United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Owenton, KY, Employer
__________________________________________

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Appearances:
Geoffrey P. Damon, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-218
Issued: January 6, 2010

Case Submitted on the Record

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

JURISDICTION
On April 3, 2009 appellant filed a timely appeal from a January 6, 2009 decision of the
Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merit issues of this case.
ISSUES
The issues are: (1) whether the Office properly found that an overpayment of
compensation in the amount of $7,443.64 for the period May 16, 2004 to December 16, 2007
because appellant’s compensation was based on an incorrect pay rate; and (2) whether the Office
properly denied waiver of the overpayment.1

1

At the time the Office issued the January 6, 2009 decision, it did not seem aware that appellant was receiving
wage-loss compensation under Office file number 062172846 for an injury that occurred on September 11, 2006.
With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those cases where the Office
seeks recovery from continuing compensation benefits under the Act, and it did not do so in this case. D.R., 59
ECAB ___ (Docket No. 07-823, issued November 1, 2007).

FACTUAL HISTORY
On March 15, 2004 appellant, then a 63-year-old rural carrier associate, sustained
employment-related bilateral shoulder impingement and rotator cuff tears in the performance of
his federal duties.2 He stopped work that day and filed Form CA-7 claims for compensation.
Appellant received wage-loss compensation for the period May 16, 2004 through June 11, 2005
based on a weekly pay rate of $461.75 with an effective pay rate date of March 15, 2004. He
returned to limited duty, working 25 hours a week, on June 12, 2005. On June 23, 2006 the
employing establishment provided payroll information for a similar employee for the period
beginning on pay period 1 in 2003, ending with pay period 6 in 2004. The records indicated that
J.C. worked an average of 35 hours a week at a weekly rate of $535.82.
On November 2, 2006 appellant was granted schedule awards for a 17 percent right upper
extremity impairment and a 25 percent left upper extremity impairment. The awards ran for 131
weeks, based on a weekly pay rate of $535.82, for the period June 12, 2005 to
December 16, 2007.3 In a form report received on February 12, 2007, the postmaster, Darla
Baker, advised that appellant worked one day and three hours prior to his March 15, 2004
employment injury and estimated that he would have worked an average of 35 hours a week at a
weekly pay rate of $656.45. By letter dated September 4, 2008, the employing establishment
informed the Office that, as a noncareer, casual worker, appellant was entitled to a 24-hour
workweek. When appellant returned to work on March 10, 2004 following a February 11, 2003
employment injury, he was given a modified assignment for up to eight hours a day and he could
be scheduled any time during this time frame to meet the needs of the operation. The employing
establishment noted that he only worked 18 hours and was then reinjured. It provided payroll
records for a similar employee who averaged 26.30 hours per week from pay period 19 in 2005
to pay period 18 in 2006.
On October 31, 2008 the Office issued a preliminary determination that appellant
received an overpayment in compensation in the amount of $7,443.64 from May 16, 2004 to
December 16, 2007 because he was paid at an incorrect pay rate. It found appellant to be
without fault in the creation of the overpayment. Appellant was given 30 days to respond and
was provided an overpayment financial questionnaire. A telephone memorandum dated
December 2, 2008, noted that appellant was told that the pay rate for compensation purposes was
incorrect because the Office should have used his guaranteed hours rather than that of a similar
employee. On January 6, 2009 the Office finalized the determination that appellant received an
overpayment in compensation in the amount of $7,443.64 that he was not at fault. It denied

2

The Office initially denied the claim by decision dated August 6, 2004, and denied appellant’s request for
reconsideration on September 15, 2004. At the time of the March 15, 2004 injury, appellant had recently returned to
work from a February 11, 2003 employment injury for which he had left shoulder surgery on July 22 and
November 18, 2003, adjudicated by the Office under file number xxxxxx914.
3

By report dated May 16, 2006, an Office medical adviser reviewed the medical record and determined that
maximum medical improvement was reached o March 4, 2005 and that appellant had a 17 percent right upper
extremity impairment and a 25 percent left upper extremity impairment. The schedule award decision stated that
appellant’s impairment was for an additional award. There is no evidence of record that appellant received a prior
schedule award.

2

waiver because he failed to submit the requested financial information. The Office set up a
repayment schedule of $220.00 per month.4
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of the Federal Employees’ Compensation Act5 provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal
injury sustained while in the performance of duty.6 When an overpayment has been made to an
individual because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which the individual is
entitled.7 The Act provides that monthly pay means the monthly pay at the time of injury, or the
time disability begins, or the time compensable disability recurs, if the recurrence begins more
than six months after the injured employee resumes regular full-time employment, whichever is
greater.8
To determine a weekly pay rate, the Office must first determine the employee’s “average
annual earnings” and then divide that figure by 52.9 Section 8114(d) of the Act provides:
“Average annual earnings are determined as follows:
(1) If the employee worked in the employment in which he was employed
at the time of his injury during substantially the whole year immediately
preceding the injury and the employment was in a position for which an
annual rate of pay -(A) was fixed, the average annual earnings are the annual rate of
pay; or
(B) was not fixed, the average annual earnings are the product
obtained by multiplying his daily wage for particular employment,
or the average thereof if the daily wage has fluctuated, by 300 if
he was employed on the basis of a 6-day workweek, 280 if
employed on the basis of a 5½-day week, and 260 if employed on
the basis of a 5-day week.”10
4

See supra note 1.

5

5 U.S.C. §§ 8101-8193.

6

Id. at 8102(a).

7

Id. at 8129(a).

8

Id. at § 8101(4); see Janet A. Condon, 55 ECAB 591 (2004).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computation of Compensation, Chapter 2.900.9
(April 2002).
10

5 U.S.C. § 8114(d).

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(2) If the employee did not work in employment in which he was employed
at the time of his injury during substantially the whole year immediately
preceding the injury, but the position was one which would have afforded
employment for substantially a whole year, the average annual earnings are
a sum equal to the average annual earnings of an employee of the same
class working substantially the whole immediately preceding year in the
same or similar employment by the United States in the same or
neighboring place, as determined under paragraph (1) of this subsection.
(3) If either of the foregoing methods of determining the average annual
earnings cannot be applied reasonably and fairly, the average annual
earnings are a sum that reasonably represents the annual earning capacity
of the injured employee in the employment in which he was working at the
time of the injury having regard to the previous earnings of the employee
in [f]ederal employment and of other employees of the United States in the
same or most similar employment in the same or neighboring location,
other previous employment of the employee, or other relevant factors.
However, the average annual earnings may not be less than 150 times the
average daily wage the employee earned in the employment during the
days employed within 1 year immediately preceding his injury.”11
ANALYSIS
The Board finds this case is not in posture for decision. The Office found an
overpayment in compensation on the grounds that appellant received wage-loss compensation
based on an incorrect pay rate. The overpayment occurred from May 16, 2004 to June 11, 2005
when appellant received wage-loss compensation at a weekly pay rate of $461.75 and the period
June 12, 2005 to December 10, 2007 when he received schedule award compensation at a
weekly pay rate of $532.82. In the preliminary overpayment determination, the Office advised
appellant that the correct weekly pay rate was $460.75 because he was guaranteed a 25-hour
workweek.
A pay rate determination must be made in accordance with the specific provisions of
section 8114 of the Act. There is no indication in either the preliminary or final overpayment
determinations that these principles were applied in this case. The record indicates that appellant
had not worked substantially the whole year preceding the March 15, 2004 employment injury
because he had been off work due to a February 11, 2003 employment injury. The postmaster
advised that he would have worked an average of 35 hours a week at a weekly pay rate of
$656.45.
Section 8114(d)(2) is designed to apply to an employee who did not work substantially
the whole year prior to the injury, but the position was one which would have afforded
employment for substantially the whole year.12 Section 8114(d)(3) provides a method for
11

Id. at § 8114(a)-(d).

12

Id. at § 8114(d)(2); see Jason A. Clark, 54 ECAB 592 (2003).

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determining average annual earnings if the other provisions of section 8114 cannot be applied
reasonably and fairly.13 The record therefore, supports that either section 8114(d)(2) or
8114(d)(3) would apply in this case.14
On June 23, 2006 the employing establishment provided payroll information for a similar
employee indicating that she worked an average of 35 hours a week at a weekly rate of $535.82.
This pay rate was used as the basis for the November 2, 2006 schedule award. However, in
finding an overpayment, the Office did not provide a clear explanation of how it considered the
provisions of section 8114 in finding the appropriate pay rate for compensation purposes.15 The
case will therefore be remanded to the Office to obtain sufficient evidence to determine whether
section 8114(d)(2) or 8114(d)(3) is the applicable provision to be used in determining appellant’s
pay rate for compensation purposes. After such development as is necessary the Office may
properly determine whether an overpayment was created and issue an appropriate decision.
CONCLUSION
The Board finds this case is not in posture for decision. The Office did not make
adequate findings on appellant’s pay rate for compensation purposes in accordance with section
8114 of the Act.

13

Id. at § 8114(d)(3); see Joseph A. Matais, 56 ECAB 168 (2004).

14

Id. at § 8114(d)(2), (3).

15

In finding fact of overpayment, the Board has held that the Office must clearly set forth findings that form the
basis of its determination. See Teresa A. Ripley, 56 ECAB 528 (2005); Allen Kennedy, 49 ECAB 276 (1998).

5

ORDER
IT IS HEREBY ORDERED THAT the January 6, 2009 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded for proceedings consistent
with this opinion of the Board.
Issued: January 6, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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Appearances:
Thomas Martin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-809
Issued: November 8, 2010

Case Submitted on the Record

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

JURISDICTION
On January 25, 2010 appellant filed a timely appeal from a July 30, 2009 decision of the
Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established a physical or emotional condition causally
related to compensable work factors.
FACTUAL HISTORY
On June 7, 2006 appellant, then a 52-year-old mail carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained anxiety and stroke as a result of her federal
employment. She first became aware of the condition on January 8, 2005 and of its relationship
to her employment on April 17, 2006. In an accompanying narrative statement, appellant noted
that she had to work long hours because of the size and difficulty of her mail route. She stated
she was “significantly overworked” and was hospitalized in 1996 for hypertension. Appellant

stated that the employing establishment made an analysis and added even more difficulty to the
route. On January 8, 2005 she did not feel well but was ordered to continue working. Appellant
was hospitalized on January 9, 2005. She had been working hard for one week prior to
hospitalization.
The record contains hospital reports indicating appellant was admitted on January 9, 2005
with symptoms of slurred speech. A hospital discharge summary diagnosed an acute ischemic
cerebrovascular accident. In a report dated April 17, 2006, Dr. Manouchehr Esmaili stated
appellant had recently suffered a stroke and she was under a lot of stress at work.
In a letter dated October 4, 2006, an employing establishment supervisor stated
appellant’s route was an eight-hour assignment and she was also on the overtime desire list. The
supervisor stated that appellant used her electronic card to log in and off duty, that she was never
denied leave and on January 8, 2005 that she worked eight hours and nearly two hours of
overtime.
By decision dated December 11, 2006, the Office denied the claim for compensation. It
found that the implicated work factors were generally and vaguely alleged and that the medical
evidence was insufficient to establish anxiety or stroke due to her federal employment.
Appellant requested a hearing before an Office hearing representative, which was held on
May 21, 2007. At the hearing, she stated that it took 10 hours for her to complete her assigned
route. Appellant addressed the quantity of mail, but was told to deliver it the best she could. She
was admitted to a hospital for hypertension several times and provided her supervisor a list of
medications that “said on there, no driving” but she continued to deliver mail. Appellant alleged
that in 2001 a physician had informed the employing establishment of a blood test that showed
low hemoglobin levels and that she should stop delivering mail and seek treatment; the
supervisor had appellant finish the route.
In an August 9, 2007 decision, an Office hearing representative affirmed the
December 11, 2006 decision. The hearing representative found the medical evidence was
insufficient to establish her stroke as causally related to federal employment.
In a letter dated August 7, 2008, appellant requested reconsideration of her claim. In a
report dated August 5, 2008, Dr. Jens Dimmick, an internist, provided a history in which
appellant alleged that her supervisor had covered up the overtime she had to work and would
clock her out while still on the route. He provided results on examination and diagnosed
hypertension and stroke secondary to hypertension. Dr. Dimmick stated “that the stresses of the
long hours and the deceitful way her supervisor handled her hours led to worsening in her blood
pressure and the development of her stroke. The patient’s stoke and attendant disability is
directly related to the long hours and the stresses that she suffered in her occupation as a postal
worker.”
By decision dated July 30, 2009, the Office denied modification of the August 9, 2007
decision. It found that there was a compensable work factor in that appellant alleged stress due
to the pressure of trying to perform her regular work duties, but no other compensable factors

2

were established. With respect to the medical evidence, the Office found it did not establish a
causal relationship between a diagnosed condition and the compensable work factor.
LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or adversely
affected by factors of his federal employment.1 This burden includes the submission of detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.2 A claimant must also
submit rationalized medical opinion evidence establishing a causal relationship between the
claimed condition and the established, compensable work factors.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his regular or specially assigned work duties or to a requirement imposed by
the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.4
A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.5 Nevertheless, if the evidence
demonstrates that the employing establishment erred, acted abusively or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.6
ANALYSIS
In the present case, appellant addressed her regularly assigned work duties. She stated
that her mail route was difficult and she felt under pressure to complete it in eight hours and
often had to use overtime. The performance of her regular or specially assigned work duties was
1

Pamela R. Rice, 38 ECAB 838 (1987).

2

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

3

See Bonnie Goodman, 50 ECAB 139, 141 (1998).

4

Lillian Cutler, 28 ECAB 125 (1976).

5

See Brian H. Derrick, 51 ECAB 417, 421 (2000).

6

Margreate Lublin, 44 ECAB 945, 956 (1993).

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accepted as a compensable work factor. The Office found she had established a compensable
work factor in this regard.
As to other allegations, the evidence of record did not substantiate any additional
compensable work factors. Appellant raised allegations of error by the employing establishment
without submitting supporting evidence. An allegation of error or abuse by the employing
establishment in an administrative matter does not itself establish a compensable work factor.
There must be a detailed description of the incidents and probative evidence establishing error or
abuse.7 Appellant referred to a list of medications provided to a supervisor in 2001 that indicated
she could not drive, without providing a detailed description of the circumstances or any
evidence to support a finding of error or abuse by the employing establishment. With respect to
personnel matters such as leave, no probative evidence of error or abuse was submitted in this
case.
The Board notes that Dr. Dimmick reported an allegation that appellant’s supervisors
attempted to cover up her use of overtime by having someone clock appellant out while she was
still on her route. Appellant did not submit a narrative statement discussing this allegation in
detail, or explaining when and how often it occurred. The employing establishment had
indicated in its October 4, 2006 response that appellant was responsible for recording her work
hours. The Board finds that no probative evidence of error or abuse was submitted.
Since a compensable work factor was established, the medical evidence is considered to
determine if a diagnosed condition is established as causally related to the compensable work
factor.8 Appellant alleged that she suffered anxiety, aggravation of hypertension and an ischemic
incident in January 2005 that she attributed to her federal employment. As noted, appellant’s
burden of proof is to submit rationalized medical evidence on causal relationship between a
diagnosed condition and the compensable work factor. A rationalized medical opinion is one
based on a complete factual and medical background and supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the employment
factor.9 Dr. Dimmick provided a history that included appellant’s allegations of error which
have not been established as factual. In addition, he offered only a brief opinion that long hours
and the deceitful actions of her supervisors contributed to hypertension and a stroke. The actions
of supervisors have not been established as compensable. Dr. Dimmick did not provide medical
rationale to support an opinion that the specific compensable work factor in this case contributed
to a diagnosed condition. He did not provide any negative opinion in which he reviewed
appellant’s history of hypertension, prior medical treatment or address how such factors
influenced her stroke in 2005. Dr. Dimmick’s report in 2008 is some three years after
appellant’s hospitalization and fails to review her history of medical treatment prior to that time.
It is appellant’s burden of proof to establish her claim. For these reasons, the Board finds
appellant did not meet her burden of proof in this case.
7

See Pamela D. Casey, 57 ECAB 260 (2005).

8

Charles D. Gregory, 57 ECAB 322 (2006).

9

Vitaliy Y. Matviiv, 57 ECAB 193 (2005).

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CONCLUSION
The Board finds appellant did not establish a physical or emotional condition causally
related to a compensable factor of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 30, 2009 is affirmed.
Issued: November 8, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Sharpsburg, MD,
Employer
__________________________________________

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

Docket No. 20-1056
Issued: December 31, 2020

Case Submitted on the Record

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

JURISDICTION
On April 21, 2020 appellant, through counsel, filed a timely appeal from a November 4,
2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most
recent merit decision was a Board decision dated August 1, 2019, which became final after 30 days
of issuance, and is not subject to further review.2 As there was no merit decision by OWCP within
180 days of the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3

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

20 C.F.R. § 501.6(d). See G.G., Docket No. 18-1074 (issued January 7, 2019).

3

5 U.S.C. § 8101 et seq.

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of
this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On August 26, 1989 appellant, then a 41-year-old maintenance worker filed a traumatic
injury claim (Form CA-1) alleging that on August 25, 1989 he injured his right knee when a trash
truck rolled back and pinned him against a fence while in the performance of duty. He stopped
work on that date. OWCP accepted appellant’s claim for right knee contusion, right hip strain,
and left ankle contusion and abrasion. It paid wage-loss compensation on the periodic rolls,
effective November 19, 1989.
On November 29, 1989 appellant underwent OWCP-approved right knee surgery.
On March 12, 1990 appellant returned to full-time, limited-duty work. His case file was
administratively closed on May 7, 1992.5
On November 5, 2015 appellant filed a notice of recurrence (Form CA-2a) alleging that he
sustained recurrences of disability commencing October 22, 2000, April 4, 2007, and January 7,
2008 due to his accepted August 25, 1989 employment injury.
In a letter dated November 5, 2015, appellant noted that he stopped working for the
employing establishment in 1993. He alleged that he could not find employment due to his
August 25, 1989 employment injury. Appellant explained that in 2011 he attempted to obtain a
Commercial Driver’s License, but was informed by his primary care provider that he would not
pass the Department of Transportation (DOT) physical due to the deteriorating and unstable
condition of his right leg.
In a November 30, 2015 development letter, OWCP advised appellant of the type of
medical and factual evidence needed to establish his recurrence of disability claim and provided a
questionnaire for his completion. It afforded him 30 days to submit the requested information.

4

Docket No. 19-0399 (issued August 1, 2019).

5
The evidence of record indicates that appellant stopped working for the employing establishment in 1993 and did
not return to federal employment. Appellant continued to receive periodic medical treatment.

2

On December 16, 2015 OWCP received appellant’s completed development questionnaire.
Appellant indicated that the first recurrence occurred between 1999 and 2000 when his knee went
out after he changed direction too quickly. He described that the second recurrence occurred in
2002 when his knee gave out while climbing in and out of a truck. Appellant explained that the
third recurrence occurred in 2015 when his knee gave out while carrying groceries up a set of
stairs. Appellant asserted that his recurrence of disability was related to his original injury because
at the time of the August 25, 1989 employment injury, his primary physician had informed him
that his condition would progressively worsen. He related that every primary physician since then
had told him that his knee condition would deteriorate to the point of disability.
Appellant submitted several medical reports dated from 1989 to 1990 and diagnostic tests
dated August 29, 1989, July 11, 2012, April 23, 2013, and October 31, 2015. He also submitted
several medical lab reports, handwritten chart notes, sick request forms, health forms, and work
status notes dated from 1994 through 2002. The evidence indicated that while he was incarcerated
he continued to receive medical treatment for his right knee symptoms.
In a September 28, 2015 examination note, Dr. Annette Hall-Finney, an internist, reviewed
appellant’s history of injury and noted that a right knee x-ray showed degenerative changes and
chondromalacia. She noted right knee examination findings of positive crepitus and pain with
flexion of the right knee. Dr. Hall-Finney diagnosed right knee degenerative joint disease, status
post trauma. She reported that appellant had informed her that he was unable to work as a truck
driver because he could not pass the DOT physical.
In a December 24, 2015 report, Dr. Hall-Finney recounted appellant’s complaints of
worsening chronic right knee pain, right hip pain with climbing stairs, and right ankle pain with
prolonged walking. She diagnosed right knee degenerative joint disease. Dr. Hall-Finney noted:
“patient reports this stemmed from an injury in 1989 for which [appellant] underwent arthroscopic
surgery and removal of damaged cartilage.”
By decision dated February 8, 2016, OWCP denied appellant’s claim for a recurrence of
disability, finding that the medical evidence of record was insufficient to establish that he was
disabled from work due to a material change/worsening of his accepted August 25, 1989
employment-related conditions.
On March 3, 2016 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review.6 By decision dated September 20, 2016, an OWCP
hearing representative affirmed the February 8, 2016 decision.
On August 11, 2017 appellant, through counsel, requested reconsideration. Counsel
alleged that OWCP failed to fully develop and adjudicate the issue of whether appellant’s right
knee and subsequent disability was causally related to the accepted August 25, 1989 employment
injury.

6
In his appeal request form, appellant indicated that he was requesting both an oral hearing and a review of the
written record. The Branch of Hearings and Review conducted a review of the written record.

3

By decision dated November 15, 2017, OWCP affirmed the September 20, 2016 decision
in part and modified the decision in part. It found that the medical evidence of record was sufficient
to establish that appellant’s right knee medial meniscus tear was causally related to the accepted
August 25, 1989 employment injury. However, OWCP also determined that appellant had not met
his burden of proof to establish a recurrence of disability due to a spontaneous worsening or change
of his August 25, 1989 employment-related conditions.7
On July 18, 2018 appellant, through counsel, requested reconsideration and submitted
additional evidence.
In a July 1, 2018 report, Dr. Robert W. Macht, a general surgeon, described the August 25,
1989 employment injury and provided examination findings. He diagnosed right ankle contusion
and postoperative status of right knee with medial meniscus tear.
By decision dated October 16, 2018, OWCP denied modification. Appellant appealed to
the Board.
By decision dated August 1, 2019, the Board affirmed the October 16, 2018 decision. The
Board found that appellant had not met his burden of proof to establish that he sustained a
recurrence of disability on October 22, 2000, April 4, 2007, or January 7, 2008 causally related to
his August 25, 1989 employment injury.
On October 11, 2019 appellant, through counsel, requested reconsideration8 and submitted
additional medical evidence.
In a September 17, 2019 letter, Dr. Macht noted a date of injury of August 25, 1989. He
reported: “[t]he cause of your torn medial meniscus (right knee) and contusion (soft tissue injury
left ankle), is the August 25, 1989 accident.” Dr. Macht explained that appellant’s right knee
surgery on November 29, 1989 demonstrated the tear and confirmed the injury.
By decision dated November 4, 2019, OWCP denied appellant’s request for
reconsideration of the merits of the claim, pursuant to 5 U.S.C. § 8128(a).

7

By separate decision dated November 15, 2017, OWCP formally expanded acceptance of appellant’s claim to
include right knee medial meniscus tear.
8

Although appellant claimed to be filing a request for reconsideration from the Board’s August 1, 2019 decision,
OWCP is not authorized to review Board decisions. The decisions and orders of the Board are final as to the subject
matter appealed, and such decisions and orders are not subject to review, except by the Board. 20 C.F.R. § 501.6(d).
Although the August 1, 2019 Board decision was the last merit decision, the October 16, 2018 OWCP decision is the
appropriate subject of possible modification by OWCP.

4

LEGAL PRECEDENT
Section 8128(a) of FECA9 vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.10
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.11
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.12 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.13 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.14
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
On October 11, 2019 OWCP received appellant’s timely request for reconsideration of the
October 16, 2018 OWCP decision. It previously denied his claim because the medical evidence
of record was insufficient to establish that he sustained a recurrence of disability on October 22,
2000, April 4, 2007, and January 7, 2008, causally related to his accepted August 25, 1989
employment injury. Thus, the Board must determine if appellant presented sufficient evidence or

9

Supra note 3.

10

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
11

20 C.F.R. § 10.606(b)(3); see J.W., Docket No. 19-1795 (issued March 13, 2010); see also L.G., Docket No. 091517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
12

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Chapter 2.1602.4b.
13

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

14

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

5

argument regarding appellant’s disability on the claimed dates to warrant a merit review pursuant
to 5 U.S.C. § 8128(a).15
In his October 11, 2019 reconsideration request, counsel did not show that OWCP
erroneously applied or interpreted a specific point of law and did not advance a new and relevant
legal argument not previously considered by OWCP. Accordingly, the Board finds that appellant
is not entitled to a review of the merits based on the first and second above-noted requirements
under 20 C.F.R. § 10.606(b)(3).16
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP. With his reconsideration request, appellant submitted a
September 17, 2019 letter by Dr. Macht who opined that the August 25, 1989 employment incident
was the cause of appellant’s right knee medial meniscus tear and left ankle contusion. The Board
finds that Dr. Macht’s letter did not include any discussion of whether appellant was disabled from
work commencing October 22, 2000, April 4, 2007, or January 7, 2008 due to a worsening of his
August 25, 1989 employment-related conditions. The Board notes that the submission of evidence
that does not address the particular issue involved does not constitute a basis for reopening a case.17
As appellant failed to provide relevant and pertinent new evidence related to the underlying issue
of causal relationship, he was not entitled to a merit review based on the third requirement under
20 C.F.R. § 10.606(b)(3).18
The Board accordingly finds that OWCP properly determined that appellant was not
entitled to further review of the merits of his claim pursuant to any of the three requirements under
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.19
On appeal, counsel argues that OWCP’s October 16, 2018 decision is contrary to fact and
law. As stated above, the evidence appellant submitted on reconsideration has not met the
requirements to reopen his case for a review of the merits of the claim pursuant to 5 U.S.C.
§ 8128(a).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

15

See C.S., Docket No. 20-0634 (issued September 25, 2020).

16

Supra note 8.

17

D.C., Docket No. 19-0873 (issued January 27, 2020).

18

Supra note 8.

19
H.T., Docket No. 20-0799 (issued November 6, 2020); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E.,
58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

6

ORDER
IT IS HEREBY ORDERED THAT the November 4, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 31, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
DEPARTMENT OF THE NAVY, NAVY
INSTALLATIONS COMMAND,
Portsmouth, VA, Employer
__________________________________________

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

Docket No. 20-1313
Issued: May 17, 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 June 22, 2020 appellant filed a timely appeal from an April 15, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether OWCP abused its discretion by denying appellant’s request for
authorization of lumbar spinal fusion surgery.

1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the April 15, 2020 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On June 28, 2017 appellant, then a 64-year-old substance abuse counselor, filed a traumatic
injury claim (Form CA-1) alleging that on June 9, 2017 he strained his lower back when he reached
for objects that were falling off a dolly while in the performance of duty. OWCP accepted his
claim for right-side sciatica.
In an August 8, 2017 examination note, Dr. Felix Kirven, a Board-certified orthopedic
surgeon, recounted appellant’s complaints of lumbar pain and conducted an examination. He
diagnosed right-side sciatica, herniated disc at L4-5 with stenosis at L4-5, and grade 1
spondylolisthesis at L4-5.4 Dr. Kirven recommended a posterior lumbar laminectomy at L4-5,
transforaminal interbody fusion at L4-5, posterior bone grafting L4-5, and bilateral lateral
instrumented fusion L4-5.
On August 10, 2017 OWCP received Dr. Kirven’s request seeking authorization for
lumbar spine fusion surgery.
OWCP referred the medical evidence of record to Dr. Nizar Souayah, Board-certified in
neurology and neuromuscular medicine, serving as an OWCP district medical adviser (DMA) for
his review and comment regarding the medical necessity of lumbar spine fusion surgery. In an
October 7, 2017 report, Dr. Souayah reviewed appellant’s history and opined that the requested
lumbar spine fusion surgery was not medically necessary to treat appellant’s accepted lumbar
injury.
By decision dated November 2, 2017, OWCP denied authorization for lumbar spine fusion
surgery based on the October 7, 2017 report of the DMA, Dr. Souayah.
On July 9, 2018 appellant requested reconsideration and submitted additional medical
evidence.
OWCP subsequently referred appellant, along with the statement of accepted facts (SOAF)
and a copy of the record, to Dr. James Schwartz, a Board-certified orthopedic surgeon, for a second
opinion evaluation. In an August 18, 2018 report, Dr. Schwartz diagnosed right-side sciatica and
permanent aggravation of lumbar spinal stenosis with claudication as causally related to the June 9,
2017 employment injury and lumbar spinal stenosis with claudication L4-5, not related to the
June 9, 2017 employment injury. He opined that lumbar decompression surgery was an accepted

3

Docket No. 19-1009 (issued October 22, 2019).

4
A July 27, 2017 lumbar spine magnetic resonance imaging (MRI) scan report interpreted by Dr. Hiten B. Patel, a
Board-certified psychiatrist, revealed degenerative disc disease, severe central canal stenosis at L3-4 and L4-5,
moderate central canal stenosis at L2-3, mild central canal stenosis at L1-2 and L5-S1, multilevel foraminal stenosis
most prominent at L4-5, and grade 1 anterolisthesis at L4-5.

2

medical practice to treat appellant’s lumbar injury, but found that fusion surgery was not yet
necessary.
On September 28, 2018 OWCP found that a conflict in the medical opinion evidence
existed between Dr. Kirven, appellant’s treating physician, and Dr. Schwartz, an OWCP second
opinion examiner, regarding whether the conditions of lumbar intervertebral disc disorder with
radiculopathy, lumbar spondylolisthesis, and lumbar spinal stenosis were causally related to the
June 9, 2017 employment injury, and whether the proposed lumbar decompressive laminectomy
at L4-5 with fusion was appropriate and necessary for the accepted employment injury. It referred
appellant to Dr. Mohammad H. Zamani, a Board-certified orthopedic surgeon, for an impartial
medical examination to resolve the conflict in the medical evidence.
In a November 20, 2018 report, Dr. Zamani described the June 9, 2017 employment injury
and reviewed appellant’s medical records. He noted that diagnostic testing did not support a
diagnosis of herniated disc at L4-5 and reported that appellant had a mainly congenital problem of
the spinal cord. Upon examination of appellant’s lumbar spine, Dr. Zamani observed pain on
palpation of the lower lumbar area. Straight leg raise testing in the sitting position revealed some
tightness of the hamstring without pain. Dr. Zamani indicated that appellant no longer suffered
from radiculopathy due to his June 9, 2017 employment injury and; therefore, the requested
surgery was not required.
By decision dated January 11, 2019, OWCP denied modification of the November 2, 2017
decision. It found that the special weight of the medical evidence rested with the November 20,
2018 report of Dr. Zamani, the impartial medical examiner.
On February 13, 2019 appellant requested reconsideration and submitted a January 22,
2019 letter by Dr. Kirven.
By decision dated March 13, 2019, OWCP denied modification of the January 11, 2019
decision.
Appellant filed an appeal with the Board.
On May 15, 2019 appellant underwent lumbar decompression and fusion surgery. The
operative report noted a preoperative diagnosis of degenerative spondylolisthesis at L4-5 and
stenosis at L3 to L5.
By decision dated October 22, 2019, the Board vacated the March 13, 2019 decision and
remanded the case for referral to an impartial medical examiner. It determined that Dr. Schwartz’
August 18, 2018 second opinion report lacked sufficient medical rationale and was not of equal
weight to Dr. Kirven’s reports. Accordingly, the Board found that a new conflict in medical
evidence existed between Dr. Kirven and Dr. Zamani regarding whether the requested lumbar
decompressive and fusion surgery was medically necessary and appropriate to treat his accepted
June 9, 2017 employment injury.
Appellant submitted a March 19, 2019 report by Dr. J Abbott A. Byrd, III, an orthopedic
surgeon, who recounted appellant’s complaints of low back and right lower extremity pain after a
June 9, 2017 employment injury. Upon examination of appellant’s lumbar spine, Dr. Byrd

3

observed mild tenderness in the lumbar spine. Straight leg raise testing was negative. Dr. Byrd
diagnosed lumbar herniation of the nucleus pulposus and lumbar spinal stenosis.
A March 26, 2019 lumbar spine MRI scan report revealed severe central canal narrowing
at L3-4 and L4-5, moderate central canal narrowing at L2-3, mild central canal narrowing at L1-2,
and moderate foraminal stenosis at L3-4 and L4-5.
In subsequent reports dated April 2, June 10, and August 26, 2019, Dr. Byrd continued to
provide postoperative treatment following appellant’s May 15, 2019 surgery. He diagnosed
lumbar herniation of nucleus pulposus and lumbar spinal stenosis. Dr. Byrd reported that
appellant’s symptoms were due to degenerative spondylosis L4-5 with stenosis at L3-4, L4-5. He
also completed a work status note dated June 10, 2019, which indicated that appellant could return
to regular-duty work on June 17, 2019.
In a December 12, 2019 letter, Dr. Byrd recounted that appellant was referred to him for
evaluation of low back and right lower extremity pain since his June 9, 2017 employment injury.
He reported that, when he initially evaluated appellant on March 9, 2019, he noted that appellant’s
symptoms were due to a degenerative condition and L4-5 herniation of nucleus pulposus, requiring
surgical intervention and repair. Dr. Byrd opined that appellant’s symptoms were a direct result
of his June 9, 2017 employment injury and noted that he was asymptomatic prior to the injury. He
requested that the acceptance of appellant’s claim be expanded to include lumbar intervertebral
disc displacement, lumbar spinal stenosis, lumbar radiculopathy, and arthrodesis status.
On December 21, 2019 OWCP referred appellant, along with a SOAF, a copy of the case
record, and a series of questions, to Dr. John Aldridge, a Board-certified orthopedic surgeon, for
an impartial medical examination to resolve the conflict of medical evidence between Dr. Kirven,
appellant’s treating physician, and Dr. Zamani, an OWCP second opinion examiner, regarding
whether the recommended lumbar decompressive and fusion surgery was medically necessary to
treat appellant’s June 9, 2017 employment injury. In an April 14, 2020 report, Dr. Aldridge noted
that he had reviewed the record, including the SOAF. He described the June 9, 2017 employment
injury and discussed the medical treatment that appellant had received. Upon physical
examination, Dr. Aldridge observed normal sensation in the bilateral lower extremities and normal
5/5 muscle strength. He reported that appellant’s low back had a well-healed incision.
Dr. Aldridge indicated that the MRI scan reports demonstrated that appellant had
preexisting severe stenosis secondary to congenital spinal hypoplasia stenosis, severe stenosis at
L3-4 and L4-5, and moderate stenosis at L2-3. He also pointed out that appellant’s anterolisthesis
had significantly progressed over a two-year period. Dr. Aldridge reported: “it appears the
surgical intervention performed by Dr. Byrd was directed at this nontraumatic, atraumatic,
unrelated progression of his spinal listhesis at L4-5, which went from 3 millimeter (mm)
preoperative around the time of injury … to the 7.19 mm progression seen by Dr. Byrd.” He noted
that the progression of appellant’s listhesis was unrelated to the June 9, 2017 employment injury.
Dr. Aldridge further indicated that the treatment directed at appellant’s lumbar spine, including the
L4-5 fusion surgery, “appears to be structurally not caused by the workplace injury of June 9, 2017
and not accelerated by the injury of June 9, 2017.” He opined that appellant sustained a temporary
aggravation of his underlying spinal stenosis due to his June 9, 2017 employment injury.
Dr. Aldridge further explained that the necessity of surgery was not due to the temporary
aggravation, but to the progressive effects of appellant’s severe spinal stenosis.
4

By decision dated April 15, 2020, OWCP denied modification of the January 11, 2019
decision. It found that the special weight of the medical evidence rested with the April 14, 2020
report of Dr. Aldridge, the impartial medical examiner.
LEGAL PRECEDENT
Section 8103(a) of FECA5 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed by or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability, or aid in lessening the amount of the monthly compensation.6
In interpreting this section of FECA, the Board has recognized that OWCP has broad discretion in
determining whether a particular type of treatment is likely to cure or give relief.7 The only
limitation on OWCP’s authority is that of reasonableness.8
While OWCP is obligated to pay for treatment of employment-related conditions, appellant
has the burden of proof to establish that the expenditures were incurred for treatment of the effects
of an employment-related injury or condition.9 Proof of causal relationship in a case such as this
must include supporting rationalized medical evidence.10 In order for a surgical procedure to be
authorized, appellant must establish that the procedure was for a condition causally related to the
employment injury and that the procedure was medically warranted.11 Both of these criteria must
be met in order for OWCP to authorize payment.12
Abuse of discretion is shown through proof of manifest error, clearly unreasonable exercise
of judgment, or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.13
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
5

5 U.S.C. § 8103(a).

6

Id.; see Thomas W. Stevens, 50 ECAB 288 (1999).

7

R.C., Docket No. 18-0612 (issued October 19, 2018); W.T., Docket No. 08-0812 (issued April 3, 2009).

8

D.C., Docket No. 18-0080 (issued May 22, 2018); Mira R. Adams, 48 ECAB 504 (1997).

9

R.M., Docket No. 19-1319 (issued December 10, 2019); J.T., Docket No. 18-0503 (issued October 16, 2018);
Debra S. King, 44 ECAB 203, 209 (1992).
10
K.W., Docket No. 18-1523 (issued May 22, 2019); C.L., Docket No. 17-0230 (issued April 24, 2018); M.B., 58
ECAB 588 (2007); Bertha L. Arnold, 38 ECAB 282 (1986).
11

T.A., Docket No 19-1030 (issued November 22, 2019); Zane H. Cassell, 32 ECAB 1537, 1540-41 (1981); John E.
Benton, 15 ECAB 48, 49 (1963).
12

J.L., Docket No. 18-0990 (issued March 5, 2019); R.C., 58 ECAB 238 (2006); Cathy B. Millin, 51 ECAB 331,
333 (2000).
13

D.S., Docket No. 18-0353 (issued February 18, 2020); E.L., Docket No. 17-1445 (issued December 18, 2018);
L.W., 59 ECAB 471 (2008); P.P., 58 ECAB 673 (2007); Daniel J. Perea, 42 ECAB 214 (1990).

5

appoint a third physician (known as a referee physician or impartial medical examiner) who shall
make an examination.14 This is called an impartial medical examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.15 When there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical examiner 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.16
ANALYSIS
The Board finds that this case is not in posture for decision.
Following the Board’s remand, OWCP properly referred appellant, pursuant to 5 U.S.C.
§ 8123(a), to Dr. Aldridge for an impartial medical examination and opinion in order to resolve
the conflict in the medical opinion evidence between Dr. Kirven, appellant’s treating physician,
and Dr. Zamani, an OWCP second opinion examiner, regarding whether the recommended lumbar
decompressive and fusion surgery was medically necessary to treat appellant’s June 9, 2017
employment injury.
In an April 14, 2020 report, Dr. Aldridge reviewed appellant’s history and provided
examination findings. He indicated that diagnostic studies demonstrated that appellant had
preexisting severe stenosis secondary to congenital spinal hypoplasia stenosis, severe stenosis at
L3-4 and L4-5, and moderate stenosis at L2-3. Dr. Aldridge opined that appellant sustained a
temporary aggravation of his underlying spinal stenosis due to his June 9, 2017 employment
injury. He further indicated that the treatment directed at appellant’s lumbar spine, including the
L4-5 fusion surgery, “appears to be structurally not caused by the workplace injury of June 9, 2017
and not accelerated by the injury of June 9, 2017.”
Dr. Aldridge’s opinion that appellant’s surgery “appears to be” not caused by the June 9,
2017 employment is equivocal and speculative. The Board has held that medical opinions that are
speculative or equivocal in character are of diminished probative value.17 As such, the Board finds
that Dr. Aldridge did not provide adequate medical rationale to explain the basis of his conclusion,
and, therefore, his opinion is insufficient to resolve the conflict in medical evidence.18 In addition,
Dr. Aldridge failed to address appellant’s accepted right-side sciatica condition, as noted in the

14

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
15

20 C.F.R. § 10.321.

16

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

17

D.B., Docket No. 18-1359 (issued May 14, 2019); Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a
physician supporting causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of medical certainty).
18

See T.S., Docket No. 18-1702 (issued October 4, 2019); P.H., Docket No. 16-0654 (issued July 21, 2016); S.R.,
Docket No. 16-0657 (issued July 13, 2016).

6

SOAF. It is therefore unclear whether his opinion was based upon an accurate history.19 The
Board has held that the report of an impartial medical examiner who disregards a critical element
of the SOAF and disagrees with the medical basis for acceptance of a condition is defective and
insufficient to resolve the existing conflict of medical opinion evidence.20 As such, the Board
finds that Dr. Aldridge’s opinion is of insufficient probative value to carry the special weight of
the medical evidence, and the case must be remanded for further development.21
Once OWCP undertakes development of the medical evidence, it must produce medical
evidence that will resolve the relevant issues in the case.22 When it obtains an opinion from an
impartial medical examiner for the purpose of resolving a conflict in the medical evidence and the
impartial medical examiner’s opinion requires clarification or elaboration, OWCP must secure a
supplemental report from the specialist to correct the defect in the original report.23 Therefore, in
order to resolve the continuing conflict in medical opinion evidence, the case will be remanded to
Dr. Aldridge for a supplemental opinion providing medical rationale with regard to whether
appellant’s lumbar decompressive and fusion surgery was medically necessary to treat his June 9,
2017 employment injury. If Dr. Aldridge is unable to clarify or elaborate on his original report or
if his supplemental report is also vague, speculative, or lacking in rationale, OWCP shall refer
appellant, together with a SOAF and a list of specific questions, to another impartial medical
examiner in the appropriate field of medicine to resolve the issue. Following this and any other
further development as deemed necessary, OWCP shall issue a de novo decision on appellant’s
requested lumbar decompression and fusion surgery.
CONCLUSION
The Board finds that this case is not in posture for decision.

19

Medical reports must be based on a complete and accurate factual and medical background. See J.R., Docket
No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).
20

See W.F., Docket No. 18-0653 (issued September 26, 2019); V.C., Docket No. 14-1912 (issued
September 22, 2015).
21

F.K., Docket No. 19-1804 (issued April 27, 2020).

22

T.K., Docket No. 20-0150 (issued July 9, 2020); T.C., Docket No. 17-1906 (issued January 10, 2018).

23

B.J., Docket No. 18-1186 (issued July 9, 2019); A.R., Docket No. 12-0443 (issued October 2, 2012); Nancy
Lackner (Jack D. Lackner), 40 ECAB 232 (1988); Ramon K. Ferrin, Jr., 39 ECAB 736 (1988).

7

ORDER
IT IS HEREBY ORDERED THAT the April 15, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: May 17, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION
MEDICAL CENTER, Gainesville, FL, Employer
__________________________________________

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

Docket No. 14-882
Issued: March 11, 2015

Case Submitted on the Record

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

JURISDICTION
On March 10, 2014 appellant filed a timely appeal from a January 21, 2014 decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue in this case is whether appellant met her burden of proof to establish a
traumatic injury in the performance of duty on September 23, 2011.
FACTUAL HISTORY
On September 26, 2011 appellant, then a 32-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging a right wrist sprain when transferring a patient from a
1

5 U.S.C. § 8101 et seq.

wheelchair to a bed with the help of another employee on September 23, 2011. A supervisor
noted that appellant gave notice of this injury on the same date and that her injury occurred in the
performance of duty.
Appellant had a prior diagnosis of chronic extensor carpi ulnaris (ECU) tenosynovitis of
the right wrist. In an operative report dated May 27, 2011, Dr. Rodger D. Powell, a Boardcertified orthopedic surgeon, described performing an ECU tenosynovectomy on her right wrist.
The procedure was completed without complications.
In a functional capacity evaluation dated September 1, 2011, a physical therapist
evaluated appellant’s ability to tolerate work tasks involving her upper extremities. She wrote,
“Results obtained indicate this client did not perform with determined consistent effort and
demonstrated inappropriate pain behaviors. Results obtained should therefore be interpreted as a
minimal level of function only and do not represent potentially true capabilities.”
In progress notes dated September 26, 2011, Dr. John C. Charnas, Board-certified in
preventative medicine, stated that appellant presented for a follow-up of her right wrist. He
noted that she had surgery two months ago and returned to full duty on September 19, 2011.
Dr. Charnas noted that appellant began noticing increasing pain in her right wrist on
September 20, 2011, which progressed over the week without new injury or incident. He stated
his impression of right wrist strain.
On October 11, 2011 Dr. James B. Slattery, a Board-certified orthopedic surgeon,
examined the results of nerve conduction studies to the right upper extremity. He stated that the
findings were consistent with a very mild sensory carpal tunnel syndrome with no evidence of
other peripheral neuropathy or radiculopathy.
In a report dated October 24, 2011, Dr. Powell stated that appellant continued to have
pain in her right wrist, but that it was minimal compared to what it was before surgery. He stated
that his impression of very mild right carpal tunnel syndrome and mild persistence of extensor
ECU tenosynovitis. Dr. Powell noted that he thought he had done everything he could do for
appellant and did not know why she was having the problems she did. He suggested that OWCP
obtain a second opinion. In a work capacity evaluation for musculoskeletal conditions of the
same date, Dr. Powell stated that appellant was unable to perform her usual job and that
maximum medical improvement had not been reached.
In progress notes dated December 15, 2011, Dr. Charnas saw appellant for a follow-up
and stated his impression of a right wrist strain. Appellant noted that her pain had been
increasing. In a duty status report of the same date, Dr. Charnas stated that she could return to
duty on December 16, 2011 with restrictions of no lifting over five pounds and that she should be
off work on December 15, 2011.
In a duty status report dated October 16, 2012, Dr. Powell stated that appellant had
possible right carpal tunnel syndrome. He recommended that she could perform full-time regular
work on October 24, 2012.
Appellant submitted a duty status report dated November 5, 2012, which contained
restrictions of no lifting over five pounds, no more than three hours a day of pulling/pushing, no
2

more than five hours a day of fine manipulation, and no reaching above the shoulder. However,
the physician’s signature on this report was illegible.
On May 25, 2012 Dr. Charnas noted that appellant was working limited duty, and that her
pain increased by the end of the day. He observed swelling remaining over the dorsum of the
right wrist and recommended that she wear a splint and take medication for pain. In a duty status
report of the same date, Dr. Charnas stated that appellant should be off work on May 25, 2012
and could return to work the next day.
By letter dated August 13, 2013, OWCP informed appellant of the evidence needed to
support her claim. It advised her that the claim had been reopened because she may be entitled
to compensation for wage loss. OWCP noted that Dr. Charnas had stated in his September 26,
2011 report that appellant’s pain had increased over the course of a week without new injury or
incident. It afforded appellant 30 days to submit additional evidence. No response was received.
By decision dated September 16, 2013, OWCP denied appellant’s claim for
compensation. It found that she had not established that her condition of wrist strain was caused
or aggravated by an incident on September 23, 2011. OWCP accepted that appellant was a
federal civilian employee who filed a timely claim; that the incident occurred; that a medical
condition had been diagnosed; and that she was within the performance of duty.
By letter received on December 19, 2013, appellant requested reconsideration of her
claim. She also submitted several time analysis forms claiming wage loss and an authorization
request for orthopedic surgery.
In a duty status report dated September 19, 2011, a person with an illegible signature
stated that appellant could return to work on that date at full duty.
In progress notes dated November 1, 2012, Dr. Marissa Olegario-Nebel examined the
results of several electromyographic studies of appellant’s right hand and wrist.2 She stated an
impression of findings consistent mild carpal tunnel syndrome and mild right demyelinating
ulnar nerve focal neuropathy.
By letter dated January 3, 2014, OWCP informed appellant that her claim for
compensation for the period January 12 through June 19, 2013 could not be processed because
the forms were incomplete.
By decision dated January 21, 2014, OWCP reviewed the merits of appellant’s claim and
denied modification of the decision dated January 19, 2013. It noted that she had not submitted
any opinion from a physician explaining how the claimed injury of September 23, 2011 caused
or aggravated her diagnosed conditions.

2

Dr. Olegario-Nebel’s Board certification could not be confirmed with the American Board of Medical
Specialties or the American Osteopathic Association.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.6
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.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
The claimant has the burden of establishing by the weight of reliable, probative, and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.9 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.10
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.11 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and

3

Supra note 1.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364, 366 (2006).

5

S.P., 59 ECAB 184, 188 (2007); Joe D. Cameron, 41 ECAB 153, 157 (1989).

6

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 4.

7

D.B., 58 ECAB 464, 466 (2007); David Apgar, 57 ECAB 137, 140 (2005).

8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734, 737 (2008); Bonnie A. Contreras,
supra note 4.
9

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

10

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

11

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).

4

compensable employment factors.12 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.13
ANALYSIS
OWCP found that the September 23, 2011 incident involving transferring a patient from a
wheelchair to a bed occurred as alleged. The Board affirms this fact of injury and it also finds
that the medical evidence submitted by appellant is insufficient to establish that this incident
caused a medical condition.
On September 26, 2011 Dr. Charnas stated that appellant presented for a follow-up on her
right wrist. He noted that she had surgery two months prior and had returned to full duty on
September 19, 2011. Dr. Charnas noted that appellant began noticing increasing pain in her right
wrist on September 20, 2011, which progressed over the week without new injury or incident.
As his report positively states that appellant’s symptoms progressed over the course of the week
of September 20, 2011 without new injury or incident, his report does not offer an explanation of
how the claimed work event caused or aggravated appellant’s claimed condition. Rather,
Dr. Charnas’ report is supportive of the opposite proposition, that appellant’s condition was not
caused or aggravated by the claimed work event, as it progressed without new injury or incident.
Medical evidence submitted to support a claim for compensation should reflect a correct history
and the physician should offer a medically sound explanation of how the claimed work event
caused or aggravated the claimed condition.14 Lacking such an explanation, this report is not
sufficient to establish a causal relationship between the event of September 23, 2011 and
appellant’s diagnosed conditions.
In a report dated May 27, 2011, Dr. Powell described performing an ECU
tenosynovectomy on appellant’s right wrist.
The procedure was completed without
complications. On October 24, 2011 Dr. Powell stated that appellant continued to have pain in
her right wrist, but that it was minimal compared to what it was before surgery. He stated that
his impression of very mild right carpal tunnel syndrome and mild persistence of ECU
tenosynovitis. On October 11, 2011 Dr. James B. Slattery, a Board-certified orthopedic surgeon,
examined the results of nerve conduction studies to the right upper extremity. Dr. Powell noted
that he thought he had done everything he could do and suggested a second opinion. In progress
notes dated December 15, 2011, Dr. Charnas saw appellant for a follow-up and stated his
impression of a right wrist strain. On May 25, 2012 he noted that she was working limited duty,
and that her pain increased by the end of the day. Dr. Charnas observed swelling remaining over
the dorsum of the right wrist and recommended that appellant wear a splint and take medication
for pain. In a duty status report dated October 16, 2012, Dr. Powell stated that she had possible
right carpal tunnel syndrome. He recommended that appellant could perform full-time regular
12

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

13

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

14

D.D., Docket No. 13-1517 (issued April 14, 2014).

5

work on October 24, 2012. In progress notes dated November 1, 2012, Dr. Olegario-Nebel
examined the results of several electromyographic studies of appellant’s right hand and wrist.
These reports do not provide a clear statement of opinion as to the causation of
appellant’s condition. Instead, they merely report on her surgery and her condition of mild right
carpal tunnel syndrome, without offering a history of injury related to an event on September 23,
2011 or an opinion on causal relationship. The Board has held that medical evidence that does
not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.15 Hence, these reports are not sufficient to establish
appellant’s claim.
As appellant has not submitted any rationalized medical evidence to support her
allegation that she sustained an injury causally related to a September 23, 2011 employment
incident, she has not met her burden of proof to establish a claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on September 23, 2011.

15

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

6

ORDER
IT IS HEREBY ORDERED THAT the January 21, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, DALLAS NETWORK
DISTRIBUTION CENTER, Dallas, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-1372
Issued: May 27, 2021

Case Submitted on the Record

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

On July 2, 2020 appellant filed an appeal from a December 23, 2019 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 20-1372.
The Board has duly considered this matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180th day following the December 23, 2019 decision was June 20, 2020. As appellant
did not file an appeal with the Board until July 2, 2020, more than 180 days after the December 23,
2019 OWCP decision, the Board finds that the appeal docketed as No. 20-1372 is untimely filed.
The Board is without jurisdiction to review the appeal. Appellant has not offered a reason to
1

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

explain the failure to timely file an appeal with supporting documentation sufficient to establish
compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”3
IT IS HEREBY ORDERED THAT the appeal docketed as No. 20-1372 is dismissed.
Issued: May 27, 2021
Washington, DC

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

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

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

3

Id. at § 501.6(d).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Castle, DE, Employer
__________________________________________

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)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-289
Issued: September 12, 2011

Case Submitted on the Record

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

JURISDICTION
On November 16, 2010 appellant, through his representative, filed a timely appeal from
the July 30, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
concerning his entitlement to schedule award compensation. Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
a 12 percent permanent impairment of his right arm, for which he received schedule award
compensation.
FACTUAL HISTORY
In March 2007 OWCP accepted that appellant, then a 55-year-old letter carrier, sustained
impingement syndrome of his right shoulder due to performing his repetitive work duties over an
1

5 U.S.C. §§ 8101-8193.

extended period.
On April 13, 2007 appellant underwent right shoulder arthroscopic
acromioplasty, bursectomy and excision arthroplasty of the distal clavicle. The procedures were
authorized by OWCP. Appellant stopped work for various periods and received wage-loss
disability compensation.
In an August 18, 2009 report, Dr. David Weiss, an attending osteopath, provided an
impairment rating of appellant’s right arm under the standards of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed.
2009). He calculated a five percent impairment rating due to entrapment neuropathy of the left
ulnar nerve at the elbow and a three percent impairment rating for a class 1 left shoulder
impingement syndrome with residual loss.2 Dr. Weiss used the Combined Values Chart starting
on page 604 to combine the five percent and three percent impairment ratings and conclude that
appellant had a total permanent impairment of the left arm of eight percent. He also indicated
that appellant had a 12 percent impairment rating for a class 1 right shoulder acromioclavicular
arthropathy with distal clavicle excision and a two percent impairment rating for sensory deficit
at the right C7-8 level.3 Dr. Weiss used the Combined Values Chart to combine the 12 percent
and 2 percent impairment ratings and conclude that appellant had a total permanent impairment
of the right arm of 14 percent.
On November 4, 2009 appellant filed a claim for a schedule award due to his accepted
work condition.
On February 7, 2010 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon serving
as OWCP’s medical adviser, found that Dr. Weiss’ impairment ratings for an entrapment
neuropathy of the left ulnar nerve at the elbow, a left shoulder impingement syndrome with
residual loss and a sensory deficit at the right C7-8 level were not related to any accepted or
preexisting conditions and could not be considered in the impairment rating. He based his rating
on a class 1, grade modifier 2 impairment for a postdistal clavicle resection or acromioclavicular
separation, which he felt was the impairment rating most favorable to appellant. Dr. Berman
concluded that appellant had a 12 percent permanent impairment of his right arm based on the
standards of the sixth edition of the A.M.A., Guides.4
In a February 26, 2010 award of compensation, OWCP granted appellant a schedule
award for a 12 percent permanent impairment of his right arm. It based the schedule award on
the February 7, 2010 opinion of Dr. Berman.
Appellant requested a video hearing with OWCP’s hearing representative. He did not
appear at the hearing held on June 17, 2010. Counsel argued that OWCP should have accepted
Dr. Weiss’ impairment ratings which considered several preexisting medical conditions.
In a July 30, 2010 decision, OWCP’s hearing representative affirmed its February 26,
2010 decision.
2

See A.M.A., Guides 402, 406, 408, Table 15-5, 15-7 and Table 15-8.

3

Id. at 403, 410, 441, Table 15-5, Table 15-9 and Table 15-21.

4

Id. at 403, Table 15-5.

2

LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.8
It is well established that in determining the amount of a schedule award for a member of
the body that sustained an employment-related permanent impairment, preexisting impairments of
the body are to be included.9
In determining impairment for the upper extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper
extremity to be rated. With respect to the shoulder, the relevant portion of the arm for the
present case, reference is made to Table 15-5 (Shoulder Regional Grid) beginning on page 401.
After the Class of Diagnosis (CDX) is determined from the Shoulder Regional Grid (including
identification of a default grade value), the net adjustment formula is applied using the grade
modifier for Functional History (GMFH), grade modifier for Physical Examination (GMPE) and
grade modifier for Clinical Studies (GMCS). The net adjustment formula is GMFH - CDX +
GMPE - CDX + GMCS - CDX.10 Under Chapter 2.3, evaluators are directed to provide reasons
for their impairment rating choices, including choices of diagnoses from regional grids and
calculations of modifier scores.11

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).

7

Id.

8

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

9

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3.b (June 1993). This portion of OWCP procedure provides that the impairment rating of a
given scheduled member should include “any preexisting permanent impairment of the same member or function.”
10

See A.M.A., Guides (6th ed. 2009) 401-11. Table 15-5 also provides that, if motion loss is present for a claimant
who has undergone a shoulder arthroplasty, impairment may alternatively be assessed using section 15.7 (range of
motion impairment). Such a range of motion impairment stands alone and is not combined with a diagnosis
impairment. Id. at 405, 475-78.
11

Id. at 23-28.

3

ANALYSIS
In the present case, OWCP accepted that appellant sustained impingement syndrome of
his right shoulder. On April 13, 2007 appellant underwent right shoulder arthroscopic
acromioplasty, bursectomy and excision arthroplasty of the distal clavicle.
The Board finds that OWCP properly relied on the February 7, 2010 opinion of
Dr. Berman, a Board-certified orthopedic surgeon serving as OWCP’s medical adviser, in
granting a schedule award for 12 percent permanent impairment of appellant’s right arm.
Dr. Berman properly determined that appellant’s right arm impairment was best characterized as
a class 1, grade modifier 2 impairment for a post distal clavicle resection or acromioclavicular
separation under Table 15-5 of the sixth edition of the A.M.A., Guides. He chose the appropriate
diagnostic category, properly chose the relevant class and grade modifiers and correctly applied
the net adjustment formula.12
Before OWCP and on appeal to the Board, appellant’s counsel argued that Dr. Berman
did not evaluate certain work-related or preexisting impairments that were included by
Dr. Weiss, an attending osteopath, in his August 18, 2009 impairment rating evaluation.13 The
Board finds, however, that Dr. Berman properly found that Dr. Weiss incorrectly included
impairment ratings for an entrapment neuropathy of the left ulnar nerve at the elbow, a left
shoulder impingement syndrome with residual loss and a sensory deficit at the right C7-8 level
because these impairments were not related to accepted or preexisting conditions. In this respect,
the opinion of Dr. Weiss is of limited probative value and Dr. Weiss failed to provide adequate
narrative explanation of how his assessment of permanent impairment was derived in accordance
with the standards adopted by OWCP.14 He addressed surgery in November 1997 that pertained
to appellant’s left upper extremity but did not adequately explain how the medical records
established any preexisting right upper extremity condition.
Therefore, appellant did not show that he had` more than a 12 percent permanent
impairment of his right arm and OWCP properly denied his claim for greater schedule award
compensation. He may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a 12 percent permanent impairment of his right arm, for which he already received
schedule award compensation.
12

See supra notes 9 and 10.

13

Dr. Weiss found a 14 percent impairment of the right arm and an 8 percent impairment of the left arm.

14

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

4

ORDER
IT IS HEREBY ORDERED THAT the July 30, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 12, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5