United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Syracuse, NY, Employer
__________________________________________

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

Docket No. 09-884
Issued: January 6, 2010

Case Submitted on the Record

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

JURISDICTION
On February 18, 2009 appellant filed a timely appeal from September 4, 2008 and
January 15, 2009 decisions of the Office of Workers’ Compensation Programs regarding a
schedule award for right upper extremity impairment. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established that she sustained more than a 10 percent
impairment of the right upper extremity, for which she received a schedule award.
On appeal, appellant contends that Dr. Raymond C. Traver, Jr., an impartial medical
specialist, did not have access to a September 17, 2008 electrodiagnostic study as it came in
“after the fact.” Therefore, Dr. Traver’s opinion was not based on a complete understanding of
her medical history. Appellant also asserts that the Office in stating that an attending physician
found a 15 percent impairment of the right arm he found a 25 percent impairment.

FACTUAL HISTORY
The Office accepted that on March 25, 2005 appellant, then a 45-year-old nurse,
sustained a closed dislocation of the metacarpophalangeal and interphalangeal joints of the left
fifth finger while changing a bed. On April 26, 2005 Dr. Walter Short an attending Boardcertified orthopedic surgeon, performed metacarpophalangeal joint exploration and repair of
radial collateral ligament of left little finger. The Office issued a schedule award for an 18
percent impairment of the left upper extremity. Appellant remained off work through
August 1, 2005 and returned to work on August 2, 2005.
The Office later accepted that on August 2, 2005, appellant sustained specific bursitis and
flexor tenosynovitis of the right wrist due to overcompensating for left hand weakness.1
Appellant again stopped work on August 2, 2005 and returned to full duty in mid-October 2005.
On November 16, 2006 she claimed an additional schedule award for right upper extremity
impairment and included medical evidence.
Dr. Short submitted reports from August 2, 2005 through October 16, 2006 diagnosing
flexor tenosynovitis of the right wrist. In a March 21, 2007 report, he indicated that appellant
reached maximum medical improvement. Dr. Short performed a schedule award evaluation.
Referring to the fifth edition of the American Medical Associations, Guides to the Evaluation of
Permanent Impairment (hereinafter, A.M.A., Guides), he found that according to Figure 16-37,
page 474,2 appellant had a two percent impairment of the right upper extremity due to wrist
pronation limited to 50 degrees and a one percent impairment due to wrist supination limited to
50 degrees. Utilizing Figure 16-313 Dr. Short found that she had a five percent impairment of
the right upper extremity due to ulnar deviation at zero degrees and two percent impairment due
to radial deviation limited to 10 degrees. He found a three percent impairment due to wrist
flexion limited to 40 degrees and a five percent impairment due to wrist extension limited to
30 degrees, based on Figure 16-28.4 Dr. Short stated that according to Figure 16-34,5 page 472,
appellant had a three percent impairment of the right upper extremity due to elbow extension
limited to 110 degrees and a four percent impairment due to elbow flexion limited to 30 degrees.
He totaled these losses to equal a 25 percent impairment of the right upper extremity.

1

The Office initially denied appellant’s claim for a recurrence of disability by a March 9, 2006 decision. By
decision dated June 12, 2006, the Office reversed its March 9, 2006 decision and accepted the claimed recurrence of
disability.
2

Figure 16-37, page 474 of the fifth edition of the A.M.A., Guides is entitled “Pie Chart of Upper Extremity
Motion Impairments Due to Lack of Pronation and Supination” of the elbow.
3

Figure 16-31, page 469 of the fifth edition of the A.M.A., Guides is entitled “Pie Chart of Upper Extremity
Motion Impairments Due to Abnormal Radial and Ulnar Deviation of Wrist Joint.”
4

Figure 16-28, page 467 of the fifth edition of the A.M.A., Guides is entitled “Pie Chart of Upper Extremity
Motion Impairments Due to Lack of Flexion and Extension of Wrist Joint.”
5

Figure 16-34, page 472 of the fifth edition of the A.M.A., Guides is entitled “Pie Chart of Upper Extremity
Motion Impairments Due to Lack of Flexion and Extension of the Elbow Joint.”

2

In an April 20, 2007 report, an Office medical adviser explained that the A.M.A., Guides
did not allow impairments for wrist tendinitis or pain in the absence of other factors. Therefore,
there was no ratable impairment related to the accepted conditions.
On June 26, 2007 the Office found a conflict of opinion between Dr. Short, for appellant
and the Office medical adviser, for the government, regarding the presence of a ratable
permanent impairment of the right upper extremity. To resolve the conflict it selected
Dr. Traver, a Board-certified orthopedic surgeon, as impartial medical examiner. On July 9,
2007 the Office referred appellant, the medical record and a statement of accepted facts to
Dr. Traver. In an August 16, 2007 letter, it authorized Dr. Daniel Reich, a Board-certified
neurologist, to perform any electrodiagnostic testing ordered by Dr. Traver.
In an August 8, 2007 report, Dr. Traver reviewed the history of injury and medical
treatment. On examination, he reported full ranges of motion for all joints of both upper
extremities. Regarding the right upper extremity, Dr. Traver noted swelling over the dorsum of
the hand, diminished grip strength and positive Tinel’s signs at the forearm and cubital tunnel.
He diagnosed repetitive stress syndrome of the right upper extremity, consequential to the left
hand injury. In a September 7, 2007 addendum, Dr. Traver reviewed August 20, 2007
electromyography (EMG) and nerve conduction velocity (NCV) studies of Dr. Robert E. Todd,
an attending Board-certified neurologist, and August 29, 2007 EMG and NCV studies by
Dr. Reich. He stated that although Dr. Todd reported abnormal findings in the median, radial
and ulnar nerves on the right, Dr. Reich found no abnormalities. Dr. Traver opined that appellant
had “underlying neurological abnormalities most consistent with overuse syndrome of the right
upper extremity. He noted that 15 percent of patients with carpal tunnel syndrome had negative
electrodiagnostic results. Dr. Traver found that appellant had an entrapment or compression
neuropathy according to page 492 of the A.M.A., Guides.6 He assessed a five percent
impairment rating for postoperative carpal tunnel syndrome and a five percent impairment for
cubital tunnel syndrome, for a “combined 10 percent right upper extremity impairment.”7
A September 20, 2007 magnetic resonance imaging scan of the right wrist performed for
Dr. Short revealed a volar ganglion at the level of the radial styloid extending proximally from
the radiocarpal joint and a potential partial separation of the triangular fibrocartilage from the
radial origin.
In October 9 and December 6, 2007 reports, an Office medical adviser reviewed the
medical record and Dr. Traver’s report. He opined that Dr. Traver’s report was speculative,
confusing and poorly rationalized. The medical adviser found that based on the medical record
appellant did not have a ratable impairment of the right upper extremity.

6

Page 492 of the fifth edition of the A.M.A., Guides contained Table 16-15, entitled “Maximum Upper Extremity
Impairment Due to Unilateral Sensory or Motor Deficits or to Combined 100 percent Deficits of the Major
Peripheral Nerves” and a discussion of entrapment and compression neuropathies.
7

In a September 7, 2007 letter, appellant asserted that Dr. Traver was not thorough in his findings and would not
listen to her in regards to her injury.” Appellant noted that she was a registered nurse.

3

By decision dated December 28, 2007, the Office denied appellant’s claim for a right
upper extremity impairment, based on the Office medical adviser’s opinion of Dr. Traver’s
report.
In a January 7, 2008 letter, appellant requested an oral hearing. She submitted
Dr. Todd’s September 19, 2007 EMG and NCV studies showing mild abnormalities of the
median, ulnar and radial nerves suggesting a chronic overuse syndrome of the right hand and
arm.
By decision dated March 27, 2008, an Office hearing representative set aside the
December 28, 2007 decision and remanded the case to obtain a supplemental report from
Dr. Traver.
In a June 11, 2008 report, Dr. Traver found that according to Table 16-15, page 492,8 of
the A.M.A., Guides, the maximum upper extremity impairment for motor defects of the median
nerve below the forearm was 10 percent. Under Table 16-11, page 4849 he rated appellant’s
strength deficit as Grade 3 or up to 50 percent. Dr. Traver found that appellant had a five percent
impairment due to carpal tunnel syndrome. He noted that this was consistent with paragraph 2
on page 495 of the A.M.A., Guides, “where the impairment for carpal tunnel syndrome
following surgery is not to exceed five percent.”10 Dr. Traver applied Table 16-15 to note that
the maximum deficit for ulnar motor deficit below the elbow due to cubital tunnel syndrome was
35 percent. Using Table 16-11, he found a Grade 3 deficit of the ulnar nerve. He then made his
“best guess” and utilized Grade 4 instead, allowing a motor deficit of 15 percent, to rate
impairment as 5 percent. Dr. Traver then used the Combined Values Chart on page 604 of the
A.M.A., Guides to find a total 10 percent impairment for the right upper extremity. He
explained that 15 percent of compressive neuropathy patients had normal electrodiagnostic
results.
On July 7, 2008 the Office requested a second Office medical adviser to review
Dr. Traver’s June 11, 2008 supplemental report. In a July 9, 2008 report, an Office medical
adviser concurred with Dr. Traver’s impairment rating. He found that appellant had reached
maximum medical improvement.
By decision dated September 4, 2008, the Office granted appellant a schedule award for a
10 percent permanent impairment of the right upper extremity. The period of the award ran from
“August 8, 2007 to March 13, 2007, 31.2 weeks of compensation [sic].”
8

Table 16-15, page 492 of the fifth edition of the A.M.A., Guides is entitled “Maximum Upper Extremity
Impairment Due to Unilateral Sensory or Motor Deficits or to Combined 100 percent Deficits of the Major
Peripheral Nerves.”
9

Table 16-11, page 484 of the fifth edition of the A.M.A., Guides is entitled “Determining Impairment of the
Upper Extremity Due to Motor and Loss-of-Power Deficits Resulting from Peripheral Nerve Disorders Based on
Individual Muscle Rating.”
10

Page 495 of the fifth edition of the A.M.A., Guides discusses the evaluation of carpal tunnel syndrome.
Paragraph 2 states that “Normal sensibility and opposition strength with abnormal sensory and/or motor latencies or
abnormal EMG testing of the thenar muscles: a residual [carpal tunnel syndrome] is still present, and an impairment
rating not to exceed five percent of the upper extremity may be justified.”

4

In a September 13, 2008 letter, appellant requested a review of the written record. She
contended that Dr. Traver’s opinion did not have Dr. Todd’s studies available for review.
By decision dated and finalized January 15, 2009, an Office hearing representative
affirmed the September 4, 2008 schedule award determination. The hearing representative found
that Dr. Traver’s opinion, was sufficiently well rationalized to represent the weight of the
medical evidence.
LEGAL PRECEDENT
The schedule award provisions of the Federal Employees’ Compensation Act11 provide for
compensation to employees sustaining impairment from loss or loss of use of specified members of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the Office as a standard for
evaluation of schedule losses and the Board has concurred in such adoption.12 As of February 1,
2001, schedule awards are calculated according to the fifth edition of the A.M.A., Guides,
published in 2000.13
The standards for evaluation of the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.14 Chapter 16
of the fifth edition of the A.M.A., Guides provides a detailed grading scheme and procedures for
determining impairments of the upper extremities due to pain, discomfort, loss of sensation, or
loss of strength.15
Section 8123 of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician, who shall make an examination.16 In situations where there exist
opposing medical reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.17 However, in a situation where the Office secures an opinion from an
11

5 U.S.C. §§ 8101-8193.

12

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

13

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

14

Tammy L. Meehan, 53 ECAB 229 (2001).

15

A.M.A. Guides, Chapter 16, “The Upper Extremities,” pp. 433-521 (5th ed. 2001).

16

5 U.S.C. § 8123; see Charles S. Hamilton, 52 ECAB 110 (2000).

17

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

5

impartial medical examiner for the purpose of resolving a conflict in the medical evidence and
the opinion from such examiner requires clarification or elaboration, the Office has the
responsibility to secure a supplemental report from the examiner for the purpose of correcting the
defect in the original opinion.18
ANALYSIS
The Office accepted that appellant sustained specific bursitis and flexor tenosynovitis of
the right wrist. It granted appellant a schedule award for a 10 percent impairment of the right
upper extremity based on the opinion of Dr. Traver, a Board-certified orthopedic surgeon and
impartial medical examiner. Dr. Traver was selected to resolve a conflict of medical opinion
between Dr. Short, an attending Board-certified orthopedic surgeon and an Office medical
adviser. On March 21, 2007 Dr. Short found that appellant had 25 percent impairment of her
right arm due to loss of range of motion of the right wrist and elbow. An Office medical adviser
disagreed, finding that appellant had no ratable impairment.
Dr. Traver submitted an August 8, 2007 report in which advised that appellant had a full
range of motion of all joints in both upper extremities. He diagnosed carpal tunnel syndrome
and cubital tunnel syndrome based on his clinical assessment and conflicting electrodiagnostic
results. Dr. Traver reviewed the studies of Dr. Reich and compared them with the studies
reported by Dr. Todd. He assessed a five percent impairment of the right upper extremity due to
cubital tunnel syndrome and a five percent impairment due to carpal tunnel syndrome.
Dr. Traver provided a June 11, 2008 supplemental report. He reiterated that appellant
had intact sensation throughout both upper extremities, a positive Tinel’s sign at the right
forearm and right cubital tunnel and that two diagnostic studies were obtained. The first revealed
some slight nerve condition abnormalities, which were not substantiated by the second.
Dr. Traver’s based his impairment rating to the right arm on motor deficit involving the ulnar
and median nerves below the forearm. Under Table 16-15, he noted that 35 percent was the
maximum motor deficit allowed for the ulnar nerve. From Table 16-11, he found that
appellant’s motor deficit was Grade 4, for which he allowed 15 percent. Multiplying the 35
percent maximum value by 15 percent deficit was 5.25 percent, rounded down to 5 percent
impairment of the right arm. For the median motor deficit, Dr. Traver noted that Table 16-15
provides a maximum of 10 percent impairment. Utilizing Table 16-11, he found that appellant’s
motor deficit was Grade 3 for which he allowed 50 percent. Dr. Traver multiplied the 10 percent
maximum value by 50 percent to find 5 percent impairment due to median nerve deficit to the
right arm. He properly applied the motor deficit findings to the Combined Values Chart to find a
total 10 percent right arm impairment.
The Board finds that the impairment rating of the impartial medical specialist constitutes
the weight of medical opinion. Dr. Traver advised that he found no loss in range of motion and
intact sensation throughout both upper extremities. Based on appellant’s loss of strength due to
weakness involving the ulnar and median nerves, he found 10 percent impairment. Contrary to
appellant’s assertions, Dr. Traver’s reviewed the results of diagnostic studies obtained by
18

Margaret M. Gilmore, 47 ECAB 718 (1996).

6

Dr. Reich and Dr. Todd and explained that he utilized the test results in making his impairment
rating. As the impartial medical specialist, the Board finds that Dr. Traver’s opinion is entitled
to special weight.
CONCLUSION
The Board finds that appellant has 10 percent impairment of her right arm for which she
received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 15, 2009 and September 4, 2008 are affirmed.
Issued: January 6, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Shafter, HI, Employer
__________________________________________

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

Docket No. 07-1206
Issued: March 6, 2008

Case Submitted on the Record

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

JURISDICTION
On April 3, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated February 16, 2007 suspending his entitlement to
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether the Office properly refused to allow appellant to participate
in the selection of a referee physician under 5 U.S.C. § 8123(a); and (2) whether it properly
suspended his right to compensation pursuant to 5 U.S.C. § 8123(d).
FACTUAL HISTORY
The case has been before the Board on prior appeals. In a merit decision dated May 17,
2000, the Board affirmed the Office’s termination of compensation for wage loss and medical
benefits as of September 20, 1992.1 It found that the opinion of the second opinion referral
1

Docket No. 98-1109 (issued May 17, 2000).

physician, Dr. Edward Gunderson, represented the weight of the medical evidence and
established that the employment-related condition had resolved by September 20, 1992.2 The
Board noted that the evidence from Dr. Michael Lee, a podiatrist, was of diminished probative
value because the opinion on causal relationship relied on an alleged fall at work in
February 1997 that had not been factually established.
On November 26, 2002 the Board issued an order remanding the case on the grounds that
the record was incomplete.3 In an order dismissing appeal dated June 29, 2004, the Board noted
that the Office had issued a decision pursuant to an emotional condition claim, but had not issued
an appropriate decision with respect to the foot injury as directed by the Board in its
November 26, 2002 order. The Office was directed to issue an appropriate decision with regard
to the foot claim.
By decision dated December 12, 2005, the Board found that a conflict in the medical
evidence existed between Dr. Lee and Dr. Gunderson. The Office was directed to resolve the
conflict by referral to a referee physician pursuant to 5 U.S.C. § 8123(a).
Appellant was referred to Dr. Jeffrey Tedder, a Board-certified orthopedic surgeon. In
reports dated March 6 and 10, 2006, Dr. Tedder provided a history and results on examination.
He opined that appellant had sustained a permanent injury “from the injuries [appellant]
sustained as a Marine Corps soldier in 1979 and aggravated by the fall in 1987.” Dr. Tedder
stated that appellant was disabled but could be retrained for a sedentary job.
In letters dated April 25 and June 15, 2006, the Office requested that Dr. Tedder provide
a clarifying report discussing appellant’s job duties and disability for work after 1992. It
contacted Dr. Tedder’s office several times, but did not receive a supplemental report. The
Office advised appellant, by letter dated November 29, 2006, that he would be referred to
another physician for a referee examination. In a letter dated November 30, 2006, it indicated
that appellant had stated in a telephone call that he wanted a list of eligible referee physicians so
he could choose one. The Office noted the provisions of the procedure manual regarding
participation in the referee selection.
By letter dated December 1, 2006, the Office notified appellant that he was scheduled for
an appointment with Dr. Michael Slomka on January 8, 2007 in order to resolve the conflict in
the medical evidence. It advised appellant of the provisions of 5 U.S.C. § 8123(d). Appellant
submitted a December 5, 2006 letter in response to the Office’s inquiry as to why he wanted to
participate in the referee selection. He stated that he wanted a list of all physicians that are
eligible to conduct referee examinations so that he could choose the physician. Appellant
asserted that his prior representative had received such a list without providing any reasons.
In a December 11, 2006 letter, appellant discussed Dr. Tedder’s report and argued that a
second referral was unnecessary. He requested that the Office cancel the scheduled appointment
with Dr. Slomka and issue a final decision.

2

The accepted condition was a temporary aggravation of bilateral pes planus and plantar fasciitis.

3

Docket No. 02-1171 (issued November 26, 2002).

2

The record indicates that appellant did not appear for the January 8, 2007 examination
scheduled with Dr. Slomka. By letter dated January 18, 2007, the Office noted that appellant had
failed to appear for the scheduled examination. It also noted that he had asked to participate in
the selection of the referee physician, but did not provide a sufficient reason. Appellant was
requested to submit reasons for failing to appear at the scheduled examination within 14 days
and if the reasons are invalid, compensation would be suspended pursuant to 5 U.S.C. § 8123(d).
In a letter dated January 24, 2007, appellant stated that he had previously voiced his
concerns over the need for referral to a second referee physician. He stated that he believed the
regulations allowed him to choose the second referee if necessary.
By decision dated February 16, 2007, the Office finalized the suspension of entitlement
to compensation effective that date. It stated that a referral to Dr. Slomka was necessary because
Dr. Tedder did not resolve the medical issues and appellant did not provide valid reasons to
participate in the selection of the referee physician.
LEGAL PRECEDENT -- ISSUE 1
According to the Office’s procedures, a claimant who asks to participate in selecting the
referee physician or who objects to the selected physician should be requested to provide his or
her reason for doing so.4 The claims examiner is responsible for evaluating the explanation
offered. If the reason is considered acceptable, the medical management assistant (MMA) will
prepare a list of three specialists, including a candidate from a minority group if indicated, and
ask the claimant to choose one. This is the extent of the intervention allowed by the claimant in
the process of selection or examination. If the reason offered is not considered valid, a formal
denial of the claimant’s request, including appeal rights, may be issued if requested.5
ANALYSIS -- ISSUE 1
Appellant submitted a December 5, 2007 letter requesting to participate in the selection
of a referee physician. The February 16, 2007 Office decision did make a finding that he was not
entitled to participate in the selection process. As noted above, appellant must provide reasons to
support his request to participate. He did not provide sufficient reasons in this case. Appellant
discussed his belief that Dr. Tedder had resolved the issue, but this is not a reason to participate
in the selection of a new referee. It is an argument for not requiring a referral to a second referee
physician.
Since appellant did not provide any valid reasons for participating in the selection
process, he was not entitled to a list of three specialists. Pursuant to its procedures, the Office
properly denied the request in this case.
4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b(4) (May 2003).
Examples of circumstances under which the claimant may participate in the selection are: documented bias or
unprofessional conduct by the selected physician, a female claimant requesting a female physician to perform a
gynecological examination and a claimant in a remote area with a medical documented inability to travel requesting
a physician that may be reached expeditiously by air travel.
5

Id.

3

LEGAL PRECEDENT -- ISSUE 2
5 U.S.C. § 8123(a) provides that “an employee shall submit to examination by a medical
officer of the United States, or by a physician designated or approved by the Secretary of Labor,
after the injury and as frequently and at the times and places as may be reasonably required.”
The regulations governing the administration of the Federal Employees’ Compensation Act also
provide that “the employee must submit to an examination by a qualified physician as often and
at such times and places as [the Office] considers reasonably necessary.”6 Section 8123(d) of the
Act provides that “if an employee refuses to submit to or obstructs an examination, his right to
compensation under this subchapter is suspended until the refusal or obstruction stops.”
ANALYSIS -- ISSUE 2
The Office found that appellant’s entitlement to compensation should be suspended under
5 U.S.C. § 8123(d) because he failed to appear at the January 8, 2007 scheduled appointment
with Dr. Slomka, the referee physician. The Board notes that, while appellant argued that the
referral to Dr. Slomka was unnecessary, the record does not support his argument. The initial
physician selected, Dr. Tedder, failed to address the medical issue presented. As the Board
indicated in its prior appeal, the issue was whether appellant’s employment-related condition
resulted in disability after September 20, 1992. Dr. Tedder did not provide a reasoned medical
opinion and the Office made repeated attempts to secure a supplemental report.7 The Office
reasonably made a determination that a second referral was warranted.
The issue remains whether appellant’s failure to appear at the scheduled examination
with Dr. Slomka was sufficient to establish that he refused to submit to or obstructed an
examination under 5 U.S.C. § 8123(d). As noted, appellant did submit a request to participate in
the selection process. While he did not appear to request a formal decision, he did make the
request over a month before the scheduled examination. He was entitled to a response from the
Office in regard to his request. The Office did not respond until a January 18, 2007 letter, 10
days after the scheduled examination. At the time of the scheduled examination, appellant had a
pending request for participation in the selection process as well as a request to cancel the
appointment. He was entitled to a response prior to the scheduled appointment that would
confirm the appointment and reiterate the provisions of 5 U.S.C. § 8123(d). The Office cannot
apply 5 U.S.C. § 8123(d) in the absence of an appropriate response to the pending requests. The
Board finds that the evidence does not establish that appellant’s failure to appear for the
January 8, 2007 examination was a refusal to submit to or an obstruction of an examination
under 5 U.S.C. § 8123(d).

6

20 C.F.R. § 10.320.

7

The Office may not seek a second referee’s opinion before it has attempted to clarify the original referee’s
report. Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.6
(December 1995).

4

CONCLUSION
The Office properly denied the request to participate in the referee selection process. The
Office did not, however, provide a timely response prior to the scheduled examination and it
cannot suspend compensation pursuant to 5 U.S.C. § 8123(d).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 16, 2007 is affirmed with respect to the denial of
participation in the referee selection process and reversed with respect to suspension of
compensation pursuant to 5 U.S.C. § 8123(d).
Issued: March 6, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
U.S. POSTAL SERVICE, RENO PROCESSING
& DISTRIBUTION CENTER, Reno, NV,
Employer
__________________________________________

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

Docket No. 10-319
Issued: October 12, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On November 18, 2009 appellant filed a timely appeal of the June 26 and October 22,
2009 merit decisions of the Office of Workers’ Compensation Programs finding that she did not
sustain an injury while in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a back injury while in the performance of duty,
causally related to factors of her federal employment.
FACTUAL HISTORY
On November 9, 2008 appellant, then a 52-year-old postal clerk, filed an occupational
disease claim alleging that on November 3, 2008 she first became aware of her lower back pain
and realized that it was caused by bending, lifting and twisting at the employing establishment.

In a November 7, 2008 medical report, Dr. Martin J. Arraiz, an attending Board-certified
physiatrist, advised that appellant was on restrictive duty effective that date. He listed her
physical limitations.
By letter dated November 20, 2008, the Office advised appellant that the evidence
submitted was insufficient to establish her claim. It requested that she submit factual and
medical evidence, including a rationalized medical report from an attending physician which
described her symptoms, examination and test results, diagnosis, treatment provided, effect of
treatment and opinion with medical reasons on how the diagnosed condition was caused or
contributed to by the claimed injury.
In a December 3, 2008 letter, appellant described her activities outside work and medical
history and treatment regarding a prior knee injury and claimed back injury. She reiterated that
her work duties involved bending, lifting and twisting.
By decision dated December 29, 2008, the Office denied appellant’s claim, finding the
evidence insufficient to establish that she sustained a back condition causally related to factors
of her federal employment.
On January 8, 2009 appellant requested a review of the written record by an Office
hearing representative regarding the Office’s December 29, 2008 decision. She submitted
Dr. Arraiz’s November 7 and December 17, 2008 reports which listed his findings on physical
examination and diagnosis of lumbar degenerative disc disease and radiculitis. In a January 19,
2009 report, Dr. John J. Halki, a Board-certified orthopedic surgeon, reviewed a magnetic
resonance imaging (MRI) scan of appellant’s lumbar spine which demonstrated evidence of mild
multilevel degenerative disc disease and facet degeneration. He advised that her work duties
which appeared to involve repetitive lifting and twisting could exacerbate her degenerative
changes and cause increased back pain. Dr. Halki recommended that she remain on light duty
with restrictions.
By decision dated March 17, 2009, an Office hearing representative affirmed the
December 29, 2008 decision, finding the factual and medical evidence insufficient to establish
that appellant’s claimed back injury was causally related to her claimed work duties.
By letter dated March 29, 2009, appellant requested reconsideration of the hearing
representative’s March 17, 2009 decision. A June 18, 2009 report from Dr. Michael Panicari, a
general practitioner, advised that she suffered from chronic low back pain.
In a June 26, 2009 decision, the Office modified the hearing representative’s March 17,
2009 decision to reflect that appellant had submitted sufficient factual evidence pertaining to her
work duties to establish fact of injury. It, however, found that the medical evidence was
insufficient to establish that she sustained a back injury causally related to the established workrelated duties.

2

On July 16, 2009 appellant requested reconsideration of the Office’s March 17, 2009
decision. She submitted Dr. Panicari’s June 18, 2009 treatment notes which described her work
duties and provided a history of her prior back problems and medical treatment. Dr. Panicari
listed his findings on physical examination and reviewed appellant’s medical records. He found
no documented work-related injury sustained by her on or about November 3, 2008.
Dr. Panicari opined that appellant’s complaints of back pain were due to a preexisting back
condition. He advised that the physical restrictions set forth by an attending physician were not
related to her current back injury.
In a November 17, 2008 report, Dr. Eric M. Boyden, a Board-certified orthopedic
surgeon, listed his findings on physical and x-ray examination. He advised that appellant was
status post total right knee replacement with persistent significant pain that radiated up and
down her leg. Dr. Boyden believed her knee pain emanated from her back. In a January 14,
2009 report, Dr. Halki noted appellant’s complaint of pain in her right knee, lower leg and ankle
and back commencing November 6, 2008 while working at the employing establishment. He also
noted her treatment and diagnostic test results. Dr. Halki stated that appellant believed her back
pain was exacerbated by her work activities which involved bending, lifting and twisting.
By decision dated October 22, 2009, the Office denied modification of the June 26, 2009
decision, finding that the medical evidence was insufficient to establish that appellant sustained
a back injury causally related to the established work-related duties.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of her claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, 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.2 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
1

5 U.S.C. §§ 8101-8193.

2

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

3

See Delores C. Ellyett, 41 ECAB 992, 994 (1990); Ruthie M. Evans, 41 ECAB 416, 423-25 (1990).

3

The medical evidence required to establish a causal relationship 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
the claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4 Neither the fact that appellant’s condition became apparent during a
period of employment nor is her belief that the condition was caused by her employment
sufficient to establish a causal relationship.5
ANALYSIS
The Office accepted that appellant performed the work duties of a postal clerk as alleged.
The Board finds that the medical evidence submitted is insufficient to establish that her
diagnosed back conditions were caused or aggravated by her work-related duties.
Appellant submitted medical records from Dr. Arraiz, an attending Board-certified
physiatrist. In a November 7, 2008 report, Dr. Arraiz advised that appellant was on restrictive
duty effective that date and listed her physical limitations. He did not provide a firm medical
diagnosis or address a causal relationship between the established work-related duties and
appellant’s claimed back condition. Medical evidence which does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value.6 The Board finds
that Dr. Arraiz’s report is insufficient to establish appellant’s claim. In reports dated
November 7 and December 17, 2008, Dr. Arraiz listed his findings on physical examination and
diagnosed lumbar degenerative disc disease and radiculitis. Again, he failed to provide any
opinion addressing the causal relationship between appellant’s lumbar conditions and the
established work-related duties.7 The Board finds that Dr. Arraiz’s reports are insufficient to
establish her claim.
In a January 19, 2009 report, Dr. Halki reviewed an MRI scan of appellant’s lumbar
spine and stated that it demonstrated evidence of mild multilevel degenerative disc disease and
facet degeneration. He advised that she remain on light-duty work as her work duties, which
involved repetitive lifting and twisting, could exacerbate her degenerative changes and cause
increased back pain. Dr. Halki did not explain how the diagnosed lumbar conditions were
causally related to the established work-related duties and furthermore, his opinion, through the
use of the word could is equivocal and is insufficient to meet her burden of proof.8 Additionally,

4

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

5

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

6

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

7

Id.

8

Ricky S. Storms, 52 ECAB 349 (2001).

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fear of future injury is not compensable under the Act.9 The Board finds that Dr. Halki’s report
is insufficient to establish appellant’s claim. In a January 14, 2009 report, Dr. Halki noted
appellant’s complaint of pain in her right knee, lower leg and ankle and back commencing
November 6, 2008 while working at the employing establishment. He also noted her treatment
and diagnostic test results. Appellant related to Dr. Halki that her back pain was exacerbated by
her work activities which involved bending, lifting and twisting. Causal relationship is a medical
issue and must be established by a well-reasoned medical opinion. Because lay opinions carry
no weight, appellant’s own opinion regarding the cause of her back pain is of no probative
medical value.10 Dr. Halki failed to provide his own opinion addressing the causal relationship
between her back pain and the established work duties.11 The Board finds that his report is
insufficient to establish appellant’s claim.
Dr. Panicari’s June 18, 2009 report found that appellant suffered from chronic low back
pain. He failed to provide any opinion addressing the causal relationship between appellant’s
lumbar condition and the established work duties.12 Further, pain is a symptom and not a
medical diagnosis.13 The Board finds that Dr. Panicari’s report is insufficient to establish
appellant’s claim. Dr. Panicari’s June 18, 2009 treatment notes described her work duties and
provided a history of her prior back problems and medical treatment. He listed his findings on
physical examination. Dr. Panicari reviewed appellant’s medical records and found no
documented work-related injury sustained by her on or about November 3, 2008. He opined that
her complaints of back pain were due to a preexisting back condition and that the physical
restrictions set forth by an attending physician were not related to her current back injury.
Dr. Panicari did not specifically attribute appellant’s back pain to the established work-related
duties of a postal clerk. Rather, he related it to her preexisting back condition. Further, as
stated, pain is a symptom and not a medical diagnosis.14 The Board finds that Dr. Panicari’s
report is insufficient to establish appellant’s claim.
Dr. Boyden’s November 17, 2008 report listed his findings on physical and x-ray
examination. He opined that appellant was status post total right knee replacement with
persistent significant pain that radiated up and down her leg. Dr. Boyden believed her knee pain
emanated from her back. He did not specifically address whether appellant sustained a back
condition causally related to the established work-related duties. The Board finds that
Dr. Boyden’s report is insufficient to establish appellant’s claim.
The Board finds that there is insufficient rationalized medical evidence to establish that
appellant sustained a back condition causally related to the accepted factors of her federal
employment as a postal clerk. Appellant did not meet her burden of proof.
9

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008).

10

James A. Long, 40 ECAB 538 (1989); Susan M. Biles, 40 ECAB 420 (1988).

11

See cases cited supra note 6.

12

Id.

13

Robert Broome, 55 ECAB 339, 342 (2004).

14

Id.

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CONCLUSION
The Board finds that appellant has failed to establish that she sustained a back injury
while in the performance of duty, causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the October 22 and June 26, 2009 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: October 12, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.E., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMNISTRATION Boston, MA, Employer
__________________________________________

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Appearances:
Marc J. Levy, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1004
Issued: September 18, 2008

Case Submitted on the Record

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

JURISDICTION
On February 19, 2008 appellant, through her attorney, filed a timely appeal from a
November 1, 2007 merit decision of the Office of Workers’ Compensation Programs
determining her pay rate for compensation purposes and a January 31, 2008 nonmerit decision
denying her request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case and over the January 31, 2008 nonmerit decision.
ISSUES
The issues are: (1) whether the Office properly determined appellant’s pay rate for
compensation purposes; and (2) whether the Office properly denied her request for
reconsideration of the merits of her claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
On June 29, 2004 appellant, then a 55-year-old lead screener, filed an occupational
disease claim alleging that she sustained bilateral plantar fasciitis due to prolonged standing on

concrete floors during the course of her federal employment.1 She initially experienced pain in
her feet, legs and back beginning on January 6, 2003. The pain continued through March 13,
2003, when a podiatrist diagnosed plantar fasciitis. Appellant asserted on the claim form that she
became aware of her condition and its relationship to her federal employment on
January 6, 2003. Her supervisor indicated that she worked five days a week for eight hours per
day.
In a form report dated September 19, 2003, a nurse practitioner diagnosed persistent
bilateral plantar fasciitis and found that appellant was partially disabled from January 31 to
September 19, 2003. On November 25, 2003 Dr. Barbara Rickards, a podiatrist, found that
appellant was unable to work beginning November 21, 2003. On November 25, 2003 Dr. Robert
Hughes, a Board-certified internist, diagnosed stress fracture syndrome and plantar fasciitis. He
found that appellant was totally disabled beginning November 21, 2003.
The Office accepted appellant’s claim for an aggravation of bilateral plantar fasciitis. On
February 4, 2004 she requested compensation for total disability beginning November 30, 2003.
The employing establishment indicated on the claim form that appellant worked a fixed schedule
of 40 hours per week.
On February 17, 2004 Dr. Hughes diagnosed employment-related plantar fasciitis and
opined that appellant was disabled from employment. He noted that her condition began around
January 6, 2003.
In a statement dated February 23, 2004, appellant related that on January 6, 2003 she
experienced a sharp pain in her back, legs and feet while lifting a bag. She notified her
supervisor and requested information about “what procedure to follow.” Appellant’s supervisor
told her he would try to find her lighter work duties; however, he did not provide any light-duty
employment. Appellant repeatedly requested the paperwork necessary to file a claim for
workers’ compensation but management told her that there was no paperwork. On March 13,
2003 she reduced her work hours from 40 to 24 hours and then to 18 hours. Appellant again
requested about how to file a claim. On November 25, 2003 her podiatrist took her off work
because her condition had worsened such that she could not recover while performing her work
duties.
In a form report dated March 5, 2004, Dr. Hughes diagnosed plantar fasciitis and checked
“yes” that the condition was caused or aggravated by employment. He found that appellant was
partially disabled beginning January 6, 2003.
On June 29, 2004 appellant related that her employment required standing and walking
on concrete floors for 8 hours per day 40 hours per week. She experienced pain in her heels
bilaterally radiating into her legs and back beginning January 6, 2003. In March 2003 appellant
reduced her schedule to three days a week because of the pain. She rested in bed on her

1

On November 25, 2003 appellant filed a claim alleging that she sustained a traumatic injury on January 6, 2003
in the performance of duty. By decisions dated January 16 and May 19, 2004, the Office denied her claim, assigned
file number 012021310, on the grounds that she failed to establish an injury as alleged. It noted that the medical
evidence indicated that she may have an occupational disease.

2

nonscheduled days. The employing establishment did not accommodate her request for a lightduty assignment.
On October 25, 2004 the employing establishment informed the Office by telephone that
appellant worked 8 hours per day 3 days per week for 24-hour workweek. Appellant earned
night differential for nine hours per week and Sunday premium pay for eight hours per week.
The Office paid appellant compensation beginning November 30, 2003 using a pay rate date of
November 23, 2003, the date disability began. It found that she worked 24 hours per week on
November 23, 2003.
On September 12, 2005 appellant related that she worked 40 hours per week from
July 28, 2002 through March 2004. She stated, “In April 2004 after several requests for a ‘light
duty office assignment,’ based on Forms CA-20 from my doctor, I was forced to curtail my
previous schedule of at least 40 hours per week.” Appellant related that the employing
establishment instructed her not to put a reason for requesting reduced hours. She asserted that
she should receive compensation based on a 40-hour workweek.
On March 6 and April 11, 2007 appellant’s attorney noted that appellant was “currently
being paid compensation for this accepted claim based on a part-time or reduced work schedule
which was in effect as of the date she last worked rather than her regular full-time wages which
were in effect on the date of injury. He asserted that appellant reduced her hours due to physical
limitations from her employment injury and requested that the Office review her pay rate.
On May 15, 2007 the Office noted that as appellant worked 24 hours per week on the
date of injury she was not entitled to an increase in her pay rate. On July 2, 2007 appellant’s
attorney related that appellant worked 40 hours per week on January 6, 2003, the date of injury,
and maintained that he had provided evidence documenting that she was a full-time employee on
that date.2 He noted that the employing establishment did not provide the date that she worked
part time when it provided pay rate information to the Office.
By decision dated November 1, 2007, the Office found that appellant was not entitled to
receive compensation based on a 40-hour workweek. It determined that she worked only 24
hours on the date disability began, November 25, 2007, and thus was not entitled to receive
compensation for wage loss as a full-time employee.
On November 3, 2007 appellant requested reconsideration. In a November 5, 2007
statement, her attorney, citing 5 U.S.C. § 8101(4), argued that her pay rate should be based on
the date of injury, January 6, 2003, rather than the date disability began, November 25, 2003.
On January 4, 2008 the employing establishment submitted a notification of personnel
action, SF-50, indicating that appellant worked part time beginning April 6, 2003.
By decision dated January 31, 2008, the Office denied appellant’s request for
reconsideration on the grounds that it was insufficient to warrant a review of the merits of her
claim under section 8128.
2

Appellant provided time and attendance records to show that she worked full time on January 6, 2003.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8105(a) of the Federal Employees’ Compensation Act3 provides: “If the
disability is total, the United States shall pay the employee during the disability monthly
monetary compensation equal to 66 2/3 percent of [her] monthly pay, which is known as [her]
basic compensation for total disability.”4 Section 8110(b) of the Act provides that total disability
compensation will equal three fourths of an employee’s monthly pay when the employee has one
or more dependents.5 Pay rate for compensation purposes is defined in section 8101(4) as the
monthly pay at the time of injury, the time disability begins or the time disability recurs, if the
recurrence is more than six months after returning to full-time work, whichever is greater.6
In an occupational disease, every exposure that has an adverse effect on the claimant’s
condition constitutes a new and independent injury.7 Where an injury is sustained over a period
of time, as in an occupational disease claim, the date of injury is the date of last exposure to
those work factors causing an injury.8
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained an aggravation of bilateral plantar fasciitis
due to factors of her federal employment. It paid her compensation using her pay rate on the
date disability began, November 25, 2003. At that time appellant worked 24 hours per week.
Appellant contends that the Office should use January 6, 2003, the date she indicated on
her occupational disease claim form that she became aware of her condition and its relationship
to her employment, to establish her pay rate for compensation purposes.9
Section
8101(4) defines the pay rate for compensation purposes as the monthly pay at the time of injury,
the time disability begins or the time disability recurs, if the recurrence is more than six months
after returning to full-time work, whichever is greater.10 In an occupational disease claim, the
date of injury is generally the date the employee was last exposed to the injurious employment
factors.11 The Board has held that the date of injury is the date of the last exposure which
3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8105(a).

5

5 U.S.C. § 8110(b).

6

5 U.S.C. §§ 8101(4), 8114; see also 20 C.F.R. § 10.5(s).

7

Daniel J. Alfano, 34 ECAB 314 (1982); Louis L. DeFrances, 33 ECAB 1407 (1982).

8

Patricia K. Cummings, 53 ECAB 623 (2002).

9

A traumatic injury is defined as a “condition of the body caused by a specific event or incident, or series of
events or incidents, within a single workday or shift.” 20 C.F.R. § 10.5(ee). An occupational disease is defined as a
condition produced by the work environment over a period longer than a single workday or shift.” 20 C.F.R.
§ 10.5(q). Thus, pursuant to regulation the term “injury” includes a condition caused by repeated work stress or
strain.
10

5 U.S.C. §§ 8101(4), 8114; see also 20 C.F.R. § 10.5(s).

11

See Patricia K. Cummings, supra note 8.

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adversely affects the impairment because every exposure which has an adverse effect (an
aggravation) constitutes an injury.12 As appellant continued to be exposed to standing and
walking on concrete until November 25, 2003, the date she stopped work, the Office would
generally consider this the date of injury as well as the date disability began. This general rule,
however, does not preclude using an earlier date during the period of exposure to the injurious
work factor as the date of injury, in the unusual situation where the employee’s pay is higher at
the earlier date and the medical evidence shows the employee was injured by the date chosen.13
The Office did not consider whether the medical evidence established that appellant sustained an
employment injury prior to November 25, 2003. The case will be remanded for that purpose.
Following any further development as is deemed necessary, the Office should issue an
appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision.14
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 31, 2008 and November 1, 2007 are set aside and the
case is remanded for further proceedings consistent with this decision of the Board.
Issued: September 18, 2008
Washington, DC

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

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

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

12

Id.; see also Barbara A. Dunnavant, 48 ECAB 517 (1997).

13

Paulette D. Street, Docket No. 04-912 (issued December 28, 2005).

14

In view of the Board’s disposition of the merits, the question of whether the Office properly denied appellant’s
request for reconsideration is moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 13-239
Issued: April 12, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 16, 2012 appellant filed a timely appeal from a May 23, 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 this case.
ISSUE
The issue is whether appellant sustained a permanent impairment to a scheduled member
or function of the body warranting a schedule award under 5 U.S.C. § 8107.
FACTUAL HISTORY
On November 4, 2010 appellant, then a 46-year-old part-time clerk, filed a traumatic
injury claim (Form CA-1) alleging a left arm injury in the performance of duty on October 17,
2010 when she was moving a parcel. OWCP accepted the following conditions as employment
1

5 U.S.C. § 8101 et seq.

related: left wrist sprain, left forearm osteoarthritis, left forearm articular cartilage disorder and
left forearm joint derangement. On January 4, 2011 appellant underwent left wrist arthroscopic
surgery. Dr. Anton Fakhouri, an attending Board-certified orthopedic surgeon, provided
postoperative diagnoses that included triangular fibrocartilage complex (TFCC) tear. He
indicated that a plate and screws were inserted. By letter dated June 30, 2011, the employing
establishment reported that appellant returned to work on April 21, 2011.
In a report dated July 11, 2011, Dr. Fakhouri stated that appellant was doing well and had
completed physical therapy. He stated:
“[Appellant] is essentially asymptomatic although over the weekend she had some
discomfort over the ulnar aspect of the distal forearm at the level of the plate. The
wrist itself looks well. Appellant has no pain with ulnar deviation. She has
negative circumduction test. Appellant’s strength is up to par.”
Dr. Fakhouri stated that she could return to work without restrictions. He noted that appellant
had retained hardware that may occasionally be uncomfortable.
On August 12, 2011 appellant submitted a claim (Form CA-7) for a schedule award. By
letter dated August 22, 2011, OWCP advised her that she needed to submit medical evidence
with respect to whether she sustained a permanent impairment under the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.
Guides).
In a report dated September 12, 2011, Dr. Fakhouri stated that appellant was
asymptomatic with respect to the left wrist. He provided results on examination regarding the
left small finger, stating that she injured her finger on September 2, 2011 while working on
containers. The record contains an October 11, 2011 telephone memorandum (Form CA-110), in
which appellant reported that she had been unable to find a physician to provide an impairment
rating and requested that a second opinion examination be scheduled. Appellant was told that it
might take several months to schedule an examination.
OWCP requested that its medical adviser review the record and provide an opinion as to
permanent impairment. In a report dated January 1, 2012, Dr. Sanjai Shukla, a medical adviser
noted that Dr. Fakhouri had reported that appellant was essentially asymptomatic on July 11,
2011 and was asymptomatic as to the left wrist on September 12, 2011. He identified Table 15-3
of the A.M.A., Guides to find no impairment for a TFCC tear with no residual findings.
By decision dated January 5, 2012, OWCP determined that appellant was not entitled to a
schedule award. It found the medical evidence was insufficient to establish any permanent
impairment to her left wrist or arm.
Appellant requested a hearing before an OWCP hearing representative, which was held
on April 11, 2012. At the hearing, she stated that OWCP’s claims examiner had told her that a
second opinion examination would be scheduled.

2

By decision dated May 23, 2012, OWCP’s hearing representative affirmed the January 5,
2012 decision. She found that the medical evidence did not establish any permanent impairment
causally related to the October 17, 2010 injury.
LEGAL PRECEDENT
According to 5 U.S.C. § 8107, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.2 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.3 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.4
An employee seeking compensation for a permanent impairment under FECA has the
burden of establishing that an employment injury caused or contributed to a permanent
impairment of a scheduled member or function of the body.5 The medical evidence necessary to
support a schedule award includes a physician’s detailed report that provides a description of the
impairment and properly applies the relevant portions of the A.M.A., Guides.6
ANALYSIS
Appellant has accepted left arm conditions and seeks a schedule award for permanent
impairment to the left arm under 5 U.S.C. § 8107. To be entitled to a schedule award, she must
submit probative medical evidence on the issue. While appellant asserted that Dr. Fakhouri did
not provide impairment ratings, the Board notes that there must be a sufficiently detailed medical
report from a physician with a proper description of permanent impairment. The medical
evidence from Dr. Fakhouri dated July 11, 2011 provided only general statements that the left
wrist was essentially asymptomatic, with some occasional discomfort due to the hardware
inserted during the January 4, 2011 surgery. The September 12, 2011 report stated that the wrist
was asymptomatic. No detailed description of any permanent impairment or reference to the
A.M.A., Guides was provided.
OWCP referred the evidence to OWCP’s medical adviser for review. In a January 1,
2012 report, Dr. Shukla identified Table 15-3 of the A.M.A., Guides as relevant to the accepted
disgnosis. Under this table, a TFCC tear with “no residual findings: +/- surgical treatment”
2

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
3

A. George Lampo, 45 ECAB 441 (1994).

4

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

5

See A.B., Docket No. 12-1392 (issued January 24, 2013).

6

See James E. Jenkins, 39 ECAB 860 (1988); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule
Awards and Permanent Disability Claims, Chapter 2.808.6(b) (January 2010).

3

results in no impairment.7 Dr. Shukla found that appellant had no employment-related
permanent impairment based on the findings reported by Dr. Fekhouri.
With respect to the reports from Dr. Fakhouri discussing a small left finger injury, the
physician referred to a separate work incident on September 2, 2011. If appellant has a claim for
injury on that date, it is not before the Board on this appeal. The issue is any permanent
impairment causally related to the October 17, 2010 employment injury. The Board finds that
the medical evidence presented does not establish a ratable permanent impairment in this case.
On appeal, appellant states that she believes OWCP’s decision was unfair, as no
impairment rating was performed and she still has a metal plate in her wrist that limits
movement. She also raised the issue of a second opinion examination with OWCP. However,
the determination of the need for an examination is a matter within the discretion of OWCP.8
The medical evidence currently of record does not establish permanent impairment, and OWCP
referred the case for review by an OWCP medical adviser.9 The Board finds no abuse of
discretion in declining to refer appellant for a second opinion examination.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.10
CONCLUSION
The Board finds that appellant has not established a permanent impairment to a scheduled
member or function of the body entitling her to a schedule award under 5 U.S.C. § 8107.

7

A.M.A., Guides 396, Table 15-3.

8

Erwin L. Barnhart, 33 ECAB 150 (1981). 5 U.S.C. § 8123(a) provides “an employee shall submit to
examination by a medical officer of the United States or by a physician designated or approved by the Secretary of
Labor, after the injury and as frequently and at the times and places as may reasonably be required.”
9

OWCP procedures indicate that medical evidence should be referred to an OWCP medical adviser for an
opinion as to permanent impairment. Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and
Permanent Disability Claims, Chapter 2.808.6(d) (January 2010).
10

See Linda T. Brown, 51 ECAB 115 (1999).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 23, 2012 is affirmed.
Issued: April 12, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Southfield, MI, Employer
__________________________________________

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

Docket No. 16-1630
Issued: August 2, 2017

Case Submitted on the Record

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

JURISDICTION
On August 10, 2016 appellant, through counsel, filed a timely appeal from a June 1, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish greater than five
percent permanent impairment of the right upper extremity, for which she previously received a
schedule award.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 17, 2003 appellant, then a 48-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging a right shoulder condition that she attributed to right arm
“repetitive motion” while performing her employment duties. OWCP accepted the claim for
right rotator cuff syndrome and right shoulder tenosynovitis, which arose on or about
October 1, 2001. After undergoing right shoulder arthroscopic surgery in January 2003,
appellant returned to work in a limited-duty capacity on April 28, 2003.3 She resumed her
regular letter carrier duties in October 2003.
On December 10, 2013 appellant filed a claim for a schedule award (Form CA-7).
OWCP received a July 11, 2013 note from Dr. M. David Jackson, a Board-certified
physiatrist, who advised that appellant had reached maximum medical improvement (MMI)
regarding her right shoulder.
By letter dated December 17, 2013, OWCP advised appellant that she needed to have her
physician submit a permanent impairment rating in accordance with the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (2009)
(hereinafter A.M.A., Guides). It afforded her at least 30 days to submit the requested medical
evidence. However, it did not receive the requested evidence within the allotted timeframe.
By decision dated March 17, 2014, OWCP denied appellant’s claim for a schedule award.
On March 21, 2014 counsel requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. He also submitted an April 15, 2014 report from Dr. John L.
Dunne, an occupational medicine specialist, who found that appellant had 17 percent permanent
impairment of the right upper extremity under the A.M.A., Guides (6th ed. 2009). Dr. Dunne
rated appellant for loss of shoulder range of motion (ROM). He found that the right shoulder
examination noted subtle loss of mass in the supraspinatus fossa compared to the left and was
held slightly protracted at rest. After a brief warm-up, the range of motion of the right shoulder
was assessed via standard goniometer technique over three trials averaged to provide the
following measurements: flexion 105 degrees; extension 20 degrees; abduction 80 degrees;
adduction 45 degrees; external rotation 50 degrees; and internal rotation 30 degrees with the
elbow held at approximately 60 degrees of abduction for comfort. Functional testing noted grade
4 weakness of resisted abduction in the plane of the supraspinatus on anterior flexion. There was
a markedly positive Neer’s and Hawkins’ maneuver for continued impingement. Speed’s and
Yergason’s testing were normal. The biceps and triceps strength was normal with the elbow held
at the side. Grip and pinch were normal. Sensory and vascular examinations were normal to the
right upper extremity. Capillary refill was normal and there was no atrophy of the hand.
Dr. Dunne indicated that there were no other findings upon examination relative to the allowed
conditions of the claim. He concluded that appellant had reached MMI for her accepted
employment-related conditions by mid-2003, when she returned to work.

3

On January 3, 2003 appellant underwent right shoulder arthroscopy with subacromial decompression, which
OWCP retroactively authorized. Additionally, OWCP paid wage-loss compensation for the period December 31,
2002 through April 24, 2003.

2

Dr. Dunne indicated that appellant’s most impairing diagnosis was impingement
syndrome under Table 15-5, Shoulder Regional Grid, A.M.A., Guides 402 (6th ed. 2009).
However, he explained that “available impairment under the shoulder regional grid of
impingement syndrome [did] not apply as the only available assessment there [was] for residual
loss of function [was] with normal motion,” and the impingement syndrome class was asterisked
(*) to allow for impairment to be assessed by the ROM method. Dr. Dunne determined that
under Table 15-34, Shoulder Range of Motion, A.M.A., Guides 475 (6th ed. 2009), appellant had
3 percent permanent impairment for flexion, 2 percent permanent impairment for extension, 6
percent permanent impairment for abduction, 0 percent permanent impairment for adduction, 2
percent permanent impairment for external rotation, and 4 percent permanent impairment for
internal rotation, which totaled 17 percent permanent impairment of the right upper extremity
due to loss of shoulder range of motion. He opined that no adjustment was to be made for
functional history and concluded that appellant had 17 percent permanent impairment of the right
upper extremity.
By decision dated September 11, 2014, the hearing representative vacated the March 17,
2014 decision, and remanded the case so that OWCP could refer the latest medical evidence of
impairment to its district medical adviser (DMA) for review.
After obtaining a copy of appellant’s January 3, 2003 right shoulder operative report,
OWCP referred the case to its DMA, Dr. Morley Slutsky, who is Board-certified in occupational
medicine.
In a March 11, 2015 report, Dr. Slutsky explained that he rated appellant’s impairment
using the preferred diagnosis-based impairment (DBI) method, whereas Dr. Dunne used the
ROM method. The DMA rated appellant based on right shoulder impingement syndrome, which
was a Class of diagnosis 1 (CDX 1) with a default rating (grade C) of 3 percent under Table 155, Shoulder Regional Grid, A.M.A., Guides 402 (6th ed. 2009). Dr. Slutsky assigned a grade
modifier of 2 for Functional History (GMFH) based on appellant’s QuickDASH score of 52. He
assigned a grade modifier of 2 for Physical Examination (GMPE) based on appellant’s range of
motion limitations. Lastly, Dr. Slutsky assigned a grade modifier of 1 for Clinical Studies
(GMCS) based on a March 14, 2002 right shoulder magnetic resonance imaging (MRI) scan. He
calculated a net adjustment of +2, and found 5 percent (grade E) right upper extremity permanent
impairment under Table 15-5, A.M.A., Guides 402 (6th ed. 2009).4 Dr. Slutsky indicated that
appellant reached MMI as of April 15, 2014.
In a March 26, 2015 report, Dr. Dunne noted that he reviewed the DMA’s March 11,
2015 report. He explained that if the ROM impairment methodology was unacceptable, he
would alternatively rate appellant under Table 15-5, Shoulder Regional Grid, A.M.A., Guides
403 (6th ed. 2009) based on a diagnosis of acromioclavicular (AC) joint injury or disease, status
post distal clavicle resection. Dr. Dunne was of the opinion that appellant’s January 3, 2003
right shoulder arthroscopy included a distal clavicle resection.5 He explained that the CDX for
4

Net Adjustment ꞊ (GMFH 2 – CDX 1) + (GMPE 2 – CDX 1) + (GMCS 1 – CDX 1). See Section 15.3d,
A.M.A., Guides 411 (6th ed. 2009).
5

However, the January 3, 2003 operative report specifically noted in relevant part: “Inferior shaving of the
clavicle was carried out but the distal clavicle was not resected.”

3

AC joint injury/disease, status post distal clavicle resection represented 10 percent (grade C)
upper extremity impairment, in contrast to the DMA’s lower rating for impingement syndrome.
Dr. Dunne concurred with the DMA’s net adjustment calculation of +2 and, therefore, found a
final right upper extremity impairment of 12 percent (grade D) under A.M.A., Guides 403, Table
15-5, (6th ed. 2009).
On April 13, 2015 Dr. Slutsky reviewed Dr. Dunne’s March 26, 2015 report and
explained that the rating for status post distal clavicle resection was in error. The DMA
specifically noted that the January 3, 2003 operative report indicated that appellant’s “‘distal
clavicle was not resected.’” Dr. Slutsky, therefore, reiterated his prior 5 percent DBI rating for
right shoulder impingement, which was the “preferred” methodology over Dr. Dunne’s previous
ROM-based 17 percent permanent impairment rating.
By decision dated June 19, 2015, OWCP granted appellant a schedule award for five
percent permanent impairment to the right upper extremity. The award covered a 15.6-week
period from April 15 to August 2, 2014.
Counsel timely requested a hearing before a representative of OWCP’s Branch of
Hearings and Review, which was held on March 21, 2016. He challenged OWCP’s reliance on
Dr. Slutsky’s report(s), and specifically his opinion regarding usage of the ROM-based
impairment methodology. OWCP did not receive any additional medical evidence regarding the
extent of appellant’s right upper extremity permanent impairment.
In a decision dated June 1, 2016, the hearing representative accepted the DMA’s opinion
and found that appellant had not established that she had greater than five percent permanent
impairment of the right upper extremity. Consequently, the hearing representative affirmed
OWCP’s June 19, 2015 schedule award.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.6 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.7 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 under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.8

6

See 20 C.F.R. §§ 1.1-1.4.

7

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
8

20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001).

4

5 U.S.C.

The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled, “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).9 The Board has approved OWCP’s use of the A.M.A., Guides for
the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.10
ANALYSIS
The issue on appeal is whether appellant met her burden of proof to establish that she has
greater than five percent right upper extremity permanent impairment, for which she previously
received a schedule award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation had been followed regarding the proper use of the diagnosis-based
impairment (DBI) or the range of motion (ROM) methodology when assessing the extent of
permanent impairment for schedule award purposes.11 The purpose of the use of uniform
standards is to ensure consistent results and to ensure equal justice under the law to all
claimants.12 In T.H., the Board concluded that OWCP physicians were at odds over the proper
methodology for rating upper extremity impairment, having observed attending physicians,
evaluating physicians, second opinion physicians, impartial medical examiners, and district
medical advisers use both DBI and ROM methodologies interchangeably without any consistent
basis. Furthermore, the Board observed that physicians interchangeably cite to language in the
first printing or the second printing when justifying use of either ROM or DBI methodology.
Because OWCP’s own physicians are inconsistent in the application of the A.M.A., Guides, the
Board found that OWCP could no longer ensure consistent results and equal justice under the
law for all claimants.13
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the June 1 2016 decision. Utilizing a
9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
10

Isidoro Rivera, 12 ECAB 348 (1961).

11

T.H., Docket No. 14-0943 (issued November 25, 2016).

12

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

13

Supra note 11.

5

consistent method for calculating permanent impairment for upper extremities applied uniformly,
and after such other development as may be deemed necessary, OWCP shall issue a de novo
decision on appellant’s claim for an upper extremity schedule award.
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 1, 2016 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further action consistent with
this decision.
Issued: August 2, 2017
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
DEPARTMENT OF DEFENSE, Columbus, OH,
Employer
__________________________________________

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

Docket No. 08-1565
Issued: November 20, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 25, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ January 14, 2008 nonmerit decision denying her request for
reconsideration of her claim. The most recent merit decision of record was the Office’s
December 18, 2006 decision and because more than one year has elapsed between this decision
and the filing of the appeal, the Board lacks jurisdiction to review the merits of this claim.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits.
FACTUAL HISTORY
On December 21, 1989 appellant slipped and fell on ice in the parking lot and landed on
her knees. On March 21, 2001 her claim was accepted for knee abrasions.
On October 14, 2005 she requested that her claim be reopened and included a letter from
Dr. Anthony Cabot, a Board-certified orthopedic surgeon, who opined that appellant needed total

knee replacement. On November 9, 2005 the Office accepted appellant’s claim for temporary
aggravation of osteoarthritis of both knees.
The Office referred appellant for a second opinion examination with Dr. Joseph Hoffman,
an orthopedist, on December 29, 2005. Dr. Hoffman opined that appellant had no evidence of
the abrasions sustained in her December 1989 injury. He diagnosed bilateral osteoarthritis in her
knees but opined that this was due to her history of morbid obesity rather than a direct result of
the fall. In a January 24, 2006 addendum, Dr. Hoffman noted that appellant had not sustained
any aggravation of preexisting osteoarthritis in her knees due to her accepted injury.
On January 31, 2006 the Office issued a notice of proposed termination of medical and
compensation benefits for her accepted conditions of bilateral osteoarthritis of the lower leg and
bilateral abrasion of hip/leg.
In a May 10, 2006 decision, the Office terminated appellant’s medical and compensation
benefits.
Appellant requested an oral hearing which was held on October 10, 2006. In a
December 18, 2006 decision, the Office affirmed the May 10, 2006 decision finding that the
evidence established that appellant’s abrasions had resolved and that there was no medical
evidence of any aggravation of her preexisting osteoarthritis.
On December 18, 2007 appellant requested reconsideration, contending that she
presented medical evidence to the Office which was ignored and not previously considered.
In a January 14, 2008 nonmerit decision, the Office denied appellant’s request for
reconsideration, finding that as she did not submit new and relevant evidence or raise a
substantive legal question appellant was not entitled to a merit review.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act, the Office’s regulations provide that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (1) shows that the Office erroneously applied or interpreted a specific point
of law; (2) advances a relevant legal argument not previously considered by the Office; or
(3) constitutes relevant and pertinent new evidence not previously considered by the Office.1
Section 8128(b) provides that, when an application for reconsideration does not meet at
least one of the three requirements enumerated under section 10.606(b)(2), the Office will deny
the application for reconsideration without reopening the case for review on the merits.2
Evidence or argument that repeats or duplicates evidence previously of record has no evidentiary

1

20 C.F.R. § 10.606(b)(2)(i-iii).

2

20 C.F.R. § 10.606(b)(2).

2

value and does not constitute a basis for reopening a case.3 Likewise, evidence that does not
address a particular issue involved does not constitute a basis for reopening a case.4
ANALYSIS
The Board finds that appellant has not met any of the criteria for reopening her case for
review of the merits. Merit review was denied by the Office on the grounds that she did not
submit any new or relevant medical evidence or raise a new legal argument. Appellant argued
that the Office failed to consider medical evidence previously submitted; however, she did not
identify any documents the Office ignored. The validity of appellant’s argument that the Office
ignored evidence fails for lack of specificity. Appellant did not submit any new evidence. She
merely contended that the Office did not consider evidence. This is not an argument that the
Office erroneously applied a specific point of law or a relevant legal argument, either of which
would require the Office to conduct further merit review. The Office properly denied appellant’s
request for reconsideration.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration.

3

Helen E. Paglinawan, 51 ECAB 407, 591 (2000).

4

Kevin M. Fatzer, 51 ECAB 407 (2000).

3

ORDER
IT IS HEREBY ORDERED THAT the January 14, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 20, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4