decisions of
the Office of Workers’ Compensation Programs are set aside and the cases are remanded to OWCP
for further proceedings consistent with this order of the Board.
Issued: November 1, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, MID-HUDSON
PROCESSING & DISTRIBUTION CENTER,
Newburgh, NY, Employer
__________________________________________

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

Docket No. 10-805
Issued: November 10, 2010

Case Submitted on the Record

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

JURISDICTION
On February 1, 2010 appellant, through her attorney, filed a timely appeal of the
December 17, 2009 merit decision of the Office of Workers’ Compensation Programs finding
that she did not sustain a traumatic injury. 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 established that she sustained a back injury on May 21,
2008, as alleged.
On appeal, counsel contends that the Office’s decision is contrary to fact and law.
FACTUAL HISTORY
On May 21, 2008 appellant, then a 49-year-old mail clerk, filed a traumatic injury claim
alleging that she experienced severe pain in her back that radiated down to her right leg and foot
which became numb while labeling mail. She stopped work on that date. A June 26, 2002

medical report from Dr. Jacques A. Gulekjian, a radiologist, advised that a computerized
tomography (CT) scan of appellant’s lumbar spine demonstrated a mild diffuse bulge of the disc
at L4-5, a mild central bulge of the disc at L5-S1 with minimal impression on the thecal sac and
mild facet arthropathies at L5-S1. A September 21, 2006 report regarding Dr. Carl A. Silverio, a
Board-certified radiologist, advised that a magnetic resonance imaging (MRI) scan of appellant’s
lumbar spine revealed no focal disc herniations or significant central canal stenosis. Dr. Silverio
found moderate L5-S1 degenerative disc disease with mild bulging and mild right-sided
spondylotic neural foraminal narrowing.
By letter dated May 29, 2008, the Office advised appellant that the evidence submitted
was insufficient to establish her claim. It requested that she submit medical evidence, including
a rationalized medical opinion from an attending physician which described a history of injury
and provided dates of examination and treatment, findings, test results, a diagnosis together with
an opinion with medical reasons on why the diagnosed condition was caused or aggravated by
the May 21, 2008 incident.
In letters dated May 23 and 28, 2008, the employing establishment controverted
appellant’s claim, contending that she had a preexisting back condition and had filed numerous
claims. It stated that her claimed injury was more likely associated with her overall condition.
The employing establishment contended that appellant acknowledged that the mail handling
equipment she was working on at the time of injury was overloaded but, she failed to request
assistance.
An undated form report which contained a physician’s illegible signature indicated that
appellant was first examined on May 28, 2008. She had right lumbar radiculopathy that was
caused or aggravated by an employment activity. Appellant was totally disabled commencing
May 21, 2008.
In a May 28, 2008 report, Dr. Donald Roth, a family practitioner, obtained a history of
the May 21, 2008 incident and appellant’s medical treatment. He reported essentially normal
findings on physical examination with minimal spasm in the right paralumbar region. Dr. Roth
diagnosed right lumbar radiculopathy secondary to an acute injury and a history of mild
degenerative disc disease and facet arthropathy.
A June 23, 2008 report which contained a physician’s illegible signature reviewed a
history of the May 21, 2008 incident. Appellant had an acute back sprain and was unable to
perform her regular work duties.
By decision dated July 3, 2008, the Office denied appellant’s claim. It found the
evidence insufficient to establish that the May 21, 2008 incident occurred at the time, place and
in the manner alleged. The medical evidence was also insufficient to establish an injury causally
related to the claimed employment incident.
On August 12, 2008 appellant requested reconsideration. In an August 4, 2008 report,
Dr. Tejas B. Parikh, a Board-certified radiologist, advised that an MRI scan of appellant’s
lumbar spine demonstrated central disc protrusion at L5-S1 that indented the thecal sac without

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significant central canal stenosis, mild right neural foraminal narrowing at L5-S1 and mild disc
bulge at T12-L1 without significant central canal stenosis.
An August 4, 2008 disability certificate which contained a physician’s illegible signature
stated that appellant was totally disabled through August 11, 2008. An August 14, 2008 report
indicated a date of injury as May 21, 2008. Appellant was diagnosed as having pain in her low
back and right leg.
In an August 14, 2008 progress note, Dr. Mahmoud A. K. Abu-Ghanaam, an attending
Board-certified anesthesiologist, stated that appellant had chronic mechanical lower back pain
due to a work-related injury with a L5-S1 disc bulge based on Dr. Parikh’s August 4, 2008 MRI
scan. She also had central disc protrusion at L5-S1 with right neural foraminal narrowing at that
level and facet arthritis.
By decision dated October 31, 2008, the Office modified the July 3, 2008 decision to
reflect that appellant established that the May 21, 2008 mail labeling incident occurred as
alleged. However, it found that the medical evidence was insufficient to establish that she
sustained a back condition due to the work incident and affirmed the denial of her claim as
modified.
In an October 14, 2009 letter, appellant, through counsel, requested reconsideration. In
progress notes dated June 11 and August 13, 2009, Dr. Abu-Ghanaam listed normal findings on
physical examination. He addressed a treatment plan for appellant’s chronic mechanical back
pain syndrome due to disc and facet disease with lumbar radiculopathy. In a June 11, 2009
report, Dr. Abu-Ghanaam obtained a history of the May 21, 2008 employment incident and
appellant’s medical treatment. He found that she had minimal spasm in the right paralumbar
region. Dr. Abu-Ghanaam stated that appellant had central disc protrusion at L5-S1 indented the
thecal sac without significant central canal stenosis. Appellant also had mild disc bulge at T12L1 without significant central canal stenosis. Dr. Abu-Ghanaam noted that the last MRI scan did
not show T12-L1 damage. He reiterated the diagnosis of mild right neural foramina narrowing at
the L5-S1 level. Dr. Abu-Ghanaam stated that appellant’s original 1997 back injury had
worsened as a result of repeated wear and tear related to work during the past 11 years.1 He
advised that a disc was pressing on a nerve. Dr. Abu-Ghanaam opined that appellant could not
return to work due to a high risk that it would aggravate her back pain and increase the chance of
sustaining an additional disc bulge or disc herniation which could be a major setback related to
her pain and ability to function.
In a December 17, 2009 decision, the Office denied modification of the October 31, 2008
decision, finding the medical evidence insufficient to establish that appellant sustained an injury
causally related to the accepted May 21, 2008 employment incident.

1

The record indicates that appellant previously filed a claim for a back injury on September 2, 1997 under Office
File No. xxxxxx573. The record does not indicate whether the Office accepted her claim.

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LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 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 the Act; that the claim was
filed within 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.3 These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
of an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.5
In order to meet her burden of proof to establish the fact that she sustained an injury in the
performance of duty, an employee must submit sufficient evidence to establish that she actually
experienced the employment injury or exposure at the time, place and in the manner alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.8 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.9
ANALYSIS
The Office accepted that appellant was labeling mail on May 21, 2008 while working as a
mail clerk. The Board finds that the medical evidence of record is insufficient to establish that
her back condition was caused or aggravated by the May 21, 2008 employment incident.
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 3.
5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

6

Linda S. Jackson, 49 ECAB 486 (1998).

7

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

Charles E. Evans, 48 ECAB 692 (1997).

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Dr. Roth’s May 28, 2008 report reviewed a history of the May 21, 2008 incident and
appellant’s medical treatment. He listed essentially normal findings on physical examination
with minimal spasm in the right paralumbar region. Dr. Roth advised that appellant had right
lumbar radiculopathy secondary to an acute injury and a history of mild degenerative disc
disease and facet arthropathy. However, he does not discuss how the lumbar radiculopathy
condition was caused or aggravated by the accepted May 21, 2008 employment incident.10
Dr. Roth did not explain how labeling mail would cause or contribute to the diagnosed lumbar
radiculopathy. Further, he did not provide any medical opinion addressing whether the
preexisting degenerative disc disease and facet arthropathy conditions were causally related to
the May 21, 2008 employment incident. Medical evidence which does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value.11 The Board finds
that Dr. Roth’s report is insufficient to establish that appellant sustained an employment injury
causally related to the accepted employment incident.
Dr. Abu-Ghanaam’s reports found that appellant’s chronic mechanical lower back pain
with a L5-S1 disc bulge, central disc protrusion at L5-S1 which indented the thecal sac without
significant central canal stenosis with mild right neural foraminal narrowing at that level, facet
arthritis and lumbar radiculopathy were due to an employment-related injury. He stated that
although she initially had a mild disc bulge at T12-L1 without significant central canal stenosis,
the last MRI scan did not show T12-L1 damage. Dr. Abu-Ghanaam further stated that
appellant’s 1997 back injury had worsened as a result of repeated wear and tear related to work
during the past 11 years. However, Dr. Abu-Ghanaam failed to address the nature of appellant’s
mail labeling activities on May 21, 2008 or how they could cause a worsening of appellant’s
1997 back injury. Further, he did not explain how the diagnosed lumbar conditions were
causally related to the May 21, 2008 employment incident. In light of appellant’s prior history of
back conditions, the need for medical rationale explaining why the employment incident caused
or aggravated her diagnosed conditions is important. The Board finds that Dr. Abu-Ghanaam did
not adequately address her preexisting condition. Further, Dr. Abu-Ghanaam advised that
appellant could not return to work as it increased the risk of aggravating her back pain and of
additional disc bulge or disc herniation which could be a major setback related to her pain and
ability to function. The Board has held that fear of future injury is not compensable under the
Act.12 Dr. Abu-Ghanaam did not provide a reasoned explanation regarding why the claimed
incident in the workplace could aggravate appellant’s diagnosed back conditions. The Board
finds, therefore, that his reports are insufficient to establish appellant’s claim.
Dr. Parikh’s August 4, 2008 diagnostic test results regarding appellant’s lumbar
conditions do not provide any medical opinion addressing whether the diagnosed conditions are
causally related to the May 21, 2008 employment incident.13 This evidence, therefore, is
insufficient to establish appellant’s claim.
10

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

11

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

12

I.J., 59 ECAB 408 (2008).

13

See cases cited supra note 11.

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Similarly, the diagnostic test results of Dr. Gulekjian and Dr. Silverio regarding
appellant’s lumbar conditions are insufficient to establish her claim. This evidence predates the
May 21, 2008 incident and does not provide any medical opinion addressing causal relation. The
reports which contained illegible signatures have no probative value, as it is not established that
the authors are physicians.14
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a back injury causally related to the accepted May 21, 2008
employment incident. Appellant did not meet her burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a back injury on
May 21, 2008, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the December 17, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 10, 2010
Washington, DC

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

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

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

14

See D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.C., Appellant
and
GENERAL SERVICES ADMINISTRATION,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 13-1552
Issued: December 19, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 18, 2013 appellant filed a timely appeal of a May 14, 2013 merit decision of the
Office of Workers’ Compensation Programs (OWCP) denying an additional schedule award.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish increased permanent
impairment of a scheduled member entitling him to an additional schedule award.
FACTUAL HISTORY
On March 7, 1963 appellant, a 30-year-old former custodial laborer/janitor lifted a 24
gallon trash can weighing approximately 80 pounds when he felt a catch in his right lower back.
OWCP accepted lumbosacral strain and herniated disc at L5-S1 as a result of this injury. On
1

5 U.S.C. § 8101 et seq.

May 20, 1968 appellant fell on his left side and experienced left hip and arm pain. OWCP
accepted calcific tendinitis of the left shoulder with surgery resulting on May 19, 1976.
Appellant filed a claim for compensation on account of injury or occupational disease on June 3,
1971 due to a May 20, 1968 employment injury. OWCP accepted his claim for calcific tendinitis
of the left shoulder.
On June 21, 1977 OWCP granted appellant an additional schedule award for 11 percent
impairment of his left upper extremity. OWCP noted that appellant had previously received a
schedule award for 36 percent impairment of his left upper extremity. On March 7, 1978
OWCP’s medical adviser reviewed the claim and noted that appellant underwent left shoulder
surgery on May 19, 1976 including rerouting of the long head of the biceps tendon. The Branch
of Hearings and Review granted appellant a schedule award for an additional five percent
impairment of his left upper extremity on March 20, 1978. In a decision dated August 3, 1978,
OWCP granted appellant a schedule award for an additional five percent impairment of the left
arm. It noted that appellant had previously received a schedule award for 41 percent impairment
of his left arm.
By decision dated December 18, 2007, OWCP denied appellant’s claim for an additional
schedule award for his left upper extremity (shoulder), finding that he had not established
impairment above the 62 percent already received. Appellant requested reconsideration on
January 7, 2008.
OWCP denied modification of the December 18, 2007 decision on
February 11, 2008.
On July 31, 2008 appellant underwent a nerve conduction study (NCS) which
demonstrated a generalized polyneuropathy which was most likely diabetic in nature.
Appellant requested reconsideration on August 7, 2008. OWCP denied modification on
November 4, 2008.
In a note dated October 10, 2008, Dr. Kirk L Jensen, a Board-certified orthopedic
surgeon, diagnosed left shoulder posttraumatic arthritis based on x-rays. Appellant underwent a
computerized tomography (CT) scan of his left shoulder on December 3, 2009 which
demonstrated advanced changes of osteoarthritis with the glen humeral joint markedly narrowed
as well as multiple intra-articular loose bodies, calcification of the long head of the biceps tendon
and advanced degenerative changes of the acromioclavicular joint including the inferior border
of the acromion which is hooked caudally. The CT scan also demonstrated that inferiorly
projecting spurs narrow the subacromial space and osteoarthritis of the left sternoclavicular joint.
On June 18, 2010 Dr. Jensen requested authorization for a left shoulder arthroplasty. In a note
dated May 4, 2012, Dr. Jensen stated that appellant was a poor surgical candidate and
recommended that appellant utilize pain medication when necessary.
In a letter dated April 3, 2012, OWCP requested that Dr. Jensen provide appellant’s
permanent impairment due to his accepted left shoulder conditions of left shoulder calcific
tendinitis and left shoulder osteoarthritis for schedule award purposes. Dr. Jensen completed a
report on March 22, 2012 and stated that appellant’s left shoulder was permanent and stationary.
He reported range of motion including forward elevation of 30 degrees, external rotation of 10
degrees and internal rotation to L5. Dr. Jensen noted that appellant demonstrated abduction

2

strength of 4/5 and had crepitus and pain with any shoulder motion. He diagnosed left shoulder
post-traumatic arthritis.
On November 21, 2012 OWCP referred appellant for a second opinion evaluation with
Dr. Varsha Sikka, a physician Board-certified in physical medicine and rehabilitation. In a
report dated January 16, 2013, Dr. Sikka noted that appellant was currently 80 years old and in
addition to left shoulder pain experienced type 2 diabetes mellitus, hypertension, bowel trouble,
chronic cough, chronic fatigue syndrome, cancer arthritis, drug abuse and anxiety. He stated that
appellant had left shoulder surgery in the past. Dr. Sikka stated that appellant’s daughter brought
him to the appointment in a wheelchair. He diagnosed advanced osteoarthritis of the left
shoulder with multiple intraarticular loose bodies, degenerative changes of the acromioclavicular
joint with type three acromion and compromise of the subacromial space. Dr. Sikka relied on the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment2 and found that the range of motion method of calculating impairment was more
appropriate than the diagnosis-based estimates.3 He found that 50 degrees of flexion was 9
percent impairment,4 that 20 degrees of extension was 2 percent impairment,5 that 50 degrees of
abduction was 6 percent impairment,6 that 40 degrees of adduction was 0 percent impairment7
and that internal rotation of 20 degrees was 6 percent impairment8 while 20 degrees of external
rotation was 8 percent impairment.9 Dr. Sikka added these impairments to reach 31 percent
impairment of the left shoulder due to loss of range of motion. He utilized Table 15-35 and
found that 31 percent impairment was grade modifier 210 and that functional history grade
adjustment was 3,11 a severe problem based on appellant’s symptoms. Dr. Sikka concluded, “Per
Table 15-36, since functional history grade adjustment (grade 3) is one grade higher than ROM
[range of motion] grade modifier (grade 2), we would need to multiply 31 percent by 5 percent
equaling 1.55 percent, which rounds to 2 percent. We then add 2 percent from 31 percent and
we have a final rating of 33 percent.” Dr. Sikka stated that the date of maximum medical
improvement was January 16, 2013.

2

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010).
3

A.M.A., Guides 461.

4

Id. at 475, Table 15-34.

5

Id.

6

Id.

7

Id.

8

Id.

9

Id.

10

Id. at 477, Table 15-35

11

Id. at 477, Table 15-36.

3

In a separate report dated January 16, 2013, Dr. Sikka applied the diagnosis-based
estimates and found that under Table 15-5, tendinitis is class 1 impairment and that
acromioclavicular joint medial disease is also class 1 equal to 13 percent impairment of the upper
extremity.12 He applied the functional upper extremity Table 15-713 grade modifier 4 and
Physical Examination, Table 15-8, to find the range of motion grade modifier 4.14 Dr. Sikka
reached adjustment grade modifier 4.15 He stated that clinical studies adjustment was based on
imaging studies and x-ray results and resulted in grade modifier 4.16 Dr. Sikka utilized
appellant’s range of motion finding internal rotation of 20 degrees an 8 percent upper extremity
impairment17 and external rotation is 20 degrees, 9 percent of upper extremity which added to the
other figures described above equal to 34 percent of the upper extremity. He used the additional
impairments found for internal rotation and external rotation and followed the steps outlined
above to reach 36 percent impairment of the left upper extremity.
OWCP’s medical adviser reviewed the medical evidence on April 30, 2013 and stated
that on the disputed range of motions, in accordance with the A.M.A., Guides appellant had 4
percent impairment for 20 degrees of internal rotation and 2 percent impairment for 20 degrees
of external rotation.18 He concluded that appellant had 23 percent impairment of his left upper
extremity due to loss of range of motion.
By decision dated May 14, 2013, OWCP denied appellant’s claim for an additional
schedule award finding that the medical evidence did not establish that appellant had more than
62 percent impairment of his left upper extremity for which he had already received schedule
awards.
LEGAL PRECEDENT
The schedule award provision of FECA19 and its implementing regulations20 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
12

Id. at 402-03, Table 15-5.

13

Id. at 406, Table 15-7.

14

Id. at 408, Table 15-8.

15

Id. at 406, Table 15-6.

16

Id. at 410, Table 15-9.

17

Id. at 475, Table 15-34.

18

Id.

19

5 U.S.C. §§ 8101-8193, 8107.

20

20 C.F.R. § 10.404.

4

tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.21
ANALYSIS
Appellant has previously received schedule awards totaling 62 percent impairment of his
left shoulder. He requested an additional schedule award, but failed to submit medical evidence
in support of increased permanent impairment. OWCP referred appellant for a second opinion
evaluation with Dr. Sikka who determined that appellant’s impairment should be determined
based on his loss of range of motion due to his accepted left shoulder conditions. Dr. Sikka
determined that appellant’s loss of range of motion resulted in impairment ratings of 33 and 34
percent impairment. He provided detailed findings and correlated these findings with the
A.M.A., Guides, finding two different impairment values for internal and external rotation of the
left shoulder initially six and eight percent impairment respectively and in another report eight
and nine percent respectively. These figures resulted in two impairment ratings, one for 33 and
the other for 34 percent impairment of the left upper extremity.
OWCP’s medical adviser reviewed these reports and determined that appellant’s
permanent impairment due to loss of range of motion was 23 percent. He based his findings on
values of four percent for 20 degrees of internal rotation and two percent for 20 degrees of
external rotation while agreeing with Dr. Sikka on the remainder of the evaluations as described
in detail above. It is well established that, when a physician fails to provide an estimate of
impairment conforming to the A.M.A., Guides, his or her opinion is of diminished probative
value in establishing the degree of permanent impairment and OWCP may rely on the opinion of
its medical adviser to apply the A.M.A., Guides to the findings of the attending physician.22
The Board notes that both physicians applied the appropriate table of the A.M.A., Guides
and in reaching the various impairment ratings. While the impairment ratings differ by 10
percent based on varying provisions in Table 15-34 regarding internal and external rotation, the
Board finds that this variance is harmless. Appellant has not submitted any medical evidence
supporting his contention that he has more than 62 percent impairment of his left upper
extremity. Even considering the most generous impairment rating, appellant is not entitled to an
additional schedule award. The Board finds that the medical evidence does not establish that
appellant has any greater impairment than that for which he has already received schedule
awards.23

21

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, (6th ed. 2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
22

Linda Beale, 57 ECAB 429 (2006).

23

S.C., Docket No. 11-1679 (issued September 12, 2012).

5

Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that there is no medical evidence in the record supporting that appellant
has more than 62 percent impairment of his left upper extremity for which he has received
schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the May 14, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 19, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees' Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, BASKING RIDGE
POST OFFICE, Basking Ridge, NJ, Employer
__________________________________________
Appearances:
Thomas R. Uliase, for the appellant
Office of Solicitor, for the Director

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Docket No. 14-1390
Issued: November 24, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On June 2, 2014 appellant, through counsel, filed a timely appeal from a March 14, 2014
merit decision of the Office of Workers’ Compensation Programs (OWCP) affirming the
termination of her compensation benefits and finding that she had no continuing disability due to
her accepted employment injury. The Board docketed the appeal as No. 14-1390.
On prior appeal, by order dated February 27, 2013,1 the Board found that the case was
not in posture for a decision noting that the current OWCP File No. xxxxxx217, involved
appellant’s occupational disease claim for carpal tunnel syndrome. The Board further found that
in both the March 20 and July 30, 2012 decisions, OWCP’s hearing representatives noted at the
oral hearing that appellant had a separate claim for traumatic injury to her right hand sustained
on June 20, 2010 and suggested their intention to review that record prior to issuing the 2012
decision addressing the period of disability. The Board directed OWCP to combine the relevant
case files and issue de novo decisions on appellant’s claim.
On remand, OWCP did not combine appellant’s files and did not issue de novo decisions
regarding periods of disability. It proceeded to terminate his medical and compensation benefits
effective May 9, 2013. An OWCP hearing representative considered this decision on March 14,
1

Order Remanding Case, Docket No. 12-1722 (issued February 27, 2013).

2014 and affirmed the termination and further found that appellant had not established any
period of disability or medical residuals on or after May 9, 2013.
The Board, having reviewed the case record, finds that the case is not in posture for
decision. The Board has final authority to determine questions of law and fact. The Board’s
determinations are binding upon OWCP and must, of necessity, be so accepted and acted upon
by the Director of OWCP.2 Otherwise there would be no finality of decisions, the whole appeals
procedure would be nullified and questions would remain moot.3
Accordingly, as OWCP failed to follow the Board’s directive in its February 27, 2013
order to combine appellant’s claim and as it did review and evaluate evidence found in OWCP
File No. xxxxxx217, the case must be remanded to OWCP for the action described in the
Board’s February 27, 2013 decision. Following this and any further development deemed
necessary, OWCP should issue de novo decisions regarding appellant’s periods of disability and
continuing benefits.
IT IS HEREBY ORDERED THAT the March 14, 2014 decision of the Office of
Workers’ Compensation Programs is revised and remanded for further proceeding consistent
with this order of the Board.
Issued: November 24, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2

E.C., Docket No. 14-588 (issued July 1, 2014); Frank W. White, 42 ECAB 696 (1991) (The Board’s order in a
prior appeal imposed an obligation on the Director to take particular actions as directed).
3

Id.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, ROCKY MOUNT
CARRIER ANNEX, Rocky Mount, NC,
Employer
__________________________________________

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

Docket No. 11-689
Issued: August 18, 2011

Case Submitted on the Record

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

JURISDICTION
On January 18, 2011 appellant filed a timely appeal from a nonmerit July 19, 2010
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration.1 The final merit decision of record is dated July 10, 2009. There is no merit
decision within 180 days of January 18, 2011 the date appellant filed her appeal with the Board.
Therefore, pursuant to Federal Employees’ Compensation Act (FECA)2 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case.
1

In computing a time period the date of the event from which the designated period of time begins to run shall
not be included while the last day of the period so computed shall be included unless it is a Saturday, a Sunday or a
legal holiday. See John B. Montoya, 43 ECAB 1148 (1992). In this case, the 180-day time period began to run on
Tuesday, July 20, 2010, the day after OWCP’s July 19, 2010 decision. The 180th day from July 20, 2010 was
Sunday, January 16, 2011. Because the 180th day fell on a Sunday, the period was extended to the following day.
But in 2011, Monday, January 17, 2011 was a federal holiday, Martin Luther King Jr., Day. This extended the 180day period to Tuesday, January 18, 2011 the day appellant’s request for appeal was postmarked. Appellant’s appeal
is thus timely filed.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration.
On appeal, appellant asserts that witness statements and medical reports establish that an
accepted May 15, 2007 work incident caused a claimed injury.
FACTUAL HISTORY
This is appellant’s second appeal before the Board in this case. By decision dated
March 25, 2009,3 the Board affirmed an October 5, 2007 OWCP decision denying an emotional
condition claim on the grounds that she had not established the claimed causative incident as
factual, being forced to work with her door shut on May 15, 2007. The Board also affirmed a
January 17, 2008 nonmerit OWCP decision denying appellant’s request for reconsideration. The
law and the facts of the case as set forth in the Board’s prior decision are incorporated by
reference.4
In an April 21, 2009 letter, appellant requested reconsideration.5
additional evidence.

She submitted

By decision dated July 10, 2009, OWCP modified its October 5, 2007 decision to find
that appellant established the May 15, 2007 incident as factual. It found, however, that
appellant’s reaction to being made to work with her office door shut on May 15, 2007 was not
compensable as it pertained to her dislike of how her supervisor monitored her work and
implemented administrative procedures in the workplace.
In a March 17, 2010 letter, appellant requested reconsideration. She asserted in her
statement that a May 17, 2007 incident occurred in the performance of duty and that she obtained
a grievance settlement. Appellant did not submit proof of a grievance settlement nor any
additional evidence showing error or abuse by the employing establishment.
By decision dated July 19, 2010, OWCP denied appellant’s March 17, 2010 request for
reconsideration on the grounds that her request did not raise substantive legal questions or
include new, relevant evidence.

3

Docket No. 08-1967 (issued March 25, 2009).

4

Appellant filed a petition for reconsideration before the Board on April 28, 2009, alleging that OWCP misfiled
evidence about the May 15, 2007 incident. On May 11, 2009 the Director filed an answer asserting that appellant’s
petition did not cite any error or fact or law. On June 26, 2009 the Board issued an order denying appellant’s
petition for reconsideration.
5

Appellant’s April 21, 2009 petition for reconsideration before the Board was also addressed to OWCP and
stated that she would submit new evidence for OWCP’s consideration. In a May 11, 2009 memorandum, the Office
of the Solicitor advised OWCP not to issue a decision on appellant’s reconsideration request until after the Board
responded to appellant’s petition for reconsideration of the Board’s March 25, 2009 decision.

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,6
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provide that 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.7 Section 10.608(b) provides that
when an application for review of the merits of a claim does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.8
In support of a request for reconsideration, appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.9 She need only submit
relevant, pertinent evidence not previously considered by OWCP.10 When reviewing an OWCP
decision denying a merit review, the function of the Board is to determine whether OWCP
properly applied the standards set forth at section 10.606(b)(2) to appellant’s application for
reconsideration and any evidence submitted in support thereof.11
ANALYSIS
OWCP issued the July 10, 2009 decision finding that appellant established the May 15,
2007 incident as factual but not within the performance of duty. Appellant requested
reconsideration on March 17, 2010, asserting that the May 17, 2007 incident occurred in the
performance of duty.
As noted above, the Board does not have jurisdiction over the July 10, 2009 OWCP
decision. The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
In her March 17, 2010 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. She did not identify a specific point of
law or show that it was erroneously applied or interpreted. Appellant did not advance a new and
relevant legal argument. Her argument was that a May 17, 2007 incident occurred in the
performance of duty. The underlying issue in this case concerned whether the May 15, 2007
incident was established as a compensable factor. Appellant’s submission does not address the
basis upon which the claim was denied. The Board has held that the submission of evidence
which does not address the particular issue involved does not comprise a basis for reopening a
6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.606(b)(2).

8

Id. at § 10.608(b). See also D.E.., 59 ECAB 438 (2008).

9

Helen E. Tschantz, 39 ECAB 1382 (1988).

10

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

11

Annette Louise, 54 ECAB 783 (2003).

3

case.12 A claimant may be entitled to a merit review by submitting new and relevant evidence,
but appellant did not submit any new and relevant medical evidence in this case.
CONCLUSION
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
On appeal, appellant asserts that witness statements and medical reports establish that an
accepted May 15, 2007 work incident caused a claimed injury. This contention concerns the
merits of the claim. As stated, the Board does not have jurisdiction over the merits of the claim
on the present appeal. Therefore, the Board cannot address appellant’s argument.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 19, 2010 is affirmed.
Issued: August 18, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

4


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

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Appearances:
John M. Brown, Esq., for the appellant
No appearance, for the Director

Docket No. 13-675
Issued: June 26, 2013

Oral Argument May 1, 2013

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On January 30, 2013 appellant, through his attorney, filed a timely appeal from a
December 5, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his claim for disability compensation. 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 established that he was totally disabled from June 21 to
July 24, 2011 and August 24 through November 14, 2011 due to his March 9, 2011 employment
injury.
On appeal, counsel contends that since April 8, 2012 OWCP has denied appellant weekly
benefits. He asserts that medical reports dated April 19 to November 2, 2012 from Dr. Lynn
Crosby, an attending Board-certified orthopedic surgeon, establishes that appellant is totally
disabled due to his accepted employment-related injury.

FACTUAL HISTORY
OWCP accepted that on March 9, 2011 appellant, then a 59-year-old food service
supervisor, sustained a complete right rotator cuff rupture as a result of a physical altercation
with an employee at work.
On March 30, 2012 appellant filed a compensation claim for leave without pay (LWOP)
from June 21 through November 14, 2011 and wage loss from November 15, 2011 to
April 8, 2012.
In a February 14, 2012 medical report, Shannon Shellgrove, a registered nurse, stated that
appellant had joint pain, bursitis and acromioclavicular (AC) joint arthropathy of the right
shoulder. Nurse Shellgrove recommended that he undergo right shoulder arthroscopy with
evaluation and possible debridement, rotator cuff repair and capsulolabral reconstruction.
Medical records from the Georgia Health Sciences Medical Center and MCG Health, Inc.
dated February 16 to March 7, 2012 noted that appellant underwent right shoulder arthroscopic
surgery with rotator cuff repair on March 7, 2012. Appellant’s postsurgical medical treatment
was also addressed.
By letter dated March 30, 2012, the employing establishment controverted appellant’s
claim. It contended that he was terminated from his job on May 21, 2011 for just cause; he did
not file a claim until approximately two and one-half months after the incident; his absence from
work was not due to disability; there were no medical documents establishing that he had
become totally disabled since his termination; and the case was initially denied and not accepted
until February 9, 2012. The employing establishment further contended that an accompanying
settlement agreement dated March 27, 2012 established that its May 21, 2011 removal action
would be replaced with a 30-day suspension. Appellant would be reassigned, effective May 21,
2011, to a telephone operator position. He would be placed on LWOP status from June 21
through November 14, 2011 and paid regular salary from November 15, 2011 through
April 8, 2012.
By letter dated April 10, 2012, OWCP advised appellant that the evidence submitted was
insufficient to establish that he was disabled from June 21 through November 14, 2011 due to his
accepted work injury. It requested that he submit a rationalized medical opinion from an
attending physician explaining the causal relationship between his disability and accepted injury.
OWCP noted that appellant received his regular salary from November 15, 2011 to April 8, 2012
under to the March 27, 2012 settlement agreement. It requested that he submit evidence
clarifying whether he incurred any wage loss during this period by providing whether his
reassignment to the telephone operator position was due to an administrative action resulting
from the March 9, 2011 employment incident or restrictions related to his accepted injury.
In a November 1, 2011 report, Dr. Clarence Joe, a radiologist, advised that a cervical
x-ray was of limited diagnostic potential due to obliquity of both the frontal and lateral views.
No gross misalignments were identified. Some osteophytes were seen interiorly at C4, 5 and 6.
Dr. Joe stated that repeat studies with more conventional positioning may be helpful for further
evaluation.

2

On November 1, 2011 Dr. Crosby stated that appellant had improved status post rotator
cuff repair and a second look arthroscopy that was normal except for debrided inflammation.
She continued to have pain over the AC joint and anterior shoulder. Dr. Crosby received an
injection on the date of examination and his condition improved by 50 percent. On examination
of the neck, she found pain in the posterior neck and shoulder area to range of motion.
Dr. Crosby diagnosed cervical spine spondylosis. In a March 29, 2012 fitness-for-duty
certification form, she advised that appellant could not work from March 7 through
June 30, 2012. On May 8, 2012 Dr. Crosby reported that appellant had impingement syndrome
and joint pain of the right shoulder.
In a January 11, 2012 report, Dr. Justin V. Bundy, a Board-certified orthopedic surgeon,
advised that appellant had cervical radiculopathy, degenerative disc disease and spondylosis
without myelopathy.
On February 14, 2012 Dr. Mason N. Florence, an orthopedic surgeon, reported that
appellant had joint pain, bursitis and AC joint arthropathy of the right shoulder. He was status
post rotator cuff repair.
A March 20, 2012 report noted that it had been authenticated by the physician, Dr. Dale
Reed, an orthopedic surgeon. Appellant had impingement syndrome, joint pain and a rotator
cuff capsule sprain of the right shoulder. An April 10, 2012 report authenticated by Dr. Reed
stated that appellant had a right shoulder rotator cuff tear, degenerative joint disease of spine and
cervicalgia.
An unsigned report dated April 10, 2012 contained the typed name of Dr. Yulia
Melenevsky, a Board-certified radiologist. The report stated that an x-ray of appellant’s cervical
spine revealed mild cervical spondylosis that was most pronounced at C4-C5.
An April 19, 2012 duty status report contained a physician’s illegible signature. The
report provided a diagnosis of rotator cuff tear. Appellant could return to work on September 7,
2012 with restrictions.
In an April 23, 2012 memorandum of conference, the employing establishment advised
OWCP that appellant was placed on LWOP status as a result of an administrative issue and not
due to the accepted employment injury. Appellant was placed in the telephone operator position
based on a disciplinary administrative decision set forth in the March 27, 2012 settlement
agreement and not due to restrictions resulting from the accepted injury. On April 8, 2012 he
submitted a March 29, 2012 report from a treating physician who excused him from work for
three months without providing any further detailed explanation.
By decision dated June 1, 2012, OWCP denied appellant’s claim for wage-loss
compensation from June 21, 2011 to April 8, 2012. The medical evidence was insufficient to
establish that he was totally disabled during the claimed period due to his accepted injury.
OWCP found that appellant’s transfer to the telephone operator position was part of an
administrative action and, thus, he was not entitled to compensation under FECA.
By letter dated September 13, 2012, appellant, through his attorney, requested
reconsideration.
3

In reports dated October 8, 1998 through January 4, 2011, Dr. Crosby addressed
appellant’s chest, right elbow, shoulder and foot, left forearm, wrist and hand, bilateral knee and
lumbar spine conditions and prior surgical procedures, including an August 2, 2010 right
shoulder arthroscopic surgery and rotator cuff repair. In reports dated May 8, July 10 and
August 21, 2012, she reiterated the right shoulder diagnoses. In the August 21, 2012 report,
Dr. Crosby advised that appellant was unable to perform any daily living activity. In a
September 14, 2012 fitness-for-duty certification, she advised that appellant was unable to work
from March 7 through 31, 2012. In a November 2, 2012 Family and Medical Leave Act
(FMLA) form, Dr. Crosby noted that appellant’s condition commenced on March 7, 2012 and
had a probable duration through March 31, 2013. Appellant was admitted in the hospital on
March 7, 2012. She checked “yes” that he would be incapacitated due to his medical condition
and estimated that the period of incapacity was through March 31, 2013.
Diagnostic test results and surgical reports dated December 29, 2000 to October 26, 2010
addressed appellant’s right elbow, shoulder, foot and knee and left forearm, wrist and hand
conditions.
In a January 31, 2012 report, Dr. Joe advised that an x-ray of the right shoulder revealed
no fracture or dislocation. The right humeral enchondroma had a stable appearance when
compared to a June 14, 2011 x-ray. Appellant was status post right rotator cuff repair. On
September 21, 2012 Dr. Joe reported that a magnetic resonance imaging (MRI) scan of the right
shoulder without gadolinium was a limited study secondary to significant susceptibility artifact.
There was no evidence of retraction of the supraspinatus tendon. There was a mild-to-moderate
amount of fluid within the subacromial-subdeltoid bursa. The enchondroma was stable within
the proximal right humerus.
In an April 10, 2012 report, Stacy L. Paugh, a licensed practical nurse, addressed
appellant’s right shoulder pain and listed his medications.
In a decision issued on December 5, 2012, OWCP affirmed the June 1, 2012 decision as
modified. The evidence was found sufficient to establish that appellant was totally disabled from
July 25 to August 23, 2011 for surgery due to his accepted March 9, 2011 injury. The medical
evidence was insufficient to establish that he had any employment-related disability from
June 21 to July 24, 2011 or August 24, 2011 to April 8, 2012.
LEGAL PRECEDENT
With respect to a claimed period of disability, an employee has the burden of establishing
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury.1 The term disability is defined as the incapacity because of an
employment injury to earn the wages the employee was receiving at the time of the injury, i.e., a
physical impairment resulting in loss of wage-earning capacity.2
1

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

2

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).

4

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.3 The medical evidence required to establish
a period of employment-related disability is rationalized medical evidence.4 Rationalized
medical evidence is medical evidence based on a complete factual and medical background of
the claimant, of reasonable medical certainty, with an opinion supported by medical rationale.5
The Board, however, will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed.6 To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.7
ANALYSIS
OWCP accepted that appellant sustained a complete right rotator cuff rupture on
March 9, 2011 while working as a food service supervisor. He claimed compensation for
disability from June 21, 2011 to April 8, 2012. On December 5, 2012 OWCP found that
appellant was totally disabled for work from July 25 to August 23, 2011 based on surgery related
to his March 9, 2011 employment-related injury. Under the settlement agreement, appellant
received in regular salary from November 15, 2011 to April 8, 2012. For the period prior to
July 25, 2011 and from August 23 to November 14, 2011, appellant has the burden of
establishing by the weight of the substantial, reliable and probative evidence, a causal
relationship between his claimed disability and the accepted condition.8 The Board finds that he
did not submit sufficient medical evidence to establish employment-related disability for the
period claimed due to his accepted injury.
The reports from appellant’s attending physician, Dr. Crosby, are insufficient to establish
his disability. She advised that appellant had impingement syndrome and joint pain of the right
shoulder and cervical spondylosis. Following appellant’s March 7, 2012 right shoulder
arthroscopic surgery and rotator cuff repair, Dr. Crosby opined that appellant was unable to
perform any daily living activity or work from March 7 through 31, 2013. She did not provide a
medical opinion addressing whether her diagnosed conditions, treatment and disability were
causally related to the accepted March 9, 2011 employment-related injury. The Board has held
that a physician’s opinion, which does not address causal relationship, is of diminished probative
value.9 Similarly, the other reports from Dr. Crosby predate the claimed period of disability and
3

See Fereidoon Kharabi, 52 ECAB 291 (2001).

4

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

5

Leslie C. Moore, 52 ECAB 132 (2000).

6

Sandra D. Pruitt, 57 ECAB 126 (2005).

7

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharrazi, supra note 3.

8

Alfredo Rodriguez, 47 ECAB 437 (1996).

9

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

5

failed to provide an opinion stating that appellant was totally disabled from June 21 to July 24,
2011 or August 24 to November 15, 2011 due to the accepted employment injury.10 For the
stated reasons, the Board finds that Dr. Crosby’s reports are insufficient to establish appellant’s
burden of proof.
Dr. Joe’s diagnostic test results and Dr. Reed’s reports addressed appellant’s cervical and
right shoulder conditions. Neither physician provided an opinion on the causal relationship
between the accepted March 9, 2011 employment injury and the diagnosed conditions.11 The
Board finds, therefore, that the reports from Drs. Joe and Reed are insufficient to establish
appellant’s claim.
Appellant submitted medical records from Georgia Health Sciences Medical Center and
MCG Health, Inc., and reports from Drs. Bundy and Florence which addressed his cervical and
right shoulder conditions. These reports are insufficient to establish a claim for disability, as
they predate the claimed periods of disability and do not provide an opinion addressing the
causal relationship between the accepted employment injury and the diagnosed conditions.12
The unsigned report which contained the typed name of Dr. Melenevsky and the report
which contained an illegible signature lack probative medical value as the author(s) cannot be
identified as a physician.13
The reports of Nurses Shellgrove and Paugh have no probative medical value in
establishing appellant’s claim as a nurse is not defined as a qualified physician under FECA.14
Appellant failed to submit rationalized medical evidence establishing that his disability
from June 21, 2011 through July 24, 2011 and August 24, 2011 to November 15, 2011 resulted
from residuals of his accepted employment-related right shoulder condition. Thus, the Board
finds that he has failed to meet his burden of proof.
On appeal, appellant’s attorney contended that since April 8, 2012, OWCP has not paid
appellant weekly benefits. He asserted that Dr. Crosby’s reports April 19 to November 2, 2012
established that appellant was totally disabled due to his accepted March 9, 2011 employmentrelated injury. The Board notes that OWCP has not adjudicated the issue of appellant’s disability
after April 8, 2012 and it is not an issue in the present appeal.
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.
10

Id.

11

Id.

12

Id.

13

See Ricky S. Storms, 52 ECAB 349 (2001); Morris Scanlon, 11 ECAB 384, 385 (1960).

14

See 5 U.S.C. § 8101(2); G.G., 58 ECAB 389 (2007).

6

CONCLUSION
The Board finds that appellant has failed to establish that he was totally disabled from
June 21 to July 24, 2011 and August 24 through November 14, 2011 due to his March 9, 2011
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 5, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 26, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 10-1005
Issued: January 13, 2011

Case Submitted on the Record

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

JURISDICTION
On March 1, 2010 appellant filed a timely appeal of a December 22, 2009 decision of the
Office of Workers’ Compensation Programs affirming a schedule award decision. 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 has more than two percent permanent impairment of the
left upper extremity for which she received a schedule award.
FACTUAL HISTORY
On June 30, 2004 appellant, then a 35-year-old mail handler, filed an occupational
disease claim alleging that she developed tendinitis due to the repetitive nature of her job that
included lifting bundles of mail, pulling cages of mail and shelving trays of mail. She stopped
work on July 14, 2004 and continued working intermittently until she retired on disability on

November 9, 2007. The Office accepted appellant’s claim for de Quervain’s tenosynovitis of the
left hand and authorized appropriate surgery.1
Initial medical reports dated between June 29, 2004 and April 12, 2005 from Dr. Sean
Stryker, Board-certified in family medicine, noted appellant’s complaint of left wrist pain that
increased while performing duties at work. Dr. Stryker diagnosed de Quervain stenosing
tenosynovitis.2
Appellant submitted several reports from Dr. Robert Meyer, a Board-certified orthopedic
surgeon, dated between November 1, 2005 and February 8, 2007. Dr. Meyer diagnosed
de Quervain tenosynovitis and performed a release of the first dorsal extensor tendon
compartment of the left wrist on January 17, 2006. On November 21, 2006 he found that
appellant’s left wrist impairment was permanent, short of any further intervention and that he
could not encourage any further intervention. On February 25, 2007 Dr. Meyer noted appellant’s
recurrent left wrist pain and advised further surgery for more extensive tenolysis of the extensor
tendons of the left thumb. On May 23, 2007 he performed tenolysis of the first dorsal extensor
compartment of the left wrist and thumb.
On June 28, 2007 the Office referred appellant with a statement of accepted facts to
Dr. Peter Remec, a Board-certified orthopedic surgeon, for a second opinion. In an August 1,
2007 report, Dr. Remec noted appellant’s complaint of left wrist and thumb pain with repetitive
hand use, pushing and pulling. He indicated that appellant was not at maximum medical
improvement as she was 10 weeks following her second surgery. Dr. Remec expected that
appellant would reach maximum medical improvement one year following her most recent
surgery.
Appellant filed a schedule award claim on November 9, 2007.
In a March 27, 2008 report, Dr. Ibrahim Al-Sinjari, a Board-certified orthopedic surgeon,
diagnosed de Quervain’s disease of the left wrist. He noted that appellant was at maximum
medical improvement but that her left wrist was not back to her preaccident condition.3
In an April 3, 2008 letter to Dr. Kevin Coughlin, a Board-certified orthopedic surgeon,
the Office requested a report regarding appellant’s examination for impairment.4

1

The Board notes that this decision contained a typographical error listing the accepted condition as pertaining to
appellant’s right hand.
2

Appellant filed several recurrence of disability claims alleging an aggravated left hand condition due to her
employment activities. The Office accepted that she sustained recurrences on March 25, 2005 and January 4, 2007.
It denied appellant’s recurrence of disability claim of August 8, 2007, which was subsequently affirmed by an Office
hearing representative.
3

The Office referred appellant to Dr. Al-Sinjari for an independent medical evaluation to resolve the conflict in
medical opinion between Drs. Meyer and Remec regarding the number of hours appellant was able to work.
4

Dr. Coughlin, a former associate of Dr. Meyer, became appellant’s treating physician after Dr. Meyer left the
practice.

2

In a May 8, 2008 decision, the Office denied appellant’s schedule award claim finding
the evidence insufficient to establish that she sustained a permanent impairment to a schedule
member due to the accepted work injury.
Appellant requested a review of the written record on May 21, 2008. She asserted that
she and her physician did not receive a letter requesting medical evidence.
In a May 19, 2008 report, Dr. Coughlin noted appellant’s complaint of left thumb, hand
and wrist pain. Upon examination, he found that the left upper extremity revealed a well-healed
and reasonably cosmetic transverse incision about the radial aspect of the left wrist.
Dr. Coughlin also found mild swelling along the course of the first dorsal extensor compartment
and that the surgical incisions were sensitive to the touch. He noted mild impairment of active
and passive thumb palmar adduction and radial adduction. Dr. Coughlin diagnosed left upper
extremity work-related de Quervain tendinitis and status post de Quervain surgical release. He
opined that based on the New York state workers’ compensation guidelines, appellant had 17.5
percent scheduled loss of the left thumb, which was a permanent loss. Dr. Coughlin noted that
he was not experienced in using the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides). He also noted that appellant should be reevaluated on
an as-needed basis.
In an August 18, 2008 decision, an Office hearing representative set aside and remanded
the case finding that it should have been referred to an Office medical adviser for a calculation of
impairment.
In a September 15, 2008 report, an Office medical adviser reviewed the medical evidence
of record including Dr. Coughlin’s May 19, 2008 report. He determined that Dr. Coughlin’s
examination did not allow him to compute a schedule award based on the A.M.A., Guides as it
was too vague. The Office medical adviser noted that the only real finding was mild impairment
of thumb motions and that no reading was given. He advised that appellant be referred to a
physician who was experienced with using the A.M.A., Guides.
On December 3, 2008 the Office referred appellant to Dr. Remec for an independent
medical evaluation to resolve the conflict in medical opinion between Dr. Coughlin and the
Office medical adviser regarding appellant’s permanent impairment of the left upper extremity.
In a January 7, 2009 report, Dr. Remec summarized appellant’s history of injury. His
examination revealed well-healed incisions over the dorsum of the left thumb, no visible
swelling, erythema or increased warmth, no palpable crepitation and no localized tenderness.
Regarding range of motion of the right and left wrist, flexion and extension was symmetric.
Range of motion of the thumb showed interphalangeal joint (IP) joint flexion 0 to 75 degrees for
the right and 0 to 60 degrees to the left. Metacarpophalangeal joint (MP) flexion was 0 to 65
degrees for the right and 0 to 40 degrees for the left. Thumb abduction was 70 degrees for the
right and 50 degrees for the left. Adduction measured 1.5 centimeters (cm). Grip strength was
23 kilograms (kg) for the right and 9 kg for the left. Key pinch strength was 8 kg on the right
and 6 kg on the left. Dr. Remec determined that, based on the fifth edition of the A.M.A.,
Guides, IP joint flexion on the left for 0 to 60 degrees was one percent impairment based on
Figure 16-12 on page 456 of the A.M.A., Guides. He also determined that MP joint flexion 0 to
40 degrees was two percent impairment, citing Figure 16-15 on page 457. Dr. Remec assessed
3

one percent impairment for adduction loss of 1.5 cm as the distance from the distal palmar crease
at the level of the MP joint of the little finger, citing Figure 16-8b on page 459. He noted no loss
of abduction or opposition. Dr. Remec determined a total of four percent impairment of the left
thumb, which equaled two percent impairment of the left hand, citing Table 16-1 on page 438 of
the A.M.A., Guides. He noted March 27, 2008 as the date of maximum medical improvement as
that was the date of the first independent medical evaluation where appellant was found to have
originally reached maximum medical improvement.
In a February 18, 2009 report, another Office medical adviser reviewed the medical
evidence. He agreed with Dr. Remec’s findings and determined that IP joint flexion on the left
side at 60 degrees was one percent impairment, citing Figure 16-12 on page 476 of the A.M.A.,
Guides. The Office medical adviser also determined MP joint flexion was two percent
impairment citing Figure 16-15 on page 457, adduction loss was one percent impairment citing
Table 16-8b on page 459. He indicated that appellant had four percent total left thumb
impairment that equaled two percent left hand impairment. The Office medical adviser noted
that Dr. Remec did not calculate left upper extremity impairment. Therefore, he applied Table
16-2 on page 439 of the A.M.A., Guides to determine that two percent hand impairment equaled
two percent upper extremity impairment. The Office medical adviser also noted that appellant
reached maximum medical improvement on January 7, 2009.
In a March 9, 2009 decision, the Office issued appellant a schedule award for two percent
impairment of the left upper extremity. It paid her 6.24 weeks of compensation from January 7
to February 19, 2009.
On April 8, 2009 appellant requested a telephone hearing through her representative,
which was held on October 26, 2009.
In a December 22, 2009 decision, an Office hearing representative affirmed the March 9,
2009 decision. She found that Dr. Remec was improperly designated as an independent medical
examiner and that he should be considered a second opinion as no conflict existed between
Dr. Coughlin and the second Office medical adviser as that medical adviser did not disagree with
Dr. Coughlin’s findings, rather he only recommended that appellant be referred to another
specialist. The hearing representative found that there was no evidence to refute Dr. Remec’s
findings.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act5 and its
implementing regulations 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. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sounds discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards

5

5 U.S.C. §§ 8101-8193. See 5 U.S.C. § 8107.

4

applicable to all claimants. The A.M.A., Guides has been adopted by the Office for evaluating
schedule losses and the Board has concurred in such adoption.6
ANALYSIS
Appellant received a schedule award for two percent impairment of her left upper
extremity due to her accepted de Quervain’s tenosynovitis of the left hand. She provided a
report from Dr. Coughlin finding a 17.5 percent loss of use of the thumb. However,
Dr. Coughlin did not rate impairment pursuant to the A.M.A., Guides and acknowledged that he
was not experienced in using the A.M.A., Guides. An Office medical adviser, on September 15,
2008, opined that Dr. Coughlin’s report provided insufficient findings on which to base an
impairment rating based on the A.M.A., Guides, and recommended that appellant be referred to
another physician for an impairment rating. Thus, Dr. Coughlin’s report provides an insufficient
basis for rating impairment under the A.M.A., Guides.7 The Office properly referred appellant to
Dr. Remec for an impairment evaluation.8
Dr. Remec’s January 8, 2009 report provided the values for appellant’s left thumb range
of motion and corresponding calculations. His findings included 60 degrees IP joint flexion for
one percent impairment and 40 degrees of MP joint flexion for two percent impairment, citing
Figures 16-12 and 16-15 on pages 456 and 457 respectively of the A.M.A., Guides. Dr. Remec
also found 1.5 cm loss of adduction for one percent impairment, citing Table 16-8b on page 459
of the A.M.A., Guides.9 He totaled appellant’s range of motion impairment values to derive four
percent left thumb impairment, which he applied to Table 16-1 on page 438 of the A.M.A.,
Guides to correctly determine two percent total left hand impairment. Although Dr. Remec
correctly calculated that appellant’s left hand impairment totaled two percent, he did not
calculate appellant’s left upper extremity impairment as requested by the Office.
After receiving Dr. Remec’s report, the Office properly referred the matter to its Office
medical adviser.10 The Office medical adviser reviewed the medical evidence of record and
6

See 20 C.F.R. § 10.404; R.D., 59 ECAB 127 (2007).

7

See J.G., 61 ECAB ___ (Docket No. 09-1128, issued December 7, 2009) (an attending physician’s report is of
little probative value where the A.M.A., Guides are not properly followed).
8

Although the Office initially referred to Dr. Remec as an impartial specialist selected to resolve a conflict
between Dr. Coughlin and an Office medical adviser, the Office hearing representative properly found that
Dr. Remec was not an impartial specialist as there was no medical conflict. See 5 U.S.C. § 8123(a). Dr. Coughlin
did not rate impairment under the A.M.A., Guides, and the Office medical adviser recommended further medical
development. While Dr. Remec was not an impartial specialist with regard to rating permanent impairment, his
report may still be considered for its own intrinsic value. See Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).
9

Dr. Remec measured 1.5 cm and properly assigned one percent impairment as 2 cm of adduction equals one
percent thumb impairment according to Table 16-8b. See A.M.A., Guides 459 (impairment values for measured
distances falling between those shown in Table 16-8b may be adjusted or interpolated proportionally in the
corresponding interval).
10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002); L.H., 58 ECAB 561 (2007) (the Act’s procedures contemplate that, after
obtaining all necessary medical evidence, the file should be routed to an Office medical adviser for an opinion
concerning the nature and percentage of impairment in accordance with the A.M.A., Guides).

5

concurred with Dr. Remec’s left hand range of motion findings as well as the finding of two
percent left hand impairment. He indicated, as noted, that Dr. Remec did not calculate
appellant’s left upper extremity impairment. Therefore, the Office medical adviser properly
determined that two percent hand impairment equaled two percent upper extremity impairment,
citing Table 16-2 on page 439 of the A.M.A., Guides.11
Accordingly, the Office medical adviser properly correlated Dr. Remec’s findings with
the A.M.A., Guides in finding that appellant had two percent permanent impairment of the left
arm. There is no other medical evidence, consistent with the A.M.A., Guides, showing that
appellant has greater than two percent impairment of the left upper extremity.
CONCLUSION
The Board finds that appellant has not more than two percent impairment of the left
upper extremity for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the December 22, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 13, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

See Charles B. Carey, 49 ECAB 528 (1998) (where the residuals of an injury to a member of the body
specified in the schedule award provisions of the Act 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).

6