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

)
)
)
)
)
)
)
)

Appearances:
Jennifer Howe, for the appellant
Office of Solicitor, for the Director

Docket No. 14-614
Issued: June 16, 2014

Case Submitted on the Record

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

JURISDICTION
On January 24, 2014 appellant, through her representative, filed a timely appeal from a
September 24, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
and a November 22, 2013 nonmerit decision. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.2
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective September 24, 2013 on the grounds that
she had no residuals of her accepted work injuries after that date; and (2) whether OWCP

1
2

5 U.S.C. §§ 8101-8193.

Appellant submitted additional evidence after OWCP’s November 22, 2013 decision, but the Board cannot
consider such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

properly denied appellant’s request for further review of the merits of her claim pursuant to 5
U.S.C. § 8128(a).
FACTUAL HISTORY
On October 18, 1978 appellant, then a 32-year-old clerk, filed a traumatic injury claim
alleging that she sustained injury at work that day when the steel door of a mail container
dropped down and struck the back of her head. OWCP accepted that she sustained a cerebral
contusion and post-traumatic conversion disorder due to this work incident. Appellant stopped
work on October 18, 1978 and received compensation on the periodic rolls for total disability.3
In an August 22, 2007 report, Dr. Mahmoud S. Mohamed, a Board-certified neurologist
serving as an OWCP referral physician, determined that appellant no longer suffered from the
cerebral contusion sustained on October 18, 1978. He stated that there was no evidence to
suggest a neurological problem that was causing appellant’s current symptoms. Dr. Mohamed
noted that his clinical examination did not support appellant’s current complaints as it was
essentially normal. He stated that appellant had normal tone and bulk without spasticity, that
visual and hearing testing was normal and that computerized axial tomography (CAT) scan
testing of her head was normal.
OWCP further developed the medical evidence with respect to appellant’s psychiatric
condition and found a conflict in the medical opinion evidence regarding whether she continued
to suffer from a conversion reaction. In a February 5, 2009 report, Dr. Patricia Martin, a Boardcertified psychiatrist and neurologist serving as an impartial medical specialist, indicated that she
agreed with Dr. Mohamed that appellant ceased to have a cerebral contusion. She stated that
appellant continued to have a conversion disorder related to the October 18, 1978 injury.
Appellant continued to receive compensation from OWCP after this evaluation.
The record contained no medical reports from attending physicians after Dr. Martin’s
evaluation. Therefore, in 2013, OWCP referred appellant to Dr. Erika V. Delong, a Boardcertified psychiatrist and neurologist, for an examination and second opinion regarding whether
she continued to have residuals of her October 18, 1978 injury.
In a June 19, 2013 report, Dr. Delong provided a discussion of appellant’s factual and
medical history, including the treatment of her conditions related to the October 18, 1978 injury.
She discussed appellant’s psychiatric treatment over the years and referenced Dr. Mohamed’s
August 22, 2007 report in which he indicated that CAT scan testing of appellant’s head was
normal and that there was no evidence that she continued to suffer from a work-related cerebral
contusion. Dr. Delong discussed the findings of her interview and examination and indicated
that when appellant completed an intake form in her office she was able to comfortably hold the
pen, but had to move her right hand (i.e., her writing hand) by pushing with her left hand. She
stated that her secretary observed that, when appellant thought nobody was observing her, she
filled out the remainder of the form with her right hand only, with no help or pushing from her
3

Appellant reported suffering right eye visual loss, right ear hearing loss and right-sided body numbness due to
the October 18, 1978 work injury, but these conditions have not been accepted by OWCP. X-ray testing of
appellant’s skull taken shortly after her October 18, 1978 injury showed no fractures.

2

left hand. Dr. Delong stated that, when it was time for the interview, appellant appeared to have
a hard time getting up and walked very slowly while dragging her right leg. After appellant left
the office, Dr. Delong stood at the window and observed appellant walk swiftly to the parking lot
with no dragging of her right leg and only the slightest of limps. She stated, “This appeared to
be a completely different person than had been in my office only a few short minutes ago.”
Dr. Delong noted that the interview revealed that appellant’s memory was intact for remote and
recent events. She indicated that appellant’s primary diagnosis was malingering.4 Dr. Delong
concluded that appellant did not have any residuals of the October 18, 1978 work injury, either
with respect to the accepted cerebral contusion or the post-traumatic conversion reaction. She
indicated that appellant was capable of returning to her regular, full-time work for the employing
establishment from a psychiatric standpoint. Dr. Delong indicated that appellant might have to
be retrained prior to a return to work due to her long absence from the work environment.
In an August 20, 2013 letter, OWCP advised appellant that it proposed to terminate her
wage-loss compensation and medical benefits on the grounds that she ceased to have residuals of
her accepted work injuries. It informed appellant that the proposed termination of her
compensation was based on the opinion of Dr. Delong. OWCP provided appellant 30 days from
the date of the letter to submit evidence and argument challenging the proposed termination
action.
Appellant submitted an annotated copy of Dr. Delong’s report in which she took issue
with a number of the physician’s statements. She asserted that a number of Dr. Delong’s
observations during her examination were untrue.
In a September 24, 2013 decision, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective September 24, 2013. It found that she had no residuals of her
accepted work injuries after that date as supported by the opinion of Dr. Delong.
On November 14, 2013 appellant filed a request for reconsideration of the termination of
her compensation. She submitted a November 4, 2013 report of Evelyn Williams, an attending
licensed practical nurse, and a November 5, 2013 report of Charlene Santee, an attending
psychiatric mental health clinical nurse.
In a November 22, 2013 decision, OWCP denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that the nurse reports submitted
by appellant did not constitute probative medical evidence and were not relevant to the issue of
the present case.
LEGAL PRECEDENT -- ISSUE 1
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.5 OWCP may not terminate compensation
4

Dr. Delong noted that appellant had a history of heart attack, hysterectomy, lumpectomy, gastric ulcer,
fibromyalgia, arthritis, endometriosis and cerebral concussion.
5

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

3

without establishing that the disability ceased or that it was no longer related to the employment.6
OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.7
ANALYSIS -- ISSUE 1
Appellant alleged that she sustained injury at work on October 18, 1978 when the steel
door of a mail container dropped down and hit her on the back of her head. OWCP accepted that
she sustained a cerebral contusion and post-traumatic conversion disorder due to this work
incident. Appellant stopped work on October 18, 1978 and received compensation on the
periodic rolls for total disability. OWCP terminated her wage-loss compensation and medical
benefits effective September 24, 2013 on the grounds that she had no residuals of her accepted
work injuries after that date. It indicated that its termination action was justified by the opinion
of Dr. Delong, a Board-certified psychiatrist and neurologist, who served as an OWCP medical
adviser.
The Board finds that the weight of the medical opinion evidence is represented by the
thorough, well-rationalized opinion of Dr. Delong, an OWCP referral physician. The June 19,
2013 report of Dr. Delong establishes that appellant had no residuals of her accepted work
injuries after September 24, 2013.
In a June 19, 2013 report, Dr. Delong provided a discussion of appellant’s factual and
medical history and referenced an August 22, 2007 report in which Dr. Mohamed, a Boardcertified neurologist serving as an OWCP referral physician, indicated that CAT scan testing of
appellant’s head was normal and that there was no evidence that she continued to suffer from a
work-related cerebral contusion. Dr. Delong discussed the findings of her interview and
examination and noted that appellant had a much greater ability to write and walk when she
believed that she was not being observed. She noted that the interview revealed that appellant’s
memory was intact for remote and recent events. Dr. Delong determined that appellant’s
primary diagnosis was malingering. She concluded that appellant did not have any residuals of
the October 18, 1978 work injury, either with respect to the accepted cerebral contusion or the
post-traumatic conversion reaction, and that she was capable of returning to her regular, full-time
work for the employing establishment.
The Board has carefully reviewed the opinion of Dr. Delong and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Delong provided a thorough factual and medical history
and accurately summarized the relevant medical evidence.8 She provided medical rationale for

6

Id.

7

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

4

her opinion by explaining that appellant did not exhibit any objective evidence of the accepted
work conditions.9
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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,10
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.11 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.12 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.13 The Board has held that the submission of evidence
or argument which repeats or duplicates evidence or argument already in the case record14 and the
submission of evidence or argument which does not address the particular issue involved does not
constitute a basis for reopening a case.15 While a reopening of a case may be predicated solely on
a legal premise not previously considered, such reopening is not required where the legal
contention does not have a reasonable color of validity.16
The Board has held that the reports of nonphysicians under FECA, such as nurses, do not
constitute probative medical evidence.17

9

Before OWCP and on appeal, appellant asserted that a number of Dr. Delong’s observations during her
examination were untrue, but, she failed to submit sufficient evidence to support these allegations.
10

Under section 8128 of FECA, “[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.” 5 U.S.C. § 8128(a).
11

20 C.F.R. § 10.606(b)(2).

12

Id. at § 10.607(a).

13

Id. at § 10.608(b).

14

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

15

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

16

John F. Critz, 44 ECAB 788, 794 (1993).

17

See L.L., Docket No. 13-829 (issued August 20, 2013); Bertha L. Arnold, 38 ECAB 282, 285 (1986); 5 U.S.C.
§ 8101(2).

5

ANALYSIS -- ISSUE 2
OWCP issued a decision on September 24, 2013. Appellant requested reconsideration of
this decision on November 14, 2013. In her application for reconsideration, she did not show
that OWCP erroneously applied or interpreted a specific point of law. Appellant did not identify
a specific point of law or show that it was erroneously applied or interpreted. She did not
advance a new and relevant legal argument. Appellant submitted evidence which she felt
showed that she continued to have residuals of her accepted work injuries. That is a medical
issue which must be addressed by relevant medical evidence.18 A claimant may be entitled to a
merit review by submitting new and relevant evidence, but appellant did not submit any new and
relevant medical evidence in this case. Appellant submitted November 4 and 5, 2013 reports of
attending nurses, but such reports from nonphysicians would not constitute probative medical
evidence and therefore would not be relevant to the main issue of the present case.19
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). She did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective September 24, 2013 on the grounds that she had no
residuals of her accepted work injuries after that date. The Board further finds that OWCP
properly denied her request for further review of the merits of her claim pursuant to 5 U.S.C.
§ 8128(a).

18

See Bobbie F. Cowart, 55 ECAB 746 (2004).

19

See id.

6

ORDER
IT IS HEREBY ORDERED THAT the November 22 and September 24, 2013
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 16, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chattanooga, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1841
Issued: July 20, 2015

Case Submitted on the Record

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

JURISDICTION
On August 18, 2014 appellant filed a timely appeal from April 29 and August 8, 2014
merit decisions of the Office of Workers’ Compensation Programs (OWCP).1 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 OWCP properly exercised its discretion in denying appellant’s
requests for travel reimbursement.
On appeal, appellant asserts that OWCP was irrational and erroneous in denying his
reasonable and necessary travel expenses including meal and hotel expenses from March 10 to
12, 2014, for reasonable and necessary examination and surgery performed by Dr. Paul V.
1

An oral argument scheduled for June 18, 2015 was cancelled at appellant’s request.

2

5 U.S.C. §§ 8101-8193.

Spiegl, a Board-certified orthopedic surgeon. He maintains that a physician was not available
within 100 miles and that he was given verbal authorization by an OWCP claims examiner,
Joe Bushnell, who is no longer affiliated with this case.
FACTUAL HISTORY
This case has previously been before the Board.3 In an August 26, 2014 decision, under
OWCP file number xxxxxx460, the Board found that OWCP met its burden of proof to terminate
appellant’s wage-loss compensation on July 16, 2012 for a July 22, 2011 right ankle injury and
that appellant did not establish continuing disability from July 16, 2012 to March 2013. The
Board further found that a conflict in medical evidence has been created regarding OWCP’s
termination of medical benefits.4 The law and facts of the previous Board decision are
incorporated herein by reference.
Under file number xxxxxx460, Dr. Paul L. Kingloff, an attending Board-certified
orthopedic surgeon, referred appellant to Dr. Spiegl, a foot and ankle specialist, for treatment.
While the above-mentioned case was on appeal to the Board, on April 9, 2013 appellant
reinjured his right ankle when he stepped from his postal vehicle. He stopped work that day.
This new injury was developed as OWCP file number xxxxxx308. The claim was accepted for
right ankle sprain, right tibialis tendinitis, right exostosis, right bunion, resolving right idiopathic
scoliosis, and acquired right equinovarus deformity. Appellant received compensation and was
placed on the periodic compensation rolls.
On April 17, 2013 Dr. Kingloff again referred appellant to Dr. Spiegl. In an April 30,
2013 report, Dr. Spiegl reported that appellant had two work-related right ankle injuries, on
July 22, 2011 and April 9, 2013. He provided physical examination findings, reviewed x-rays,
and diagnosed tibialis tendinitis. Dr. Spiegl advised that appellant could only do sedentary work,
and recommended a magnetic resonance imaging (MRI) scan study. On July 8, 2013 he
determined that appellant could only be on his feet for 15 minutes each hour, was unable to
climb, and could not drive. Dr. Spiegl continued to see appellant, and on August 6, 2013 noted
MRI scan findings including a tibialis tendon tear. He recommended reconstructive surgery.
The surgery was authorized by OWCP on November 25, 2013. Dr. Spiegl continued to treat
appellant, and on February 26, 2014 conducted a presurgery history and physical.
Appellant submitted a medical travel refund request for February 26, 2014 for travel
between his home in Cleveland, Tennessee, and Dr. Spiegl’s office in Atlanta, Georgia, for a
total of 267 round-trip miles. By letter dated March 14, 2014, OWCP authorized 267 units of
reimbursement.
On March 11, 2014 Dr. Spiegl performed extensive reconstructive surgery on appellant’s
right ankle and foot. He saw appellant in follow up on March 12, 2014.
3

The instant claim was adjudicated under file number xxxxxx308. That case was combined with file number
xxxxxx460 on November 4, 2014.
4

Docket No. 14-30 (issued August 26, 2014).

2

On March 17, 2014 appellant submitted a travel refund request for March 10 to 12, 2014.
This included 270 miles traveled between his home and Dr. Spiegl’s office, a total of $688.76 for
two nights lodging, $109.35 for meals, and $16.00 for tolls/parking. On March 31, 2014 OWCP
authorized a total of 270 units of reimbursement for March 10, 2014.
Appellant submitted a travel refund request for March 20, 2014 for 270 miles traveled
round trip, $45.22 for meals, and $6.00 for tolls/parking. He submitted another travel refund
request for March 27 and 28, 2014 for 270 miles traveled between his home and Dr. Spiegl’s
office, 12 miles traveled for two trips to a pharmacy, $36.09 for meals, and $6.00 for
tolls/parking. On April 2, 2014 appellant claimed expenses for April 1 and 2, 2014 of 270 miles
round-trip travel between his home and Dr. Spiegl’s office, 12 miles traveled for two trips to a
pharmacy, $36.53 for meals, and $6.00 for tolls/parking. The record at that time confirmed that
he had been seen by Dr. Spiegl on March 20 and April 1, 2014.
Appellant telephoned OWCP on April 7, 2014 regarding his travel reimbursement and
was informed that OWCP does not pay for lodging and meals.
On April 9, 2014 OWCP authorized 276 units of reimbursement for March 27, 2014.
In correspondence dated April 14, 2014 addressed to Mr. Bushnell, appellant maintained
that he spoke on the telephone with Mr. Bushnell on December 19, 2013, and that Mr. Bushnell
had given him authorization for lodging and meal expenses, to include the day before and day
after surgery.
On April 10, 2014 appellant claimed expenses for April 10, 2014 of 270 miles round-trip
travel between his home and Dr. Spiegl’s office, 6 miles traveled for a trip to a pharmacy, $35.72
for meals, and $6.00 for tolls/parking.
Appellant continued to telephone and correspond with OWCP regarding his
reimbursement requests. In an April 11, 2014 letter, OWCP noted his travel reimbursement
requests and informed him of the provisions of 20 C.F.R. § 10.315 which gives OWCP the
discretion to determine if requested reimbursements are reasonable and necessary. It further
noted that, generally, a 100-mile round trip was considered to be a reasonable distance, and that
there was no reimbursement for meals or lodging when travel was for fewer than 500 miles
round trip, and that lodging must receive prior authorization. OWCP informed appellant that the
mere fact that OWCP had previously authorized and paid for medical treatment did not establish
that it would pay reimbursement for travel greater than 100 miles or for meals and lodging.
Appellant was given 30 days to submit medical documentation explaining why he had to travel
so far outside his commuting area for treatment for the accepted conditions.
Appellant submitted treatment notes from Dr. Spiegl dated April 1, 2014. On April 14,
2014 he requested that the Acting Director of OWCP intervene and see that his travel
reimbursement requests were paid in full. Appellant again maintained that on December 19,
2013 Mr. Bushnell had authorized expenses by telephone. He noted that the record did not

3

contain documentation of the telephone call, as required by OWCP procedures.5 On April 22,
2014 Dr. Spiegl advised that it was medically necessary for appellant to return on March 12,
2014, the day after his surgery, to assess the surgical incisions and to prevent infection.
On April 24, 2014 OWCP authorized 276 units of reimbursement for April 10, 2014.
Appellant continued to telephone and write OWCP, complaining that he was incorrectly
reimbursed.
By decision dated April 29, 2014, OWCP advised appellant that for him to be entitled for
travel expenses from his home to Dr. Spiegl’s office, in excess of 100 miles round trip, the
evidence must establish that such travel was reasonable and necessary for treatment of the
accepted conditions. It concluded that the medical evidence did not meet this burden. Appellant
was informed that continued treatment with Dr. Spiegel would be authorized, but that travel
would only be reimbursed for 100 miles round trip. Reimbursement for lodging, meals, and
supplies/appliances was denied.
Appellant submitted a travel reimbursement request for treatment by Dr. Spiegl on
May 6, 2014.
On May 9, 2014 appellant requested reconsideration of the April 29, 2014 decision. He
asserted that, by allowing continued treatment by Dr. Spiegl, it was reasonable for OWCP to
reimburse him for the entire 270-mile round trip. Appellant continued to assert that
Mr. Bushnell had given prior authorization for overnight stays prior to and the evening of the
March 11, 2014 surgery, and continued to dispute the denials of authorization. He submitted
travel reimbursement requests for treatment by Dr. Spiegl on May 22, June 5 and 24 and July 11,
2014
In a merit decision dated August 8, 2014, OWCP denied modification of the prior
decision. It reiterated that appellant could continue treatment with Dr. Spiegl, but that mileage in
excess of 100 miles, lodging, and meals would not be reimbursed.
LEGAL PRECEDENT
Section 8103(a) of FECA provides for the furnishing of services, appliances, and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or
aid in lessening the amount of monthly compensation.6 In interpreting section 8103(a), the
Board has recognized that OWCP has broad discretion in approving services provided under
FECA to ensure that an employee recovers from his or her injury to the fullest extent possible in

5

There is no record in either case records reflecting that appellant called OWCP on December 19, 2013. There
are telephone memoranda between appellant and Mr. Bushnell on December 19 and 20, 2013 that appear to be about
prescriptions for foot inserts and orthotics.
6

5 U.S.C. § 8103(a).

4

the shortest amount of time.7 OWCP has administrative discretion in choosing the means to
achieve this goal and the only limitation on OWCP’s authority is that of reasonableness.8
OWCP regulations provide that the employee is entitled to reimbursement of reasonable
and necessary expenses, including transportation needed to obtain authorized medical services,
appliances, or supplies.9 To determine a reasonable distance, it will consider the availability of
services, the employee’s condition, and the means of transportation. Effective August 29, 2011,
OWCP regulations provide that a round-trip distance of up to 100 miles is considered a
reasonable distance to travel.10 If round-trip travel of more than 100 miles is contemplated, or air
transportation or overnight accommodations will be needed, the employee must submit a written
request to OWCP for prior authorization with information describing the circumstances and
necessity for such travel expenses. OWCP will approve the request if it determines that the
travel expenses are reasonable and necessary and are incident to obtaining authorized medical
services, appliances or supplies.11
Pursuant to FECA Bulletin No. 14-02, issued January 29, 2014, when a claimant submits
a travel reimbursement in excess of 100 miles for a single date of service, the bill will
automatically be suspended and the Central Bill Processing provider will send notification to
OWCP claims examiner.12 FECA Bulletin No. 14-02 notes that in some limited circumstances it
may be necessary for a claimant to travel more than 100 miles on a regular basis, such as when
the claimant lives in a remote area.13
ANALYSIS
The Board finds that OWCP did not abuse its discretion in denying appellant’s requests
for travel reimbursement.
On March 17, 2014 appellant submitted a travel refund request for March 10 to 12, 2014.
This included 270 miles traveled between his home and Dr. Spiegl’s office, $688.76 for two
nights lodging, $109.35 for meals, and $16.00 for tolls/parking. On March 31, 2014 OWCP
authorized a total of 270 units of service for March 10, 2014. It did not authorize reimbursement
for lodging, meals, or tolls/parking. Appellant submitted additional requests for travel expenses
including mileage and meal reimbursement.
7

Dale E. Jones, 48 ECAB 648 (1997).

8

Daniel J. Perea, 42 ECAB 214 (1990) (Abuse of discretion by OWCP is generally shown through proof of
manifest error, clearly unreasonable exercise of judgement, or administrative actions which are contrary to both
logic and probable deductions from established facts).
9

20 C.F.R. § 10.315(a).

10

Id.

11

Id. at § 10.315(b).

12

FECA Bulletin No. 14-02 (issued January 29, 2014).

13

Id.

5

As noted above, OWCP regulations provide that, generally, a round trip of up to 100
miles is a reasonable distance to travel.14 There may be circumstances where travel
reimbursement of more than 100 miles is appropriate. An example of those circumstances might
be an appellant who lives in a remote area with limited medical services and physicians of an
appropriate specialty. To establish that a travel reimbursement of more than 100 miles is
warranted, OWCP regulations indicate that the claimant must provide information describing the
circumstances and necessity for such travel expenses.
In this case, there is no evidence that appellant lived in a remote area with limited access
to medical services or providers. He lives in Cleveland, Tennessee, which is near Chattanooga,
Tennessee. There is no indication that competent and appropriate medical care was not available
within a commuting area of Cleveland, Tennessee. Although OWCP had authorized travel
expenses to Dr. Spiegl in the past, this past practice does not establish a right to continuing
authorization.15 As indicated in FECA Bulletin No. 14-02, any travel reimbursement request of
more than 100 miles was to be reviewed by an OWCP claims examiner.16
As to appellant’s claims for reimbursement of lodging and meal expenses, although he
asserts that he was given authorization over the telephone by an OWCP claims examiner, this is
not found in the record.17 More importantly, as noted above, a written request for prior
authorization must be submitted to OWCP describing the circumstances and necessity for such
travel expenses.18
The Board finds that OWCP properly denied the travel reimbursement requests in this
case. No probative evidence was presented with respect to the necessity of travel over the 100mile standard set forth in OWCP regulations or that OWCP abused its discretion in denying
reimbursement for lodging and meals. OWCP has administrative discretion with respect to
authorization of travel reimbursement.19 The Board finds that OWCP did not abuse its discretion
in denying appellant’s travel reimbursement requests.20
CONCLUSION
The Board finds that OWCP did not abuse its discretion in denying appellant’s request
for travel reimbursement.

14

20 C.F.R. § 10.315(a).

15

See W.H., Docket No. 14-1662 (issued February 3, 2015).

16

FECA Bulletin No. 14-02, supra note 12.

17

Supra note 5.

18

20 C.F.R. § 10.315(b).

19

Daniel J. Perea, supra note 8.

20

See V.K., Docket No. 12-1103 (issued October 12, 2012).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 8 and April 29, 2014 are affirmed.
Issued: July 20, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 17-1650
Issued: February 2, 2018

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 July 25, 2017 appellant, through counsel, filed a timely appeal from a May 5, 2017
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 to consider 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 appellant has established employment-related permanent
impairment of a scheduled member, warranting a schedule award.
FACTUAL HISTORY
On March 26, 2014 appellant, then a 53-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, she injured her left knee when she
hyperextended while tripping over tubs of mail. She stopped work on March 26, 2014. OWCP
accepted the claim for left knee sprain of unspecified sites. It paid wage-loss compensation on
the supplemental rolls for intermittent disability commencing May 3, 2014.
On November 21, 2014 OWCP referred appellant to Dr. Paul C. Collins, a Boardcertified orthopedist, for a second opinion evaluation to determine whether appellant had
residuals of the accepted condition. In a report dated December 17, 2014, Dr. Collins reviewed
appellant’s medical records and conducted a physical examination. Physical examination
findings included intact and equal bilateral lower extremity sensation, multiple bilateral knee
arthroscopic portals, and decreased right knee diameter. Dr. Collins diagnoses included
progressive osteoarthritis of the spine, bilateral knee, and hips. With respect to her accepted left
knee sprain, he opined that it had resolved. Dr. Collins attributed appellant’s current symptoms
to her preexisting conditions of obesity and significant right knee degenerative arthritis. He
concluded that appellant had recovered from her accepted left knee sprain and no additional
medical treatment was required for that condition. Dr. Collins opined that appellant suffered a
temporary aggravation of her preexisting underlying progressive degenerative arthritis which had
resolved as she was back to her preexisting state.
On January 21, 2015 OWCP issued a notice of proposed termination of compensation
and medical benefits, finding that Dr. Collins’ December 30, 2014 report established no residuals
of the work-related condition. In a March 10, 2015 decision, it terminated appellant’s
compensation benefits, effective March 9, 2015, as the weight of the medical evidence
established that appellant had no continuing disability or residuals of her accepted employment
injury.
Subsequent to the March 10, 2015 decision terminating her compensation benefits,
OWCP received medical reports from Dr. Miers Johnson, a treating Board-certified orthopedic
surgeon, covering the period June 16, 2014 to October 1, 2015. Dr. Johnson noted an injury date
of March 26, 2014, provided examination findings, and diagnosed knee pain, bilateral knee
osteoarthritis, and left leg osteoarthritis.
Appellant, through counsel, requested an oral hearing before an OWCP hearing
representative, which was held on October 15, 2015.
By decision dated December 28, 2015, OWCP’s hearing representative affirmed the
March 10, 2015 termination. She found the weight of the medical opinion evidence rested with
OWCP’s referral physician, Dr. Collins, who found appellant no longer had any residuals or
disability due to her accepted left knee sprain.

2

On March 11, 2016 appellant filed a claim for a schedule award (Form CA-7). No
medical evidence was submitted in support of her claim.
By development letter dated March 17, 2016, OWCP informed appellant that it had not
received a medical report which established that the accepted employment injury caused a
permanent impairment of a scheduled member. It requested that she submit a detailed report
from her treating physician which provided an impairment evaluation pursuant to the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (6th
edition 2009). OWCP specifically requested an opinion as to whether she had reached maximum
medical improvement (MMI), a diagnosis upon which the impairment was based, a detailed
description of objective findings and subjective complaints, and a detailed description of any
permanent impairment under the applicable criteria and tables in the A.M.A., Guides.
By decision dated July 6, 2016, OWCP denied appellant’s claim for a schedule award as
the evidence of record was insufficient to establish permanent impairment of a scheduled
member due to the accepted work injury. It noted that she did not submit any evidence showing
a measurable impairment due to the accepted March 26, 2014 employment injury.
On May 5, 2017 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative, which was held on March 16, 2017.
Appellant submitted an October 19, 2016 impairment rating from Dr. Thomas L. Gritzka,
a Board-certified orthopedic surgeon. Dr. Gritzka detailed medical and employment injury
histories, reviewed medical evidence, and conducted a physical examination. He described that
the mechanism of injury occurred when appellant fell and twisted her left knee after her left foot
was caught on the corner of one of the mail buts. Dr. Gritzka opined that appellant sustained an
aggravation of her left knee residual articular cartilage due to the accepted March 26, 2014 work
injury. A physical examination revealed no left knee capsular instability; negative tests
including Babinski sign, Lachman’s test, anterior and posterior drawer signs, and McMurray’s
tests; no limp or list; bilateral knee and ankle reflexes were 1+, and no significant left knee genu
varum. Dr. Gritzka noted appellant was a candidate for total left knee arthroplasty. He noted
that prior to the accepted March 26, 2014 work injury appellant probably had a significant left
knee medial collapse, which the January 2014 x-ray interpretations did not demonstrate as they
were not weight-bearing.
Dr. Gritzka then used the sixth edition of the A.M.A., Guides to determine appellant’s
impairment rating. Using Table 16-3, page 511 he assigned a class 4 for appellant’s very severe
median impairment problem, which resulted in a 50 percent left lower extremity impairment.
Dr. Gritzka also provided an impairment rating using the condition of medial collateral ligament
insufficiency. Using Table 16-3, page 510, he assigned a class 2 for moderate left knee medial
collateral ligament laxity, which when combined with decreased range of motion under
Table 16-23, page 549 resulted in 16 percent left lower extremity impairment. Next, Dr. Gritzka
determined that appellant had 16 percent left lower extremity impairment using Table 16-10,
page 530 and diagnosed left knee medial collateral ligament tear. He noted that appellant’s left
knee was functional prior to the accepted March 26, 2014 employment injury and became more
painful following the injury. Based on the left bone-on-bone contact, as demonstrated in the

3

May 9, 2014 magnetic resonance imaging (MRI) scan, Dr. Gritzka concluded that appellant had
50 percent left lower extremity impairment.
By decision dated May 5, 2017, an OWCP hearing representative affirmed the July 8,
2016 decision denying appellant’s claim for a schedule award. He found there was no residual
impairment due to the accepted left knee sprain. The hearing representative further found
Dr. Gritzka based his opinion that appellant’s current left knee conditions were causally related
to the accepted injury on an inaccurate injury history as the injury did not involve a twisting
motion, but was due to hyperextending her knee due to kicking tubs. Additionally, he found the
record was devoid of any evidence that appellant had reached MMI as appellant was seeking
total knee replacement surgery.
LEGAL PRECEDENT
The schedule award provisions of FECA3 and its implementing regulations4 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,5 has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6
Not all medical conditions accepted by OWCP result in permanent impairment to a
scheduled member.7 The Board notes that, before applying the A.M.A., Guides, OWCP must
determine whether the claimed impairment of a scheduled member is causally related to the
accepted work injury.8 The claimant has the burden of proving that the condition for which a
schedule award is sought is causally related to his or her employment.9
OWCP procedures provide that termination of a claim for all benefits due to a finding of
no residuals of work-related condition does not automatically bar a subsequent schedule award.
Rather, OWCP should consider the schedule award matter separately from the termination of
benefits. If a claimant applies for a schedule award after termination, and submits medical
evidence reflecting permanent impairment as a result of the work-related injury or exposure,
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

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

6

See 20 C.F.R. § 10.404.

7

Thomas P. Lavin, 57 ECAB 353 (2006).

8

Michael S. Mina, 57 ECAB 379, 385 (2006).

9

N.W., Docket No. 17-0427 (issued June 20, 2017); Veronica Williams, 56 ECAB 367 (2005).

4

OWCP should develop the claim further, even if a finding of no residuals has previously been
made.10
ANALYSIS
OWCP accepted that appellant sustained a left knee sprain while in the performance of
duty on March 26, 2014. By decision dated December 28, 2015, an OWCP hearing
representative affirmed a March 10, 2015 OWCP decision terminating appellant’s compensation
benefits. OWCP found that appellant’s accepted left knee sprain had resolved without residuals
or disability based on the opinion of Dr. Collins, an OWCP referral physician.
Appellant requested schedule award compensation. She has the burden of proof to
establish that the condition for which a schedule award is being sought is causally related to her
employment injury.11
The Board finds that the medical evidence of record is insufficient to establish permanent
impairment of appellant’s left knee causally related to the accepted employment injury.
In support of her claim for a schedule award appellant submitted an October 19, 2016
report from Dr. Gritzka who opined that, based upon appellant’s history, the medical evidence of
record, physical examination and his professional evaluation, appellant had 16 percent left leg
permanent impairment due to medial collateral ligament insufficiency, 10 percent left lower
extremity permanent impairment due to loss of range of motion, and 50 percent left lower
extremity impairment due to absent cartilage interval in her left knee under to the A.M.A.,
Guides. The Board notes that these conditions were not accepted as causally related to the
March 26, 2014 employment injury. Dr. Gritzka provided insufficient medical rationale to
explain how the diagnosed conditions, allegedly causing impairment, were causally related to the
resolved employment injury and not due to preexisting osteoarthritis of the left knee and
obesity.12 The Board finds that Dr. Gritzka’s reports failed to sufficiently explain how the
claimed permanent impairment arose from the accepted work injury of March 26, 2014. The
need for detailed medical rationale is particularly important in a situation such as this where
OWCP found, that all residuals of the accepted conditions had ceased.13

10
See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.11 (February 2013).
11

Supra note 8.

12

Alice J. Tysinger, 51 ECAB 638 (2000).

13

See W.J., Docket No. 2011-0495 (issued October 7, 2011) (where the Board noted after OWCP terminated
appellant’s compensation benefits appellant filed a claim for a schedule award and submitted an impairment rating.
The Board affirmed OWCP’s decision denying a schedule award because the physician failed to sufficiently explain
how the claimed impairment arose from the accepted work injury which had resolved).

5

The medical evidence submitted does not establish that appellant has permanent
impairment to a scheduled member of the body causally related to her accepted injury.
Consequently appellant has not established entitlement to a schedule award.14
On appeal counsel contends that both the factual presentation and legal analysis in the
May 5, 2017 OWCP decision were incorrect. The Board disagrees. As explained above,
appellant has not established employment-related permanent impairment of a scheduled member,
warranting a schedule award.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant failed to establish employment-related permanent
impairment of a scheduled member, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 5, 2017 is affirmed.
Issued: February 2, 2018
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
14

Supra note 9.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Savannah, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1425
Issued: April 26, 2011

Case Submitted on the Record

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

JURISDICTION
On April 29, 2010 appellant filed a timely appeal from a January 29, 2010 merit decision
of the Office of Workers’ Compensation Programs, concerning her pay rate for compensation
purposes and an April 6, 2010 Office decision denying her request for reconsideration. Pursuant
to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits and non merits of this case.
ISSUES
The issues are: (1) whether the Office properly calculated appellant’s pay rate for the
period September 1 to October 31, 2009; and (2) whether the Office properly determined,
pursuant to 5 U.S.C. § 8128(a), that appellant’s request for reconsideration was insufficient to
warrant further merit review of the claim.
On appeal appellant contends that the Office failed to correctly determine her pay rate for
her recurrence claim beginning June 17, 2009.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 11, 2004 appellant, then a 46-year-old rural carrier, filed an occupational
disease claim alleging that her right wrist condition was employment related. The Office
accepted the claim for right ulnocarpal impaction, which was subsequently accepted for joint
derangement, scar condition and fibroid of the skin. It authorized arthroscopic surgery, which
was performed on June 16, 2005. Appellant accepted the employer’s job offer as a modified
rural carrier and returned to work on September 19, 2005.
By decision dated July 12, 2006, the Office issued a loss of wage-earning capacity
decision based on appellant’s actual earnings. It found that she had been performing the job of
modified rural carrier for at least two months and that her current salary met or exceeded the
salary of her date-of-injury job.2
The Office authorized surgery to remove hardware in the right ulna, which was
performed on August 17, 2006. Appellant returned to limited-duty work for eight hours a day on
September 5, 2006.
She stopped work and returned again to limited-duty work on
September 28, 2006. The Office paid compensation for the period August 17 to September 4,
2006 and September 6 to 27, 2006. It based appellant’s compensation on a weekly pay rate as of
August 17, 2006, the date of her recurrence of disability, $988.29 weekly or $51,391.00
annually.
Appellant accepted and began working a modified rural carrier job offer on December 16,
2008 with an annual pay rate of $61,922.00.
On June 8, 2009 appellant filed a claim for a recurrence of disability beginning June 17,
2009 claiming that the job she was working would be rescinded that day. On the back of the
form, the employer noted that she had been working in a modified position since May 31, 2005.
In a June 17, 2009 letter, the employing establishment advised appellant that no work was
available for her within her restrictions and that she was being placed on immediate
administrative leave. It noted that the determination was based on operational needs, a search for
assignments within her commuting area, her medical restrictions and the employing
establishment’s regulations. On July 2, 2009 the employer confirmed that no work was available
for appellant within her restrictions and advised her as to her appeal and restorations rights.
On July 31, 2009 appellant filed a claim for a recurrence of total disability beginning
June 17, 2009 and indicated that her pay stopped on August 4, 2009. She filed a claim for wageloss compensation (Form CA-7) for the period August 4 to 31, 2009. On the back of the form,
appellant noted her yearly salary for her date-of-injury position was $47,618.00 and that her
current yearly salary was $61,922.00.
By letter dated August 10, 2009, the Office acknowledged receipt of appellant’s
recurrence claim and claim for wage loss. It noted that a loss of wage-earning capacity had been
2

By decision dated July 12, 2006, the Office granted appellant a schedule award for two percent impairment of
her right arm.

2

issued on July 12, 2006 and advised her of the evidence required to support modification of this
decision.
Subsequent to the August 10, 2009 letter, medical and factual evidence was received.
Appellant submitted an August 18, 2009 letter from the employing establishment, work status
reports dated December 2, 2008 and May 12, 2009 from Dr. Michael J. Sullivan, an attending
Board-certified orthopedic surgeon, a December 17, 2008 modified job offer and a
November 22, 2008 notification of personnel action. The employing establishment noted
appellant’s physical restrictions had changed since the September 15, 2005 job offer due to an
accepted left wrist injury. Appellant’s work restrictions as of the December 12, 2008 job offer
were based on a July 2, 2008 medical report.
By decision dated October 16, 2009, the Office vacated the July 12, 2006 loss of wageearning capacity decision on the grounds that the original decision had been issued in error. It
noted that the most recent job offer was withdrawn as part of the National Reassessment Process
and that the prior job offers were subject to revision based on the availability of adequate work.
The Office concluded that it could not determine whether the position she began working in
2005, upon which the loss of wage-earning capacity determination was based, was a permanent
position and that loss of wage-earning capacity was modified because it was erroneous.
Appellant was informed that it was processing her wage-loss claim for the period August 4
to 31, 2009. A computer printout shows that she was paid for the period August 4 to 31, 2009 at
a weekly pay rate of $988.29, based on an August 17, 2006 recurrence date.
Subsequently appellant filed a CA-7 form claiming wage loss for the period September 1
to 30, 2009.3 On the back of the form she noted her yearly salary for her date-of-injury position
was $47,618.00 and that her current yearly salary was $61,922.00.
The record contains evidence that the Office paid appellant wage-loss compensation from
September 1 to November 21, 2009 at a weekly pay rate of $988.29, the August 17, 2006
recurrence date.
By letter dated November 3, 2009, the Office informed appellant that it had placed her on
the periodic rolls for temporary total disability. Appellant’s compensation benefits were based
on a weekly pay rate of $988.29, which was her pay rate as of the August 17, 2006 recurrence.
In a letter dated November 3, 2009, appellant contended that the Office incorrectly
calculated her pay rate. She submitted a June 17, 2009 letter titled “NOTICE -- EMPLOYEES
WITHOUT MSPB [Merit Systems Protection Board] APPEAL RIGHTS” (Emphasis in the
original.) and an October 20, 2009 report from Dr. Sullivan noting no work restrictions and that
appellant has not worked since June 2009. The June 17, 2009 letter informed appellant that no
work was available within her restrictions and that she was placed on administrative leave until
July 3, 2009.
In a November 3, 2009 report, Dr. Sullivan reported that appellant currently had no work
or lifting restrictions and she was released to full-time eight-hour workday.
3

Appellant incorrectly notes the date as September 31, 2009.

3

By decision dated January 29, 2010, the Office found the July 12, 2006 loss of wageearning capacity decision should be modified as the evidence of record established that the
decision had been issued in error. It found the job upon which the July 12, 2006 decision was
“make work” and not a real job. Therefore, the Office was paying appellant compensation under
the National Reassessment Program every 28 days. However, as to her rate of pay, it found that,
as she returned to a “make work” job and did not return to regular work, she was not entitled to a
new recurrence pay rate of June 17, 2009. The Office informed appellant that her rate of pay
would be based on her August 17, 2006 recurrence date.
On February 5 and 10, 2010 appellant requested reconsideration arguing that her pay
should be adjusted. By decision dated April 6, 2010, the Office denied her reconsideration
request.
LEGAL PRECEDENT -- ISSUE 1
Section 8101(4) of the Act4 defines monthly pay for purposes of computing
compensation benefits as follows: the monthly pay at the time of injury or the monthly pay at
the time disability begins or the monthly pay at the time compensable disability recurs, if the
recurrence begins more than six months after the injured employee resumes regular full-time
employment with the United States, whichever is greater.5 In an occupational disease claim, the
date of injury is the date of last exposure to the employment factors which caused or aggravated
the claimed condition.6
The Board has defined regular employment as established and not fictitious, odd-lot or
sheltered and has contrasted it with a job that was created especially for [appellant]. The duties
of regular employment are covered by a specific job classification and such duties would have
been performed by another employee if the claimant did not perform them. The test is not
whether the tasks the claimant performed during her limited duty would have been done by
someone else, but instead whether she occupied a regular position that would have been
performed by another employee.7
ANALYSIS -- ISSUE 1
The Board finds that the Office properly determined the effective pay rate of August 17,
2006 for compensation purposes. The Office used the pay rate in effect on August 17, 2006 the
date appellant had surgery to remove hardware from her wrist which was the date it found a
recurrence of disability began. A recurrence of temporary total disability is not alone
determinative of whether appellant may receive a later and presumably greater pay rate. The
4

5 U.S.C. §§ 8101-8193.

5

5 U.S.C. § 8101(4); see J.K., Docket No. 08-1148 (issued March 13, 2009); E.C., 59 ECAB 397 (2008); Dale
Mackelprang, 57 ECAB 168 (2005).
6

M.B., Docket No. 09-176 (issued September 23, 2009); E.G., 59 ECAB 599 (2008); Patricia K. Cummings, 53
ECAB 623, 626 (2002).
7

Jeffrey T. Hunter, 52 ECAB 503 (2001).

4

record must also show that the recurrence of compensable disability began more than six months
after appellant resumed regular full-time employment with the United States. So the question is
whether she ever resumed regular full-time employment with the United States, and if so,
whether she did so more than six months before her August 4, 2009 recurrence claim.
A review of the record shows that, following her August 17, 2006 surgery, appellant
returned to limited-duty work for eight hours per day on September 5, 2006, stopped work and
returned again to limited-duty work on September 28, 2006 and that she was offered a new
modified job based on new restrictions on December 16, 2008. Appellant claimed compensation
based on a recurrence of total disability for the period September 1 to October 31, 2009 and
claimed wage-loss compensation based on her current pay rate which was computed on a yearly
salary of $61,922.00.
The evidence of record, however, does not support appellant’s claim that she is entitled to
a recurrent pay rate as of September 1, 2009. The record is devoid of any evidence that she
resumed full-time work. The employing establishment noted in appellant’s June 8, 2009
recurrence claim that she had been working in a modified job since May 31, 2005. A June 17,
2009 letter from the employing establishment noted that no work was available for her based on
her restrictions, commuting area and operational needs. In addition, the Office modified the
July 12, 2006 loss of wage-earning capacity decision as it was unable to determine whether the
job on which it was based, modified rural carrier, and the subsequent modified jobs were
permanent. The Office also found appellant was entitled to compensation under the National
Reassessment Program under which she was receiving compensation every 28 days. Thus,
appellant did not return to regular full-time work as the jobs she performed following her injury
and August 17, 2006 recurrence were make shift and solely based on her work restrictions.
There was nothing available on the open labor market. Appellant continued to be paid by the
employing establishment until August 4, 2009, when her pay stopped. The Board finds that, as
she only worked modified duty after the accepted employment injury and August 17, 2006
recurrence and did not return to regular employment, she is not entitled to a recurrent pay rate as
of August 4, 2009.8 The Office properly determined that appellant’s correct pay rate was
effective August 17, 2006, the date of her last recurrence of total disability and paid her at her
pay rate as of that date.
On appeal appellant contends that she is entitled to her pay rate as of August 4, 2009, the
date of her recurrence of total disability as a result of the withdrawal of her light-duty job. As
explained above, she is not entitled to a recurrent pay rate as of August 4, 2009. Appellant did
not return to regular work, but rather returned to a modified job that was solely based on her
restrictions and was not available on the open labor market. Thus, the Office properly
determined her pay rate based on her prior recurrence date of August 17, 2006.

8

5 U.S.C. § 8101(4); see C.M., Docket No. 08-1119 (issued May 13, 2009); see also Jeffrey T. Hunter, supra
note 7.

5

LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,9
the Office’s regulations provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) constitute relevant and pertinent new evidence not
previously considered by the Office.10 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.11 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review on the merits.12
ANALYSIS -- ISSUE 2
Appellant requested reconsideration of the Office’s January 29, 2010 pay rate decision
and resubmitted documents already included in the record. In support of her request, she
contended that the Office erred in calculating her pay rate as it should be based on the date her
job was withdrawn, August 4, 2009. The Board finds that as appellant’s contention is repetitive
or duplicative of that previously considered by the Office, it is insufficient to warrant further
merit review.13
CONCLUSION
The Board finds that the Office properly calculated her pay rate. The Board further finds
that appellant did not meet the requirements of 20 C.F.R. § 10.606(b)(2) in her request for
reconsideration and, therefore, the Office properly refused to reopen the case for merit review.

9

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
10

20 C.F.R. § 10.606(b)(2). See J.M., Docket No. 09-218 (issued July 24, 2009); see also Susan A. Filkins, 57
ECAB 630 (2006).
11

20 C.F.R. § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB
657 (2006).
12

20 C.F.R. § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
13

See Eugene F. Butler, 36 ECAB 393 (1984).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 6 and January 29, 2010 are affirmed.
Issued: April 26, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Santa Clarita, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-691
Issued: August 20, 2012

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 February 13, 2012 appellant, through his attorney, filed a timely appeal from the
September 30, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he had disability
for periods between January 10 and June 18, 2011 due to his November 23, 2010 work injury.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on November 23, 2010 appellant, then a 53-year-old mail
handler/equipment operator, sustained a left ankle sprain when he rolled his left ankle while
dismounting from a forklift. He stopped work on November 24, 2010.2
Appellant filed several CA-7 forms (Claim for Compensation) in which he claimed that
he had disability due to his November 23, 2010 work injury for periods between January 10 and
March 18, 2011.
Appellant was under the periodic care of Dr. John A. Woodcock, an attending Boardcertified family practitioner and osteopath, beginning in December 2010. On December 30,
2011 Dr. Woodcock signed a Certification of Health Care Provider for Employee’s Serious
Health Condition (Family and Medical Leave Act) stating that appellant had an ankle injury
which was not improving, that he was incapacitated until February 29, 2011 and that a treatment
plan was awaiting further diagnosis.3
The findings of January 9, 2011 magnetic resonance imaging (MRI) scan testing of
appellant’s left ankle showed no acute tendon or ligament abnormality and no evidence of
effusion or fracture.4
In a January 25, 2011 report, Dr. Woodcock stated that appellant was under his medical
care and could not return to work at the time. He asked that appellant be excused from work for
nine days and noted that he could return to work on February 3, 2011. In a January 25, 2011
report, Dr. Woodcock diagnosed left ankle pain and hypertension, benign.
In an undated form report entitled “Medical Documentation/Comprehensive Medical
Report,” Dr. Woodcock listed a diagnosis as “persistent ankle pain [status post] injury” and the
objective findings as persistent pain with range of motion.5 The results of diagnostic tests were
listed as unknown for MRI scan and x-ray tests and the period of disability was stated as
“unclear” pending further diagnostic tests. An anticipated return to work date of April 1, 2011
was given and under the heading “physician’s rationalized opinion” the word “neuropathy” was
provided.6

2

Appellant continued to receive his regular pay for about a month and a half after November 23, 2010.

3

In a December 30, 2010 note, Dr. Woodcock indicated that appellant could not return to work until
January 13, 2011. A January 13, 2011 disability slip from the Sierra Medical Group, with an illegible signature,
indicated that appellant was “off work through January 27, 2011 due to injury.”
4

A disability slip from the Sierra Medical Group indicated that appellant was off work until February 18, 2001
due to diagnostic testing.
5

The report was submitted to OWCP on February 15, 2011.

6

Dr. Woodcock completed a similar form report on March 9, 2011 indicating that appellant was disabled since
November 23, 2010.

2

In a February 24, 2011 disability slip, Dr. Woodcock indicated that appellant was off
work from February 24 to March 9, 2011 due to persistent ankle pain. In duty status reports
dated February 25 and 28, 2011, he diagnosed ankle pain with neuropathy and clinical findings
of pain. Dr. Woodcock listed the date of injury as November 23, 2010 and stated that appellant
could not return to work. He also completed a disability slip on March 9, 2011 indicating that
appellant should be off work through March 25, 2011 and a March 24, 2011 slip showing
disability through April 1, 2011.
In a March 30, 2011 decision, OWCP denied appellant’s disability claim on the grounds
that he did not submit sufficient medical evidence to establish that he had disability for the
claimed periods beginning January 10, 2011 due to his November 23, 2010 work injury. It
indicated that the submitted medical evidence did not contain a rationalized opinion on causal
relationship.
Appellant filed additional CA-7 forms in which he claimed that he had disability due to
his November 23, 2010 work injury for the period April 16 to June 18, 2011. In a May 24, 2011
disability slip, Dr. Woodcock indicated that appellant should be excused from work for three
weeks.7 In a June 13, 2011 note, he diagnosed ankle sprain and indicated that appellant should
be off work through July 13, 2011 “due to treatment.” Appellant submitted other medical reports
in support of his claim, but the reports did not contain any opinion relevant to the claimed
periods of disability.
Appellant requested a hearing before an OWCP hearing representative. At the July 28,
2011 hearing, he argued that he had submitted medical evidence which supported his disability
claim. The medical evidence of record was discussed, including Dr. Woodcock’s diagnosis of
left ankle pain. Appellant was advised of the medical evidence necessary to establish his
disability claim, including a report which contained medical rationale relating his work injury to
the periods of claimed disability. He submitted several reports from Dr. Daniel Alves, an
attending Board-certified pain management physician, who treated appellant in mid 2011. In a
July 14, 2011 report, Dr. Ray d’Amours, an attending Board-certified pain management
physician, stated that appellant had a history of chronic left ankle pain and “some apparent nerve
injury.”
In a September 30, 2011 decision, an OWCP hearing representative affirmed OWCP’s
March 30, 2011 decision noting that appellant did not submit sufficient medical evidence to
establish that he had disability for the claimed periods between January 10 and June 18, 2011
due to his November 23, 2010 work injury. The hearing representative stated that the reports on
disability by Dr. Woodcock and other attending physicians lacked a rationalized opinion on the
cause of disability.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his claim including the fact that the individual is an “employee of the United States”
within the meaning of FECA, that the claim was timely filed within the applicable time
7

In a May 9, 2011 slip, Dr. Woodcock indicated that appellant should be off work from May 9 to 23, 2011.

3

limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.8 The medical evidence required to establish a causal
relationship between a claimed period of disability and an employment injury is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between appellant’s diagnosed condition and the compensable employment factors. The opinion
of the physician must be based on a complete factual and medical background of appellant, 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 appellant.9
ANALYSIS
OWCP accepted that on November 23, 2010 appellant sustained a left ankle sprain.
Appellant claimed that he had disability for periods between January 10 and June 18, 2011 due
to his November 23, 2010 work injury.
The Board finds that appellant did not submit sufficient medical evidence to establish that
he had disability for the claimed periods between January 10 and June 18, 2011 due to his
November 23, 2010 work injury.
In support of his claim, appellant submitted numerous report of Dr. Woodcock, an
attending Board-certified family practitioner and osteopath, who saw him on a regular basis.
Most of these reports consist of brief disability slips in which Dr. Woodcock indicated that
appellant could not work for various periods, including periods between January 10 and
June 18, 2011. None of the reports contains a rationalized medical opinion relating the
November 23, 2010 work injury to the claimed periods of disability. Dr. Woodcock did not
discuss appellant’s November 23, 2010 work injury in any detail and, in most cases, he merely
diagnosed appellant with chronic left ankle pain. He did not explain how the type of soft-tissue
injury that OWCP accepted could cause disability for such an extended period.
In the undated form report entitled “Medical Documentation/Comprehensive Medical
Report,” Dr. Woodcock listed the diagnosis as “persistent ankle pain [status post] injury” and the
objective findings as persistent pain with range of motion. An anticipated return to work date of
April 1, 2011 was given and under the heading “physician’s rationalized opinion” the word
“neuropathy” was provided. Although Dr. Woodcock suggested that appellant had some type of
left ankle neuropathy, such a condition has not been accepted as work related and he did not
provide a rationalized medical opinion relating a neuropathy condition to the November 23, 2010
work injury or other work factors. His reports are not sufficiently well rationalized to establish
appellant’s claim for the alleged periods of disability.

8

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

9

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

4

Appellant also submitted several reports in which Dr. Alves, an attending Board-certified
pain management physician, discussed the treatment he provided in mid 2011. In the July 14,
2011 report of Dr. d’Amours, who stated that appellant had a history of chronic left ankle pain
and “some apparent nerve injury.” However, neither physician provided an opinion on the cause
of appellant’s disability for the claimed periods. Appellant’s claim has only been accepted for a
left ankle sprain and these physicians did not provide a clear opinion that he had disability due to
this injury for any specific period.10
For these reasons, appellant did not meet his burden of proof to establish that he had
disability for periods between January 10 and June 18, 2011 due to his November 23, 2010 work
injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he had
disability for periods between January 10 and June 18, 2011 due to his November 23, 2010 work
injury.

10

On appeal, appellant alleged that he was disabled for the claimed periods based on his belief that he was unable
to perform his job. However, he did not submit sufficient medical evidence to support his claim of disability due to
his accepted work injury. Appellant asserted that his requests for reimbursement of medical procedures were not
handled in a timely manner but this matter is not the subject of the present appeal.

5

ORDER
IT IS HEREBY ORDERED THAT the September 30, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 20, 2012
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.A., Appellant
and
GENERAL SERVICES ADMINISTRATION,
Burlington, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-544
Issued: July 2, 2013

Case Submitted on the Record

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

JURISDICTION
On January 7, 2013 appellant, through his attorney, filed a timely appeal from a
September 26, 2012 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 the case.
ISSUES
The issues are: (1) whether appellant has established that he has more than two percent
impairment of the left lower extremity for which he received a schedule award; and (2) whether
appellant has established that his schedule award should be paid at the augmented rate.
FACTUAL HISTORY
On September 26, 2005 appellant, then a 47-year-old material handler, filed a traumatic
injury claim alleging that on September 17, 2005 he twisted his left knee while getting off the
1

5 U.S.C. § 8101 et seq.

forklift. On the claim form, he noted his son’s, date of birth February 27, 1987, as his dependent.
A September 20, 2005 magnetic resonance imaging (MRI) scan of the left knee indicated that
appellant had large joint effusion and findings consistent with a tear of the posterior horn of the
medial meniscus.
OWCP accepted the claim for left medial collateral ligament sprain and contusion and
paid all appropriate benefits, including a February 8, 2006 left knee partial medial
meniscectomy. The operative report indicated that the patellofemoral joint was inspected and
found to be without significant chondromalacia. In a November 27, 2006 report, Dr. Todd C.
Ryan, an osteopath, noted x-rays of the left knee, including bilateral weight bearing
anterior/posterior, lateral and sunrise views, showed a skeletally mature individual with no
obvious abnormalities. Appellant retired on disability in 2008 and began receiving social
security disability in 2012.
On March 2, 2012 OWCP received a Form CA-7, claim for schedule award
compensation, dated January 25, 2012. With respect to dependents, appellant did not report any
dependents. The record reflects that in a November 8, 2005 CA-7 form, claim for compensation,
appellant noted his son as his only dependent; and in a January 17, 2006 CA-7 form, he noted no
dependents. On February 21, 2006 appellant certified in an EN1032 form that he was married,
but did not live with his wife or make payments for her support. In a September 23, 2006 CA-7
form, he did not list any dependents; and in a March 18, 2008 CA-7 form and April 14, 2008
Form CA-2a, he listed his wife as a dependent and that she was living with him. In a January 25,
2012 CA-7 form, appellant did not list any dependents.
In a September 23, 2011 report, updated January 9, 2012, Dr. Arthur Becan, an
orthopedic surgeon, noted the history of injury and appellant’s subsequent medical course. He
noted that appellant returned to full-duty work in June 2006 after his February 8, 2006 left knee
partial medial meniscectomy. Dr. Becan noted his review of the medical records and provided
examination findings. He opined that appellant reached maximum medical improvement on
September 23, 2011. Under the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides), Dr. Becan opined that appellant had
28 percent impairment of the left lower extremity based on class 3 primary knee joint arthritis.
This was based on October 8, 2010 x-ray films and Table 16-3, page 511 of the A.M.A., Guides.
In a March 9, 2012 report, an OWCP medical adviser reviewed the medical record,
including Dr. Becan’s January 9, 2012 report. He opined that appellant reached maximum
medical improvement on September 23, 2011, the date of Dr. Becan’s examination. Under Table
16-3, page 509, the medical adviser opined that appellant had two percent left lower extremity
impairment for a class 1 partial left knee medial meniscectomy. Under Table 16-6, page 516, a
grade modifier of one was assigned for functional history and, under Table 16-7, page 517, a
grade modifier two was assigned for physical examination grade modifier. The assignment of a
modifier for clinical studies was found not applicable as no clinical studies were presented at
maximum medical improvement. The medical adviser utilized the net adjustment formula,
(GMFH-CDX) (1-1) + (GMPE-CDX) (2-1) + (GMCS-CDX) (N/A), and found a net adjustment
of one. He found a net adjustment of one moved a class 1 partial medial meniscectomy from
grade C to a final grade of D or two percent final impairment. The medical adviser noted that,
while Dr. Becan rated appellant for severe primary knee joint arthritis, this was not an accepted

2

condition and there was no objective evidence of primary knee joint arthritis. He also noted that
Dr. Becan provided no diagnostic reading of the x-rays but rated appellant as if there was one
millimeter of joint space narrowing without any proof.
By decision dated March 22, 2012, OWCP granted appellant a schedule award for two
percent permanent impairment of the left lower extremity. The award ran 5.76 weeks for the
period September 23 to November 2, 2011. Appellant was paid at the basic compensation rate of
66 and 2/3 percent.
On April 4, 2012 appellant, through his attorney, requested a hearing before an OWCP
hearing representative, which was held July 10, 2012. Counsel stated that Dr. Becan had
reviewed x-rays to determine appellant’s impairment due to arthritis and submitted a copy of the
October 2010 x-rays. He also argued that the schedule award should have been paid at the
augmented rate or 75 percent as opposed to the basic rate or 66 2/3 percent rate OWCP used as
appellant has been married since 1996. Appellant testified that he and his wife lived together.
Following the hearing, a copy of appellant’s November 23, 1996 marriage certificate was
submitted.
By decision dated September 26, 2012, an OWCP hearing representative affirmed the
March 22, 2012 OWCP decision. The hearing representative found that appellant was not
entitled to a schedule award based on the diagnosis of joint arthritis as there was no medical
evidence to support that appellant’s arthritis preexisted the work injury nor was there evidence to
support that the work injury or surgery caused, aggravated, precipitated or exacerbated the
condition. The hearing representative further found that the factual evidence of file with regard
to whether appellant was married and residing with his wife was inconsistent and therefore was
insufficient to establish that appellant was entitled to be paid at the augmented rate of 75 percent.
Appellant was advised of the evidence he needed to submit and the discrepancies in the evidence
he needed to clarify to establish entitlement to the augmented compensation rate.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA2 and its implementing federal regulations3 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.4 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.5 For decisions issued after

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

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

5

Supra note 4.

3

February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.6
For decisions issued after May 1, 2009, the sixth edition will be used.7 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.8
The sixth edition requires identifying 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).9 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.10
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides with the medical adviser
providing rationale for the percentage of impairment specified.11
ANALYSIS -- ISSUE 1
Appellant’s claim was accepted by OWCP for left medial collateral ligament sprain and
contusion and a left knee partial medial meniscectomy was authorized. He claimed a schedule
award. OWCP awarded appellant two percent impairment to the left lower extremity on the
basis of the left knee medial meniscectomy. No additional impairment rating was provided for
appellant’s arthritis.
In support of his claim for a schedule award, appellant provided a January 9, 2012 report
from Dr. Becan who rated impairment for the left lower extremity based on primary knee joint
arthritis. However, the Board notes that OWCP has not accepted an arthritic knee condition and
Dr. Becan did not sufficiently explain how the accepted left medial collateral ligament sprain and
contusion or surgery caused, aggravated, precipitated or exacerbated this condition. The
claimant has the burden of proving that the condition for which a schedule award is sought is
6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

7

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

8

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’s procedures provide that the impairment rating of
a given scheduled member should include any preexisting permanent impairment of the same member or function.
9

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

10

Veronica Williams, 56 ECAB 367, 370 (2005).

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

4

causally related to his or her employment.12 Dr. Becan referenced left lower extremity
impairment under the A.M.A., Guides but he did not provide a reasoned explanation as to how
any arthritic condition would be causally related to an accepted condition. Furthermore, the
record does not contain any diagnostic records contemporaneous to the work injury that
demonstrate that appellant had joint arthritis prior to his September 17, 2005 work injury. As
noted, the September 27, 2005 MRI scan demonstrated joint effusion and a tear of the posterior
horn of the medial meniscus; the February 8, 2006 operative report indicated the patellofemoral
joint was without significant chondromalacia, and Dr. Ryan in his November 27, 2006 report
found no obvious abnormalities on the bilateral weight-bearing x-rays of appellant’s knee.
OWCP’s medical adviser additionally reviewed the matter and found no basis on which an
impairment rating could be based on primary knee joint arthritis. As there is no evidence that
appellant’s arthritis preexisted the work injury, it cannot be included in the schedule award
determination.
OWCP’s medical adviser reviewed Dr. Becan’s report and found appellant had two
percent left lower extremity impairment based on left knee partial medial meniscectomy. Under
Table 15-3, page 509, he found that appellant had class 1 rating for partial medial meniscectomy.
The medical adviser utilized Dr. Becan’s examination findings and found that under Table 16-6
through Table 16-8 that appellant had grade modifier 1 for functional history, grade modifier 2
for physical examination, and grade modifier for clinical studies were not applicable. He applied
the grade modifiers to the net adjustment formula and found a net adjustment of 1. Under the net
adjustment formula, (GMFH-CDX) (1-1) + (GMPE-CDX) (2-1) + (GMCS-CDX) (N/A) results
in a net adjustment of one. This represents grade D or two percent left lower extremity
impairment for partial medial menisectomy. This impairment rating is consistent with the
examination findings utilizing the A.M.A., Guides. The Board finds that the medical evidence
establishes that appellant sustained no more than two percent impairment of the left lower
extremity.
On appeal appellant argues that his physician’s impairment rating entitled him to a
greater award. As noted, the medical adviser provided an impairment rating consistent with
Dr. Becan’s examination findings utilizing the A.M.A., Guides. Dr. Becan failed to provide
rationale of a causal relationship and there is no evidence that appellant’s arthritis preexisted the
work injury. Thus, his rating based on primary knee joint arthritis is of little probative value.
Appellant may request a schedule award or an increased schedule award based on
evidence of a new exposure or medical evidence showing a progression of an employmentrelated condition resulting in permanent impairment or increased impairment.

12

See Veronica Williams, supra note 10.

5

LEGAL PRECEDENT -- ISSUE 2
The basic rate of compensation under FECA is 66 2/3 percent of the injured employee’s
monthly pay. Where the employee has one or more dependents as defined in FECA, he is
entitled to have his basic compensation augmented at the rate of 8 1/3 percent, for a total of 75
percent of monthly pay.13
A wife is considered an employee’s dependent if she is a member of the same household,
is receiving regular contributions from the employee for her support or if the employee has been
ordered by a court to contribute to her support.14 In determining dependency under FECA, the
decisive test is whether the person for whom benefits are claimed as a dependent of the
employee, in fact, looked to and relied, in whole or in part, upon the contributions given by the
employee as a means of maintaining or helping to maintain a customary standard of living.15
A dependent also includes an unmarried child less than 18 years of age, while living with
the employee or receiving regular contributions for support.16 The term child includes
stepchildren, adopted children and posthumous children.17
ANALYSIS -- ISSUE 2
Appellant received a schedule award for two percent impairment to the left lower
extremity, which was paid at the basic compensation rate of 66 2/3 percent of his monthly pay.
It is appellant’s contention before OWCP and on appeal that the basic compensation rate of
66 2/3 percent of his monthly pay should be augmented under 5 U.S.C. § 8110(a) because his
wife is a dependent under this section. He asserts that he has been married since 1996 and
testified that he and his wife live together. Appellant submitted a copy of a 1996 marriage
certificate.
OWCP’s hearing representative found the factual evidence of record with regard to the
question of whether appellant is married and residing with his wife is inconsistent and therefore
insufficient to establish that appellant is entitled to be paid at the augmented compensation rate.
The Board agrees. While appellant may have been married since 1996, he first noted his wife in
a February 21, 2006 EN1032 form but indicated that she did not live with him and he did not
make payments for her support. He did not list his wife as a dependent again until March 18 and
April 14, 2008, when he indicated that she was living with him. However, in his January 25,
2012 CA-7 form, appellant did not list any dependents.

13

5 U.S.C. § 8110(b); see also William G. Dimick, 38 ECAB 751 (1987). The compensation rate for schedule
awards is the same as compensation for wage loss. See 5 U.S.C. § 8107; 20 C.F.R. § 10.404(b) (1999).
14

5 U.S.C. § 8110(a)(2).

15

See Nancy J. Masterson, 52 ECAB 507 (2001); Helyn E. Girmann, 11 ECAB 557 (1960).

16

5 U.S.C. § 8110(a)(3).

17

Id. at § 8101(9).

6

Based on the evidence of record before OWCP the evidence is conflicting as to whether
appellant’s wife was a dependent under 5 U.S.C. § 8110, during the relevant time period.
Appellant was advised regarding the evidence necessary to establish dependency by the hearing
representative, but did not submit the evidence necessary to clarify this issue. The Board finds
that OWCP properly determined the schedule award rate to be the basic compensation rate of
66 2/3 percent of monthly pay.
CONCLUSION
The Board finds that appellant has not established that he has more than two percent
impairment of the left lower extremity for which he received a schedule award. Appellant has
not established any ratable left lower extremity impairment causally related to his accepted
conditions. Additionally, he has not met his burden to establish payment of his schedule award
based on the augmented compensation rate.
ORDER
IT IS HEREBY ORDERED THAT the September 26, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 2, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

7