United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Carol Stream, IL, Employer
__________________________________________

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

Docket No. 15-295
Issued: May 20, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 21, 2014 appellant filed a timely appeal from the September 9, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly adjusted appellant’s compensation effective
November 26, 2013 based on her ability to earn wages in the constructed position of receptionist;
and (2) whether it properly modified its November 26, 2013 wage-earning capacity
determination effective February 24, 2014 based on the finding that appellant’s actual wages as a
modified city carrier fairly and reasonably represented her wage-earning capacity effective that
date.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP initially accepted that on March 11, 1998 appellant, then a 35-year-old letter
carrier, sustained a low back contusion, lumbar strain, and coccyx strain when she slipped on ice
and fell at work. Appellant’s claim was later expanded to include herniated disc at L5-S1 as a
work-related medical condition and on September 23, 1998 she underwent OWCP-authorized
hemilaminotomy surgery at L5-Sl with removal of herniated disc.
Beginning June 25, 2005, appellant received disability compensation on the daily rolls.
On January 27, 2006 she underwent OWCP-authorized left L5-S1 micro-lumbar discectomy.
Appellant returned to limited-duty work in February 2006 but stopped work again in
November 2011.
In a May 31, 2010 report, Dr. Jon Beran, an attending Board-certified family practitioner,
indicated that appellant could perform limited-duty work for eight hours per day with restrictions
such as lifting no more than five pounds.
In order to obtain clarification regarding appellant’s work-related residuals and ability to
work, OWCP referred appellant Dr. Theodore J. Suchy, a Board-certified orthopedic surgeon, for
an examination and opinion on the matter. In a September 13, 2010 report, Dr. Suchy opined
that appellant could return to work on a full-time basis with restrictions including lifting no more
than 15 pounds and walking no more than an hour at a time. In reports dated in 2011, Dr. Beran
continued to recommend greater work restrictions than those provided by Dr. Suchy.
Due to the conflict in the medical opinion evidence between Drs. Beran and Suchy
regarding her ability to work, OWCP referred appellant to Dr. Julie Wehner, a Board-certified
orthopedic surgeon, for an impartial medical examination and opinion on the matter.
In a report dated June 6, 2012, Dr. Wehner stated that, on examination, appellant’s gait
pattern was normal, she had mild pain with axial compression/axial rotation and light palpitation
in her low back area, and she was able to bend to her mid-tibia area with her fingertips touching.
Straight leg raising was negative, motor strength in her lower extremities was 5/5, and her
neurological examination was normal. Dr. Wehner indicated that appellant continued to have
left leg pain but she was capable of performing limited-duty work on a full-time basis. She could
lift 10 to 15 pounds and could walk four to six hours per day (but not more than one hour at a
time).
Appellant was referred to an OWCP-sponsored vocational rehabilitation program. In
March 2013 her vocational rehabilitation counselor determined that she was capable of working
as a receptionist or customer service representative and that current state labor market surveys
showed that these positions were reasonably available in her commuting area. The receptionist
position Department of Labor, Dictionary of Occupational Titles (DOT) #237.367-038, was
characterized as sedentary in nature2 and involved such duties as receiving callers at

2

Sedentary work, according to the DOT, involves occasionally exerting up to 10 pounds of force and sitting most
of the time, but may involve walking or standing for brief periods of time.

2

establishments, determining the nature of their business, operating telephones, and recording the
information of callers.
Appellant was notified that she would receive 90 days of job placement assistance and, at
the end of that period, compensation would be reduced based on her ability to earn wages,
regardless of whether she became reemployed. She was not placed in a job at the end of 90 days.
In an October 3, 2013 letter, OWCP advised appellant that it proposed to reduce her
compensation based on her capacity to earn wages in the constructed position of receptionist. It
indicated that the duties of the receptionist position, based on the DOT, were within her work
capacity, based on the work restrictions provided by Dr. Wehner, and that the position was
reasonably available within her commuting area. Appellant’s loss of wage-earning capacity was
calculated based on her ability to earn wages of $393.20 per week in the receptionist position.
According to the Shadrick formula,3 this resulted in a loss of wage-earning capacity of $437.83
per week. Appellant was afforded 30 days to provide evidence or argument against the proposed
decision to reduce compensation.
Additional medical evidence was received from Dr. Vikram Prabhu, an attending Boardcertified neurosurgeon. In his report of September 11, 2013, he advised that he was
recommending surgery, including L5-S1 decompression and fusion. Dr. Prabhu did not provide
any opinion on appellant’s ability to work.
In a November 26, 2013 decision, OWCP adjusted appellant’s compensation effective
November 26, 2013 based on her ability to earn wages in the constructed position of receptionist.
It found that the evidence of record showed that she was physically and vocationally capable of
earning wages in the constructed position of receptionist and that the position was reasonably
available in her commuting area.
On February 24, 2014 appellant began working as a modified city carrier for the
employing establishment with wages of $1,097.56 per week.
Appellant requested a telephonic hearing with an OWCP hearing representative. During
the hearing held on June 17, 2014, counsel argued that OWCP’s reduction of appellant’s
compensation based on her ability to work as a receptionist was defective on its face because the
DOT was outdated and had been replaced by other resources. He claimed that the DOT provides
inaccurate job descriptions because it had not been updated to match the actual jobs presently
available.
In a September 9, 2014 decision, OWCP hearing representative found that OWCP’s
November 26, 2013 wage-earning capacity determination was proper at the time it was made.
He found that the medical opinion of Dr. Wehner showed that appellant could earn wages as a
receptionist. The opinion of appellant’s vocational rehabilitation counselor confirmed that she

3

See infra note 11.

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was vocationally capable of performing the position and that it was reasonably available within
her commuting area. He indicated that the DOT was a valid source for job descriptions and
stated:
“The decision to reduce the claimant’s compensation based on her ability to earn
wages as a receptionist was correct, based on the evidence of record at the time it
was issued.
“It is noted, however, that the wage-earning capacity decision of November 2[6],
2013 must be modified effective June 11, 2014,4 when [OWCP] made a formal
finding that the claimant’s actual earnings, working as a [m]odified [c]ity
[c]arrier] since February 24, 2014, fairly and reasonably represented the
claimant’s wage-earning capacity. [OWCP] further reduced the claimant’s
compensation on this basis.
“Modification of a standing wage-earning capacity determination is not warranted
unless there is a material change in the nature and extent of the injury-related
condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was erroneous. In this case, the
claimant was vocationally rehabilitated.
“For the reasons set forth above, the decision dated November [26], 2013, is
hereby affirmed, but modified to reflect that the position of receptionist no longer
represented the claimant’s wage-earning capacity effective June 11, 2014, when
[OWCP] set that decision aside on the basis the claimant had been rehabilitated,
and the claimant’s held job as a [m]odified [c]ity [c]arrier] fairly and reasonably
represented her wage-earning capacity.”
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.5 OWCP’s
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.6
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent her wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity, or
if the employee has no actual earnings, her wage-earning capacity is determined with due regard
to the nature of her injury, her degree of physical impairment, her usual employment, her age,
4

The Board notes that appellant’s disability compensation was reduced to zero effective February 24, 2014 and
OWCP hearing representative effectively modified OWCP’s November 26, 2013 wage-earning capacity
determination to reflect this circumstance.
5

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005).

6

Del K. Rykert, 40 ECAB 284 (1988).

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her qualifications for other employment, the availability of suitable employment and other
factors and circumstances which may affect her wage-earning capacity in her disabled
condition.7 Wage-earning capacity is a measure of the employee’s ability to earn wages in the
open labor market under normal employment conditions.8 The job selected for determining
wage-earning capacity must be a job reasonably available in the general labor market in the
commuting area in which the employee lives.9 The fact that an employee has been unsuccessful
in obtaining work in the selected position does not establish that the work is not reasonably
available in her commuting area.10
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP or to an Office wage-earning capacity specialist for selection of a position, listed in
the DOT or otherwise available in the open labor market, that fits that employee’s capabilities
with regard to her physical limitations, education, age, and prior experience. Once this selection
is made, a determination of wage rate and availability in the open labor market should be made
through contact with the state employment service or other applicable service. Finally,
application of the principles set forth in the Shadrick decision will result in the percentage of the
employee’s loss of wage-earning capacity.11
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”12 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.13 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.14
ANALYSIS -- ISSUE 1
OWCP accepted that on March 11, 1998 appellant sustained a low back contusion,
lumbar strain, coccyx strain, and herniated disc at L5-S1 when she slipped on ice and fell at
7

E.W., Docket No. 14-584 (issued July 29, 2014); 5 U.S.C § 8115(a).

8

Albert L. Poe, 37 ECAB 684 (1986).

9

Id. The commuting area is to be determined by the employee’s ability to get to and from the work site. See
Glen L. Sinclair, 36 ECAB 664 (1985).
10

See Leo A. Chartier, 32 ECAB 652 (1981).

11

See Dennis D. Owen, 44 ECAB 475 (1993); Albert C. Shadrick, 5 ECAB 376 (1953).

12

5 U.S.C. § 8123(a).

13

William C. Bush, 40 ECAB 1064 (1989).

14

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

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work. It authorized low back surgeries that were performed on June 25, 2005 and
January 27, 2006. Appellant returned to limited-duty work in February 2006 but stopped work
again in November 2011.
The record contains work restrictions provided by Dr. Wehner, a Board-certified
orthopedic surgeon who served as an impartial medical specialist on this matter. OWCP
properly determined that there was a conflict in the medical opinion evidence and referred
appellant to Dr. Wehner for an impartial medical examination.15 In a well-rationalized report
dated June 6, 2012, Dr. Wehner found that appellant was capable of performing limited-duty
work on a full-time basis. Appellant could lift up to 15 pounds and could walk for up to six
hours per day (but not more than one hour at a time). Dr. Wehner’s opinion represents the
weight of the medical evidence regarding appellant’s ability to work.16
The Board notes that the selected position of receptionist is within appellant’s physical
work tolerances as detailed by Dr. Wehner. The receptionist position was defined as sedentary
in nature and only required occasional lifting of up to 10 pounds and walking and standing for
brief periods. Appellant’s vocational rehabilitation counselor determined that she was able to
perform the position of receptionist and that state employment services showed the position was
available in sufficient numbers so as to make it reasonably available within her commuting area.
Appellant’s vocational rehabilitation counselor is an expert in the field of vocational
rehabilitation and OWCP may rely on her opinion regarding reasonably availability and
vocational suitability.17
Counsel alleged that the description of the receptionist position from the DOT did not
provide a realistic description of actual jobs in the workplace and therefore it was improper to
rate appellant’s wage-earning capacity based on such a constructed position.
The Board notes that OWCP procedure provides that in cases where the claimant has
undergone vocational rehabilitation, the vocational rehabilitation counselor will submit a final
report to the vocational rehabilitation specialist summarizing why vocational rehabilitation was
unsuccessful and listing two or more jobs which are medically and vocationally suitable for the
claimant. The report will include the corresponding job numbers from DOT or (OWCPspecified equivalent) and pay ranges in the relevant geographical area. The vocational
rehabilitation counselor will also include the DOT’s description (or OWCP-specified equivalent)

15

See supra notes 12 and 13. In a September 13, 2010 report, Dr. Suchy, a Board-certified orthopedic surgeon
serving as an OWCP referral physician, opined that appellant could return to work on a full-time basis with
restrictions including lifting no more than 15 pounds and walking no more than an hour at a time. In contrast,
Dr. Beran, an attending Board-certified family practitioner, recommend greater work restrictions than those
provided by Dr. Suchy.
16

See supra note 14. In a September 11, 2013 report, Dr. Prabhu, an attending Board-certified neurosurgeon,
advised that he was recommending surgery, including L5-S1 decompression and fusion. However, he did not
provide any opinion on appellant’s ability to work.
17

G.A., Docket No. 13-1351 (issued January 10, 2014).

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of the duties and physical requirements of each job.18 Counsel has not provided compelling
argument that the description of the receptionist position in the DOT was inaccurate.
Appellant did not submit evidence or argument showing that she could not vocationally
or physically perform the receptionist position. OWCP considered the proper factors, such as
availability of suitable employment and her physical limitations, usual employment, age and
employment qualifications, in determining that the position of receptionist represented
appellant’s wage-earning capacity effective November 26, 2013.19 The weight of the evidence
of record establishes that appellant had the requisite physical ability, skill, and experience to
perform the position of receptionist and that such a position was reasonably available within the
general labor market of her commuting area. Therefore, OWCP properly reduced appellant’s
compensation effective November 26, 2013 based on her capacity to earn wages as a
receptionist.
LEGAL PRECEDENT -- ISSUE 2
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained, or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.20 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.21
Under 5 U.S.C. § 8115(a), wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent her wage-earning
capacity. Generally, wages actually earned are the best measure of wage-earning capacity and,
in the absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.22 A determination
regarding whether actual earnings fairly and reasonably represents one’s wage-earning capacity
should be made only after an employee has worked in a given position for at least 60 days.23
18

Federal (FECA) Procedure Manual, Part 2 – Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.4 (June 2013); see also T.G., Docket No. 14-921 (issued September 17, 2014)
(the Board noted that the claimant did not submit evidence supporting that the position at issue was not reasonably
available and that OWCP procedures clearly state that the vocational counselor shall include in his or her report the
DOT description of duties and physical requirements).
19

See Clayton Varner, 37 ECAB 248 (1985).

20

C.R., Docket No. 14-111 (issued April 4, 2014); Sharon C. Clement, 55 ECAB 552 (2004). OWCP procedure
provides that it may be appropriate to modify the wage-earning LWEC rating on the grounds that the claimant has
been vocationally rehabilitated if the claimant is employed in a new job (a job different from the job for which he or
she was rated) obtained with additional training which pays at least 25 percent more than the current pay of the job
for which the claimant was rated. Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of
Wage-Earning Capacity Decisions, Chapter 2.1501.5c (June 2013).
21

See T.M., Docket No. 08-975 (issued February 6, 2009).

22

E.W., Docket No. 14-584 (issued July 29, 2014); Dennis E. Maddy, 47 ECAB 259, 262 (1995).

23

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Wages, Chapter 2.815.5 (June 2013).

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Wage-earning capacity may not be based on an odd-lot or make-shift position designed for an
employee’s particular needs, a temporary position when the position held at the time of injury
was permanent, or a position that is seasonal in an area where year-round employment is
available.24
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly modified its November 26, 2013 wage-earning
capacity determination effective February 24, 2014 based on the finding that appellant’s actual
wages as a modified city carrier fairly and reasonably represented her wage-earning capacity
effective that date. OWCP provided justification for this modification by finding that appellant
had been vocationally rehabilitated when she started earning actual wages as a modified city
carrier beginning February 24, 2014.
The record reveals that appellant had received actual earnings as a modified city carrier
for more than 60 days in that she had been working in the position since February 24, 2014 when
OWCP issued its June 11, 2014 decision.25 OWCP compared appellant’s actual earnings as a
modified city carrier with the wages she was able to earn in her date-of-injury job. Appellant’s
actual earnings met or exceeded those she earned at the time of her injury and OWCP properly
reduced her wage-loss compensation to zero.26 OWCP also properly found that appellant’s
actual wages as a modified city carrier fairly and reasonably represented her wage-earning
capacity. The record does not establish that the modified city carrier position constitutes parttime, sporadic, seasonal, or temporary work. Moreover, the record does not reveal that the
position is a make-shift position designed for appellant’s particular needs.27
CONCLUSION
The Board finds that OWCP properly adjusted appellant’s compensation effective
November 26, 2013 based on her ability to earn wages in the constructed position of receptionist.
The Board further finds that OWCP properly modified its November 26, 2013 wage-earning
capacity determination effective February 24, 2014 based on the finding that her actual wages as
a modified city carrier fairly and reasonably represented her wage-earning capacity effective that
date.

24

See James D. Champlain, 44 ECAB 438, 440-41 (1993); Federal (FECA) Procedure Manual, supra at Chapter
2.815c (June 2013).
25

See supra note 23.

26

The Board notes that appellant participated in a vocational rehabilitation program and her earnings in the
modified city carrier position ($1,097.56) were more than 25 percent greater than those of her constructed
receptionist position ($393.20) in which she was previously rated. See supra note 20.
27

See supra note 24.

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ORDER
IT IS HEREBY ORDERED THAT the September 9, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 20, 2015
Washington, DC

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

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

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

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

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1101
Issued: November 4, 2016

Case Submitted on the Record

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

JURISDICTION
On May 3, 2016 appellant, through counsel, filed a timely appeal from a March 23, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than two percent permanent impairment of each
upper extremity, for which he received schedule awards.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 13, 2014 appellant, then a 56-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that he sustained bilateral carpal tunnel syndrome due to
factors of his federal employment. OWCP accepted the claim for bilateral carpal tunnel
syndrome, tenosynovitis of the right hand and wrist, and synovitis and tenosynovitis of the left
hand.
A September 10, 2014 electromyogram (EMG) and nerve conduction velocity (NCV)
study revealed moderately severe bilateral carpal tunnel syndrome especially on the right side.
An EMG study performed on October 22, 2014 revealed moderate bilateral carpal tunnel
syndrome.
Appellant underwent a left carpal tunnel release and flexor tenosynovectomy on April 23,
2015 and a right carpal tunnel release and flexor tenosynovectomy on June 25, 2015. OWCP
authorized the surgeries.
In an impairment evaluation dated December 17, 2015, Dr. Michael Platto, a Boardcertified physiatrist, reviewed appellant’s history of injury, the results of electrodiagnostic
testing, and history of bilateral carpal tunnel releases. On examination he measured range of
motion of the wrists and found decreased two-point discrimination of the left thumb, middle, and
index fingers. Citing the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides), Dr. Platto found that appellant had three
percent permanent impairment due to tenosynovitis as a result of bilateral loss of wrist range of
motion according to Table 15-32 on page 473. In rating impairment due to carpal tunnel
syndrome, he referenced Table 15-23 on page 449. Utilizing the preoperative EMG study dated
September 10, 2014, for the right side Dr. Platto applied a grade modifier of three due to test
findings of axon loss, a grade modifier of one for normal physical findings with intermittent
symptoms, and a grade modifier of one for physical examination, which rounded to a grade
modifier of two. He found a grade modifier of zero based on a QuickDASH (Disabilities of the
Arm, Shoulder, and Hand) score of 15.9. For the left side, Dr. Platto advised that he performed
NCV studies due to appellant’s complaints of numbness not improved after surgery. He opined
that the NCV studies revealed axon loss with “decreased motor median amplitude of less than
[five]” and a delay in median sensory peak latency, which yielded a grade modifier of three for
test results. Dr. Platto also applied a grade modifier of one for a history of mild intermittent
symptoms and a grade modifier of two for physical findings of decreased two-point
discrimination. He found an average grade modifier of two, or four percent impairment.
Dr. Platto concluded that appellant had three percent impairment of each upper extremity due to
tenosynovitis and four percent impairment of each upper extremity due to carpal tunnel
syndrome, for a combined seven percent permanent impairment of each upper extremity. He
opined that appellant had reached maximum medical improvement.
On January 8, 2016 appellant filed a claim for a schedule award (Form CA-7).
OWCP on January 20, 2016 referred appellant to Dr. Shaka Walker, a Board-certified
orthopedic surgeon, for a second opinion examination. In an impairment evaluation dated
February 1, 2016, Dr. Walker reviewed appellant’s history of hand numbness and pain treated

2

with carpal tunnel releases and flexor tenosynovectomies. On examination, he found no atrophy
and a negative Tinel’s sign and Phalen’s test. Dr. Walker measured range of motion of the wrists
and performed pinch and grip strength testing. He opined that appellant had reached maximum
medical improvement. Dr. Walker advised that he had normal range of motion findings for the
wrists for a grade modifier of zero. He noted that appellant had a QuickDASH score of 47.7,
which was a significant increase from the prior score of 15.9 and “concerning for some element
of symptom magnification….” Dr. Walker concluded that he had no impairment due to
tenosynovitis due to reduced motion. Using Table 15-23 on page 449 of the A.M.A., Guides, for
the right side he found that EMG findings on the right in the September 10, 2014 study showed
axonal loss, for a grade three modifier. Dr. Walker applied a grade modifier of zero for
functional history and physical examination. He opined that he would not use the QuickDASH
due to reliability issues. Dr. Walker found an average modifier of one and a final right upper
extremity permanent impairment rating of one percent.
For the left wrist, Dr. Walker found that a postoperative EMG showed median motor
amplitude of less than five, or axonal loss, for a grade three modifier. He applied a grade two
modifier for decreased sensation and a grade modifier of three for history. Dr. Walker found an
average grade modifier of three, for seven percent permanent impairment of the left upper
extremity.
An OWCP medical adviser reviewed the evidence on March 21, 2016. He advised that
diagnostic testing performed September 10, 2014 did not show axonal loss and that grip and
pinch strength were nonspecific findings. The medical adviser also noted that Dr. Walker did
not perform sensory testing. He concurred with Dr. Walker’s finding of no impairment due to
tenosynovitis. Using Table 15-23, the medical adviser applied a grade modifier of one bilaterally
due to electrodiagnostic testing. He further applied a grade modifier of zero on the right and two
on the left for physical findings of loss of two-point discrimination of the left hand and a grade
modifier of zero for history on the right and one on the left. The medical adviser found that the
functional history was not applicable because of the unreliable QuickDASH score. He opined
that appellant had two percent permanent impairment of each upper extremity due to carpal
tunnel syndrome.
By decision dated March 23, 2016, OWCP granted appellant a schedule award for two
percent permanent impairment of each upper extremity. The period of the award ran for 12.48
weeks from February 1 to April 28, 2016.
On appeal counsel contends that the opinions of Dr. Platto and Dr. Walker are entitled to
more weight than the opinion of OWCP’s medical adviser because they performed physical
examinations.
LEGAL PRECEDENT
The schedule award provision of FECA,3 and its implementing federal regulations,4 set
forth the number of weeks of compensation payable to employees sustaining permanent
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

3

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.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
The sixth edition requires identifying the impairment Class of Diagnosis (CDX)
condition, which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE), and Clinical Studies (GMCS).7 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.8 In
Table 15-23, grade modifier levels (ranging from zero to four) are described for the categories of
test findings, history, and physical findings. The grade modifiers are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value.
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.9 The implementing regulations states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.10
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome, tenosynovitis
of the right wrist and hand, and synovitis and tenosynovitis of the left hand causally related to
factors of his federal employment. A September 10, 2014 EMG and NCV studies showed
moderately severe bilateral carpal tunnel syndrome, greater on the right side. Appellant
underwent a left carpal tunnel release and flexor tenosynovectomy on April 23, 2015 and a right
carpal tunnel release and flexor tenosynovectomy on June 25, 2015. On January 8, 2016 he filed
a claim for a schedule award.
5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5 (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
7

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

8

Id. at 449, Table 15-23.

9

5 U.S.C. § 8123(a).

10

20 C.F.R. § 10.321.

4

The Board finds that the case is not in posture for decision due to a conflict in medical
opinion. In a December 17, 2015 impairment evaluation, Dr. Platto, an attending physician,
identified the diagnosis as carpal tunnel syndrome and advised that, under Table 15-23, appellant
had a grade modifier of three on the right side due to axon loss as shown by test results, a grade
modifier of one for a history of intermittent symptoms, a grade modifier of one for physical
examination, and no grade modifier for the functional scale based on the QuickDASH results.
He found an average grade modifier of two and four percent right upper extremity impairment.
For the left side, Dr. Platto applied a grade modifier of three for test findings of axon loss, a
grade modifier of one for a history of mild intermittent symptoms, and a grade modifier of two
for physical findings of decreased two-point discrimination, for an average modifier of two and
four percent impairment due to carpal tunnel syndrome. He further determined that appellant
had three percent impairment due to reduced wrist motion as a result of tenosynovitis, for seven
percent total upper extremity impairment bilaterally.
OWCP referred appellant to Dr. Walker for a second opinion examination. On
February 1, 2016 Dr. Walker found that he had no impairment due to tenosynovitis, seven
percent left upper extremity impairment due to carpal tunnel syndrome, and one percent right
upper extremity impairment due to carpal tunnel syndrome. He opined that electrodiagnostic
testing showed axonal loss on the right and left side.
An OWCP medical adviser, on March 21, 2016, determined that the September 10, 2014
EMG and NCV studies did not show axonal loss. Utilizing Table 15-23, for the left side he
applied grade modifiers of one for test results, two for physical findings of loss of two-point
discrimination, and one for history, which he found yielded a grade modifier of one. For the
right side, the medical adviser applied a grade modifier of one for test results and history and
zero for physical findings, for an average modifier of one. He found that the QuickDASH results
were not reliable. The medical adviser determined that appellant had two percent permanent
impairment of each upper extremity due to carpal tunnel syndrome and no impairment due to
tenosynovitis.
The Board finds that a conflict exists between Dr. Platto, appellant’s physician, and
Dr. Walker, the second opinion physician, regarding the interpretation of the electrodiagnostic
test results and the extent of his permanent impairment of the upper extremities. Section 8123(a)
provides that, if there is disagreement between the physician making the examination for the
United States and the physician of the employee, the Secretary shall appoint a third physician
who shall make an examination.11 On remand, OWCP shall refer the case to an impartial
medical specialist to resolve the conflict in medical opinion. After such further development as
deemed necessary, it should issue a de novo decision regarding appellant’s schedule award
claim.
CONCLUSION
The Board finds that the case is not in posture for decision.

11

5 U.S.C. § 8123(a); see also A.E., Docket No. 15-0496 (issued May 23, 2016).

5

ORDER
IT IS HEREBY ORDERED THAT the March 23, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: November 4, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 15-1881
Issued: October 7, 2016

Case Submitted on the Record

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

JURISDICTION
On September 17, 2015 appellant filed a timely appeal from the July 7, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she was in the
performance of duty at the time she was injured on July 16, 2014.
On appeal, appellant contends that she was in the performance of duty at the time of the
incident, noting that she was on a paid break.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 21, 2014 appellant, then a 54-year-old program support assistant, filed a
traumatic injury claim (Form CA-1) alleging that she was walking on her break by a food truck
outside the employing establishment’s building in which she worked when she fell on her left
side and sustained injuries to her left shoulder and left arm. The employing establishment
controverted appellant’s claim alleging that she was on her break and off-premises when she fell.
It indicated that she stated to witnesses that she was walking to a Wawa convenience store,
which was a block away, not to the food truck at the time of her fall. The employing
establishment also noted that witnesses stated that appellant’s shoes were not strapped properly
and that she changed her shoes before reporting to the employee health unit.
On August 18, 2014 appellant responded to questions from OWCP. She indicated that
she went on her break on July 16, 2014 around 10:30 a.m., and as she was walking in front of the
food truck along with her coworker, and passing other coworkers, she fell down, striking the
pavement and injuring her left side. Appellant noted that the pavement was not level where she
fell. She indicated that she bruised the left side of her elbow and she suffered a swollen left hand
and extreme pain in her shoulder which was jarred from the brunt of the fall.
The record contains multiple witness statements. In an August 18, 2014 statement, L.G.
stated that on July 16, 2014 at 10:30 a.m., while on a break, she was walking with appellant
outside towards the truck in front of the employing establishment, and as they were walking,
appellant fell on her left side in front of the food truck. She noted that appellant was assisted to
her feet by herself and two men.
D.P. noted that he was a police corporal who was assigned to the visitor’s entrance when
he saw a lady, later identified as appellant, being assisted to her feet. He noted that appellant
was lying on the ground in front of the food truck that is located on the pavement at the left of
the entrance to the medical center. D.P. stated that he did not see her fall, but he was notified2
that the location of the fall was not on the property of the employing establishment.
In an August 19, 2014 statement, J.K. indicated that at 10:20 a.m. on July 16, 2014 he
was outside of the employing establishment waiting in line at the food truck when he observed
appellant fall to the ground while walking past the food truck. He also noticed that the strap on
appellant’s shoe was not strapped correctly holding on her shoe at the time she fell.
In an August 18, 2014 statement, appellant’s secondary supervisor stated that appellant
called from her cubicle to report the incident. He walked with her to employee health and she
walked on her own without support. The supervisor noted that appellant told him that she was
walking on the city sidewalk in front of the hospital when she suddenly fell down and landed on
her left side.

2

The record of evidence does not establish who notified D.P. that the location of the fall was not on the premises
of the employing establishment.

2

By decision dated September 8, 2014, OWCP denied appellant’s claim because the
evidence of record did not establish that appellant was in the performance of duty at the time of
her injury.
On September 22, 2014 appellant requested a telephone hearing. In a statement received
by OWCP on September 30, 2014, she indicated that she had no knowledge as to who owned the
sidewalk where she fell. Appellant noted that routinely she would take a 15-minute break and
walk the premises and that, while on break at around 10:30 a.m., she tripped and fell on the left
side directly in front of the food truck which was on the premises outside the employing
establishment. She stated that she noticed that the pavement was a little bit higher on one side
than the other. Appellant described the location of the food truck as follows:
“In other words, you have your medical facility, you have your grass, your gates
and when you walk outside there’s a vendor truck which serves employees. It
serves the public, a lot of employees who actually work for the [employing
establishment] and, you know, I guess any passer byes. But it’s on the grounds.”
Counsel argued that the sidewalk was on the employing establishment grounds, noting that the
employing establishment sweeps the sidewalk and cleans the sidewalk and salts the sidewalk.
He noted that the food truck was 20 yards from the gate.
Appellant submitted a letter to staff from the medical center director dated March 10,
2015 expressing thanks for the job well done during last week’s snow storm clearing parking
lots, salting sidewalks, and assisting veterans.
She also submitted an October 2014
memorandum from the employing establishment with regard to snow removal procedures. This
letter noted that the facility management support has the responsibility for the removal of ice and
snow within the boundaries of the medical center. The memorandum also detailed the order in
which the sidewalks would be cleaned. Appellant also submitted a March 2012 memorandum
with regard to maintenance of facilities and equipment, noting that the service chief of facility
management is responsible for the maintenance and repair of all buildings and grounds on the
site.
By decision dated July 7, 2015, the hearing representative affirmed the denial of the
claim as appellant was not in the performance of duty at the time of the injury.
LEGAL PRECEDENT
FECA provides for the payment of compensation for the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.3 In order to
be covered, an injury must occur at a time when the employee may reasonably be said to be
engaged in her master’s business, at a place where she may reasonably be expected to be in

3

This construction makes the statue actively effective in those situations generally recognized as properly within
the scope of workers’ compensation law. See Bernard D. Blum, 1 ECAB 1 (1947).

3

connection with her employment,4 and while she was reasonably fulfilling the duties of her
employment or engaged in doing something incidental thereto.5
The Board has recognized as a general rule that off-premises injuries sustained by
employees having fixed hours and places of work while going to or coming from work or during
a lunch period, are not compensable, as they do not arise out of and in the course of employment.
Rather, such injuries are merely the ordinary, nonemployment hazards of the journey itself,
which are shared by all travelers.6
Exceptions to the premises doctrine have been made to protect activities that are so
closely related to the employment itself as to be incidental thereto,7 or which are in the nature of
necessary personal comfort or ministration.8 The Board has also found that the course of
employment should extend to any injury that occurred at a point where the employee was within
the range of dangers associated with the employment.9 This exception contains two components.
The first is the presence of a special hazard at the particular off-premises point. The second is
the close association of the access route with the premises, so far as going and coming are
concerned. The main consideration in applying this rule is whether the conditions giving rise to
the injury are causally connected to the employment.10
OWCP’s procedures provide:
If the employee has a fixed place of work, the claims examiner must ascertain
whether the employee was on the premises when the injury occurred. The
answers to the appropriate sections of Forms CA-1, CA-2 and CA-6 contain
information on this point. If clarification is needed, it should be secured from the
official superior in the form of a statement which describes the boundaries of the
premises and shows whether the employee was within those boundaries when the
injury occurred. Where indicated, the clarification should include a diagram
4

Narbik A. Karamian, 40 ECAB 617, 618 (1989). With regard to what constitutes the premises, the Board has
held that the term premises, as it is generally used in workers’ compensation law, is not synonymous with property.
The former does not depend on ownership, nor is it necessarily coextensive with the latter. In some cases premises
may include all the property owned by the employing establishment; in other cases even though it does not have
ownership and control of the place where the injury occurred the place is nevertheless considered part of the
premises. Wilmar Lewis Prescott, 22 ECAB 318, 321 (1971).
5

See Thomas E. Keplinger, 46 ECAB 699 (1995); see also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Performance of Duty, Chapter 2.804.6 (August 1992).
6

See John M. Byrd, 53 ECAB 684 (2002); see also Gabe Brooks, 51 ECAB 184 (1999); Thomas P. White, 37
ECAB 728 (1986); Robert F. Hart, 36 ECAB 186 (1984).
7

See Maryann Battista, 50 ECAB 343 (1999) (activities such as delivering a bad check list and checking on a
customer’s telephone were incidental to employee’s listed duties).
8

J.L., Docket No. 14-0368 (issued August 22, 2014).

9

R.O., Docket No. 08-2088 (issued February 18, 2011).

10

Shirley Borgos, 31 ECAB 222 (1979).

4

showing the boundaries of the industrial premises and the location of the injury
site in relation to the premises.11
ANALYSIS
The Board finds that this case is not in posture for decision as the record is insufficient to
determine whether appellant was on the premises of the employing establishment at the time of
her July 16, 2014 fall and injury.
The Board notes that the primary issue for resolution on appeal is whether she was on the
premises and therefore in the performance of duty at the time she fell and was injured. The
claimant has alleged that she was on the premises of the employing establishment at the time of
her fall and that the employing establishment has control over and maintains the area where the
fall occurred. The employing establishment controverted the claim and relied upon statements of
L.G., D.P., and J.K. However, none of the statements were made by witnesses to the actual fall
and its location. Despite the dispute over the exact location of the fall and the boundaries of the
premises, OWCP did not undertake development of these factual aspects of the claim. There
was no request from the official superior in the form of a statement describing the boundaries of
the premises showing whether the employee was within those boundaries when the injury
occurred, nor does the record of evidence contain a diagram showing the boundaries of the
industrial premises and the location of the injury site in relation to the premises.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While appellant has the burden of proof to establish entitlement to compensation,
OWCP shares the responsibility in the development of the evidence, particularly when such
evidence is of the character normally obtained from the employing establishment or other
governmental source.12 The Board finds that OWCP did not sufficiently develop the evidence
regarding whether appellant was on the premises of the employing establishment at the time of
injury.13
On remand OWCP should obtain information from the employing establishment and
determine where appellant fell on July 16, 2014 and whether that location was owned, managed,
or controlled by the employing establishment and thus a part of its premises. It should then
determine whether appellant was in the performance of duty. Following such further
development as deemed necessary, OWCP should issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.4(b) (August 1992);
see also D.D., Docket No. 15-0837 (issued July 10, 2015).
12

L.L., Docket No. 12-194 (issued June 5, 2012); N.S., 59 ECAB 422 (2008).

13

See Rosie P. Colmer, Docket No. 03-116 (issued May 2, 2003).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 7, 2015 is set aside and the case is remanded for further
proceedings consistent with this decision.
Issued: October 7, 2016
Washington, D.C.

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, TEUTONIA
STATION, Milwaukee, WI, Employer
__________________________________________

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

Docket No. 12-1847
Issued: June 14, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 30, 2012 appellant filed a timely appeal from a March 20, 2012 merit decision
and a July 9, 2012 nonmerit 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 and nonmerits of this case.2
ISSUES
The issues are: (1) whether appellant has more than an eight percent permanent
impairment in her left upper extremity and an eight percent permanent impairment in her right
upper extremity, for which she received a schedule award and; (2) whether OWCP properly
denied her request for an oral hearing before an OWCP hearing representative, as untimely filed.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 9, 2012 nonmerit decision, OWCP received additional evidence.
However, the Board may only review evidence that was in the record at the time OWCP issued its final decision.
See 20 C.F.R. §§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008);
G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

FACTUAL HISTORY
On February 10, 2009 appellant, then a 37-year-old mail carrier, filed a traumatic injury
claim alleging that on January 24, 2009 she sustained left shoulder strain due to casing mail and
streeting.3 OWCP accepted the claim for left shoulder and upper arm sprain, which was
subsequently expanded to include the conditions of left shoulder adhesive capsulitis; cervical
degenerative disc disease at C7-T1 and cervical spondylosis without myelopathy and authorized
surgery for the left shoulder, which occurred on June 4, 2009. By letter dated February 7, 2011,
it placed appellant on the periodic rolls for temporary total disability.
On March 11, 2009 appellant filed an occupational disease claim alleging that on
November 18, 2004 she first became aware of her right shoulder condition. She stated that she
did not realize until February 24, 2009 that she had also aggravated her right shoulder at the
same time she had aggravated her left shoulder from lifting tubs and casing mail.4 OWCP
accepted the claim for right shoulder affections not otherwise classified and authorized right
shoulder surgery, which occurred on June 10, 2010.5
In a January 9, 2012 report, Brian Bartz, a certified physician’s assistant, dictated a report
which was signed by Dr. William T. Pennington, a treating Board-certified orthopedic surgeon.
A diagnosis of bilateral shoulder pain was noted and a physical examination reported loss of
bilateral shoulder range of motion and mild tenderness in the anterior superior region of the
shoulder. Range of motion included 90 degrees abduction and marked loss in external and
internal rotation.
Appellant filed a claim for a schedule award on March 5, 2012.
On March 14, 2012 OWCP referred appellant and the case record to OWCP’s medical
adviser for a permanent impairment determination using the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).
In a March 18, 2012 report, OWCP’s medical adviser determined that appellant had an
eight percent permanent impairment of the right upper extremity and an eight percent permanent
impairment of the left upper extremity. In reaching this determination, the medical adviser found
that the range of motion method was the most appropriate to utilize. Using Table 15-34, page
475 the medical adviser found a moderate impairment based on the findings of a marked
decrease in internal and external shoulder rotation which resulted in a four percent impairment
for external rotation and a four percent impairment for internal rotation or a total eight percent
impairment in each shoulder. In concluding, the medical adviser stated that appellant should be
referred for an independent evaluation if there was disagreement with the rating for a more exact
measurement of her bilateral shoulder range of motion loss.
3

This was assigned claim File No. xxxxxx745.

4

This was assigned claim File No. xxxxxx792.

5

On April 30, 2009 OWCP combined claim File No. xxxxxx792 with claim File No. xxxxxx745, with the latter
claim number as the master file number.

2

On March 20, 2012 OWCP granted appellant a schedule award for an eight percent right
upper extremity impairment and eight percent left upper extremity impairment. The award ran
for 49.92 weeks for the period March 11, 2012 to February 23, 2013.
In a letter dated April 9, 2012, appellant disagreed with the March 20, 2012 schedule
award and requested that she be referred for an evaluation of her bilateral shoulder range of
motion.
On April 20, 2012 appellant requested a telephonic hearing before an OWCP hearing
representative.6
By decision dated July 9, 2012, OWCP denied appellant’s request for a telephonic
hearing on the grounds that her request was filed untimely.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA7 and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.9 Effective May 1, 2009, OWCP adopted the
sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that
date.10 The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).11 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).12 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).13
6

The attached envelope contained a postmark of April 30, 2012.

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. See C.M., Docket No. 09-1268 (issued January 22, 2010); Billy B. Scoles, 57 ECAB 258 (2005).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claim,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
11

A.M.A., Guides 3 (6th ed., 2009), section 1.3, The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.
12

Id. at 383-419.

13

Id. at 411.

3

OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to its medical adviser for an opinion concerning the percentage of impairment
using the A.M.A., Guides.14
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision. OWCP accepted appellant’s
claims for conditions of left shoulder and upper arm sprain, left shoulder adhesive capsulitis;
cervical degenerative disc disease at C7-T1, cervical spondylosis without myelopathy and right
shoulder affections not otherwise classified. The issue is whether appellant sustained more than
an eight percent permanent impairment of the left upper extremity and an eight percent
permanent impairment of the right upper extremity, for which she received a schedule award.
OWCP’s medical adviser’s report, however, is insufficient to form the basis for a schedule award
determination as he failed to adequately explain how his calculations were reached. Therefore,
the March 20, 2012 decision will be set aside and the case remanded for further development.
In the March 18, 2012 report, OWCP’s medical adviser applied the sixth edition of the
A.M.A., Guides and found that, under Table 15-34, appellant had a four percent permanent
impairment of the left upper extremity and a four percent permanent impairment due to loss of
range of motion in internal and external rotation. The medical adviser based his range of motion
rating on the finding of Dr. Pennington of marked decrease in internal and external shoulder
rotation. The A.M.A., Guides requires evaluation of six ranges of motion for the shoulder:
flexion, extension, abduction, adduction, external rotation and internal rotation.15
Dr. Pennington’s report thus provides insufficient clinical findings to evaluate appellant’s
shoulder impairment using range of motion.16 Additionally, the medical adviser recommended
appellant be referred for an independent evaluation if there was disagreement with the rating for
a more exact measurement of her bilateral shoulder range of motion. Accordingly, the Board
finds that the case must be remanded to OWCP for a clarification of the medical adviser’s
analysis on the issue of appellant’s bilateral upper extremity impairment. Following this and any
necessary further development, OWCP shall issue a de novo decision regarding the extent and
degree of appellant’s employment-related impairment.
CONCLUSION
The Board finds that this case is not in posture for a decision.17

14

Tommy R. Martin, 56 ECAB 273 (2005).

15

A.M.A., Guides 475.

16

See W.F., Docket No. 11-440 (issued October 27, 2011).

17

In light of the Board’s disposition on the first issue, the second issue is moot.

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 9 and March 20, 2012 are set aside and the case remanded
for further proceedings consistent with the above opinion.
Issued: June 14, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF THE AIR FORCE,
WISCONSIN NATIONAL GUARD,
Madison, WI, Employer
__________________________________________

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

Docket No. 08-277
Issued: May 8, 2008

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 November 5, 2007 appellant filed a timely appeal of an August 8, 2007 decision of
the Office of Workers’ Compensation Programs, denying merit review of her claim. Since more
than one year has elapsed between the last merit decision on July 14, 2005 and the filing of this
appeal, the Board lacks jurisdiction to review the merits of the claim pursuant to 20 C.F.R.
§§ 501.2(c), 501.3(d)(2) and 501.6(c) and (d).
ISSUE
The issue is whether the Office properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review of the claim pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. § 10.606(b)(2).
FACTUAL HISTORY
The Board issued a decision dated June 21, 2007 finding that appellant’s July 13, 2006
application for reconsideration was timely filed. The case was remanded to the Office to

consider the application for reconsideration under the proper standard for a timely application.
As the Board noted, appellant’s July 13, 2006 letter indicated that an “arbitrator’s summary” was
enclosed, but the record did not contain such evidence.
The current case record indicates that, on October 23, 2006, the Office received an
arbitrator’s decision dated April 19, 2006. The decision was issued pursuant to a grievance filed
by appellant, and found that the employing establishment violated the labor/management
agreement when it issued a March 9, 2005 letter of reprimand. The grievance was denied with
respect to other allegations.
By decision dated August 8, 2007, the Office found that appellant’s July 13, 2006
application for reconsideration was insufficient to warrant merit review of the claim. The Office
did not discuss the arbitrator’s decision.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,1 the Office’s regulations provides that a claimant may
obtain review of the merits of the claim by submitting a written application for reconsideration
that sets forth arguments and contains evidence that either: “(i) shows that [the Office]
erroneously applied or interpreted a specific point of law; (ii) advances a relevant legal argument
not previously considered by [the Office]; or (iii) constitutes relevant and pertinent evidence not
previously considered by [the Office].”2 Section 10.608(b) states that any application for review
that does not meet at least one of the requirements listed in section 10.606(b)(2) will be denied
by the Office without review of the merits of the claim.3
ANALYSIS
The July 14, 2005 Office merit decision denied appellant’s claim for an emotional
condition on the grounds that she had not established a compensable work factor. As noted
above, a claimant is entitled to a review of the merits of her claim on reconsideration if she
submits “relevant and pertinent evidence not previously considered by [the Office].” On
October 23, 2006 the Office received an arbitrator’s decision dated April 19, 2006 on a grievance
filed by appellant against the employing establishment. In this decision, the arbitrator found that
a March 9, 2005 letter of reprimand was a violation of the employment agreement.
It is well established that administrative or personnel matters, such as disciplinary
actions, may be compensable factors of employment where the evidence discloses error or abuse
by the employing establishment.4 Since the April 19, 2006 arbitrator’s decision discusses error
1

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).
2

20 C.F.R. § 10.606(b)(2).

3

20 C.F.R. § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

4

See Michael Thomas Plante, 44 ECAB 510 (1993); Kathleen D. Walker, 42 ECAB 603 (1991).

2

by the employing establishment, it is relevant to the issue of a compensable work factor. As the
claim for compensation was denied on the grounds no compensable work factor was established,
the arbitrator’s decision is relevant and pertinent to the basis for the denial of compensation in
the July 14, 2005 Office decision.
Accordingly, the Board finds the April 19, 2006 arbitrator’s decision constitutes “relevant
and pertinent evidence not previously considered by [the Office].” Appellant has met one of the
requirements of 20 C.F.R. § 10.606(b)(2), and therefore she is entitled to a review of the merits
of her claim. The case will be remanded to the Office for a merit decision.
CONCLUSION
Appellant is entitled to a merit review of her claim as she submitted new and relevant
evidence.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 8, 2007 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: May 8, 2008
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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, Anchorage, AK,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-0289
Issued: September 30, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 23, 2020 appellant, through counsel, filed a timely appeal from an October 6,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective May 22, 2020, as he no longer had disability or
residuals causally related to his accepted February 15, 2013 employment injury.
FACTUAL HISTORY
On February 19, 2013 appellant, then a 63-year-old supervisor, filed a notice of recurrence
(Form CA-2a) alleging that on February 15, 2013 he suffered a recurrence of his September 9,
2011 injury under OWCP File No. xxxxxx065.3 He alleged that he was on light duty since the
original injury and explained that he had fallen numerous times since. OWCP accepted the claim
for tear of the left medial meniscus and localized primary osteoarthritis of the left knee. It paid
appellant wage-loss compensation on the supplemental rolls as of April 8, 2013, and the periodic
rolls as of September 22, 2013.
On November 6, 2019 OWCP referred appellant for a second opinion examination, along
with a statement of accepted facts (SOAF), a set of questions, and the medical record, to Dr. David
Elfenbein, a Board-certified orthopedic surgeon, to determine the status of appellant’s accepted
work-related conditions and his ability to return to work.
In a December 4, 2019 report, Dr. Elfenbein noted his review of the SOAF and appellant’s
medical records. He noted that appellant had undergone a total right knee replacement in
June 2014, and a total left knee replacement at a medical facility in 2016. Dr. Elfenbein examined
appellant and noted that appellant had current complaints of left knee pain, used a “cane for
ambulation at all times when out of the house due to fear of giving way. [Appellant’s] left knee
continues to give out on him.” He also noted that appellant was overweight and moved about the
room with moderate difficulty. Dr. Elfenbein found active range of motion (ROM) of the left knee
as 4 degrees of extension to 105 degrees of flexion with no effusion, and a midline total knee
incision, well healed, and atrophy of 2.5 centimeters in the left calf. He also found lateral patellar
tenderness, motor strength of 4+/5 in flexion and extension, no instability of the knee to varus,
valgus, anterior, and posterior stress. Dr. Elfenbein found lateral sided tibial and femoral
tenderness and medial sided tibial, but no femoral tenderness, normal sensation in both lower
extremities with 2+ dorsalis pedis pulses present bilaterally, deep tendon reflexes of 2+ in bilateral
lower extremities, and a seated straight leg raising test that was negative bilaterally. He reviewed
the February 11, 2015 magnetic resonance imaging (MRI) scans of the thoracic and lumbar areas
of appellant’s spine, and noted that they revealed spondylosis at multiple levels with severe left
neuroforaminal stenosis at L5-S1 with bulging disc and a T11 compression deformity.
Dr. Elfenbein opined that appellant’s residual symptoms were not related to his left knee
injury from February 5, 2013, but rather to his lumbar spine injury of September 11, 2011. He
explained that the persistent giving way with weakness, atrophy of 2.5 centimeters noted in the
3

OWCP assigned the present claim OWCP File No. xxxxxx985. The record reflects that appellant has a prior claim
for a September 9, 2011 traumatic injury under OWCP File No. xxxxxx065. OWCP accepted that claim for thoracic
compression fracture T11, scalp contusion, and lumbar sprain. It has administratively combined appellant’s claims,
with OWCP File No. xxxxxx065 serving as the master file.

2

left calf, and the lack of any signs on examination of problems with the left knee arthroplasty,
“point me in that direction.” Dr. Elfenbein noted that there were no inconsistencies, although
appellant had underlying osteoarthritis and calcium pyrophosphate deposition disease and
degenerative meniscal tearing. He explained that the arthritis and degenerative changes were
likely exacerbated by the fall of February 15, 2013, and they were appropriately treated with at
total knee arthroplasty. Dr. Elfenbein opined that the residual symptoms were more likely than
not due to appellant’s lumbar spine injury, and not to his left knee arthritis and/or any issues with
his total knee arthroplasty. He advised that there were no medical findings to indicate that the
accepted conditions were still active and causing symptoms, rather “the old work injury of
September 11, 2011 was likely the source of left leg discomfort, weakness and giving way.”
Dr. Elfenbein opined that the total knee arthroplasty had resolved the underlying and preexisting
osteoarthritis as well as the aggravation caused by the fall of February 15, 2013. Regarding a
return to work, he advised that, considering only the left knee, appellant would be able to return to
the duties of a supervisor, however, because of residual issues with regard to the lumbar injury of
September 2011, he was unable to perform those duties. Dr. Elfenbein explained that the position
required intermittent standing, sitting, and walking, varying from one to six hours per day, and
intermittent lifting of objects weighing over 45 pounds, as well a frequent climbing, all of which
would be difficult for appellant, and the propensity for his leg to give out would put him at
significant risk for further injury on the job, based on the atrophy on the left calf. He advised that
appellant’s inability to return to work was not due to his February 15, 2013 work injury, but rather
to appellant’s September 11, 2011 work injury, and he prescribed sedentary work restrictions, and
frequent position changes, with no lifting greater than 10 pounds, and without significant walking,
standing, or climbing. Dr. Elfenbein also recommended a decompression of the severe foraminal
stenosis at L5-S1 to prevent weakness and giving way in the leg.
By notice dated March 12, 2020, OWCP advised appellant that it proposed to terminate his
wage-loss compensation and medical benefits, based upon the opinion of Dr. Elfenbein that the
accepted conditions had resolved under the current claim without residuals or disability. It
explained that he indicated that appellant had residual impairment due to appellant’s lumbar
condition, which was active under OWCP File No. xxxxxx065 with a September 9, 2011 date of
injury, and he was eligible to receive continuing compensation and medical care under that claim.
OWCP further explained that, if appellant’s benefits were terminated under the current claim, his
benefits would resume under that prior claim. It afforded him 30 days to submit additional
evidence or argument challenging the proposed termination.
By decision dated May 21, 2020, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective May 22, 2020. It noted that, as of that date, it had not received any
additional evidence or argument. OWCP found that the weight of the medical evidence rested
with Dr. Elfenbein.
On June 1, 2020 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on August 31, 2020.
During the hearing, appellant confirmed that he was receiving compensation in his other claim;
however, the question remained whether he continued to require medical care for his left knee. He
indicated that he continued to have pain and he received injections which helped to relieve his
knee pain. Appellant also testified that he fell frequently and his physician indicated that he needed
a knee replacement.

3

By decision dated October 6, 2020, the hearing representative affirmed the May 21, 2020
termination decision. It accorded the weight of the medical evidence to the opinion of
Dr. Elfenbein, finding that appellant had no continuing employment-related residuals or disability
of the left knee due to the February 15, 2013 work injury, and that his left knee symptomatology
was attributed to the September 11, 2011 lumbar spine work injury. OWCP also noted that “no
medical evidence pertaining to the left knee had been received in years.”
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.4 After it has determined that, an employee
has disability causally related to his or her federal employment, it may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the employment. 5
OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background. 6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation. 7 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employment-related condition which
require further medical treatment. 8
ANALYSIS
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective May 22, 2020, as he no longer had disability or
residuals causally related to his accepted February 15, 2013 employment injury.
OWCP referred appellant to Dr. Elfenbein for a second opinion evaluation to determine
the status of appellant’s accepted left knee conditions and his work capacity.
In a December 4, 2019 report, Dr. Elfenbein noted his review of the SOAF and medical
records, and examined appellant. He noted that appellant had current complaints of left knee pain,
and used a “cane for ambulation at all times when out of the house due to fear of giving way.
4

See D.D., Docket No. 20-0243 (issued May 28, 2021); A.T., Docket No. 20-0334 (issued October 8, 2020); R.P.,
Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005);
Paul L. Stewart, 54 ECAB 824 (2003).
5

See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L.
Minor, 37 ECAB 541 (1986).
6

K.W., Docket No. 19-1224 (issued November 15, 2019); see M.C., Docket No. 18-1374 (issued April 23, 2019);
Del K. Rykert, 40 ECAB 284, 295-96 (1988).
7

A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58
ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); Furman G. Peake, 41 ECAB 361, 364 (1990).
8
K.W., supra note 6; see A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727
(2002); Furman G. Peake, id.

4

[Appellant’s] left knee continues to give out on him.” However, Dr. Elfenbein explained that these
symptoms were not related to the left knee work injury of February 5, 2013, but rather to
appellant’s lumbar spine work injury of September 11, 2011. He found persistent giving way with
weakness, atrophy of 2.5 centimeters in the left calf, and the lack of any signs on examination of
problems with the left knee arthroplasty indicated the symptoms were due to the September 11,
2011 back injury. Dr. Elfenbein diagnosed underlying osteoarthritis, calcium pyrophosphate
deposition disease, and degenerative meniscal tearing. He explained that the arthritis and
degenerative changes in the knee were exacerbated by the work injury on February 15, 2013, but
were appropriately treated with the total knee arthroplasty. Dr. Elfenbein opined that the
“[r]esidual symptoms were more likely than not due to [appellant’s] lumbar spine injury and not
to his left knee arthritis and/or any issues with his total knee arthroplasty.” He advised that there
were no medical findings to support that the accepted knee conditions were still active and the
total knee arthroplasty had resolved the underlying and preexisting osteoarthritis in the knee, as
well as the aggravation caused by the work injury on February 15, 2013. Dr. Elfenbein advised
that appellant’s inability to return to work was not due to his February 15, 2013 knee injury, but
rather to the back injury on September 11, 2011. He recommended a sedentary work restriction
and decompression of the severe foraminal stenosis at L5-S1 to prevent weakness and giving way
in the leg.
The Board finds that OWCP properly accorded the weight of the medical evidence to
Dr. Elfenbein who based his opinion on a proper factual and medical history and physical
examination findings and provided medical rationale for his opinion. Dr. Elfenbein provided a
well-rationalized opinion based on medical evidence regarding the accepted conditions causally
related to appellant’s February 15, 2013 employment injury.
Accordingly, OWCP properly terminated appellant’s wage-loss compensation and medical
benefits, effective May 22, 2020.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective May 22, 2020, as he no longer had disability or
residuals causally related to his accepted February 15, 2013 employment injury.

5

ORDER
IT IS HEREBY ORDERED THAT the October 6, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 30, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Milwaukee, WI, Employer
)
___________________________________________ )
J.A., Appellant

Appearances:
Sandra Toney, for the appellant
Office of Solicitor, for the Director

Docket No. 16-0307
Issued: May 20, 2016

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 December 8, 2015 appellant, through his representative, filed a timely appeal of a
September 11, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury
causally related to an accepted February 10, 2015 employment incident.

1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant submitted additional evidence. However, the Board’s jurisdiction is limited to reviewing
the evidence that was before OWCP at the time it rendered its decision. Thus, the Board has no jurisdiction to
review this evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1); James C. Campbell, 5 ECAB 35,
36n.2 (1952).

FACTUAL HISTORY
On February 15, 2015 appellant, then a 62-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on February 10, 2015 he injured his lower back at work while
lifting steel trays above his shoulder to reach the top shelf of a caster. He stopped work on
February 16, 2015.
OWCP received nurses’ notes, reports from physician assistants, and discharge
instructions.
In a letter dated March 10, 2015, OWCP advised appellant that additional factual and
medical evidence was needed to establish the claim. It explained that there was no diagnosis of
any condition resulting from an injury and requested that he provide a physician’s opinion
explaining how the reported work incident caused or contributed to appellant’s condition.
In a March 17, 2015 statement, appellant explained that he injured his back on February 9
while working on the flats sequencing systems (FSS) machine. He had lifted a heavy tray
weighing approximately 30 pounds above his shoulder to the FSS caster (mail cart). Appellant
noted that afterward, he took medication and used heating pads and patches for the pain, and his
employing establishment provided a back support belt. He believed that the pain would lessen,
but it did not, and on February 15, 2015 he went to the hospital. An x-ray was taken, he was
given pain medication, and he was referred for therapy. Appellant noted that he suffered from
back pain years ago, for which he took medication and heating pads and did not see a doctor.
OWCP received February 15, 2015 discharge instructions and emergency room notes
from Dr. Brittany Seroy, an emergency medicine physician and osteopath, who advised that
appellant had a back injury and low back pain. Dr. Seroy advised that the low back pain began
about a week earlier when he was lifting a tray of magazines at work and felt a sharp pain in the
middle lumbar area. She found no signs of cord compression and advised that x-rays were
negative. Dr. Seroy diagnosed back injury and low back pain. She recommended back exercises
and discharged appellant. Dr. Kenneth Spero, a Board-certified diagnostic radiologist, advised
that February 15, 2015 lumbar spine x-rays were unremarkable.
By decision dated April 16, 2015, OWCP denied appellant’s claim because the medical
evidence of record did not establish that a diagnosed condition was caused by the claimed event.
On April 29, 2015 appellant requested a review of the written record by an OWCP
hearing representative.
In a February 16, 2015 report, Dr. Carl Lang, a Board-certified internist, noted that
appellant presented for follow up of low back pain. He noted that appellant related that the pain
started about a week ago after lifting a 30-pound box of magazines. Dr. Lang examined her and
found a normal inspection of the back without edema, erythema, or ecchymosis, and it was
nontender. He diagnosed lumbar strain and lower back pain and recommended light-duty work.
In a separate report, Dr. Lang provided return to work restrictions.
In a separate report dated February 16, 2015, Dr. Japhlet Aranas, Board-certified in
family medicine, diagnosed low back pain and lumbar strain. He noted that appellant reported
2

pain about one week earlier after lifting a 30-pound box of magazines. In February 20 and 27,
2015 status reports, Dr. Aranas repeated appellant’s history and diagnoses. He advised that
appellant’s pain was “a little better” on February 20, 2015 while he advised that appellant was
ready to return to work on February 27, 2015. OWCP also received notes from physician
assistants, nurse practitioners, and copies of prior reports.
By decision dated September 11, 2015, the OWCP hearing representative affirmed the
April 16, 2015 decision, finding that there was no rationalized medical evidence of record to
support that appellant’s condition was causally related to the February 10, 2015 work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish 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 FECA3, and that an injury was sustained in the performance
of duty.4 These are the essential elements of each 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 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 or she actually experienced the employment
incident at the time, place, and in the manner alleged.6 In some traumatic injury cases, this
component can be established by an employee’s uncontroverted statement on the CA-1 form.7
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.8
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.9

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

James E. Chadden, Sr., 40 ECAB 312 (1988).

5

Delores C. Ellyett, 41 ECAB 992 (1990).

6

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (August 2012).
7

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

8

Id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

3

ANALYSIS
There is no dispute that appellant was lifting steel trays above his shoulder to reach the
top shelf of a caster on February 10, 2015, as alleged.
However, the Board finds that the medical evidence of record is insufficiently
rationalized to establish the second component of fact of injury. The medical evidence contains
no reasoned no explanation of how the specific employment incident on February 10, 2015
caused or aggravated a diagnosed medical condition.10
Appellant submitted reports from several doctors, including February 15, 2015 discharge
instructions and emergency room notes from Dr. Seroy who advised that the low back pain
began about a week earlier when he was lifting a tray of magazines at work and felt a sharp pain
in the middle lumbar area. Dr. Seroy diagnosed back injury and low back pain. OWCP also
received February 16, 2015 reports from Dr. Lang, who noted that appellant presented for follow
up of low back pain, which started about a week earlier after lifting a 30-pound box of
magazines. Dr. Lang diagnosed lumbar strain and lower back pain and recommended light-duty
work and provided work restrictions. Additionally, in a February 16, 2015 report, Dr. Aranas
diagnosed low back pain and lumbar strain. In February 20 and 27, 2015 status reports, he
repeated appellant’s history and diagnoses. However, these reports are of limited probative
value on the relevant issue of the present case in that they do not contain a physician’s opinion
on causal relationship.11 To the extent that the history in each of these physician’s reports may
be considered as support for causal relationship, these physicians did not explain how the lifting
of magazines at work on February 10, 2015 caused or contributed to a diagnosed medical
condition.
Similarly, reports of diagnostic testing are insufficient to establish the claim as these
reports do not address how the February 10, 2015 employment incident caused or contributed to
a diagnosed medical condition.
OWCP also received notes from nurses and physician assistants. Registered nurses,
licensed practical nurses, and physician assistants are not considered “physicians” as defined
under FECA. Their opinions are therefore of no probative value.12
Because the medical reports submitted by appellant do not address how the February 10,
2015 activities at work caused or aggravated a diagnosed low back condition, these reports are of

10

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
11

See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (finding that 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).
12

See Roy L. Humphrey, 57 ECAB 238 (2005). See also 5 U.S.C. § 8101(2).

4

limited probative value13 and are insufficient to establish that the February 10, 2015 employment
incident caused or aggravated a specific injury.
On appeal, appellant presents several arguments in support of his claim. They include
that he submitted the proper medical evidence to establish causal relationship. However, as
found above, the evidence was insufficient to establish causal relationship.
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 a traumatic
injury causally related to an accepted February 10, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the September 11, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 20, 2016
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

13

See Linda I. Sprague, 48 ECAB 386, 389-90 (1997).

5