United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 19-0594
Issued: August 13, 2019

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 January 23, 2019 appellant, through counsel, filed a timely appeal from an October 19,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a lumbar condition
causally related to the accepted October 13, 2017 employment incident.
FACTUAL HISTORY
On January 2, 2018 appellant, a 56-year-old postal police officer, filed a traumatic injury
claim (Form CA-1), alleging that she sustained an aggravation of her preexisting bulging disc
condition on October 13, 2017 due to wearing a gun belt while in the performance of duty. She
stated that her bulging disc and pinched nerve caused sciatic pain to shoot down her left leg.3
Appellant stopped work on October 20, 2017. On the reverse side of the claim form, the
employing establishment contended that the claim did not meet the legal definition of traumatic
injury and that appellant was not in the performance of duty when injured.4
In a Postal Police Incident Report dated October 12, 2017, appellant’s supervisor indicated
that appellant was at work on post 4 that day when her coworker saw her in severe pain. When
asked, appellant explained that she was having sharp pains in her left leg, starting from her buttocks
area down to her foot, and she was having trouble bending and standing. The supervisor stated
several times that appellant needed to go to the hospital and she agreed after a period of time had
passed.
A magnetic resonance imaging (MRI) scan dated November 3, 2017 demonstrated left
foraminal disc protrusion at L3-4, left foraminal disc osteophyte at L4-5, and a mild right foraminal
disc bulge.
In a letter dated November 27, 2017 and addressed to appellant, R.W., the inspector-incharge, indicated that appellant underwent a fitness-for-duty examination on November 3, 2017
and was found to be unfit for duty by her treating physician. R.W. further explained that the
findings were submitted to Dr. Bruce Butler, an occupational medicine specialist and the
inspection service medical director, and he concurred with the fitness determination.
OWCP, by development letter dated January 10, 2018, advised appellant of the deficiencies
of her claim and afforded her 30 days to submit additional evidence and respond to its inquiries.
In response, appellant submitted a January 30, 2018 report from Dr. Dorita C. Egudu, a
Board-certified family practitioner, who diagnosed sciatic nerve pain. Appellant informed
Dr. Egudu that while she was sitting at work she had a sudden onset of worsening pain from the
left gluteal region down to her left foot. Dr. Egudu reviewed appellant’s medical history and

3
OWCP assigned the present claim OWCP File No. xxxxxx593. Appellant has a prior claim for a May 8, 2008
traumatic injury under OWCP File No. xxxxxx120, which was accepted for neck sprain and “other symptoms referable
to back.” Appellant’s claims have not been administratively combined.
4

By letter dated January 9, 2018, the employing establishment further controverted the claim contending that this
is not a traumatic injury because On November 20, 2017 appellant completed a notice of recurrence (Form CA-2a)
relating to her May 8, 2008 traumatic injury under OWCP File No. xxxxxx120.

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diagnostics studies and opined that appellant’s duties, which involved wearing a heavy gun belt
and prolonged standing or sitting, were possibly factors that may have exacerbated her symptoms.
Appellant also submitted a February 1, 2018 report from Dr. Louis Chang, a Boardcertified neurosurgeon, who opined that adding any additional significant stress or weight to the
spine, such as in the case of wearing a gun belt, could possibly aggravate preexisting back pain.
However, Dr. Chang stated that he could “not prove whether or not it contributes to structural
pathologies such as bulging discs.”
By decision dated February 14, 2018, OWCP accepted that appellant was wearing her gun
belt on October 13, 2017, however, it denied the claim finding that the medical evidence of record
was insufficient to establish causal relationship between appellant’s diagnosed medical conditions
and the accepted work incident.
On March 12, 2018 appellant requested a telephonic hearing, before a representative of
OWCP’s Branch of Hearings and Review. The hearing was held before an OWCP hearing
representative on August 7, 2018. Appellant provided testimony and the hearing representative
held the case record open for 30 days for the submission of additional evidence.
Appellant subsequently submitted a December 6, 2017 report from Dr. Chang who asserted
that appellant was being seen for the first time for severe pain going down her left leg that started
on October 13, 2017 while she was at work. She related that her issues started when she was
involved in an accident back in 2008 while at work. At that time, appellant was living in New
York City and she was working as a postal police officer when she was rear-ended while driving
a truck. She experienced severe lower back pain and subsequently underwent conservative
treatment with physical therapy and injections. Dr. Chang reported that appellant’s symptoms
improved and she was able to return to work and then moved to Baltimore, Maryland in 2013 and
continued her work as a postal police officer. Appellant stated that she was doing okay up until
October 13, 2017 when she was sitting at her desk and suddenly felt severe and excruciating pain
radiating down her left gluteal region and along the lateral aspect and shin area and all the way
down to her left foot. She denied any symptoms down her right leg. Appellant indicated that the
symptoms were intermittent and worse with sitting and walking. Dr. Chang diagnosed bulging
lumbar disc and advised that if her symptoms did not improve with conservative management,
then she would return to his office to revaluation and discussion of possible surgical options.
In a September 21, 2018 letter, the employing establishment indicated that appellant had
been employed as a postal police officer in the Baltimore office since approximately March 17,
2007 and to the best of its knowledge had no pain or issues related to wearing the duty belt, which
held her handgun. It reiterated that on or about October 12, 2017, she reported a lack of feeling in
one of her legs, which resulted in pain during her tour of duty, and medical attention was requested
by management and an ambulance responded.

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By decision dated October 19, 2018, OWCP’s hearing representative affirmed the
February 14, 2018 decision finding the medical evidence of record insufficient to establish causal
relationship.5
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,6 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.9 First,
the employee must submit sufficient evidence to establish that she actually experienced the
employment incident at the time, place, and in the manner alleged.10 Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.11
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence sufficient to establish such causal relationship.12 The opinion of the physician
must be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.13
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
5

On November 1, 2018 OWCP acknowledged receipt of appellant’s change of address which she filed another
OWCP File No. xxxxxx120 and sent a copy of its October 19, 2018 decision to her new address of record.
6

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

10

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

11

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

12

K.V., Docket No. 18-0723 (issued November 9, 2018).

13

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

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the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a lumbar
condition causally related to the accepted October 13, 2017 employment incident.
In support of her claim, appellant submitted medical reports by Drs. Chang and Egudu who
opined that prolonged sitting and wearing a heavy gun belt could possibly be factors in aggravating
a bulging disc. Further, Dr. Chang specifically noted that he could “not prove” whether or not
wearing a gun belt could have contributed to structural pathologies such as bulging discs. The
Board finds that these opinions regarding the cause of appellant’s medical condition are
speculative and equivocal in nature.15 Therefore, the Board finds that the reports from Drs. Chang
and Egudu are insufficient to establish causal relationship.
As appellant has not submitted rationalized medical evidence to establish an injury causally
related to the accepted October 13, 2017 employment incident, she has not met her burden of proof
to establish entitlement to compensation benefits.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a lumbar
condition causally related to the accepted October 13, 2017 employment incident.

14

J.F., Docket No. 19-0456 (issued July 12, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3e (January 2013).
15
Medical opinions that are speculative or equivocal in character are of little probative value. See Kathy A. Kelley,
55 ECAB 206 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the October 19, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 13, 2019
Washington, DC

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

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

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

6


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

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

Docket No. 11-640
Issued: December 15, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 6, 2011 appellant, through his attorney, filed a timely appeal from a July 13,
2010 schedule award decision of the Office of Workers’ Compensation Programs (OWCP) and a
September 13, 2010 decision in which OWCP’s hearing representative denied his request for a
hearing. 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 schedule award decision.
ISSUES
The issues are: (1) whether appellant has more than a 25 percent impairment of the right
lower extremity and whether he is entitled to a schedule award for the left lower extremity; and
(2) whether OWCP properly denied his request for a hearing.
On appeal, counsel asserted that a conflict in medical evidence was created between the
opinions of appellant’s attending physician and OWCP’s medical adviser regarding whether
appellant had an increased impairment rating for his right lower extremity and whether he was
1

5 U.S.C. §§ 8101-8193.

entitled to a schedule award for the left lower extremity. He further asserted that OWCP erred in
denying appellant’s hearing request because the July 13, 2010 decision was not certified until
after review by OWCP’s medical adviser on July 30, 2010.
FACTUAL HISTORY
On May 11, 2005 appellant, then a 45-year-old letter carrier, filed an occupational disease
claim, alleging that his job duties caused radiating pains around his lower back and legs with left
foot numbness. He noted that he previously had surgery for a herniated disc. A May 23, 2005
magnetic resonance imaging (MRI) scan of the lumbar spine, was compared with a previous
examination done on January 22, 2004 and demonstrated a recurrent disc extrusion at L5-S1 on
the right with multilevel spinal stenosis, unchanged at L3-4 and L4-5 and slightly worse at L2-3.
In an October 5, 2005 report, Dr. Richard A. Balderston, a Board-certified orthopedic surgeon,
advised that appellant had a laminectomy for a herniated disc at L5-S1 in March 2004 and
returned in May 2005 with similar complaints. He reported the MRI scan findings.
On November 19, 2005 OWCP accepted that appellant sustained employment-related
lumbar radiculopathy and aggravation of herniated lumbar disc. Appellant stopped work on
March 22, 2006 and was placed on the periodic compensation rolls. On June 7, 2006
Dr. Balderston performed authorized right hemilaminotomies at L5 and S1. Appellant returned
to modified duty on October 12, 2006.
Appellant filed a schedule award claim on November 17, 2008 and submitted an
August 5, 2008 report from Dr. Steven M. Allon, an orthopedic surgeon, who advised that under
the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment2 (hereinafter A.M.A., Guides), appellant had a 25 percent impairment of the right
lower extremity and a 12 percent impairment on the left.3
By letter dated September 25, 2009, OWCP asked Dr. Allon to provide an impairment
rating in accordance with the sixth edition of the A.M.A., Guides.4 On December 23, 2009
Dr. Allon updated his August 5, 2008 report. He did not reexamine appellant. Dr. Allon advised
that maximum medical improvement was reached on August 5, 2008 and that under the sixth
edition of the A.M.A., Guides, appellant had a 32 percent impairment of the right lower
extremity and a nine percent impairment on the left.
In a January 31, 2010 report, Dr. Andrew A. Merola, OWCP’s medical adviser and
Board-certified in orthopedic surgery, performed his review of the medical record including
Dr. Allon’s report. He advised that because appellant had a right-sided laminectomy at L5-S1,
appellant had only right S1 radiculopathy. Therefore, appellant was entitled to a right-sided
schedule loss secondary to a right sacral root problem and was not entitled to a schedule award
for a left-sided sensory deficit. Dr. Merola further advised that appellant was not entitled to a
2

A.M.A., Guides (5th ed. 2001).

3

Dr. Allon also provided an impairment rating for appellant’s left arm, not at issue in the current appeal.

4

A.M.A., Guides (6th ed. 2008).

2

right femoral nerve deficit because the right femoral nerve was not involved in the right L5-S1
root problem. He concluded that under the sixth edition of the A.M.A., Guides, appellant had 25
percent right leg impairment and that August 25, 2008 was the correct date of maximum medical
improvement. On June 26, 2010 Dr. Merola later corrected his date of maximum medical
improvement to August 5, 2008 to agree with Dr. Allon.
On July 13, 2010 OWCP found that the weight of the medical opinion rested with
Dr. Merola and granted appellant a schedule award for a 25 percent right lower extremity
impairment, for a total of 72 weeks, to run from August 5, 2008 to December 21, 2009. It further
found, based on his opinion, that appellant was not entitled to a schedule award for the left lower
extremity. In a July 19, 2010 supported report, Dr. Merola confirmed that he had reviewed
Dr. Allon’s December 23, 2009 report and had utilized the sixth edition in preparing his report.
He further explained that the femoral nerve exited the L3 and L4 nerve root and because
appellant had sustained an injury at the L5-S1 level (resulting in right-sided S1 radiculopathy),
the femoral nerve could not be included in calculating his impairment.5
On August 13, 2010 appellant, through counsel, requested a hearing. By decision dated
September 13, 2010, OWCP’s hearing representative denied his request as untimely.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA6 and its implementing federal regulations7 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 for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.8 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides was used to calculate schedule awards.9
For decisions beginning May 1, 2009, the sixth edition is to be used.10
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.11 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
5

The record indicates that payment of the schedule award by electronic transfer was deleted on July 23, 2010
because it was denied at certification. The schedule award was paid on August 6, 2010.
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
10

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

11

Pamela J. Darling, 49 ECAB 286 (1998).

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permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.12
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides has for decades offered an
alternative approach to rating spinal nerve impairments.13 OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures.14 Specifically, it will address lower extremity impairments
originating in the spine through Table 16-1115 and upper extremity impairments originating in
the spine through Table 15-14.16
In addressing lower extremity impairments, due to peripheral or spinal nerve root
involvement, 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) and if electrodiagnostic testing were done, Clinical Studies (GMCS).17 The net
adjustment formula is (GMFH - CDX) + (GMCS - CDX).18
ANALYSIS -- ISSUE 1
The Board finds that appellant has a 27 percent impairment of the right leg. The accepted
conditions in this case are lumbar radiculopathy and aggravation of herniated lumbar disc with
authorized surgery at the L5-S1 level. The Board finds that the weight of the medical evidence
rests with the opinion of OWCP’s medical adviser, Dr. Merola, who provided medical rationale
for his conclusion that, as the disc herniation at L5-S1 was right sided and affected the sciatic
nerve only, appellant would not be entitled to an impairment rating based on findings related to
the femoral nerve or to a schedule award for a left leg impairment.
Dr. Allon, the attending physician, stated in his August 5, 2008 report and December 23,
2009 update that, using Table 16-12 of the sixth edition of the A.M.A., Guides,19 he found
appellant had a class 1 severe sensory deficit of the sciatic nerve which created a 12 percent
impairment, the default value. He advised that appellant had grade modifiers of two for GMFH
12

Thomas J. Engelhart, 50 ECAB 319 (1999).

13

Rozella L. Skinner, 37 ECAB 398 (1986).

14

FECA Transmittal No. 10-04 (issued January 9, 2010); supra note 9.

15

A.M.A., Guides, supra note 4 at 533.

16

Id. at 425.

17

Id. at 533.

18

Id. at 521.

19

Id. at 535.

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and GMCS and applied the net adjustment formula, finding a net adjustment of two. Dr. Allon
concluded that, with the net adjustment, appellant had a grade E impairment of 14 percent, based
on a class 1 sensory deficit of the sciatic nerve. He found a class 1 mild motor deficit of the
sciatic nerve which yielded 9 percent impairment under Table 16-12, the default value.
Dr. Allon found grade modifiers of two for GMFH and GMCS and applied the net adjustment
formula, for a net adjustment of two and concluded that, with the net adjustment, appellant had a
grade E impairment of 13 percent due to a mild motor deficit.20
Section 16.4(c) of the sixth edition of the A.M.A., Guides provides that motor and
sensory impairment are to be combined to calculate the lower extremity value.21 A 14 percent
sensory impairment plus a 13 percent motor impairment yields a total 27 percent impairment of
the right lower extremity due to a sciatic nerve injury.
Dr. Merola agreed with Dr. Allon’s findings that appellant had a 13 percent motor
impairment and a 14 percent sensory impairment. He incorrectly combined the sensory
impairment of 14 percent with the motor impairment of 13 percent, rather than adding the two
impairments as indicated in the A.M.A., Guides.22 Dr. Merola provided a rationalized
explanation regarding why appellant was not entitled to an impairment rating for the left lower
extremity or for femoral nerve findings on the right side. The medical evidence does not create a
conflict between Dr. Merola and Dr. Allon because the reports are not of equal weight.
Appellant is entitled to a schedule award for a 27 percent right lower extremity impairment. The
Board will affirm the July 13, 2010 decision as modified to show that appellant is entitled to a
schedule award for a 27 percent impairment of the right lower extremity.
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.
LEGAL PRECEDENT -- ISSUE 2
A claimant dissatisfied with a decision of OWCP shall be afforded an opportunity for an
oral hearing or, in lieu thereof, a review of the written record. A request for either an oral
hearing or a review of the written record must be submitted, in writing, within 30 days of the
date of the decision for which a hearing is sought. If the request is not made within 30 days or if
it is made after a reconsideration request, a claimant is not entitled to a hearing or a review of the
written record as a matter of right.23 The Board has held that OWCP, in its broad discretionary
authority in the administration of FECA has the power to hold hearings in certain circumstances
where no legal provision was made for such hearings and that OWCP must exercise this

20

The net adjustment values determine how many places up or down from the default value of C a rating should
move and the corresponding numerical value for impairment. Id. at 521.
21

Id. at 553.

22

Id.

23

Claudio Vazquez, 52 ECAB 496 (2001).

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discretionary authority in deciding whether to grant a hearing.24 OWCP’s procedures, which
require OWCP to exercise its discretion to grant or deny a hearing when the request is untimely
or made after reconsideration, are a proper interpretation of FECA and Board precedent.25
ANALYSIS -- ISSUE 2
In its September 13, 2010 decision, OWCP denied appellant’s request for a hearing on
the grounds that it was untimely filed. It found that he was not, as a matter of right, entitled to a
hearing as his request, dated and postmarked August 13, 2010, had not been made within 30 days
of its July 13, 2010 decision. As appellant’s request was dated and postmarked August 13, 2010,
more than 30 days after the date of the July 13, 2010 decision, the Board finds that OWCP
properly determined that he was not entitled to a hearing as a matter of right as his request was
untimely filed.26
OWCP also has the discretionary power to grant a request for a hearing when a claimant
is not entitled to such as a matter of right. In the September 13, 2010 decision, it properly
exercised its discretion by stating that it had considered the matter in relation to the issue
involved and had denied appellant’s request on the basis that the issue could be addressed
through a reconsideration application. The Board has held that, as the only limitation on
OWCP’s authority is reasonableness, abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment or actions taken which are contrary to
both logic and probable deduction from established facts.27 In the present case, the evidence of
record does not indicate that OWCP committed any act in connection with its denial of
appellant’s request for a hearing that could be found to be an abuse of discretion.
As to appellant’s arguments on appeal, in the absence of evidence to the contrary,
correspondence properly addressed and mailed in the due course of business, such as in the
course of OWCP’s daily activities, is presumed to have arrived at the mailing address in due
course. This is known as the mailbox rule.28 There is nothing in this record to support that the
schedule award was not mailed on that date or that the schedule award was rescinded. The fact
that payment of the schedule award was not certified until a later date or that additional medical
evidence was provided after OWCP’s decision is not sufficient grounds to toll the time
limitations for filing a request for a hearing. As appellant did not timely file a request for a
hearing, OWCP therefore properly denied his request.

24

Marilyn F. Wilson, 52 ECAB 347 (2001).

25

Claudio Vazquez, supra note 23.

26

Id. The hearing request was both faxed and mailed to OWCP.

27

See Mary Poller, 55 ECAB 483 (2004).

28

C.T., Docket No. 08-2160 (issued May 7, 2009).

6

CONCLUSION
The Board finds that appellant has a 27 percent impairment of the right leg and is not
entitled to a schedule award for the left leg. The Board further finds that OWCP properly denied
his request for a hearing.
ORDER
IT IS HEREBY ORDERED THAT the September 13, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed. The July 13, 2010 decision is affirmed, as
modified.
Issued: December 15, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CENTRAL ARKANSAS HEALTH CARE
SYSTEM, North Little Rock, AR, Employer
__________________________________________

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Appearances:
James W. Stanley, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1454
Issued: December 15, 2015

Case Submitted on the Record

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

JURISDICTION
On June 25, 2015 appellant, through counsel, filed a timely appeal from a June 2, 2015
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an emotional
condition in the performance of duty causally related to factors of her federal employment.
On appeal, counsel asserts that the medical evidence of record establishes that appellant’s
emotional condition was related to a hostile work environment and further asserts that a hearing
representative did not make credibility findings regarding appellant’s testimony.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 11, 2013 appellant, then a 48-year-old diagnostic radiologic technologist,
filed an occupational disease claim (Form CA-2) alleging that factors of her federal employment
caused depression. She stopped work on December 3, 2013 and has not returned.
In letters dated December 18, 2013, OWCP informed appellant of the evidence needed to
support her claim and also requested that the employing establishment respond.
Appellant provided an undated statement in which she noted that she began working in
the cardiac catheterization laboratory (cath lab) of the employing establishment in March 2011.
She stated that, when she began working there, she had no cath lab experience and was
constantly being compared to others with more experience and felt that she was being “watched
like a hawk.” Appellant related that she was immediately aware that there were “aggressive
attitudes” there, and each person had a certain way of getting things done. She specifically
described events in February 2012 and June 2013, the first when she disagreed with instructions
from a registered nurse and felt that she was being picked on, and the second when she found
that a coworker left her name off reports. Appellant stated that she reported numerous incidents
to her supervisor, e.g. that her locker was broken into, that employees were moving catheters
around, placing new stickers on cable boxes to confuse her, and that others were promoted to
positions for which she felt she was qualified. She concluded that since September 2013 she had
worked in a very hostile environment where everyone had turned against her.
Appellant submitted copious evidence in support of her claim including documentation of
an Equal Employment Opportunity (EEO) complaint, portions of performance appraisals,
laboratory results, and an article regarding workplace bullying. In e-mails dated February 15,
2012 and June 10, 2013, Brad Massey, cardiovascular manager, discussed workplace bullying
and a monthly meeting agenda. In an August 5, 2013 e-mail, he mentioned that box stickers had
been inadvertently changed, and reminded the staff to be aware of the change and fix the error.
In reports dated December 17, 2013, Dr. Richard Owings, a Board-certified psychiatrist,
diagnosed depression, anxiety, and paranoia related to work stress. He checked a form box
marked “yes,” indicating that the diagnoses were work related, stating, “[appellant] reports
harassment by coworkers and supervisors.” Dr. Owings advised that appellant was totally
disabled, but could resume regular duty on February 1, 2014.
On January 30, 2014 Dr. Donna Brown, a psychiatrist, asked that appellant be
accommodated with an alternate work environment that did not involve patient care, clinical
decision making, or exposure to the prior hostile environment. She noted that appellant
continued to have concentration difficulties that could promote errors and the hostility in the
prior work environment could exacerbate or worsen her condition.
On February 7, 2014 OWCP forwarded appellant’s statement and the e-mails to the
employing establishment and asked for a response.
In treatment notes dated April 17 to October 9, 2012, Dr. Owings described appellant’s
emotional condition and prescribed medication. Dr. Brown also continued to submit reports in
which she reiterated her diagnoses and conclusions.

2

On February 11, 2014 the employing establishment controverted the claim. In a
February 14, 2014 statement, Mr. Massey specifically addressed appellant’s allegations. He
maintained that leaving appellant’s name off a procedure report was not intentional, and that
there was nothing to be gained by leaving a name off because job performance was not measured
by cases completed. As to appellant’s allegation that equipment was moved, Mr. Massey stated
that he could not remember this and that appellant would need to be more specific. He admitted
that the cardiac cath lab could be stressful if a patient’s life was in danger, and indicated that
monthly team-building meetings were held, that there was a monthly party to celebrate birthdays,
and that appellant was always welcome to talk with him. Mr. Massey advised that all employees
were treated in the same manner, and appellant was always free to express her concerns or
opinions at monthly meetings, but never did so. He concluded that she had no conduct problems,
that any performance problems were very minor and fixed on the spot or with additional training,
and that she received the highest rating on her most recent performance evaluation.
On February 19, 2014 appellant additionally alleged that her supervisor did not properly
follow procedure in filing a (Form CA-2) claim. She attached e-mails in which she described
problems she had accessing a work computer after she stopped work, including that on
January 23, 2014 she logged onto someone else’s computer and discovered that one of her
computer drives had been tampered with, that a firewall had been turned off her personal
computer, and that her password was changed. Appellant reported this to information systems
specialists and requested an investigation. She further alleged that her supervisor changed her
leave request for sick leave and leave-without-pay to annual leave, and that she requested an
audit of earning and leave statements for the years 2009 through 2013, stating that the earning
and leave statements did not match her pay stubs. Appellant submitted e-mails in which she
contacted employing establishment personnel about these concerns, and questioned why her
2013 performance appraisal was not in her electronic personnel file. She also submitted e-mails
describing difficulties she had at the employing establishment on February 6, 2014 regarding
leave forms. Appellant submitted a number of earnings and leave statements.
In statements dated February 11, 2014 appellant described events that occurred from
November 26, 2013 to February 11, 2014. She described computer issues, problems with leave,
filing her claim, filing medical reports, obtaining earnings and leave statements and pay stubs,
and with her reasonable accommodation request. Appellant stated that she was offered a
position in the gastroenterology laboratory and this upset her because it was not within the
recommendations of her physician. She further indicated that two personal telephones and her
home computer had been accessed illegally, that her telephone camera was turned on to
streaming, and that apps were inappropriately placed on her telephones. Appellant stated that the
only computer she had been able to consistently use at the employing establishment since she
stopped work on December 3, 2013 was in the nursing education room which she had been using
to file leave requests, etc. She related that in 2008 and 2009 she reported radiology management
to the Office of Inspector General in Washington, DC, but nothing was done about it, and that
when the opportunity arose for her to leave radiology, she moved to the cath lab. She indicated
that she had contacted the Federal Bureau of Investigation, the Office of Special Counsel, and
the Secret Service regarding her concerns, to no avail.
Additional evidence submitted included leave-without-pay policy, memoranda regarding
agency whistleblowing and workplace harassment, the 2013 and 2014 performance plans for a
diagnostic radiology technician, appellant’s SF-50 forms dated December 15, 2011 to March 10,
3

2013, her performance appraisals from 2011 and 2013, leave analysis forms, a number of e-mails
voicing her concerns, and photographs of computer screens which she claimed documented her
allegations.
On March 5, 2014 someone from Dr. Brown’s office with an illegible signature indicated
that appellant could resume work in a different department without direct patient care. On
March 12, 2014 Dr. Richard C. Flanigin, a psychiatrist, indicated that she had no physical
restrictions and could return to work in a different facility or department without direct patient
care and minimal contact with coworkers.
On April 3, 2014 appellant forwarded leave requests, and a February 25, 2014 report in
which Dr. Brown diagnosed major depressive disorder and anxiety disorder, both severe, caused
by appellant’s work environment. She also forwarded a list of noncompetitive positions, her
résumé, and a referral request for noncompetitive hire. Appellant included a March 31, 2014
offer of reassignment to a medical support position in primary care. Dr. Flanigin indicated that
she was not able to perform patient care, interact with physicians or case managers, and was
unable to travel to distant clinics. Appellant did not accept the position.
On April 1, 2014 Dr. Flanigin advised that appellant had a psychiatric disability and
could be considered for employment under 5 C.F.R. § 213.3102(u), Noncompetitive
Appointment for Persons with Disability. Dr. Flanigin noted that appellant was likely to perform
well in a quiet office environment with little to no patient contact or care and minimal coworker
interaction within an office. On April 3, 2014 he advised that she could not return to work.
On May 5, 2014 the employing establishment denied appellant’s request for
accommodation, stating that, based on the parameters and limitations listed on the application,
there were no funded, vacant positions for which she qualified.
On May 29, 2014 OWCP again requested that the employing establishment respond to
appellant’s allegations.
In correspondence to the employing establishment dated April 29, 2014, appellant voiced
her disagreement with the job offer. She also noted that she requested an investigation into
hacking and other computer issues, and requested a return of access of her employing
establishment computer. Appellant resubmitted e-mails regarding computer issues.
In a June 24, 2014 statement, Mr. Massey provided a comprehensive list of appellant’s
time and leave. He explained her leave requests predating and postdating December 3, 2013,
when she stopped work, and furnished supporting documentation. Mr. Massey specifically
explained many computer leave requests appellant made and indicated that he had no access to
her pay stubs. Regarding her telephone and computer issues, he advised that there was no way to
illegally access the facility’s telephones. Mr. Massey reported that he had information system’s
personnel check appellant’s computer access, and he found nothing wrong, but felt it best to turn
off her access to her computer until she was able to return to work. He advised that she did not
file an EEO complaint.
In a July 10, 2014 report, Dr. Flanigin advised that he began treating appellant in
March 2014 for major depressive disorder and generalized anxiety disorder. He reported that,
after reviewing her psychiatric record, there had been a pattern of work stressors since 2010 that
4

aggravated her condition, and that she had had problems with mood instability and depression
dating back to the early 2000’s. Dr. Flanigin noted appellant’s description of incidents at work
when she felt bullied, and believed that her telephone had been tapped. He opined that her
diagnoses only continued to escalate, noting that she experienced extreme paranoia, stating
“although some of it is warranted, I am beginning to believe [that appellant] could suffer from an
underlying delusional disorder, aggravated by stress at work.” Dr. Flanigin concluded that
appellant should not work at the present.
By decision dated August 7, 2014, OWCP found that appellant had no compensable
factors of employment and denied her claim.
Appellant, through counsel, timely requested a hearing before an OWCP hearing
representative. In a November 24, 2014 report, Dr. Leigh Anne Bennett, a Board-certified
psychiatrist and associate of Dr. Flanigin, advised that she began treating appellant on
August 28, 2014 because appellant preferred a female physician. She noted her review of
appellant’s records and diagnosed major depressive disorder, recurrent, severe, with psychotic
features; anxiety disorder not otherwise specified; and rule-out mood disorder, not otherwise
specified. Dr. Bennett related appellant’s description of a hostile work environment where she
was harassed, and opined that, based on the information she had, it was her opinion that the
circumstances at work were the major contributor to appellant’s emotional condition. She
concluded that appellant was unable to work in any capacity.
At the hearing, held on March 17, 2015 appellant testified that, after becoming a
whistleblower in 2008 and 2009, she requested a transfer to the cardiac cath lab, and problems
began early on. She stated that she was bullied by the nurses and treated in a hateful manner by
all employees, and that when she complained to Mr. Massey, he sent out an e-mail regarding
bullying. Appellant also described computer issues, alleged that files were removed from her
electronic personnel file, and described incidents where her name was left off a report and labels
were misplaced on boxes of catheters which, she maintained, was done to make her look bad and
make mistakes. She stated that she requested a transfer and discovered that others were
promoted, but she was not. Appellant stated that two personal cellular phones were illegally
accessed, and files deleted, and tracking devices added. She testified that from September to
December 2013 the work environment was toxic, that she stopped work on December 2, 2013
and had not returned, and had applied for social security disability. A friend and coworker,
Mala Waller, testified in support of appellant’s claim.2
Following the hearing, counsel argued that, based on appellant’s testimony and that of
Ms. Waller, a hostile work environment existed in the cath lab, and that the medical evidence
supported appellant’s claim that her emotional condition was caused by her employment. In a
March 17, 2015 statement, Ms. Waller reported previous instances of claimed harassment and
noted appellant’s description of incidents of bullying. She described appellant’s current
condition.
In a June 2, 2015 decision, an OWCP hearing representative found that appellant did not
establish a compensable factor of employment and affirmed the August 7, 2014 decision.
2

Ms. Waller did not work in the cath lab. She is a former physical therapist who had an employment injury and
at the time of the hearing worked at the employing establishment as a clerk in logistics.

5

LEGAL PRECEDENT
To establish her claim that she sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that she has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her stress-related condition.3 If a claimant does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor.4 When
the matter asserted is a compensable factor of employment and the evidence of record establishes
the truth of the matter asserted, OWCP must base its decision on an analysis of the medical
evidence.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,6 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment, but nevertheless does not come within
coverage under FECA.7 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of, and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.8 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.9 Where the claimant
alleges compensable factors of employment, he or she must substantiate such allegations with
probative and reliable evidence.10 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.11
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.12 Where the
3

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

4

Dennis J. Balogh, 52 ECAB 232 (2001).

5

Id.

6

28 ECAB 125 (1976).

7

See Robert W. Johns, 51 ECAB 137 (1999).

8

Supra note 6.

9

J.F., 59 ECAB 331 (2008).

10

M.D., 59 ECAB 211 (2007).

11

Roger Williams, 52 ECAB 468 (2001).

12

Charles D. Edwards, 55 ECAB 258 (2004).

6

evidence demonstrates that the employing establishment either erred or acted abusively in
discharging its administrative or personnel responsibilities, such action will be considered a
compensable employment factor.13
For harassment or discrimination to give rise to a compensable disability, there must be
evidence introduced which establishes that the acts alleged or implicated by the employee did, in
fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations that the harassment occurred with probative and reliable evidence.14
With regard to emotional claims arising under FECA, the term “harassment” as applied by the
Board is not the equivalent of “harassment” as defined or implemented by other agencies, such
as the EEO Commission, which is charged with statutory authority to investigate and evaluate
such matters in the workplace. Rather, in evaluating claims for workers’ compensation under
FECA, the term “harassment” is synonymous, as generally defined, with a persistent disturbance,
torment or persecution, i.e., mistreatment by coemployees or workers. Mere perceptions and
feelings of harassment will not support an award of compensation.15
ANALYSIS
Appellant has not alleged that her emotional condition was due to any specific job duties
under Cutler. Rather, she has alleged that she was harassed and worked in a hostile work
environment, and that coworkers bullied her and tried to make her look bad and make errors.
Appellant also alleged that proper procedures were not followed when she filed her
claim, that her personnel file was inappropriately accessed, that her leave balances were
incorrect, that she had computer difficulties, and difficulty in filing medical reports. As a general
rule, a claimant’s reaction to administrative or personnel matters falls outside the scope of
FECA.16 The Board has long held that disputes regarding leave,17 the inability to obtain a
transfer,18 and the handling of a workers’ compensation claim,19 are administrative functions of
the employing establishment and, absent error or abuse, are not compensable.20 Mr. Massey
thoroughly explained appellant’s various leave requests. Appellant also complained about
various computer issues such as having difficulty with access after she left work in
December 2013. Mr. Massey contacted information systems, and her computer was checked
nothing was found to be wrong. He felt that it would be best to turn off access to her computer
13

Kim Nguyen, 53 ECAB 127 (2001).

14

James E. Norris, 52 ECAB 93 (2000).

15

Beverly R. Jones, 55 ECAB 411 (2004).

16

Carolyn S. Philpott, 51 ECAB 175 (1999).

17

Jose L. Gonzalez-Garced, 46 ECAB 559 (1995).

18

Alberta Kinloch-Wright, 48 ECAB 459 (1997).

19

Bettina M. Graf, 47 ECAB 687 (1996).

20

Supra note 12.

7

until appellant returned to work. There is also no evidence of record that her electronic
personnel file was inappropriately accessed. There is nothing in the record to substantiate error
or abuse in these administrative matters. As such, they are not compensable factors of
employment.
As to appellant’s allegations that her locker was broken into and that her private cellular
telephones and home computer were illegally accessed and tracking devices placed on them, she
has submitted no probative evidence to substantiate these claims.
The bulk of appellant’s claim is based on her allegation that there was a hostile work
environment in the cath lab and that all employees there treated her in a disrespectful, aggressive
manner, and bullied and harassed her. She described several events that, she maintained, were
done to discredit her and cause her to make errors. These included leaving appellant’s name off
reports and changing stickers on boxes of supplies.
Mere perceptions of harassment or discrimination are not compensable under FECA,21
and unsubstantiated allegations of harassment or discrimination are not determinative of whether
such harassment or discrimination occurred. A claimant must establish a factual basis for his or
her allegations with probative and reliable evidence.22 While Ms. Waller testified that she
believed that appellant was subjected to a hostile environment, she did not witness any specific
events or provide supportive documentation to show that harassment did, in fact, occur.
Appellant submitted no additional evidence. She submitted nothing to show a persistent
disturbance, torment or persecution, i.e., mistreatment by employing establishment
management.23 Appellant therefore did not establish a factual basis for her claim of harassment
by probative and reliable evidence.24
As to counsel’s argument on appeal that OWCP’s hearing representative did not make
credibility findings regarding appellant’s testimony, in the June 2, 2015 decision, the hearing
representative specifically stated, “I have carefully evaluated all evidence of record, to include
the testimony presented at the hearing and the evidence submitted thereafter,” and found it
insufficient to establish an emotional condition in the performance of duty.
Finally, as appellant failed to establish a compensable employment factor, the Board need
not address the medical evidence of record.25
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an emotional
condition in the performance of duty causally related to factors of her federal employment.
21

Supra note 14.

22

Id.

23

Supra note 15.

24

See Robert Breeden, 57 ECAB 622 (2006).

25

Katherine A. Berg, 54 ECAB 262 (2002).

8

ORDER
IT IS HEREBY ORDERED THAT the June 2, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 15, 2015
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SOUTH TEXAS VETERANS HEALTH CARE
SYSTEM, Corpus Christi, TX, Employer
__________________________________________

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

Docket No. 12-1821
Issued: January 25, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 4, 2012 appellant filed a timely appeal of a July 27, 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.
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation benefits
effective July 29, 2012 on the grounds that she failed to timely submit a completed Form
EN-1032.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 30, 2001 appellant, then a 45-year-old pharmacy technician, filed a Form
CA-2 alleging that she injured her lower back while in the performance of duty. OWCP
accepted her occupational disease claim for lumbar sprain/strain. Following her release to
light-duty work on March 21, 2005, appellant sustained a recurrence of disability on
January 30, 2006.2 She returned to modified assignment on September 18, 2006 and received
partial wage-loss compensation accordingly.3
In a May 17, 2012 letter, OWCP informed appellant that she was required to complete,
sign and return an enclosed Form EN-1032 detailing her earnings and employment in the
previous 15 months. It further advised that her benefits would be suspended if it did not receive
the document within 30 days. The letter was mailed to appellant’s address of record.
Appellant submitted a Form EN-1032 that was signed on June 14, 2012. She stated that
her federal employment ended in or around August or September 2011 and that she received
disability retirement payments from the Office of Personnel Management (OPM) since
November 2011.4
In a June 20, 2012 letter, OWCP advised appellant that she failed to identify in the Form
EN-1032 whether she received disability retirement benefits from OPM and, if so, when the
annuity began. It gave her 30 days to complete, sign and returned a revised Form EN-1032.
Appellant did not respond.
By decision dated July 27, 2012, OWCP suspended appellant’s compensation benefits
effective July 29, 2012.5
LEGAL PRECEDENT
FECA authorizes the Secretary of Labor to require a partially disabled employee to report
his or her earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies.6
OWCP periodically requires each employee who is receiving compensation benefits to
complete an affidavit as to any work, or activity indicating an ability to work, that the employee
has performed in the previous 15 months. If an employee who is required to file such a report
2

OWCP accepted appellant’s recurrence claim by decision dated March 7, 2006.

3

On September 25, 2007 OWCP found that the position of modified pharmacy technician was suitable in view of
her partial disability and fairly and reasonably represented her wage-earning capacity.
4

In a May 2, 2012 letter, OPM indicated that it was still processing appellant’s application for benefits.
Meanwhile, she received an interim payment for the period November 1, 2011 to April 30, 2012.
5

Appellant submitted new evidence after issuance of the July 27, 2012 decision. The Board lacks jurisdiction to
review evidence for the first time on appeal. 20 C.F.R. § 501.2(c).
6

5 U.S.C. § 8106(b).

2

fails to do so within 30 days of the date of the request, his or her right to compensation for wage
loss is suspended until OWCP receives the requested report. At that time, OWCP will reinstate
compensation retroactive to the date of suspension if the employee remains entitled to
compensation.7
ANALYSIS
The Board finds that OWCP improperly suspended appellant’s compensation benefits.
In a May 17, 2012 letter mailed to appellant’s address of record, OWCP informed her
that she needed to complete, sign and return a Form EN-1032 and that failure to return the
requested document within 30 days would lead to the suspension of her compensation benefits.
Appellant completed, signed and returned a Form EN-1032 dated June 14, 2012, specifying that
she received payments from OPM for disability retirement beginning November 2011.
However, OWCP asserted that she failed to provide this exact information in a June 20, 2012
letter and suspended her benefits effective July 29, 2012. In view of this error, the case shall be
remanded for further development on appropriate compensation benefits.8
CONCLUSION
The Board finds that OWCP improperly suspended appellant’s compensation benefits.

7

20 C.F.R. § 10.528. See also 20 C.F.R. § 10.525.

8

W.F., Docket No. 11-877 (issued March 9, 2012).

3

ORDER
IT IS HEREBY ORDERED THAT the July 27, 2012 decision of the Office of
Workers’ Compensation Programs be reversed and the case remanded for further action
consistent with this decision of the Board.
Issued: January 25, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.D., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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Appearances:
David G. Jennings, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-331
Issued: August 12, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 28, 2012 appellant, through his attorney, filed a timely appeal of an
August 22, 2012 decision of the Office of Workers’ Compensation Programs (OWCP)
concerning a schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 14 percent binaural (both ears) hearing
loss, for which he received a schedule award.
On appeal, appellant’s counsel contends that appellant is entitled to a greater hearing loss
based upon the opinion of OWCP’s referral physician.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 31, 2012 appellant then a 60-year-old pipefitter leader, filed an occupational
disease claim alleging that February 3, 2005 he first realized that his bilateral hearing loss was
employment related. OWCP accepted the claim for bilateral sensorineural hearing loss and
bilateral hearing loss due to noise.
OWCP referred appellant, together with a statement of accepted facts, to Dr. L. Frederick
Lassen, a Board-certified otolaryngologist, for a second opinion evaluation. An audiogram was
completed on April 10, 2012 which revealed the following decibel (dBA) losses at 500, 1,000,
2,000 and 3,000 hertz (Hz): 10, 15, 50 and 70 for the left ear and 5, 20, 45 and 65 for the right
ear. Dr. Lassen diagnosed bilateral sensorineural hearing loss and noise-induced hearing loss.
He opined that the hearing loss was due to appellant’s workplace noise exposure and
recommended hearing aids. Dr. Lassen reported that appellant had 3+ tinnitus. Applying the
standards provided by the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment2 (A.M.A., Guides) to the April 10, 2012 audiometric data,
he calculated that appellant sustained 13.125 percent monaural hearing impairment in the right
ear and 16.875 percent monaural hearing impairment in the left ear. On the form report,
Dr. Lassen added 3 percent impairment for tinnitus, resulting in a total 16.125 percent monaural
hearing impairment in the right ear (13.125 percent + 3 percent for tinnitus) and 19.875 percent
monaural hearing impairment in the left ear (16.875 percent + 3 percent for tinnitus). He
calculated a binaural hearing impairment of 16.75 percent. Dr. Lassen listed April 10, 2012 as
the date of maximum medical improvement.
On June 13, 2012 appellant filed a claim for a schedule award.
On July 11, 2012 OWCP received an April 23, 2012 report from OWCP’s medical
adviser who reviewed Dr. Lassen’s otologic examination report and agreed that appellant’s
bilateral high frequency sensorineural hearing loss was due to occupational noise exposure. The
medical adviser applied the audiometric data to OWCP’s standard for evaluating hearing loss
under the sixth edition of the A.M.A., Guides and determined that appellant sustained 13.75
percent binaural hearing loss. He averaged appellant’s left ear hearing levels of 10, 15, 50 and
70 dBA at 500, 1,000, 2,000 and 3,000 Hz, which totaled 145 which he divided by 4. The
medical adviser then subtracted a 25-dBA fence and multiplied the balance of 11.25 by 1.5 to
find 16.875 percent left ear monaural hearing loss. He then averaged appellant’s right ear
hearing levels of 5, 20, 45 and 65 dBA at 500, 1,000, 2,000 and 3,000 Hz, which totaled 135,
which then divided by 4. After subtracting out a 25-dBA fence, the medical adviser multiplied
the remaining 8.53 balance by 1.5 to calculate a 13.125 percent right ear monaural hearing loss.
He then calculated 13.75 percent binaural hearing loss by multiplying the lesser right ear loss of
13.125 percent by five, adding the greater 16.875 percent left ear loss and dividing this sum by
six. The medical adviser did not list any impairment due to tinnitus. He concluded that hearing
aids were authorized and the date of maximum medical improvement was April 10, 2012.
2

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

3

This appears to be a typographical error as the correct number is 8.75 as the calculation of 13.125 was based on
8.75 not 8.5.

2

By decision dated August 22, 2012, OWCP granted appellant a schedule award for 14
percent binaural hearing loss. The award covered a period of 28 weeks from April 104 to
October 22, 2012.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants.7 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.8 Effective May 1, 2009, OWCP adopted the
sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that
date.9
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.10 Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged.11 Then, the fence of 25 dBA is deducted because, as the
A.M.A., Guides points out, losses below 25 dBA result in no impairment in the ability to hear
everyday speech under everyday conditions.12 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.13 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the

4

OWCP noted the year as “2010” which appears to be a typographical error as the date of maximum medical
improvement was April 10, 2012.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

See D.K., Docket No. 10-174 (issued July 2, 2010); Michael S. Mina, 57 ECAB 379 (2006).

8

Supra note 6; see F.D., Docket No. 09-1346 (issued July 19, 2010); Billy B. Scoles, 57 ECAB 258 (2005).

9

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 9, 2010). See P.B., Docket No. 10-103 (issued July 23, 2010).
10

A.M.A., Guides 250 (6th ed. 2009).

11

Id.

12

Id.

13

Id.

3

binaural hearing loss.14 The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.15
Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease but rather a
symptom that may be the result of disease or injury.16 The A.M.A., Guides state that, if tinnitus
interferes with Activities of Daily Living (ADLs), including sleep, reading (and other tasks
requiring concentration), enjoyment of quiet recreation and emotional well-being, up to five
percent may be added to a measurable binaural hearing impairment.17
ANALYSIS
OWCP accepted the claim for bilateral sensorineural hearing loss and bilateral hearing
loss due to noise. By decision dated August 22, 2012, appellant was granted a schedule award
for a 14 percent binaural hearing loss. The issue is whether he has established that he is entitled
to more than a 14 percent binaural hearing loss. The Board finds that this case is not in posture
for a decision.
OWCP referred appellant, together with a statement of accepted facts, to Dr. Lassen, a
Board-certified otolaryngologist, for a second opinion evaluation. Dr. Lassen noted +3 tinnitus
and diagnosed bilateral sensorineural hearing loss and noise-induced hearing loss. He opined
that the hearing loss was due to appellant’s workplace noise exposure and recommended hearing
aids. Applying the April 10, 2012 audiometric data, Dr. Lassen calculated that appellant 16.125
percent monaural hearing impairment in the right ear and 19.875 percent monaural hearing
impairment in the left ear. On the form report, he added 3 percent impairment for tinnitus,
resulting in a total 16.125 percent monaural hearing impairment in the right ear (13.125 percent
+ 3 percent for tinnitus) and 19.875 percent monaural hearing impairment in the left ear (16.875
percent + 3 percent for tinnitus). Dr. Lassen calculated a binaural hearing impairment of 16.75
percent.
The Board finds this case is not in posture for a decision as clarification is required from
Dr. Lassen as to why he added a three percent impairment for tinnitus. Regarding tinnitus, the
A.M.A., Guides states, tinnitus in the presence of unilateral or bilateral hearing impairment may
impair speech discrimination. Therefore, add up to five percent for tinnitus in the presence of
measurable hearing loss if the tinnitus impacts the ability to perform ADLs.18 Although
Dr. Lassen included three percent impairment for tinnitus in his monaural impairment

14

Id.

15

J.H., Docket No. 08-2432 (issued June 15, 2009); Thomas O. Bouis, 57 ECAB 602 (2006); Donald E.
Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No. 01-1570 (issued
August 13, 2002).
16

See A.M.A., Guides 249.

17

Id. See also R.H., Docket No. 10-2139 (issued July 13, 2011); Robert E. Cullison, 55 ECAB 570 (2004).

18

Supra note 16. See R.D., 59 ECAB 127 (2007); David W. Ferrall, 56 ECAB 362 (2005).

4

determinations, he did not describe how this condition impacted appellant’s ADLs.19 Further,
while Dr. Lassen noted +3 tinnitus in his report, he did not include tinnitus as a diagnosis.
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden to establish entitlement to
compensation, OWCP shares the responsibility in the development of the evidence to see that
justice is done. As OWCP undertook development of the evidence by referring appellant to a
second opinion physician, it has the duty to secure an appropriate report addressing the relevant
issues.20 Because Dr. Lassen did not explain why he included tinnitus in his impairment rating
for appellant’s hearing loss, the case will be remanded to OWCP to request Dr. Lassen to provide
a supplemental report explaining his rationale for giving a three percent impairment for tinnitus
when he did not list it as a diagnosis. Following this and any necessary further development,
OWCP shall issue a de novo decision relative to the extent and degree of appellant’s hearing
impairment.
CONCLUSION
The Board finds that this case is not in posture for a decision as it must be remanded to
OWCP for further development.

19

R.G., Docket No. 11-19 (issued August 3, 2011); J.P., Docket No. 09-1520 (issued March 1, 2010).

20

Peter C. Belkind, 56 ECAB 580 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 22, 2012 is set aside and the case remanded for further
development consistent with the above opinion.
Issued: August 12, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Chicago, IL, Employer
)
___________________________________________ )
J.D., Appellant

Appearances:

Docket No. 06-1924
Issued: January 5, 2007

Case Submitted on the Record

Appellant, pro se
Office of Solicitor, for the Director

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

JURISDICTION
On August 15, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated May 18, 2006, which denied her claim for a
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether the Office properly denied appellant’s claim for a schedule award
for the accepted conditions of abdominal wall strain/hernia.
FACTUAL HISTORY
On December 8, 2004 appellant, then a 47-year-old mail processing clerk, filed a
traumatic injury claim alleging that she sustained a hernia on December 8, 2004 while lifting
trays of bulk mail. The Office accepted her claim for abdominal wall strain/hernia and paid
appropriate compensation.
Appellant stopped work on January 5, 2005 and worked
intermittently until May 11, 2005 when she returned to work full time without restrictions.

Appellant submitted treatment notes from December 8 to 20, 2004, which diagnosed an
abdominal wall strain on December 8, 2004 while lifting mail at work. She came under the care
of Dr. Alexander P. Nagle, a Board-certified general surgeon. In reports dated February 2 to
April 6, 2005, Dr. Nagle noted a history of injury and indicated that appellant’s medical history
was significant for a prior hernia repair in July 2004. On March 4, 2005 he performed a
laparoscopic repair of an incisional hernia with mesh and diagnosed incisional hernia. In a report
dated March 17, 2005, Dr. Nagle noted that appellant was progressing well postoperatively. On
April 27, 2005 he released appellant to work on May 11, 2005 without restrictions.
On June 22, 2005 appellant filed a claim for a schedule award. She submitted emergency
room notes dated January 20, 2005, indicating that she was treated for a persistent cough.
Reports from Dr. Samuel Chmell, a Board-certified orthopedic surgeon, dated April 19 and
May 17, 2005, noted neck and low back pain. He diagnosed right wrist strain/tendinitis,
entrapment neuropathy of the right upper extremity, cervical disc derangement with
radiculopathy, lumbar disc derangement and right shoulder derangement. A computerized
tomography scan of the abdomen and pelvis dated September 28, 2005 revealed a supraumbilical
wide neck hernia with no bowel obstruction. In an October 21, 2005 attending physician’s
report, Dr. Don C. Arnold, a Board-certified internist, diagnosed left recurrent inguinal hernia.
He noted with a checkmark “yes” that appellant’s condition was caused or aggravated ay an
employment activity and that lifting heavy objects caused appellant’s small hernia to become a
large hernia.
On November 9, 2005 appellant filed a Form CA-2a, notice of recurrence of disability,
indicating that she developed a recurrent hernia causally related to her accepted condition of
December 8, 2004. She submitted emergency room notes dated February 10, 1999 to May 24,
2004, related to treatment for a sore throat, body itching, neck pain and headaches. A report
from Dr. Nagle dated February 14, 2005 noted that appellant presented on February 2, 2005 for
evaluation of a recurrent incisional hernia and underwent a laparoscopic hernia repair. A
polysomnogram dated April 25, 2005 revealed morbid obesity, insomnia and excessive
sleepiness during the daytime.
On May 18, 2006 the Office accepted appellant’s claim for a recurrence of disability and
subsequent surgery to repair the recurrent hernia.
In a decision dated May 18, 2006, the Office denied appellant’s claim for a schedule
award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulation2 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, the Act does not specify the manner in which the percentage of loss shall be
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

2

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 American Medical Association, Guides to the
Evaluation of Permanent Impairment has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.3 No schedule award is payable for a
member, function or organ of the body not specified in the Act or in the implementing
regulations.4
Section 8107(c)(22) of the Act provides for payment of compensation for permanent loss
or loss of use of “any other important external or internal organ of the body as determined by the
Secretary” of Labor.5 On April 1, 1987 the Secretary of Labor added the following organs to the
compensation schedule: breast, kidney, larynx, lung, penis, testicle and tongue.6 The Secretary
made no provision in the implementing regulations for a hernia, repair of a hernia or residual
abdominal symptomology. The current implementing regulations at 20 C.F.R. § 10.404(a)
include the following members only: breast, kidney, larynx, lung, penis, testicle, tongue, ovary
and uterus and vulva/vagina.7
ANALYSIS
On appeal, appellant alleges that she is entitled to a schedule award for her accepted
condition of abdominal wall strain/hernia because the injury was caused by the heavy lifting at
work. The Office accepted appellant’s claim for abdominal wall strain/hernia. However, the Act
does not provide for a schedule award for a hernia.
The Board finds that the medical evidence fails to establish that appellant sustained any
permanent impairment to a schedule member of the body. Section 8107 of the Act does not
provide for a schedule award for a hernia condition.8 The regulations similarly provide no
entitlement for a schedule award for a hernia.9 Appellant is only entitled to receive a schedule
award if she establishes that her hernia caused impairment to a scheduled member of her body.
The medical evidence of record, however, does not establish that she has any permanent
impairment to a scheduled member due to her hernia condition. Appellant submitted reports
from Dr. Nagle, dated February 2 to April 6, 2005, who diagnosed recurrent incisional hernia
which was due to repetitive trauma caused by heavy lifting at work. On March 4, 2005
Dr. Nagle performed a laparoscopic repair of an incisional hernia with mesh and diagnosed
incisional hernia. However, he did not find any permanent impairment to a scheduled member
3

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

4

Thomas J. Engelhart, 50 ECAB 319 (1999).

5

5 U.S.C. § 8107(c)(22).

6

20 C.F.R. § 10.304(b) (1987).

7

20 C.F.R. § 10.404(a).

8

Billy D. Alkire, 32 ECAB 1389 (1981).

9

See supra note 2.

3

related to her hernia condition or accepted surgery. Dr. Arnold diagnosed left recurrent inguinal
hernia and Dr. Chmell diagnosed wrist strain/tendinitis, entrapment neuropathy of the right upper
extremity, cervical disc derangement with radiculopathy, lumbar disc and right shoulder
derangement. These reports do not provide any opinion that appellant sustained impairment to a
scheduled member due to her accepted injury.
Neither the Office nor the Board has the authority to enlarge the terms of the Act or to
make an award of benefits under any terms other than those specified in the statute.10 The Board
finds that appellant is not entitled to a schedule award for injuries sustained to her abdominal
wall (hernia).11 Consequently, appellant has not established a basis for a schedule award for
permanent impairment of a schedule member of the body due to her work injury.
CONCLUSION
The Board finds that the Office properly denied appellant’s claim for a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the May 18, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 5, 2007
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

10

Richard T. DeVito, 39 ECAB 668 (1988).

11

The Board notes that its decision on appellant’s entitlement to a schedule award for the condition of hernia does
not affect her entitlement, if any, to monetary compensation for wage loss or her entitlement, if any, to medical
benefits for the residuals of her accepted employment injury.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Somerdale, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-2398
Issued: June 20, 2011

Case Submitted on the Record

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

JURISDICTION
On September 27, 2010 appellant timely appealed the June 10, 2010 merit decision of the
Office of Workers’ Compensation Programs (OWCP), which affirmed a prior schedule award.
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 of this case.
ISSUE
The issue is whether appellant has greater than one percent impairment of the right upper
extremity.
FACTUAL HISTORY
Appellant, then a 39-year-old letter carrier, has an accepted traumatic injury claim for
right shoulder contusion, which arose on January 18, 1997 when he slipped and fell on ice. He
did not lose anytime from work due to his right shoulder injury, therefore, his claim was
1

5 U.S.C. §§ 8101-8193.

administratively closed and the case record destroyed due to inactivity. On January 23, 2009
appellant filed a claim for a schedule award. On February 25, 2009 OWCP initiated efforts to
reconstruct the case record.
On April 22, 2009 OWCP received a May 30, 2006 impairment rating from Dr. David
Weiss, a Board-certified orthopedic surgeon. Applying the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (2001), Dr. Weiss found five
percent impairment of the right upper extremity due to loss of shoulder motion (two percent) and
pain (three percent).2
OWCP subsequently referred appellant to Dr. Kevin F. Hanley, a Board-certified
orthopedic surgeon. In a report dated October 23, 2009, Dr. Hanley found one percent
impairment of the right upper extremity based on the sixth edition of the A.M.A., Guides (2008),
which OWCP adopted effective May 1, 2009.3
On January 24, 2010 the district medical adviser (DMA) reviewed the record, including
Dr. Hanley’s report, and concurred with the finding of one percent impairment of the right upper
extremity.
By decision dated February 22, 2010, the Office granted a schedule award for one percent
impairment of the right upper extremity. The award covered a period 312 weeks, from
October 23 to November 13, 2009.
Appellant’s counsel requested a review of the written record. In a decision dated
June 10, 2010, the Branch of Hearings & Review affirmed the February 22, 2010 schedule
award.
LEGAL PRECEDENT
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.4 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. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.5 Effective May 1, 2009, schedule awards are determined in
accordance with the A.M.A., Guides (6th ed. 2008).6
2

Dr. Weiss also rated appellant’s right lower extremity.

3

The rating was based on appellant’s right shoulder contusion. Dr. Hanley cited Table 15-5 (Shoulder Regional
Grid), A.M.A., Guides 401 (6th ed. 2008).
4

For a total loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

5

20 C.F.R. § 10.404.

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Example 1
(January 2010).

2

ANALYSIS
OWCP based the February 22, 2010 schedule award on the one percent impairment rating
Dr. Hanley calculated under the sixth edition of the A.M.A., Guides. The DMA concurred with
Dr. Hanley’s one percent rating. Appellant’s counsel did not specifically challenge the validity
of Dr. Hanley’s examination and findings, but instead argued that appellant should have received
a schedule award for five percent impairment under the fifth edition of the A.M.A., Guides as
Dr. Weiss calculated in May 2006.
Counsel claimed he initially submitted Dr. Weiss’ impairment rating in July 2006 and
that OWCP unreasonably delayed issuing a decision regarding appellant’s entitlement to a
schedule award. As previously noted, the instant claim was administratively closed and the
record destroyed due to inactivity. There is no evidence to substantiate counsel’s assertion that
he previously submitted Dr. Weiss’ May 30, 2006 report in support of a schedule award under
the current claim.7 There is also no evidence that appellant previously filed for a schedule award
with respect to the current claim. The record indicates that OWCP received Dr. Weiss’ May 30,
2006 report on April 22, 2009.
Counsel argued that the Office’s delay in issuing a decision constituted a denial of due
process. He asserted that appellant has a property right in a schedule award benefit under the
fifth edition of the A.M.A., Guides and that a protected property interest cannot be deprived
without due process. In support of this contention, counsel cited Goldberg v. Kelly, 397 U.S. 254
(1970) and Mathews v. Eldridge, 424 U.S. 319 (1976). However, these cases held only that a
claimant who was in receipt of benefits (in Goldberg public assistance, and in Mathews Social
Security benefits) could not have those benefits terminated without procedural due process.
In Harry D. Butler,8 the Board noted that Congress delegated authority to the Director
regarding the specific methods by which permanent impairment is to be rated. Pursuant to this
authority, the Director adopted the A.M.A., Guides as a uniform standard applicable to all
claimants and the Board has concurred in the adoption.9 On March 15, 2009 the Director
exercised authority to advise that as of May 1, 2009 all schedule award decisions of the Office
should reflect use of the sixth edition of the A.M.A., Guides.10 The applicable date of the sixth
edition is as of the schedule award decision reached. It is not determined by either the date of
maximum medical improvement or when the claim for such award was filed.
As noted, both Dr. Hanley and the DMA agreed that appellant had one percent
impairment of the right upper extremity due to a shoulder contusion. Applying Table 15-5,
7

Appellant has at least three other claims for employment-related hernias, which Dr. Weiss referenced in his
May 30, 2006 report.
8

43 ECAB 859 (1992).

9

Id. at 866.

10

FECA Bulletin No. 09-03 (issued March 15, 2009). The FECA Bulletin was incorporated in the Federal
(FECA) Procedure Manual, Part 2 -- Claims, Schedule Award & Permanent Disability Claims, Chapter 2.808.6(a)
(January 2010).

3

A.M.A., Guides 401, both found that appellant’s right shoulder contusion represented a class 1
impairment with a range of one to three percent impairment of the upper extremity. After
appropriate adjustment for Functional History, Physical Examination and Clinical Studies,
Dr. Hanley and the DMA concurred that appellant had one percent impairment of the right upper
extremity.11 The Board finds that these two reports conform to the A.M.A., Guides (6th ed.
2008), and thus, represent the weight of the medical evidence regarding the extent of appellant’s
right upper extremity impairment. Appellant has not submitted any credible medical evidence
indicating he has greater than one percent impairment of the right upper extremity.
CONCLUSION
Appellant failed to establish that he has greater than one percent impairment of the right
upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the June 10, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 20, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

See Table 15-6, A.M.A., Guides 406 (6th ed. 2008).

4