United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF THE NAVY,
PHILADELPHIA NAVAL SHIPYARD,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 17-0799
Issued: October 20, 2017

Case Submitted on the Record

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

JURISDICTION
On February 28, 2017 appellant filed a timely appeal from a January 26, 2017 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 to consider the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his claim should
be expanded to include multiple additional conditions as causally related to his accepted April 2,
1985 injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts of the case as presented in the
Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.
On December 10, 1986 appellant, then a 33-year-old sandblaster, filed an occupational
disease claim (Form CA-2) alleging that on April 2, 1985 he first obtained medical care for his
bilateral hand contact dermatitis and on September 17, 1986 realized that the condition was due
to working with paint and paint thinner. He did not stop work. OWCP accepted the claim for
contact dermatitis and paid wage-loss compensation for the period March 14, 1992 until it placed
appellant on the periodic rolls for temporary total disability with the first payment for the period
April 3 to 30, 1994.3
In a letter dated September 2, 1999, the Berkeley County School District related that
appellant had been employed as a child care attendant since August 9, 1999.
By decision dated November 22, 2002, OWCP reduced appellant’s wage-loss
compensation effective November 3, 2002 as his actual wages as a child care attendant fairly and
reasonably represented his wage-earning capacity. It noted that, because he had shown the
ability to perform the duties of the position for 60 days or more, the position was considered
suitable to his partially disabled condition.4
In an April 30, 2009 letter, appellant informed Goose Creek School that he was resigning
from his position as Child Care Attendant. He noted that he had worked 10 years in the position
and attributed his resignation to the impact his excessive sweating had on his life, including an
inability to handle a steering wheel while driving and skin breakouts which caused him
emotional stress.
2

Docket No. 17-0799 (issued August 24, 2016); Docket No. 01-2002 (issued September 3, 2002).

3

The record contains a Notification of Personnel Action (Form SF-50) notifying appellant that his employment
was terminated effective March 14, 1992 due to a reduction-in-force.
4

By decision dated June 30, 1999, OWCP adjusted his compensation based upon his wage-earning capacity as a
credit clerk. By decision dated March 30, 2000, an OWCP hearing representative vacated the June 30, 1999
determination finding that the position of child care attendant should have been used to determine appellant’s wageearning capacity instead of the constructed position of credit clerk. In a September 5, 2000 decision, an OWCP
Assistant Branch Chief of Hearings and Review rescinded the March 30, 2000 OWCP hearing representative’s
decision. He found that the decision was erroneously based on evidence of employment, which was not in existence
at the time of the 1999 wage-earning capacity determination. Thus, the Assistant Branch Chief rescinded the
March 30, 2000 decision and reinstated the June 30, 1999 wage-earning capacity determination. Appellant
requested reconsideration on May 30, 2001. By decision dated July 9, 2001, OWCP denied modification of the
September 5, 2000 decision. On July 16, 2001 appellant filed an appeal with the Board. In a decision dated
September 3, 2002, the Board reversed the September 5, 2000 decision. Docket No. 01-2002 (issued
September 3, 2002). In reaching its determination regarding the September 5, 2000 decision, the Board found that
the vocational rehabilitation counselor failed to consider all the medical evidence from appellant’s treating
psychologists that the position was not within his mental, psychological, and technical abilities. The Board also
found that the vocational rehabilitation specialist failed to provide sufficient rationale regarding the suitability of the
constructed position. Thus, the Board found that OWCP improperly reduced appellant’s wage-loss compensation
based on its finding that he was capable of performing the constructed position of credit clerk.

2

The record contains yearly reports from 2007 to 2011 by Dr. Pierre Jaffe, a treating
Board-certified dermatologist. In the annual reports for this period, he noted that appellant’s
dermatitis condition was under control. On February 8, 2007 Dr. Jaffe indicated that the
dermatitis was controlled by the job change to teaching and the current environment. In reports
dated February 16, 2009, February 17, 2010 and February 18, 2011, he noted that appellant also
suffered from hyperhidrosis (excessive sweating), which was controlled by medication.
In a January 12, 2012 report, Dr. Jaffe noted that appellant was seen for his annual visit
and that his atopic dermatitis and hyperhidrosis was controlled with medication. He completed a
work capacity evaluation form (Form OWCP-5c) on January 12, 2012 indicating that appellant
was not capable of working any hours and noted that appellant should avoid heat.
Dr. Jaffe, in a June 8, 2012 report, reiterated findings from his January 12, 2012 report.
He noted that appellant’s symptoms and medical condition were controlled by current treatment.
Dr. Jaffe opined that appellant’s condition dated back over 27 years and would persist
indefinitely.
In a February 6, 2014 report, Dr. Jaffe reported that appellant continued to suffer from his
accepted chronic allergic dermatitis. Other diagnoses included hyperhidrosis, chronic exfoliative
dermatitis, mild schematization, and adjustment disorder with mixed emotions of depression and
preoccupation with his health. Dr. Jaffe opined that appellant’s condition had changed as his
condition was partly controlled by medication. He reported that appellant’s “pruritus and
continuous itching and dermatitis has resulted in [appellant’s] skin becomes (sic) thickening,
hardening, excoriations, and erythema all discomfort to him.” Dr. Jaffe further noted that
appellant had become depressed and anxious as a result of his chronic contact dermatitis. He
noted that 50 percent of appellant’s body was involved. Next, Dr. Jaffe reported that appellant’s
skin condition was aggravated by heat, moisture, humidity, airborne irritants, chemicals, working
in wet and humid environments, and sweat, causing pain and discomfort. He concluded that
appellant was disabled from working as the stress of holding a job “appear[ed] to flare his rash”
and his excessive sweating required multiple changes of clothes during the day. Dr. Jaffe also
reported that appellant had episodes of memory loss and headaches as well as periods of chronic
neurodermatitis and tenseness. Appellant related that his excessive sweating limited his ability
to write, to handle a steering wheel while driving, or to walk, and caused weakness in his arms,
feet, legs, and hands. Dr. Jaffe opined that appellant’s excessive sweating and skin breakouts
caused him stress and impaired his ability to perform daily functions.
Dr. Jaffe, in a November 20, 2015 report, reiterated findings from his prior reports and
requested that appellant’s claim be expanded to include musculoskeletal impairments, loss of
joint mobility of the arms, hands, fingers, legs, and face, and arthritis. In support of this, he
explained that appellant’s leg, arms, hands, fingers, and face musculoskeletal impairments were
associated with effects of severe psoriasis including loss of joint mobility and arthritis. Dr. Jaffe
further attributed appellant’s scrotal disease to the accepted contact dermatitis and other eczema
as appellant had previously been sexually active and recommended an impairment rating for his
reproductive organs
In a January 8, 2016 report, Dr. Jaffe requested that OWCP expand acceptance of the
claim to include carpal tunnel syndrome, musculoskeletal impairment as the result of joint

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mobility loss, severe arthritis which he opined was associated with severe psoriasis, scrotal
disease, reproductive organ area, organic brain disorder/damage, and joint pain, muscle
weakness, stiffness and tingling in the arms, legs, hands, feet, face, and fingers. He explained
that these conditions resulted from appellant’s accepted contact dermatitis and other eczema.
Dr. Jaffe found that appellant’s condition was chronic because he had experienced symptoms for
over 23 years.
On February 15, 2016 appellant requested that his claim be expanded to include the
conditions noted by Dr. Jaffe in his November 20, 2015 and January 8, 2016 reports.
In a June 6, 2016 report, Dr. Jaffe again requested OWCP to expand appellant’s claim to
include additional conditions. The report reiterated the physician’s rationale from prior reports.
By letter dated June 14, 2016, OWCP informed appellant that it had received his request
to expand the acceptance of his claim. It informed him that, while Dr. Jaffe attributed these
conditions to appellant’s accepted conditions, the physician failed to sufficient medical rationale
or reasoning explaining the causal relationship. OWCP afforded appellant 30 days to provide the
requested evidence.
On July 12, 2016 OWCP received a June 7, 2016 report by Dr. Jaffe summarizing his
treatment of appellant over the years. Dr. Jaffe provided results on examination and noted
clinical testing results. Diagnoses included chronic allergic and irritant contact, hands, arms,
forearms, fingers, foot, face, and groin exfoliative, nummular, and general skin disorder.
In a July 5, 2016 letter, appellant detailed the reports that he was submitted covering the
period and medical articles regarding the impact of ethylene glycol ether exposure.
In an August 16, 2016 report, Dr. Jaffe summarized his treatment of appellant and opined
that appellant’s condition had worsened and changed. As a result of the worsening of his
dermatitis, appellant become withdrawn and sexual relations with his spouse were impaired by
the excessive itching and sweating caused by the worsening of his condition. Diagnoses
included contact dermatitis and other eczema from solvent exposure, other psoriasis, generalized
hyperidrosis, unspecified pruritic disease, atopic dermatitis and related conditions, contact
dermatitis and other chemical products, and contact dermatitis and other eczema of unspecified
cause.
In a November 30, 2016 report, Dr. Jaffe opined that appellant’s accepted contact
dramatis had caused appellant’s arthritis, several arm, finger, and hand ailments, reproductive
organ disorder, and musculoskeletal impairment. In support of his conclusion, he opined that the
medical and factual background of appellant’s employment, work injury, and medical treatment
were sufficient to establish that appellant’s claim should be expanded to include these additional
diagnosed conditions. Dr. Jaffe further explained that appellant’s exposure to ethylene glycol
ether impacted his reproductive system, as samples of his semen and blood were sent for testing
which found his reproductive function had been affected. Next he discussed the difficulty in
diagnosing appellant’s arthritis in its early stages and that appellant’s musculoskeletal,
extremities, central nervous system, and reproductive organ had all been modified by his
exposure to ethylene glycol ether, which was the cause of appellant’s accepted dermatitis.

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Dr. Jaffe opined that appellant was currently totally disabled due to his accepted contact
dermatitis and that the claim should be expanded to include additional conditions.
In a January 9, 2017 report, Dr. Jaffe opined that appellant’s prolonged and overexposure
to ethylene glycol ether paint thinner while working for the employing establishment was the
cause of appellant’s conditions. Thus, he explained that the musculoskeletal impairment,
reproductive organ, and several other arm, hand, and finger ailments were causally related to the
accepted April 2, 1985 injury as these conditions are comparable to the accepted contact
dermatitis and are related to paint thinner exposure.
By decision dated January 26, 2017, OWCP denied appellant’s request to expand his
claim to include additional conditions. It found that the evidence submitted failed to contain a
rationalized opinion explaining how the diagnosed conditions were attributable to the accepted
work injury of April 2, 1985 or to his accepted dermatitis condition.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.5 To establish causal relationship between the
condition as well as any attendant disability claimed and the employment injury, an employee
must submit rationalized medical evidence based on a complete medical and factual background
supporting causal relationship.6 Causal relationship is a medical issue and the medical evidence
required to establish causal relationship is rationalized medical evidence.7 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.8 Neither the mere fact that a disease or condition manifests itself
during a period of employment, nor the belief that the disease or condition was caused or
aggravated by employment factors or incidents is sufficient to establish causal relationship.9
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional
conduct.10 The subsequent injury is compensable if it is the direct and natural result of a
5

Jaja K. Asaramo, 55 ECAB 200 (2004).

6

M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

7

D.E., 58 ECAB 448 (2007); Mary J. Summers, 55 ECAB 730 (2004).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

9

V.W., 58 ECAB 428 (2007); Ernest St. Pierre, 51 ECAB 623 (2000).

10

Albert F. Ranieri, 55 ECAB 598 (2004).

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compensable primary injury.11 With respect to consequential injuries, the Board has stated that,
where an injury is sustained as a consequence of an impairment residual to an employment
injury, the new or second injury, even though nonemployment related, is deemed, because of the
chain of causation to arise out of and in the course of employment and is compensable.12
ANALYSIS
OWCP accepted that appellant sustained contact dermatitis as a result of exposure to
paint and paint thinner prior to April 2, 1985. Appellant did not stop work until he was
terminated due to a reduction-in-force on March 14, 1992. OWCP began paying him wage-loss
beginning on March 14, 1992. Appellant subsequently worked as a child care attendant for a
private employing establishment commencing in 1999 for 10 years until resigning on
April 30, 2009. The Board finds that the medical evidence of record is insufficient to establish
additional medical conditions due to the accepted injury.
In support of his claim appellant submitted numerous reports from Dr. Jaffe. In reports
from November 20, 2015 through January 19, 2017, Dr. Jaffe requested expansion of appellant’s
claim to include musculoskeletal, central nervous system, reproductive organ impairments,
carpal tunnel syndrome, loss of joint mobility of the arms, hands, fingers, legs, and face, and
arthritis. In support of his request, Dr. Jaffe explained that appellant’s exposure to paint thinner
or ethylene glycol ether and his contact dermatitis were the direct cause of the additional
conditions. However, he failed to address that appellant had not worked for the employing
establishment since March 1992 nor did he discuss what impact appellant’s subsequent
employment as a child care attendant for 10 years might have had on the conditions. Dr. Jaffe
diagnosed the additional conditions based on new medical test findings and concluded that
appellant had suffered from these condition for more than 20 years. The Board finds these
reports to be conclusory and offer no supporting medical rationale to explain how these
diagnosed conditions were caused or aggravated by the original exposure to paint and paint
thinner in 1985. The Board has found such conclusory opinions are insufficient to establish
causal relationship.13 The Board finds that Dr. Jaffe failed to provide a rationalized medical
explanation as to how appellant’s exposure to paint or paint thinner would have caused any of
the additional medical conditions beyond the accepted dermatitis.14
Appellant has the burden of proof to establish a claim for additional injuries through the
submission of rationalized medical opinion evidence.15 The Board thus finds that he has not
submitted evidence from a physician who, based on an accurate factual history, explained with
11

S.M., 58 ECAB 166 (2006); Debra L. Dillworth, 57 ECAB 516 (2006); Carlos A. Marrero, 50 ECAB 117
(1998); A. Larson, The Law of Workers’ Compensation § 10.01 (2005).
12

L.S., Docket No. 08-1270 (issued July 2, 2009); Kathy A. Kelley, 55 ECAB 206 (2004).

13

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006); Roma A. MortensonKindschi, 57 ECAB 418 (2006).
14

See G.C., Docket No. 13-0573 (issued May 17, 2013).

15

Id.

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supporting medical rationale that the additional diagnosed conditions were a consequence of his
1985 work injury.16
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 his burden to proof to establish that his claim
should be expanded to include additional conditions as causally related to his accepted April 2,
1985 injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 26, 2017 is affirmed
Issued: October 20, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

16

See C.L., Docket No. 17-0249 (issued June 22, 2017).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Lompoc, CA, Employer
__________________________________________

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

Docket No. 07-167
Issued: February 13, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 24, 2006 appellant filed a timely appeal from the June 13, 2006 merit
decision of the Office of Workers’ Compensation Programs’ hearing representative, which
affirmed the denial of additional schedule compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to review the merits of the claim.
ISSUE
The issue is whether appellant has more than a 15 percent permanent impairment of the
right lower extremity or more than a 2 percent impairment of the left, for which he received a
schedule award.
FACTUAL HISTORY
On December 21, 1990 appellant, then a 33-year-old legal technician, sustained an injury
in the performance of duty: “While packing inmate property I tripped on a box of property and
tried to catch myself before I fell and hurt my back.” The Office accepted his claim for a
herniated disc at L5-S1. Appellant underwent an L5-S1 discectomy on February 22, 1991. On

February 3, 1994 he received a schedule award for a 15 percent permanent impairment of his
right lower extremity and a 2 percent impairment of his left. On April 12, 2002 appellant
underwent additional lumbar surgery.
On February 6, 2003 Dr. Edwin M. Gangemi, a physiatrist, evaluated appellant’s
impairment. He noted full range of motion of all planes and joints in the hips, knees and ankles
bilaterally. For motor strength, Dr. Gangemi reported right hip flexion 3/5, left hp flexion 4/5,
right knee extension 4/5, left knee extension 4+/5, right ankle dorsiflexion 4/5, left ankle
dorsiflexion 4/5, right plantar flexion 4+/5 and left plantar flexion 5/5. Sensation at L3 was
symmetrically equal bilaterally. There was diminished pinprick on the right at L4, L5 and S1.
Deep tendon reflexes were 3+ hyperactive for the left patella, 3+ for the right patella, and 0 and
1+ hypoactive for the Achilles. Dr. Gangemi diagnosed chronic low back pain, lumbar
radiculitis, lumbar radiculopathy, status post lumbar laminectomy and urinary retention with
self-catheterization for 12 months. He concluded that appellant had a 23 percent whole person
impairment.
On November 4, 2003 Dr. Gangemi conducted an extended appraisal of the lower
extremities:
“Full active range of motion of all joints and planes tested in the hips, knees and
ankles bilaterally. Tone is normal. There is no crepitus or atrophy noted. Motor
strength in the lower extremities is 5/5 throughout, with the exception of the right
knee flexion, which was found to be 4+/5, and left knee flexion, which was found
to be 5-.
“Cranial nerves II-XII tested to be intact. Sensory is intact to light and deep
touch, proprioception and joint position sense and pinprick. Deep tendon reflexes
of the patella and Achilles are 1+ bilaterally. Dermatomal testing reveals
decrease sensation in the right L5-S1 dermatomal distribution. Distal pulses are
2+ and symmetrically equal. Negative Romberg. Negative Babinski.”
Dr. Gangemi reported that electrodiagnostic testing of the lower extremities showed chronic
nerve root irritation of the L5-S1 nerve roots bilaterally, as well as early peripheral neuropathy
affecting both sural sensory and both superficial peroneal and tibial motor nerves in a
demyelinating fashion. He stated that results of a functional capacity evaluation showed a final
whole person impairment of 23 percent: 21 percent for spine impairment and 2 percent for left
lower extremity impairment.
On July 8, 2004 Dr. Gangemi reported that appellant underwent electrodiagnostic
evaluation of the upper extremities for complaints of neck pain and fasciculations in the upper
extremities, particularly in the right lateral forearm. He reported that this was a normal study.
On July 22, 2004 Dr. Gangemi reported that appellant underwent an electrodiagnostic
evaluation of the lower extremities for complaints of back pain and fasciculations in the lower
extremities, particularly in the right anterior leg. Testing revealed left L5, S1 radiculopathy and
right L5, S1 irritation of the posterior primary rami, consistent with irritation proximal to the
mentioned lumbar and sacral nerve roots.

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On August 17, 2004 Dr. Jason D. Cohen, the orthopedic surgeon, reported that appellant
was now four weeks status post a motor vehicle accident with persistent neck and some right arm
paresthesias, but lower extremity motor, reflex and sensory examinations were all within normal
limits. Lumbar radiographs showed good position of the instrumentation at L4-5 and L5-S1 and
interbody arthrodesis.
On April 19, 2005 appellant filed a claim for an additional schedule award. The Office
referred the case to an Office medical adviser for review.
On August 24, 2005 the Office medical adviser reported that there was no additional
impairment above that previously awarded based on the most recent reports of Dr. Cohen and
Dr. Gangemi and the July 8, 2004 electromyogram (EMG) and nerve conduction velocity (NCV)
study of the lower extremities. In fact, the medical adviser noted that, based on the normal EMG
and NCV of July 8, 2004, there was no residual neuropathy of either lower extremity, and in
August 2004 Dr. Cohen’s examination found both to be neurologically normal. The medical
adviser added that on November 4, 2003 Dr. Gangemi found only some decreased sensation in
the L5-S1 dermatome and 5/5 motor strength throughout, with the exception of 4+/5 in right
knee flexion. Dr. Cohen’s examination was more recent, he explained, as was the EMG test. He
concluded that appellant had no impairment of either lower extremity.
In a decision dated October 21, 2005, the Office denied appellant’s claim for an
additional schedule award.
Appellant requested an oral hearing before an Office hearing representative. He
submitted an April 6, 2006 report from Dr. Cohen, who deferred to Dr. Gangemi on the issue of
impairment:
“[Appellant] has been referred in the past by Dr. Gangemi to undergo disability
rating. He states his disability rating was given to him at 23 percent, both
extremities.
I support Dr. Gangemi’s rating and his disability for his
determination. I certify that his condition is fixed and will not continue to
improve in the future. Any further information needed as it relates to his workers’
compensation disability can be obtained from Dr. Gangemi’s reports.”
Appellant also submitted an April 29, 2006 report from Dr. Gangemi, who repeated his
impairment rating from 2003:
“Please be advised that the above mentioned was first examined by us on
July 24, 2003. The patient was involved in a fall episode, which occurred on
December 21, 1990. During reevaluation despite attending physical therapy
treatments on a regular basis, [appellant] continues to suffer from low back pain
and lower extremity pain. The patient was undergoing physical therapy
treatments along with medications; although he made slow and steady progress
with regards to the symptoms. He seemed to be resistance to physical therapy.
Functional capacity testing of the lower extremities, which was done on
February 4, 2003, showed total whole body impairment of 23 percent including
spine impairment of 21 percent and left lower extremity impairment of 2 percent.

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The patient’s treatment consists [of] electrical stimulation, soft tissue mobilization
with soft tissue massage, moist heat, ice, PREs and home exercise. [Appellant’s]
trigger condition is the result of soft tissue scarring as well as nerve root
impingement.”
In a decision dated June 13, 2006, the Office hearing representative affirmed the
October 21, 2005 decision denying an additional schedule award. The hearing representative
found no evidence that appellant had any impairment greater than 15 percent to the right lower
extremity and 2 percent to the left.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment.2
No schedule award is payable for a member, function or organ of the body not specified
in the Act or in the regulations.3 Because neither the Act nor the regulations provide
compensation for impairment to the back, no claimant is entitled to such an award.4 Indeed, the
Act specifically excludes the back from the definition of “organ.”5
Nonetheless, amendments to the Act modified the schedule award provisions to provide
compensation for 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. As the schedule award provisions of the Act include the extremities, a claimant may be
entitled to a schedule award for permanent impairment to an extremity even though the cause of
impairment originated in the spine.6
The Act does not authorize the payment of schedule awards for the permanent impairment
of the “whole person” or “whole body.” Payment is authorized only for the permanent impairment
of specified members, organs or functions of the body.7

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404 (1999).
(5 ed. 2001).

Effective February 1, 2001 the Office began using the A.M.A., Guides

th

3

William Edwin Muir, 27 ECAB 579 (1976).

4

E.g., Timothy J. McGuire, 34 ECAB 189 (1982).

5

5 U.S.C. § 8101(19).

6

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

7

Ernest P. Govednick, 27 ECAB 77 (1975).

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A claimant seeking compensation under the Act has the burden of establishing the
essential elements of his claim by the weight of the reliable, probative and substantial evidence.8
ANALYSIS
Appellant has not met his burden to establish that he is entitled to an additional schedule
award. The best evidence he submitted was the disability rating from Dr. Gangemi, his
physiatrist. But there are two basic problems with this rating. First, Dr. Gangemi made no
reference to the A.M.A., Guides, which is the standard the Office uses to measure permanent
impairment. He did not show how he applied specific tables in the A.M.A., Guides to his
findings on examination. This diminishes the value of Dr. Gangemi’s opinion. Second, his
rating of 23 percent was for the “whole body,” and there is no provision for paying a schedule
award for impairment to the whole body.9 As Dr. Gangemi explained in his April 29, 2006
report, this total impairment of the whole body included a spine impairment of 21 percent and
left lower extremity impairment of 2 percent. No claimant may receive a schedule award for
spine impairment. Appellant has already received a schedule for a two percent impairment of his
left lower extremity. So even if one assumes these ratings are consistent with the A.M.A.,
Guides, Dr. Gangemi’s rating fails to support that appellant is entitled to an additional schedule
award. The Board will therefore affirm the Office hearing representative’s decision affirming
the denial of an additional award.
The Board notes that the Office medical adviser misread the July 8, 2004
electrodiagnostic evaluation. Dr. Gangemi did report that it was a normal study, but it was a
normal study of the upper extremities, not the lower. The July 22, 2004 electrodiagnostic study
of the lower extremities was not normal. It revealed left radiculopathy and right irritation. The
Office medical adviser correctly noted, however, that Dr. Gangemi’s findings on physical
examination were nonetheless minimal on November 4, 2003, and more recently, on August 17,
2004, Dr. Cohen reported that lower extremity motor, reflex and sensory examinations were all
within normal limits. While this tends to weigh against a finding of increased impairment, the
problems discussed earlier with Dr. Gangemi’s rating are fatal to appellant’s claim.
CONCLUSION
The Board finds that appellant has no more than a 15 percent permanent impairment of
the right lower extremity or more than a 2 percent impairment of the left, for which he has
received a schedule award.

8

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968).

9

Dr. Cohen, the orthopedic surgeon, incorrectly reported that Dr. Gangemi’s rating was 23 percent for both
extremities.

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ORDER
IT IS HEREBY ORDERED THAT the June 13, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 13, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Upper Marlboro, MD, Employer
__________________________________________

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

Docket No. 12-1122
Issued: December 5, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 30, 2012 appellant filed a timely appeal of January 19, 2012 Office of Workers’
Compensation Programs’ (OWCP) merit decision denying 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 to consider the merits of the case.
ISSUE
The issue is whether appellant has permanent impairment to a scheduled member
entitling him to a schedule award.
FACTUAL HISTORY
On January 25, 1999 appellant, then a 34-year-old letter sorter machine operator, filed a
notice of occupational disease alleging that he developed bilateral carpal tunnel syndrome due to
factors of his federal employment. On April 8, 1999 OWCP accepted his claim for bilateral
1

5 U.S.C. § 8101 et seq.

carpal tunnel syndrome and authorized right carpal tunnel release. On April 16, 1999 Dr. Rida
Azer, a Board-certified orthopedic surgeon, performed a right carpal tunnel release and on
May 12, 2000 he performed authorized left carpal tunnel release. On October 16, 2003 appellant
underwent an electromyogram (EMG) and nerve conduction velocity (NCV) tests. On March 9,
2005 Dr. Azer stated that appellant had satisfactory grip and normal sensation over the right and
left median nerves. She repeated these findings on June 15, 2005.
Appellant filed a claim for compensation requesting a schedule award on
October 12, 2006. He submitted a report dated February 9, 2007 from Dr. Hampton J. Jackson,
Jr., a Board-certified orthopedic surgeon, who applied the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment2 and found that appellant had 20
percent loss of strength on the right and 20 to 25 percent loss of strength on the left. Dr. Jackson
found appellant had 10 percent impairment bilaterally due to loss of grip strength. He further
found that appellant had 10 percent impairment bilaterally due to loss of pinch strength.
Dr. Jackson found that appellant had grade three sensory deficit and pain or 24 percent
impairment of each upper extremity. He also found that appellant had Grade 4 impairment due
to motor and power deficit or 2.5 motor deficit. Dr. Jackson concluded that appellant had 41
percent impairment of each upper extremity due to carpal tunnel syndrome.
OWCP referred appellant for a second opinion evaluation with Dr. Robert Smith, a
Board-certified orthopedic surgeon on June 19, 2007. In a report dated July 19, 2007, Dr. Smith
noted appellant’s history of injury and medical history. He found no evidence of atrophy or
deformity in the upper extremities and normal range of motion. Dr. Smith stated that grip, pinch
and opposition strength were normal with negative Tinel’s and Phalen’s signs. He noted that a
postoperative EMG study in 2003 showed no evidence of ongoing carpal tunnel syndrome.
Dr. Smith found that appellant had no ratable impairment of his upper extremities based on the
fifth edition of the A.M.A., Guides.
By decision dated August 29, 2007, OWCP denied appellant’s claim for a schedule
award finding that Dr. Smith’s report established that appellant did not have a ratable impairment
due to his accepted condition of bilateral carpal tunnel syndrome.
Dr. Peter S. Trent, a Board-certified orthopedic surgeon, submitted a report dated
December 10, 2007 and stated that he did not agree with Dr. Smith’s impairment rating. He
stated, “The physical examination of the patient in the office today shows well-healed scars.
There is a small degree of thenar atrophy on the right when compared to the left. The patient
does have some residual tenderness over the carpal canal, but grip strength is good.”
Dr. Jackson submitted a report dated August 1, 2008 and stated that grip and pinch
strength testing established diminished strength. He again opined that appellant had 41 percent
impairment of his upper extremities bilaterally under the fifth edition of the A.M.A., Guides.
Appellant requested reconsideration on August 27, 2008. By decision dated December 4,
2008, OWCP reviewed the merits of his claim and denied modification of the August 29, 2007
decision.
2

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

2

Appellant again requested reconsideration on December 20, 2008. He submitted a report
dated December 12, 2008 from Dr. Jackson noting that he supplied appellant’s impairment rating
based on the fifth edition of the A.M.A., Guides using grip and pinch strength and that
appellant’s impairment rating remained the same. Dr. Azer examined appellant on January 14,
2009 and stated that sensation in the median nerves was normal bilaterally and that grip was
satisfactory.
OWCP’s medical adviser reviewed the medical evidence on March 27, 2009 and agreed
that appellant had no ratable impairment under the A.M.A., Guides.
By decision dated April 16, 2009, OWCP denied modification of its prior decisions.
Subsequently, appellant submitted a report by Dr. Azer who examined appellant on
May 22, 2009 and repeated her findings of satisfactory sensation and grip strength. Dr. Jackson
recommended repeat EMG’s on June 16, 2009. In a report dated October 9, 2009, Drs. Jackson
and Azer reviewed appellant’s findings and applied the sixth edition of the A.M.A., Guides.3
The physicians stated, “It is my opinion that the ratings that we gave based on the fifth edition,
remains 41 percent of the upper extremity. However, when I review the sixth edition for the
same findings, his rating drops to 38 percent. That is 38 percent in each upper extremity.”
Appellant requested reconsideration on October 23, 2009. In a decision dated January 4,
2010, OWCP denied modification of the April 16, 2009 decision denying his claim for a
schedule award.
Dr. Daniel Ignacio, completed an EMG report on February 1, 2010 and diagnosed
chronic bilateral carpal tunnel syndrome with chronic stable denervation of the right hand. He
stated that the right median nerve conduction block across the right wrist was improved but
continued to be slow with chronic denervation of the right hand. In a narrative report of the
same date, Dr. Ignacio noted appellant’s medical history and found hypoesthesia along the right
thumb and index finger with limited grip strength. He also found continuing hypoesthesia and
weakness along the left hand. Dr. Ignacio diagnosed chronic bilateral carpal tunnel syndrome
with chronic denervations along the right hand, chronic tenosynovitis of the wrist and chronic
regional pain syndrome. On February 12 and 24, 2010 Dr. Ignacio repeated his diagnoses and
recommended that appellant use a wrist splint.
In a report dated March 11, 2010, Dr. Ignacio stated that appellant had multiple surgeries
with scarring and associated sensorimotor defect which he believed resulted in a permanent
impairment. He opined that appellant had a permanent impairment due to scarring in and around
the joints and nerves with deformity and disfigurement. Dr. Ignacio also stated that appellant
had sensorimotor defect. He provided an impairment rating based on the fifth edition of the
A.M.A., Guides and awarded appellant 59 percent impairment of the right upper extremity due to
sensory defect of the median nerve, loss of muscle power and motor function of 75 percent and 5
percent impairment due to contractures of the right wrist. In regard to appellant’s left upper
extremity, Dr. Ignacio found 50 percent impairment due to sensory deficit and 60 percent due to

3

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

3

loss of motor function and 5 percent impairment due to contractures of the left wrist for 53
percent impairment of the left upper extremity.
Appellant requested reconsideration on March 18, 2010. In a report dated January 29,
2010, Dr. Azer disagreed with Dr. Smith’s evaluation. He submitted a report dated February 2,
2010 from Dr. Henry M. Daniels, a Board-certified orthopedic surgeon, noting the history of
injury and medical history. Dr. Daniels noted that appellant experienced numbness and tingling
in the median sensory distribution of both hands as well as dysesthesia during sleeping hours and
residual grip strength weaknesses. He reviewed appellant’s electrodiagnostic studies and
diagnosed residual median neuropathy and de Quervain’s tenosynovitis bilaterally.
By decision dated June 29, 2010, OWCP declined to reopen appellant’s claim for
reconsideration of the merits finding that he failed to submit new legal evidence or argument in
support of his request for reconsideration.
Appellant appealed this decision to the Board, who found that appellant had submitted
pertinent new and relevant evidence entitling him to a merit review and remanded the case for
OWCP to review the merits of appellant’s claim.4
Appellant submitted additional evidence into the record following OWCP’s June 29,
2010 nonmerit decision. Dr. Ignacio completed a note dated July 9, 2010 listing his findings and
diagnoses. Appellant underwent an MRI scan on July 14, 2010 which demonstrated intercarpal
ligament partial tear between the navicular and lunate and complex tear of the base of the
triangular fibrocartilage in both wrists. Dr. Ignacio completed reports dated September 16 and
30, 2010 and reported multiple scars along the right wrist and limited movement with continuing
tenderness. He made similar findings in regard to the left wrist. Dr. Ignacio diagnosed chronic
bilateral carpal tunnel syndrome, chronic tenosynovitis of the wrists, complex regional pain
syndrome.
In a copy of the September 16, 2010 report received by OWCP on October 29, 2010,
Dr. Ignacio found that appellant had permanent impairment due to multiple surgeries,
disfigurement, contractures and sensory and motor defects. He determined that appellant had 59
percent impairment of the right upper extremity and 50 percent impairment of the left upper
extremity in accordance with the fifth edition of the A.M.A., Guides. Dr. Ignacio continued to
submit reports dated November 11 and 19, 2010. On November 19, 2010 he performed an
infrared imaging report which demonstrated diminished infrared heat emission along the index
finger, middle finger and thumb of each hand.
On February 14, 2011 Dr. Nigel M. Azer, a Board-certified orthopedic surgeon,
examined appellant and found thenar atrophy in both hands, loss of grip strength and decreased
sensation to pinprick and light touch in the thumb and index finger with decreased two-point
discrimination bilaterally. He diagnosed chronic median nerve neuropathy of the right and left
wrist and de Quervain’s tenosynovitis bilaterally. Dr. Azer opined that appellant had permanent
impairments due to his employment injury.

4

Docket No. 11-36 (issued August 17, 2011).

4

Following the Board’s decision on August 17, 2011, Dr. Azer completed a report dated
January 3, 2012 and stated that appellant’s residuals and permanent impairment remained the
same. She opined that appellant had 38 percent impairment of the upper extremities.
By decision dated January 19, 2012, OWCP performed a merit review of the evidence
submitted in support of the March 18, 2010 reconsideration request and determined that this
evidence was not sufficient to establish a permanent impairment to a scheduled member. It
repeatedly stated that the reports submitted failed to provide any specific references to the
appropriate tables or figures in the sixth edition of the A.M.A., Guides.
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 for
loss or loss of use, of scheduled members or functions of the body. FECA, 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 discretion of OWCP. 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. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.7
ANALYSIS
OWCP accepted that appellant developed bilateral carpal tunnel syndrome due to his
work activities and authorized bilateral carpal tunnel releases. Appellant requested a schedule
award and OWCP relied on the second opinion physician, Dr. Smith, in determining that
appellant had no ratable impairment of his upper extremities entitling him to a schedule award.
Dr. Smith noted that appellant had no electrodiagnostic findings in 2003. Appellant has
repeatedly requested reconsideration and submitted additional medical evidence including new
electrodiagnostic reports and additional impairment ratings in support of his claim for a schedule
award.
In its most recent merit decision, OWCP discussed a portion of the medical evidence
received since January 4, 2010 and denied appellant’s request for a schedule award finding that
the evidence was not sufficient to meet appellant’s burden of proof as the medical evidence did
not correlate to or comport with the sixth edition of the A.M.A., Guides.

5

5 U.S.C. §§ 8101-8193, 8107.

6

20 C.F.R. § 10.404.

7

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award & Permanent
Disability Claims, Chapter 2.808.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700, Exhibit 1 (January 2010).

5

The Board finds that this case is not in posture for a decision. OWCP’s procedures state
that when there is a request for reconsideration in a schedule award claim and if the claimant is
disputing the percentage of the award and submits new evidence, the case should be referred to
the OWCP medical adviser or for further examination if needed.8 In this case, OWCP failed to
comply with its procedures as the new medical evidence submitted by appellant was not
reviewed by an OWCP medical adviser nor was he referred for further examination. The claims
examiner reviewed the medical evidence and dismissed the reports on the grounds that there
were no citations to the sixth edition of the A.M.A., Guides. The Board finds that a review of the
totality of the case was necessary to adequately complete a merit review and that as directed by
the procedure manual, OWCP should have referred the medical evidence to an OWCP medical
adviser to determine whether appellant had established a ratable permanent impairment or if
further development was needed.
On remand, OWCP should refer all the medical evidence to an OWCP medical adviser to
determine if appellant has a ratable impairment of his upper extremities due to his accepted
condition of carpal tunnel syndrome or if an additional medical examination is necessary. After
this and such other development as OWCP deems necessary, OWCP should issue a de novo
decision on the merits of appellant’s claim.
CONCLUSION
The Board finds that the case is not in posture for decision and requires referral to an
OWCP medical adviser to determine if and what additional development of the medical evidence
is necessary prior to issuing a de novo decision.

8

Federal (FECA) Procedure Manual Part 2 -- Claims, Reconsiderations, Chapter 2.1602.8(b)(1) (October 2011).

6

ORDER
IT IS HEREBY ORDERED THAT the January 19, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further development
consistent with this decision of the Board.
Issued: December 5, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SHIPYARD, Long Beach, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1484
Issued: November 10, 2014

Case Submitted on the Record

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

JURISDICTION
On June 19, 2014 appellant filed a timely appeal from February 6 and April 14, 2014
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly reduced appellant’s compensation under
5 U.S.C. § 8113(b) for failure to participate in vocational rehabilitation efforts without good
cause; (2) whether OWCP properly suspended appellant’s compensation for failing to submit a
Form EN-1032, as requested.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 3, 1978 appellant, a 27-year-old equipment cleaner, caught his foot on a
plank and twisted his right ankle. He filed a claim for benefits, which OWCP accepted for right
ankle sprain, right ankle traumatic arthritis, postarthrotomy for osteochondral fracture of the right
talus, and tendinitis of the posterior tibial and peroneal tendons. Appellant was placed on the
periodic rolls and submitted regular EN-1032 forms.
In a March 6, 2012 report, Dr. Carol C. Frey, a specialist in orthopedic surgery, advised
that appellant could return to work as of January 24, 2012 in a sedentary capacity with
restrictions on walking and standing more than 2 hours or for more than 30 minutes at one time.
She opined that he would be able to work at a job where he was not required to walk or stand for
more than four hours. Dr. Frey also restricted appellant from climbing ladders or working at
unprotected heights.
In a report dated January 2, 2013, Dr. G.B. Ha’Eri, Board-certified in orthopedic surgery,
stated that appellant continued to suffer objective residuals from the February 3, 1978 injury
including the surgeries he underwent in August 1981, October 1982 and September 2008.
Appellant continued to demonstrate abnormal findings on his magnetic resonance imaging
(MRI) scans. Dr. Ha’Eri advised that appellant’s conditions of chondromalacia in his right ankle
and subtalar joints were gradually progressive conditions and necessitated future medical care.
He found that appellant could work an eight-hour day with restrictions. Appellant was instructed
to avoid walking and standing for more than two hours; pushing and pulling exceeding 40
pounds for more than two hours; lifting exceeding 20 pounds for more than two hours; and
climbing or operating a motor vehicle at work.
On February 14, 2013 OWCP referred appellant for vocational rehabilitation services,
based on Dr. Ha’Eri’s restrictions.
In a labor market survey dated April 9, 2013, and in a report dated April 24, 2013, the
rehabilitation counselor found that there were two positions for appellant listed in the
Department of Labor’s Dictionary of Occupational Titles which were within appellant’s
indicated restrictions and reasonably reflected his ability to earn wages, customer complaint
clerk, DOT No. 241.367.014, with a $538.80 weekly wage-earning capacity, and receptionist,
DOT No. 237.367.038, with a $426.80 weekly wage-earning capacity. She advised that both
jobs were being performed in sufficient numbers to make them reasonably available within
appellant’s commuting area.
Amy Koellner, the rehabilitation counselor, further found that appellant was interested in
seeking jobs as a security guard in light of his experience in that field. She stated, however, that
he was having difficulty finding jobs as a security guard within his restrictions on operating a
motor vehicle and on standing and walking for no more than two hours. The rehabilitation
counselor related that, with regard to his computer skills, appellant was familiar with Microsoft
Office 2010 Word and Excel but was not a fast typist. She recommended that appellant enroll in
a computer training course; he was receptive to this suggestion. The rehabilitation counselor
stated that she had obtained approval for enrolling appellant in a training course with the Institute
of Network Technology, consistent with the intent to place him in the positions of customer

2

complaint clerk or receptionist, with training dates of April 29 to July 19, 2013. She indicated
that appellant had disagreed with the plan and had declined to sign the plan documents and to
start training.
By notice of proposed reduction dated April 30, 2013, OWCP advised appellant that it
had been informed that he had failed to attend the three-month computer skills training program
at the Institute of Network Technology which began on Monday, April 29, 2013. Appellant
preferred a six-month training program. Results of the tests and evaluations performed by the
rehabilitation counselor, however, showed that the plan objectives of receptionist and customer
complaint clerk required only three months of computer skills enhancement. OWCP stated that
Section 8113(b) of FECA2 provides that, if an individual without good cause fails to apply for
and undergo vocational rehabilitation when so directed, and OWCP finds that in the absence of
the failure the individual’s wage-earning capacity would probably have increased substantially, it
may reduce the compensation prospectively based on what probably would have been the
individual’s wage-earning capacity had he or she not failed to apply for and undergo vocational
rehabilitation. OWCP therefore directed appellant to complete the approved three-month
training program at Institute of Network Technology by July 19, 2013 and to make up all time
lost due to his nonparticipation. It advised him that, if he believed he had sufficient reason or
justification for not participating in the training program, he should provide his reasons in
writing along with any supporting documentation. OWCP informed him the rehabilitation effort
would be terminated and his compensation would be reduced if he failed to cooperate.
In a letter received by OWCP on May 3, 2013, appellant stated that he went to visit the
Institute of Network Technology but was not given the opportunity to enroll in courses of his
choosing. He indicated that he did not start the program because he was not comfortable with
the rehabilitation counselor and did not trust her intentions.
In a May 6, 2013 letter, appellant reiterated the allegations he made in his May 3, 2013
letter.
In a May 24, 2013 report, the rehabilitation counselor reiterated that appellant had
refused to begin the computer training program as planned on April 29, 2013. She stated that she
sent an e-mail to appellant on May 20, 2013 in which she advised him that he had not returned
her telephone call, that she was attempting to resolve his concerns about the approved plan, and
that he had been provided with 30 days to address his concerns. The rehabilitation counselor
advised that she left a telephone message with appellant stating that if she did not hear back from
him by May 28, 2013 she would notify OWCP on May 30, 2013 that he did not begin the
approved plan.
In a June 6, 2013 report, Dr. Frey stated that appellant could work in a sedentary capacity
with no walking or standing for more than 2 hours per day or for more than 30 minutes at one
time.
In a June 17, 2013 decision, OWCP reduced appellant’s compensation based upon what
would have been his wage-earning capacity as a customer complaint clerk under 5 U.S.C.
2

5 U.S.C. § 8113(b).

3

§ 8113(b) to reflect his wage-earning capacity had he continued to participate in vocational
rehabilitation efforts. It determined that he had failed, without good cause, to undergo vocational
rehabilitation as directed. OWCP advised appellant that the factual and medical evidence
established that he was no longer totally disabled and had the capacity to earn wages as a
customer complaint clerk, DOT No. 241.367.014,3 at the rate of $538.80 per week, in accordance
with the factors outlined in 5 U.S.C. § 8115.4 It calculated that appellant’s compensation rate
should be adjusted to $638.00 using the Shadrick5 formula.6
On July 8, 2013 appellant requested an oral hearing, which was held on
November 21, 2013.
In a July 8, 2013 letter, appellant stated that he was willing to enroll in the Microsoft
Windows 7 and Microsoft Office 2010 training program but reiterated that he wanted to work
with another rehabilitation counselor.
At the hearing, appellant alleged that the original training course was not the one to
which he was assigned; he asserted that based on their discussions he had expected to be entered
into another program which was more tailored to his skills, education and background. He
asserted that the rehabilitation counselor was “nasty” to him and placed him in a program that
was totally different from the one for which he felt qualified without any input from him.
Appellant testified that there was a communication problem between him and the rehabilitation
counselor which affected their work relationship. He also asserted that she failed to give him an
examination to determine his computer skills.

3

The job description stated: “Investigates customer complaints about merchandise, service; billing, or credit
rating: Examines records, such as bills, computer printouts, microfilm, meter readings, bills of lading, and related
documents and correspondence, and converses or corresponds with customer and other company personnel, such as
billing, credit, sales, service, or shipping, to obtain facts regarding cutomer complaint. Examines pertinent
information to determine accuracy of customer complaint and to determine responsibility for errors. Notifies
customer and designated personnel of findings adjustments and recommendations, such as exchange of merchandise,
refund of money, credit of customer’s account, or adjustment of customer’s bill. May recommend to management
improvements in product, packaging, shipping methods, service, or billing methods and procedures to prevent future
complaints of similar nature. May examine merchandise to determine accuracy of complaint. May follow up on
recommended adjustments to ensure customer satisfaction. May key information into computer to obtain
computerized records. May trace missing merchandise and be designated Tracer Clerk (clerical). May investigate
overdue and damaged shipments or shortages in shipments for common carrier and be designated over-short-anddamage clerk (clerical). May be designated according to type of complaint adjusted as bill adjuster (clerical);
merchandise; adjustment clerk (retail trade); service investigator (utility tel. & tel.).”
4

5 U.S.C. § 8115.

5

Albert C. Shadrick, 5 ECAB 376 (1953); see Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment and Determining Wage-Earning Capacity, Chapter 2.814.2 (April 1995).
6

OWCP indicated that appellant’s salary as of February 3, 1978, the date he stopped working, was $254.40 per
week, that his current adjusted pay rate for his job on the date of injury was $756.54, and that appellant was
currently capable of earning $538.80 per week, the rate of a customer complaint clerk. It therefore determined that
he had a 71 percent wage-earning capacity, an adjusted wage-earning capacity of $180.62, and that his current
adjusted compensation rate, per four-week period, was $638.00.

4

By decision dated February 6, 2014, an OWCP hearing representative affirmed the
June 17, 2013 decision. She found that the rehabilitation counselor performed a thorough
assessment of appellant’s skills and confirmed that the proposed customer complaint clerk job
was appropriate for appellant. OWCP hearing representative further found that she sufficiently
documented her repeated attempts to contact appellant regarding the start date for the six-month
computer training program after he failed to begin the course on April 29, 2013. She therefore
found that OWCP properly reduced his compensation under Section 8113(b) based on his failure
to cooperate and show good cause for failing to attend the training program.
On March 11, 2014 OWCP informed appellant, as it had informed him regularly since
1979, that federal regulations required him to submit an affidavit of any earnings and
employment during the previous year and that a Form EN-1032 was enclosed for that purpose. It
advised him to fully answer all questions on the Form EN-1032 and return the statement within
30 days or his benefits would be suspended. The letters were sent to appellant’s address of
record. Appellant did not respond.
By decision dated April 14, 2014, OWCP suspended appellant’s compensation benefits,
effective May 4, 2014, for failing to submit the Form EN-1032 as requested. It noted that, if he
completed and returned an enclosed copy of the form, his compensation benefits would be
restored retroactively to the date they were suspended.
LEGAL PRECEDENT -- ISSUE 1
Section 8113(b) of FECA provides that, if an individual, without good cause, fails to apply
for and undergo vocational rehabilitation when so directed under section 8104 of FECA, OWCP,
“after finding that in the absence of the failure the wage-earning capacity of the individual would
probably have substantially increased, may reduce prospectively the monetary compensation of the
individual in accordance with what would probably have been his [or her] wage-earning capacity
in the absence of the failure,” until the individual in good faith complies with the direction of
OWCP.7
Section 10.519 of Title 20 of the Code of Federal Regulations details the actions OWCP
will take when an employee without good cause fails or refuses to apply for, undergo, participate
in, or continue to participate in a vocational rehabilitation effort when so directed. Section
10.519(a) provides, in pertinent part:
“Where a suitable job has been identified, [OWCP] will reduce the employee’s
future monetary compensation based on the amount which would likely have been
his or her wage-earning capacity had he or she undergone vocational
rehabilitation. [OWCP] will determine this amount in accordance with the job
identified through the vocational rehabilitation planning process, which includes
meetings with the [office] nurse and the employer. The reduction will remain in

7

5 U.S.C. § 8113(b).

5

effect until such time as the employee acts in good faith to comply with the
direction of [OWCP].”8
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened before it may terminate or modify compensation benefits.9
ANALYSIS -- ISSUE 1
Appellant was referred to vocational rehabilitation after Dr. Frey reported on March 6,
2012 that he could return to work in a sedentary capacity with restrictions on walking and
standing, and Dr. Ha’Eri reported on January 2, 2013 that appellant could work an eight-hour
day, with restrictions. The vocational rehabilitation counselor properly identified the positions of
customer complaint clerk and receptionist as within appellant’s medical restrictions and
recommended a three-month training program to vocationally prepare appellant for these
positions.
The record establishes that appellant was offered repeated opportunities to complete the
proposed vocational rehabilitation plan; i.e., attend the training course with the Institute of
Network Technology, but he did not attend the scheduled start of class on April 29, 2013 and
refused to either sign the plan documents or begin training. OWCP instructed appellant in its
April 30, 2013 letter to contact the rehabilitation counselor to make the necessary arrangements
to start and complete the approved three-month training program at the Institute of Network
Technology by July 19, 2013 and to make up all time lost due to his nonparticipation. It also
advised him that, if he believed he had sufficient reason or justification for not participating in
the training program, he should provide his reasons in writing along with any supporting
documentation within 30 days.
Appellant initially indicated that he wanted to pursue jobs as a security guard, but the
vocational rehabilitation counselor properly determined that appellant’s medical restrictions
regarding walking and standing and operating a motor vehicle effectively ruled out such work.
He asserted that he declined to start the course because he was not given the opportunity to enroll
in courses of his choosing when he visited the Institute of Network Technology and he believed
he had communication difficulties with the rehabilitation counselor. However, appellant did not
provide sufficient reason or justification for not participating in the training program. The
rehabilitation counselor stated in her May 24, 2013 report that appellant did not return her
e-mails and telephone messages in which she attempted to resolve his concerns and place him in
the recommended training course. There is no evidence that appellant’s failure to fully
participate in the rehabilitation program, particularly in his failure to participate in the training
course, was based on “good cause.”10 The reduction of appellant’s compensation was based on a
determination of what appellant’s income would have been if he had fully participated in
vocational rehabilitation efforts. For these reasons, OWCP properly reduced appellant’s
8

20 C.F.R. § 10.519(a).

9

Betty F. Wade, 37 ECAB 556, 565 (1986).

10

See Michael D. Snay, 45 ECAB 403, 410-12 (1994).

6

compensation under 5 U.S.C. § 8113(b) to reflect his loss of wage-earning capacity based on the
customer complaint position.
OWCP properly applied the principles set forth in the Shadrick11 decision to determine
that appellant’s compensation rate should be adjusted to $638.00 based on his wage-earning
capacity.
OWCP properly found that appellant was no longer totally disabled as a result of his
accepted conditions, and it followed established procedures for determining appellant’s
employment-related loss of wage-earning capacity. The Board therefore finds that OWCP met
its burden of justifying a reduction in appellant’s compensation, because he failed to participate
in vocational rehabilitation.
LEGAL PRECEDENT -- ISSUE 2
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.12
Under section 10.528 of OWCP’s implementing federal regulations, an employee in
receipt of compensation benefits must complete an affidavit as to any work or activity indicating
an ability to work which the employee has performed for the prior 15 months.13 If an employee
who is required to file such a report 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.14
ANALYSIS -- ISSUE 2
On March 11, 2014 OWCP provided appellant with a Form EN-1032 the same form he
has regularly received since 1979, and advised him that federal regulations required him to
answer all questions concerning his employment and earnings. It properly notified him that, if
he did not completely answer all questions and return the statement within 30 days, his benefits
would be suspended. Appellant did not respond prior to the April 14, 2014 OWCP decision.
Based on the evidence of record, the Board finds that OWCP properly suspended
appellant’s compensation benefits effective May 11, 2014 pursuant to 20 C.F.R. § 10.528.15

11

Albert C. Shadrick, 5 ECAB 376 (1953).

12

5 U.S.C. § 8106(b).

13

20 C.F.R. § 10.528.

14

Id.; see also 20 C.F.R. § 10.525.

15

J.J., Docket No. 09-1724 (issued March 1, 2010). See also James A. Igo, 49 ECAB 189 (1997).

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CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation under 5 U.S.C.
§ 8113(b) to reflect his loss of wage-earning capacity had he continued to participate in
vocational rehabilitation efforts. The Board further finds that OWCP properly suspended
appellant’s compensation benefits for failing to submit information on a Form EN-1032, as
required.
ORDER
IT IS HEREBY ORDERED THAT the April 14 and February 6, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: November 10, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

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

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

Docket No. 10-416
Issued: September 8, 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 December 2, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated November 12, 2009 which denied appellant’s
claim for a traumatic injury. 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 appellant has met his burden of proof in establishing that he
sustained a neck and low back injury in the performance of duty.
FACTUAL HISTORY
On September 14, 2009 appellant, then a 50-year-old housekeeping aid, filed a traumatic
injury claim, alleging that he sustained an injury to his neck and back on June 5, 2009 after a

coworker playfully grabbed him at work.1 He stated that, after this incident, he had pain in his
neck running down to his lower back. Appellant did not stop work at that time.
By letter dated October 7, 2009, the Office requested additional factual and medical
information from appellant stating that the initial information submitted was insufficient to
establish the claimed injury.
In an undated statement, appellant indicated that after his injury he immediately filed an
accident report with the employing establishment. He asserted that he filed a complaint against
his supervisor and management and was reassigned because he could not get along with
management. In an October 15, 2009 statement, appellant noted that he reported his injury to the
employing establishment and subsequently experienced pain radiating into his back. He reported
a history of neck surgery prior to this incident.
Appellant submitted notes from the Veterans Administration dated June 5, 2009 where he
was treated by Dr. David A. Jerrard, Board-certified in emergency medicine, for low back pain.
He reported a history of chronic neck and back pain which was exacerbated after an incident at
work where a coworker grabbed him by the neck. Dr. Jerrard noted findings upon examination
of mild tenderness to palpation across the back of the neck and tenderness to palpation along the
spinal column in the lumbar region. He diagnosed exacerbation of chronic low back pain and
recommended ibuprofen for pain.
In a decision dated November 12, 2009, the Office denied appellant’s claim on the
grounds that the medical evidence was not sufficient to establish that appellant’s condition was
caused by the accepted work incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
filed within the applicable time limitation 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. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
1

The employing establishment controverted appellant’s claim and noted that appellant failed to report his injury
within 30 days. The employer further asserted that appellant filed the current claim because he was dissatisfied with
his job reassignment and his Equal Employment Opportunity (EEO) complaint was unsuccessful.
2

5 U.S.C. §§ 8101-8193.

3

Gary J. Watling, 52 ECAB 357 (2001).

2

conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a 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, based on a complete factual and medical
background, supporting such a causal relationship.5
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.6 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.7
ANALYSIS
Appellant alleged that he sustained a neck and low back injury when his coworker
playfully grabbed his neck while at work. The Board notes that the evidence supports that the
incident occurred on June 5, 2009 as alleged. The Board finds, however, that the medical
evidence is insufficient to establish that appellant sustained a neck or low back injury causally
related to the June 5, 2009 work incident.
On October 7, 2009 the Office advised appellant of the type of medical evidence needed
to establish his claim. Appellant did not submit a rationalized medical report from an attending
physician in which the physician explains why the June 5, 2009 work incident caused or
aggravated his claimed condition.
Appellant submitted notes from the Veterans Administration dated June 5, 2009 where he
was treated by Dr. Jerrard, who noted findings of mild tenderness to palpation across the back of
the neck and tenderness to palpation along the spinal column in the lumbar region. He reported a
history of chronic neck and back pain which was exacerbated after an incident at work where a
coworker grabbed him by the neck. Dr. Jerrard diagnosed exacerbation of chronic low back
pain. However, he appears merely to be repeating the history of injury as reported by appellant
without providing his own opinion regarding whether appellant’s condition was work related.
To the extent that Dr. Jerrard is providing his own opinion, he failed to provide a rationalized
4

Michael E. Smith, 50 ECAB 313 (1999).

5

Id.

6

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

7

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).

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opinion explaining why any diagnosed conditions were caused or aggravated by particular
factors of employment.8 Consequently this report is of little probative value and does not
establish appellant’s traumatic injury claim.
No other medical evidence was submitted by appellant which provides a physician’s
opinion on the causal relationship between appellant’s work factors on June 5, 2009 and a
diagnosed medical condition.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.9 Causal relationship must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence, and the Office
therefore properly denied appellant’s claim for compensation.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a neck or low back injury causally related to his June 5, 2009 employment incident.

8

See id.

9

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

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ORDER
IT IS HEREBY ORDERED THAT the November 12, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 8, 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

5