United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Syracuse, NY, Employer
__________________________________________

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

Docket No. 17-0794
Issued: July 3, 2018

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 February 28, 2017 appellant filed a timely appeal from a February 2, 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 over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $10,565.06, for which he was without fault; and
(2) whether OWCP properly denied waiver of recovery of the overpayment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal after the February 2, 2017 decision was
issued. The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision.
Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

FACTUAL HISTORY
On May 8, 2009 appellant, a 35-year-old mail processing clerk, filed an occupational
disease claim (Form CA-2) alleging that he sustained carpal tunnel syndrome due to factors of his
federal employment, including repetitive motions.3 OWCP initially denied the claim by decision
dated August 6, 2009, but on December 15, 2009 it vacated the August 6, 2009 decision and
accepted his claim for bilateral carpal tunnel syndrome. It authorized a right carpal tunnel release
surgery on May 4, 2010. OWCP later accepted a recurrence of total disability on June 22, 2010
due to a left carpal tunnel release which appellant underwent on June 21, 2010. Appellant returned
to full duty work on August 3, 2010.
On November 6, 2011 appellant filed a claim for a schedule award (Form CA-7).
In an August 24, 2011 report, Dr. Walter Short, a Board-certified orthopedic hand surgeon,
opined that appellant had two percent permanent impairment of the right upper extremity and two
percent permanent impairment of the left upper extremity due to his accepted bilateral carpal tunnel
syndrome.
On April 24, 2012 an OWCP district medical adviser (DMA) concurred with Dr. Short and
determined that appellant had two percent permanent impairment of the right upper extremity and
two percent permanent impairment of the left upper extremity.
By decision dated May 8, 2012, OWCP issued a schedule award for two percent permanent
impairment of the right upper extremity and two percent permanent impairment of the left upper
extremity. It noted that appellant had another case pending under File No. xxxxxx054. The period
of the award ran for 12.48 weeks from August 23 to November 19, 2011.
In letters dated January 17, and April 16, 2013, June 5, 2014, and January 19, 2016, the
employing establishment advised OWCP that appellant had previously received schedule awards
for the right upper extremity.
In a March 16, 2016 preliminary determination, OWCP found that appellant received an
overpayment of compensation in the amount of $10,565.06 due to schedule award payments that
were made in error. It explained that on June 4, 2008, under File No. xxxxxx272, he was awarded
a schedule award for five percent permanent impairment of the right upper extremity under the
fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment4 (A.M.A., Guides). Accordingly appellant was paid an award in the amount of
3

The claim was adjudicated under File No. xxxxxx802. The record indicates that appellant previously filed a
traumatic injury claim, assigned File No. xxxxxx272, in which OWCP accepted an August 5, 2006 right wrist sprain.
OWCP issued a schedule award under that claim for five percent permanent impairment of the right upper extremity
by a June 4, 2008 decision. Appellant also filed an occupational disease claim, assigned File No. xxxxxx054, which
OWCP accepted for right carpal tunnel syndrome which he first became aware of on March 21, 2005. OWCP issued
a schedule award in a January 4, 2013 decision under that claim for two percent permanent impairment of the right
upper extremity. File Nos. xxxxxx802, xxxxxx272, and xxxxxx054 have been administratively combined, with File
No. xxxxxx802 serving as the master file.
4

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

2

$11,490.58 for the period February 15 to June 3, 2008. Subsequently, on May 8, 2012, under File
No. xxxxxx802, OWCP issued appellant a schedule award for an additional two percent permanent
impairment of the right upper extremity under the sixth edition of the A.M.A., Guides.5
Accordingly, appellant was paid an award in the amount of $4,892.90 for the period August 24 to
November 19, 2011. In addition, on January 4, 2013, under File No. xxxxxx054, OWCP issued
appellant a schedule award for another two percent permanent impairment of the right upper
extremity under the sixth edition of the A.M.A., Guides. Accordingly, appellant was paid an award
in the amount of $5,672.16 for the period July 19 to August 31, 2012. OWCP found that he was
not due any increases in permanent impairment according to the sixth edition of the A.M.A.,
Guides and, thus, received an overpayment of compensation because payments for scheduled loss
of use were not additive, but cumulative for all cases combined. According to OWCP calculations,
appellant was not entitled to receive the schedule awards under File Nos. xxxxxx802 and
xxxxxx054, resulting in an overpayment of compensation in the amount of $10,565.06.6 OWCP
further found that he was without fault in the creation of the overpayment of compensation. It
asked appellant to submit an attached overpayment recovery questionnaire, which would allow it
to consider waiving the recovery of the overpayment and determine, if necessary, a reasonable
method for collection. OWCP notified him that failure to submit the requested financial
information within 30 days would result in a denial of waiver of recovery of the overpayment.
On March 28, 2016 appellant requested a prerecoupment hearing by a representative of
OWCP’s Branch of Hearings and Review.
On April 5, 2016 appellant submitted an overpayment recovery questionnaire (Form
OWCP-20) indicating that he had a spouse and four children, a monthly income of $4,800.00, and
monthly expenses of $4,300.00 which included a $1,500.00 mortgage, food, clothing, utilities, and
other expenses. He further indicated that he had $20.00 cash on hand, $6,500.00 in a checking
account, $12,000.00 in savings, $0.00 in stocks and bonds, and $0.00 in other personal property
and funds.
A telephonic prerecoupment hearing was held before an OWCP hearing representative on
November 18, 2016.
Subsequently, appellant submitted a revised overpayment recovery questionnaire (Form
OWCP-20) indicating that he had a spouse and four children, a monthly income of $4,800.00, and
monthly expenses of $6,580.00, which included a $1,500.00 mortgage, food, clothing, utilities,
and other expenses. He further indicated that he had $20.00 cash on hand, $6,000.00 in a checking
account, $1,000.00 in savings, $0.00 in stocks and bonds, and $0.00 in other personal property and
funds. Appellant also submitted copies of credit card bills which demonstrated credit card
minimum payments of $175.00 per month, cable expenses of $200.00 per month, cellular phone
expenses of $80.00 per month, automotive expenses of $342.00 per month, food expenses of
$620.00 per month, medical expenses of $175.00 per month, insurance payments of $283.00 per

5

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

6

$4,892.90 + $5,672.16 = $10,565.06.

3

month, clothing expenses of $150.00 per month, and a combination of food, clothing, and medical
expenses of $200.00 per month, equaling a total of $3,725.00 in monthly expenses.
By decision dated February 2, 2017, OWCP finalized its preliminary determination that an
overpayment of compensation in the amount of $10,565.06 was created. It found appellant without
fault in the creation of the overpayment, but denied waiver of recovery of the overpayment because
appellant failed to establish that he needed substantially all of his monthly income to meet current
ordinary and necessary living expenses as his monthly income of $4,800.00 and monthly expenses
of $3,725.00 provided him with a discretionary income of $1,075.00 per month.7
LEGAL PRECEDENT -- ISSUE 1
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.8 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.9
According to 5 U.S.C. § 8108, the period of compensation payable for a schedule award is
reduced by the period of compensation paid for an earlier injury if it is for the same member or
function and the current impairment in whole or in part duplicates the preexisting impairment. If
a claimant receives a schedule award and the medical evidence does not support the degree of
permanent impairment awarded, an overpayment of compensation may be created.10
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly found a $10,565.06 overpayment of compensation
in this case.
OWCP found that an overpayment occurred due to a duplicate payment for permanent
impairment. By decision dated May 8, 2012, OWCP issued a schedule award for two percent
permanent impairment of the right upper extremity and two percent permanent impairment of the
left upper extremity based on an August 24, 2011 report from appellant’s attending physician,
Dr. Short, and an April 24, 2012 report from its DMA. The period of the award ran for 12.48
weeks from August 23 to November 19, 2011.

7

$4,800.00 - $3,725.00 = $1,075.00.

8

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule award
is payable and the maximum number of weeks of compensation to be paid; additional members of the body are found
at 20 C.F.R. § 10.404(a).
9

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

10

Id.

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The record establishes, however, that appellant had previously received a schedule award
under OWCP File No. xxxxxx272 on June 4, 2008 for five percent permanent impairment of the
right upper extremity in the amount of $11,490.58 for the period February 15 to June 3, 2008.
Subsequently, appellant received a schedule award under that claim in the amount of $4,892.90
for the period August 24 to November 19, 2011. In addition, OWCP awarded him a another two
percent permanent impairment of the right upper extremity on January 4, 2013 under OWCP File
No. xxxxxx054 in the amount of $5,672.16 for the period July 19 to August 31, 2012. It found
that appellant was not due any increases in the schedule loss of use according to the sixth edition
of the A.M.A., Guides and, thus, received an overpayment of compensation because payments for
scheduled loss of use were not additive, but cumulative for all cases combined.
According to OWCP calculations, appellant was not entitled to receive schedule awards in
the amount of $4,892.90 on May 8, 2012 (under File No. xxxxxx802) and $5,672.16 on January 4,
2013 (under File No. xxxxxx054), which resulted in an overpayment of compensation in the
amount of $10,565.06. No contrary evidence or argument was provided. The Board accordingly
finds the evidence of record establishes a $10,565.06 overpayment of compensation in this case.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides that adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.11 Since OWCP found appellant to be without fault in the creation of the
overpayment, OWCP may only recover the overpayment if recovery would neither defeat the
purpose of FECA nor be against equity and good conscience. The guidelines for determining
whether recovery of an overpayment would defeat the purpose of FECA or would be against equity
and good conscience are set forth in sections 10.434 to 10.437 of Title 20 of the Code of Federal
Regulations.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her current income (including compensation benefits) to meet current ordinary and necessary
living expenses, and, also, if the beneficiary’s assets do not exceed a specified amount as
determined by OWCP from data provided by the Bureau of Labor Statistics.12 For waiver under
the defeat the purpose of FECA standard, appellant must show that he needs substantially all of

11

5 U.S.C. § 8129(b).

12

OWCP procedures provide that the assets must not exceed a resource base of $4,800.00 for an individual or
$8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent. An individual is
deemed to need substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00. In other words, the amount of monthly
funds available for debt repayment is the difference between current income and adjusted living expenses (i.e.,
ordinary and necessary living expenses plus $50.00). Federal (FECA) Procedure Manual, Part 6 -- Debt Management,
Initial Overpayment Actions, Chapter 6.200.6(a) (June 2009).

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his current income to meet current ordinary and necessary living expenses, and that his assets do
not exceed the resource base.13
20 C.F.R. § 10.437 provides that recovery of an overpayment would be against equity and
good conscience if: (a) the overpaid individual would experience severe financial hardship in
attempting to repay the debt; (b) the individual, in reliance on such payments or on notice that such
payments would be made, gives up a valuable right or changes his position for the worse.
With respect to the submission of financial evidence, OWCP regulations at 20 C.F.R.
§ 10.438 provide:
(a) The individual who received the overpayment is responsible for providing
information about income, expenses, and assets as specified by OWCP. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of FECA, or be against equity and good conscience. This
information will also be used to determine the repayment schedule, if necessary.
(b) Failure to submit the requested information within 30 days of the request shall
result in denial of waiver, and no further request for waiver shall be considered until
the requested information is furnished.
ANALYSIS -- ISSUE 2
OWCP found that appellant was not at fault in creating the overpayment. Appellant may
seek waiver of the overpayment, but he must submit the relevant financial evidence in order for
OWCP to properly make a determination on the issue. He submitted two overpayment recovery
questionnaires (Form OWCP-20) indicating that he had a spouse and four children, a monthly
income of $4,800.00, and a mortgage of $1,500.00 per month. Appellant initially indicated that
his monthly expenses totaled $4,300.00, but later revised it to $6,580.00. He did not provide
evidence of monthly expenses totaling $6,580.00. However, appellant consistently reported a
monthly mortgage of $1,500.00 and submitted copies of credit card bills which demonstrated credit
card minimum payments of $175.00 per month, cable expenses of $200.00 per month, cellular
phone expenses of $80.00 per month, automotive expenses of $342.00 per month, food expenses
of $620.00 per month, medical expenses of $175.00 per month, insurance payments of $283.00
per month, clothing expenses of $150.00 per month, and a combination of food, clothing, and
medical expenses of $200.00 per month, equaling a total of $3,725.00 in monthly expenses.
Regarding the $10,565.06 overpayment of compensation, OWCP found that appellant was
not with fault in the creation of the overpayment, but denied waiver of recovery finding that he
had not provided sufficient evidence to establish that he needed substantially all of his monthly
income to meet current ordinary and necessary living expenses. Although OWCP found that
appellant was without fault in the matter of the overpayment, repayment is still required unless
adjustment or recovery of the overpayment would defeat the purpose of FECA or be against equity

13

See Robert E. Wenholz, 38 ECAB 311 (1986).

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and good conscience.14 The record reflects that appellant has a monthly income of $4,800.00 and
monthly expenses of $3,725.00. In its February 2, 2017 decision, OWCP denied waiver of
recovery of the overpayment because appellant’s monthly expenses did not exceed his income and
his discretionary income of $1,075.00 per month was above the guideline of $50.00 provided by
FECA procedures when considering a waiver of recovery.15 OWCP properly concluded that
recovery of the overpayment would not defeat the purpose of FECA, be against equity and good
conscience, or cause hardship to appellant. Thus, the Board finds that OWCP properly denied
waiver of recovery of the overpayment in the amount of $10,565.06.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $10,565.06, for which he was without fault. The Board further
finds that OWCP properly denied waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the February 2, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 3, 2018
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

14

See Wade Baker, 54 ECAB 198 (2002).

15

See supra note 12.

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

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

Docket No. 14-1330
Issued: October 17, 2014

Case Submitted on the Record

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

JURISDICTION
On May 22, 2014 appellant, through counsel, filed a timely appeal from a March 12,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP) hearing
representative. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish left upper extremity
and cervical conditions causally related to a November 17, 2011 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the March 12, 2014 decision. Since the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board
may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB
126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration.

FACTUAL HISTORY
On December 17, 2012 appellant, then a 57-year-old postmaster, filed a traumatic injury
claim alleging that on November 17, 2011 she sustained injuries to her left elbow, left hand and
neck when her toe caught on a flat tub and caused her to fall on her left side. The employing
establishment reported that her notice was received on January 30, 2013.
In a November 17, 2011 hospital record, Dr. Matthew B. Smith, a Board-certified family
practitioner, examined appellant for complaints of bilateral wrist discomfort after she fell down
at work. He reviewed her history and noted a history of osteopenia. Upon examination of
appellant’s wrist, Dr. Smith observed moderate tenderness and full range of motion with no
neurovascular deficits. He diagnosed right wrist sprain. Dr. Smith included an x-ray report of
the left wrist which revealed a normal examination.
In an October 3, 2012 report, Dr. Desmond J. Stutzman, a Board-certified orthopedic
surgeon, related appellant’s complaints of pain, swelling, weakness and numbness in her left
upper extremity after she fell down on a concrete floor at work on November 17, 2011.
Appellant stated that she fell on her left side to protect her right side where she recently had
surgery. Dr. Stutzman reviewed her history and reported no significant findings. He noted that
appellant had multiple examinations and treatment for her right upper extremity. Upon
examination, Dr. Stutzman observed positive Tinel’s sign at the level of the left wrist for the
median nerve and negative at the elbow for the ulnar nerve. He reported no swelling,
ecchymosis or erythema and intact radial and ulnar arteries. Dr. Stutzman stated that x-rays of
appellant’s left thumb and wrist revealed no evidence of any bony abnormality, pattern of
instability or fracture. He also related that a March 22, 2012 electromyography (EMG) and
nerve conduction velocity (NCV) examination demonstrated mild ulnar nerve slowing across the
left elbow and mild nerve slowing across the wrist. Dr. Stutzman diagnosed mild carpal tunnel
syndrome and mild ulnar nerve neuritis of the left upper extremity. He opined that it was
possible that appellant’s current symptoms were related to her fall at work. Dr. Stutzman
explained that the only connection was that she claimed that she did not have any symptoms
prior to the fall. He included the EMG/NCV examination report by Dr. Martin Taylor, a Boardcertified neurologist.
In a letter dated February 14, 2013, Michael B. Alter, a health and resource specialist at
the employing establishment, controverted appellant’s claim on the grounds that she did not file
a claim until one-year past the date of the alleged injury, which prevented management from
performing an investigation on the day of the alleged injury. He also contended that she did not
provide any medical documentation to support her claim.
By letter dated February 15, 2013, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim and requested additional evidence to establish that she
sustained a traumatic injury in the performance of duty.
In a March 14, 2013 narrative letter, Dr. Michael J. Simek, Board-certified in physical
medicine and rehabilitation, examined appellant for complaints of right-sided neck and shoulder
pain. He noted that she had a history of right shoulder pain with a partial rotator cuff tear and
chronic intermittent neck pain with underlying cervical degenerative disc disease. Upon

2

examination, Dr. Simek observed mild tenderness to palpation over appellant’s right cervical
paraspinals and trapezius. He also noted normal sensation to light touch in all dermatomes
throughout. Manual muscle testing revealed 5/5 strength in all major muscle groups in the
bilateral upper limits. Dr. Simek reported pain on range of motion throughout appellant’s right
shoulder, especially with internal and external rotation. Spurling’s maneuver was negative
bilaterally.
Dr. Simek diagnosed right-sided neck pain with overlying myofascial
symptomatology and underlying preexisting disc disease at the C5-6 and C6-7 levels with disc
protrusion and right shoulder pain with partial rotator cuff tear. He opined that from a cervical
spine standpoint, appellant’s pain seemed to be myofascial in etiology, which could be related to
her splinting and shoulder pain as opposed to her underlying cervical issues.
In a decision dated March 29, 2013, OWCP denied appellant’s traumatic injury claim. It
accepted that the November 17, 2011 incident occurred as alleged and that she sustained a
diagnosed medical condition but denied her claim due to insufficient medical evidence to
establish that her degenerative cervical condition was causally related to the accepted incident.
By letter dated April 15, 2013 and received on April 16, 2013, counsel requested a
telephone hearing, which was held on August 14, 2013.
Appellant described the
November 17, 2011 incident at work. She went back to pick up a big bulk of mail on a flat tub
when her toe got caught and caused her to fall and hurt her left elbow, hand and neck. Appellant
explained that she previously had surgery on her right hand in May so she fell down mainly on
her left side to protect her right side. She reported the injury to her supervisor that evening.
Appellant related that after work she went to Urgent Care and was told that she had sprained
both wrists. When she continued to experience pain in her left hand and began to experience a
little pain in her neck, she had a follow-up examination with Dr. Cush in January. Appellant
underwent an EMG which demonstrated abnormal findings. She explained that she did not file a
traumatic injury claim until December 2012 because that was when she began to have issues
with her wrist, elbow, hand and fingers.
In a May 29, 2013 attending physician’s report, Dr. Stutzman stated that appellant
underwent a right carpal tunnel revision in 2011 due to continual repetitive work with arms and
hands. He noted that findings of a magnetic resonance imaging (MRI) scan of the right hand and
diagnosis codes. Dr. Stutzman checked a box marked “yes” that appellant’s condition was
caused or aggravated by constant, repetitive work with arm and hands. He indicated that she was
disabled from June 18 to July 18, 2013.
In a June 1, 2013 narrative report, Dr. C. Christopher Fiumera, a psychologist, stated that
he met with appellant four times and diagnosed mood disorder due to a general medical
condition and panic disorder without agoraphobia. He related that she continued to deal with
numerous medical issues since May 2007 and noted that medical records indicated that she was
seen by multiple providers who had treated her with a variety of surgical procedures,
rehabilitation and pain medication. Dr. Fiumera stated that appellant was unable to physically
perform her work duties.
In an August 16, 2013 report, Dr. Stutzman stated that appellant was seen on
October 3, 2012 for resulting injuries from a November 17, 2011 fall onto a concrete floor at
work. He noted that at that time she complained of pain, swelling, weakness and numbness in

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the left upper extremity. Dr. Stutzman reported that examination during the visit demonstrated
positive Tinel’s sign at the level of the wrist for the median nerve and negative Tinel’s sign at the
elbow for the ulnar nerve. He related that there was a nondescript pain at appellant’s wrist but
no evidence of instability or bony abnormality. Dr. Stutzman reported that an EMG/NCV on the
left side revealed carpal tunnel and cubital tunnel syndrome. He diagnosed carpal tunnel
syndrome and ulnar nerve neuritis of the left upper extremity. Dr. Stutzman explained that
regarding causal relationship, he could only base the direct relationship on the fact that appellant
did not have symptoms of carpal tunnel syndrome and cubital tunnel syndrome prior to her fall.
He stated that it was well documented that carpal tunnel syndrome and cubital tunnel syndrome
could be caused by direct trauma and that would be what he would base as the causal
relationship.
In a November 6, 2013 report, Dr. Stutzman reexamined appellant for her left upper
extremity. He related that her complaints of aching and intermittent numbness if she used her
left upper extremity or if the elbow was placed in the wrong position. Upon examination,
Dr. Stutzman observed full range of motion of the elbow and hand. He reported positive Tinel’s
test at the level of the wrist for the median nerve and at the elbow for the ulnar nerve. Carpal
compression and Phalen’s sign maneuver were also positive. Dr. Stutzman reported no swelling,
ecchymosia or erythema. Neurological examination was intact to the upper extremity.
Dr. Stutzman diagnosed left carpal tunnel syndrome and left ulnar nerve neuropathy at the
elbow. He recommended a more recent EMG/NCV examination for the left upper extremity and
surgical intervention.
By decision dated March 12, 2014, an OWCP hearing representative affirmed the
March 29, 2013 decision denying appellant’s traumatic injury claim. He noted that she had an
accepted prior claim for right carpal tunnel syndrome, but that the medical evidence was
insufficient to establish that she sustained a left upper extremity and cervical conditions causally
related to the November 17, 2011 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.6
There are two components involved in establishing the fact of injury. First, the employee must
3

5 U.S.C. §§ 8101-8193.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

4

submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged.7 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.8 An employee may establish that the employment incident
occurred as alleged but fail to show that her disability or condition relates to the employment
incident.9
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.10 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.11 The weight of the 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.12
ANALYSIS
Appellant alleges that she sustained left upper extremity and cervical conditions as a
result of a November 17, 2011 employment incident. The record substantiates that she had a
prior right wrist injury, which was accepted for carpal tunnel syndrome and surgical repair.
Appellant has not alleged that she sustained injury to her right upper extremity on
November 17, 2011. OWCP accepted that the November 17, 2011 employment incident
occurred as alleged and that she was diagnosed with cervical and left upper extremity conditions
but it denied her claim finding insufficient medical evidence to establish that her diagnosed
conditions were causally related to the accepted November 17, 2011 employment incident.
Appellant was initially examined at the hospital on November 17, 2011 by Dr. Smith,
who related that she fell down at work and experienced pain in both her wrists. Dr. Smith
conducted an examination and diagnosed right wrist sprain. Regarding appellant’s left wrist, he
noted that x-rays were within normal limits. The Board notes that, although Dr. Smith mentions
that appellant fell down at work and provided a diagnosis, he does not clarify whether her fall at
work caused or contributed to her diagnosed condition. The Board has found that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.13
7

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

8

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

9

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

10

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

11

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

12

James Mack, 43 ECAB 321 (1991).

13

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

5

Appellant was also examined by Dr. Stutzman on several occasions. In reports dated
October 3, 2012 to November 6, 2013, Dr. Stutzman noted her complaints of pain and numbness
in her left upper extremity were due to her fall on a concrete floor at work on
November 17, 2011. Upon examination, he observed positive Tinel’s sign at the level of the left
wrist for the median nerve and negative at the elbow for the ulnar nerve. Dr. Stutzman stated
that x-rays did not reveal any evidence of any bony abnormality, pattern of instability or fracture.
He also noted that a March 22, 2012 EMG/NCV examination demonstrated mild ulnar nerve
slowing across the left elbow and mild nerve slowing across the wrist. Dr. Stutzman diagnosed
mild carpal tunnel syndrome and mild ulnar nerve neuritis of the left upper extremity. In
October 3, 2012 and August 6, 2013 reports, he stated that it was possible that appellant’s current
symptoms were related to her fall at work. Dr. Stutzman explained that he could only base the
direct relationship on the fact that she did not have symptoms of carpal tunnel syndrome and
cubital tunnel syndrome prior to her fall. He stated that carpal tunnel syndrome and cubital
tunnel syndrome could be caused by direct trauma.
The Board notes that Dr. Stutzman provided an accurate history of the
November 17, 2011 incident and findings on examination. Dr. Stutzman diagnosed mild carpal
tunnel syndrome and mild ulnar nerve neuritis. Regarding causal relationship, he opined that it
was possible that appellant’s current symptoms were related to her fall at work. He explained
that the only basis for his opinion was that she did not have symptoms of carpal tunnel syndrome
or cubital tunnel syndrome prior to the November 17, 2011 fall at work. The Board has held,
however, that an opinion that a condition is causally related because the employee was
asymptomatic before the injury is insufficient, without sufficient rationale, to establish causal
relationship.14 In this case, Dr. Stutzman has provided no medical rationale or explanation
sufficient to establish that the November 17, 2011 work incident caused or contributed to
appellant’s diagnosed conditions. Furthermore, his opinion that it was “possible” that her left
upper extremity conditions were related to her fall at work is speculative or equivocal in
character and is of diminished probative value.15 The Board also notes that Dr. Stutzman did not
examine appellant until almost a year after the alleged November 17, 2011 employment injury
and he does not explain how her present symptoms are causally related to an incident that
occurred one year earlier. For these reasons, the Board finds that his reports are insufficient to
establish appellant’s claim.
Appellant also submitted a March 14, 2013 report by Dr. Simek who noted that he
examined appellant for complaints of myofascial pain in her neck. Dr. Simek noted her history
of right shoulder pain with a partial rotator cuff tear and chronic intermittent neck pain with
underlying cervical degenerative disc disease. Upon examination, he observed mild tenderness
to palpation over appellant’s right cervical paraspinals and trapezius. Dr. Simek reported pain on
range of motion throughout her right shoulder, especially with internal and external rotation.
Spurling’s maneuver was negative bilaterally. Dr. Simek diagnosed right-sided neck pain with
overlying myofascial symptomatology and underlying degenerative disc disease at the C5-6 and
C6-7 levels with disc protrusion and right shoulder pain with partial rotator cuff tear. He stated
that from a cervical spine standpoint, appellant’s pain seemed to be myofascial in etiology,
14

T.M., Docket No. 08-975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

15

D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004).

6

which could be related to her splinting and shoulder pain as opposed to her underlying cervical
issues.
While Dr. Simek provides a medical diagnosis based on physical examination, the Board
notes that he does not mention the November 17, 2011 employment incident nor explain, based
on medical rationale, how appellant’s cervical conditions and right shoulder symptoms were
causally related to her fall on the left side at work. The Board has found that a physician must
provide a narrative description of the identified employment incident and a reasoned opinion on
whether the employment incident described caused or contributed to appellant’s diagnosed
medical condition.16 A well-rationalized opinion is particularly warranted in this case due to
appellant’s history of preexisting conditions. As Dr. Simek has not provided a reasoned opinion
on whether her current cervical condition is related to the November 17, 2011 incident or her
underlying preexisting condition, the Board finds that his report is of diminished probative value.
Similarly, Dr. Fiumera’s June 1, 2013 psychology report is also insufficient to establish
appellant’s claim as he fails to mention the November 17, 2011 incident nor relate any of her
cervical or left upper extremity conditions to the accepted employment incident.
Causal relationship is a medical issue that can only be shown by reasoned medical
opinion evidence that is supported by medical rationale.17 As appellant has not provided such
reasoned medical opinion to establish a causal relationship between her cervical and left upper
extremity conditions and the November 17, 2011 employment incident, the Board finds that
OWCP properly denied her traumatic injury claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her left
upper extremity and cervical conditions were causally related to the November 17, 2011
employment incident.

16

John W. Montoya, 54 ECAB 306 (2003).

17

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

7

ORDER
IT IS HEREBY ORDERED THAT the March 12, 2014 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 17, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF THE AIR FORCE,
ROBINS AIR FORCE BASE, GA, Employer
__________________________________________

)
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)
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Appearances:
Lenwood W. Moore, for the appellant
Office of Solicitor, for the Director

Docket No. 10-139
Issued: July 12, 2010

Case Submitted on the Record

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

JURISDICTION
On October 19, 2009 appellant filed a timely appeal from the May 29, 2009 decision of
the Office of Workers’ Compensation Programs denying his request for reconsideration.
Because more than 180 days has elapsed from the Office’s last merit decision dated September 9,
2008 to the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s
claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office abused its discretion in denying appellant’s request for
reconsideration.
FACTUAL HISTORY
On February 22, 2007 appellant, then a 60-year-old electronics mechanic, filed an
occupational disease claim alleging binaural hearing loss caused by hazardous noise exposure at
work between August 9, 1976 and his retirement on January 3, 2007. On May 1, 2007 the Office
accepted his claim for binaural hearing loss. Appellant filed a schedule award claim on
August 27, 2008.

On March 27, 2007 the Office referred appellant to Dr. Kenneth J. Walker, an
otolaryngologist, for an otologic examination and audiometric testing.
On April 20, 2007 Dr. Walker provided findings on physical examination and the results
of audiometric testing. The physical examination and tympanograms were normal. Hearing test
results revealed binaural high-frequency hearing loss caused, in part, by industrial noise
exposure. Audiometric testing performed on April 12, 2007 by a certified audiologist revealed,
at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second (cps): left ear decibel
losses of 5, 15 35 and 45; and right ear decibel losses of 5, 5, 10 and 55. The report shows that
audiometric testing equipment was last calibrated on May 11, 2006. Dr. Walker recommended
the use of binaural hearing instruments (hearing aids).
On April 27, 2007 Dr. A.E. Anderson, an Office medical adviser, totaled the decibel
losses of 5, 15, 35 and 45 in the left ear for the frequency levels of 500, 1,000, 2,000 and 3,000
cps at 100 decibels and divided by 4 to obtain the average hearing loss of 25 decibels. This
average was then reduced by 25 decibels to equal 0 decibels and multiplied by the established
factor of 1.5 to compute 0 percent impairment in the left ear. Dr. Anderson totaled the losses of
5, 5, 10 and 55 in the right ear at 75 decibels and divided by 4 to obtain the average hearing loss
of 18.75 decibels. This average was then reduced by 25 decibels to equal 0 which was
multiplied by the established factor of 1.5 to compute 0 percent monaural hearing loss in the
right ear.1
By decision dated May 1, 2007, the Office accepted appellant’s claim for binaural
hearing loss.
Appellant requested on December 19, 2007 authorization for hearing aids and on
December 27, 2007, the Office authorized the purchase of binaural hearing aids for appellant’s
accepted hearing loss.
By decision dated September 9, 2008, the Office denied appellant’s claim for a schedule
award for bilateral hearing loss on the grounds that the medical evidence established that his
hearing loss was not severe enough to be compensable. It further noted that “the weight of the
medical evidence establishes that you would not benefit from hearing aides and your claim for
additional medical benefits is also denied.”
On May 19, 2009 appellant requested reconsideration. He stated that, after his claim was
accepted and the Office paid for two hearing aids, he filed a claim for a schedule award for the
hearing loss he had suffered. Appellant disputed the Office’s statement that he no longer would
benefit from hearing aids and cited as an example of improvement that he did not need to turn up
the volume on his television set as high as when he had his hearing aids.
By decision dated May 29, 2009, the Office denied appellant’s request for
reconsideration without considering the merits.
1

See Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (October 2005) (these procedures contemplate that, after obtaining all necessary medical
evidence, the file should be routed to an Office medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale for the
percentage of impairment specified, especially when there is more than one evaluation of the impairment present).

2

LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act2 does not entitle a claimant
to a review of an Office decision as a matter of right. This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.3 The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).4
To require the Office to reopen a case for merit review under section 8128(a) of the Act,5
the Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.6 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.7 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.8
ANALYSIS
Appellant did not show that the Office erroneously applied or interpreted a specific point
of law nor did he submit relevant and pertinent new evidence not previously considered by the
Office. Appellant’s argument in support of his request for reconsideration disagreed with the
Office’s determination that his hearing loss was not severe enough to be ratable and noted that he
did have a considerable improvement in his hearing with the use of hearing aides. As he did
not advance a relevant legal argument not previously considered, the Office properly denied his
request for reconsideration of the denial of his schedule award claim. The Office did not abuse
its discretion in denying his request for reconsideration of his schedule award claim.
On appeal, appellant contends that he has a ratable hearing loss. Lay individuals are not
competent to render a medical opinion.9 Therefore, his opinion that he has a ratable hearing loss
is of no probative value.

2

5 U.S.C. §§ 8101-8193.

3

Id. at § 8128(a).

4

Annette Louise, 54 ECAB 783, 789-90 (2003).

5

Under section 8128(a) of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [his or her] own motion or on application.” 5 U.S.C. § 8128(a).
6

20 C.F.R. § 10.606(b)(2).

7

Id. at § 10.607(a).

8

Id. at § 10.608(b).

9

See Robert J. Krstyen, 44 ECAB 227 (1992).

3

Appellant also contested the Office’s September 9, 2008 denial of further medical
benefits for his accepted binaural hearing loss on the grounds that the weight of the medical
evidence established that he would not benefit from hearing aids. He stated that his hearing had
improved with the use of hearing aids and cited, as an example of improvement, that he did not
need to turn up the volume on his television set as high as when he did not have hearing aids.
The record shows that the Office authorized the purchase of hearing aids in December 2007 and
that Dr. Walker recommended hearing aids in his report. The Board finds that the Office has not
addressed this aspect of the case. The case will be remanded for a determination as to whether
medical benefits for appellant were properly terminated.
CONCLUSION
The Board finds that the Office did not abuse its discretion in denying appellant’s request
for reconsideration of his schedule award claim. The case is remanded for further development
on the issue of termination of medical benefits for his accepted hearing loss.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 29, 2009 is affirmed as to the issue of entitlement to a
schedule award issue. It is set aside as to the issue of medical benefits and remanded for further
action consistent with this decision.
Issued: July 12, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.N., Appellant
and
U.S POSTAL SERVICE, POST OFFICE,
North Attleboro, MA, Employer
__________________________________________

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)

Appearances:
John L. DeGeneres, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0763
Issued: January 21, 2022

Case Submitted on the Record

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

JURISDICTION
On February 21, 2020 appellant, through counsel, filed a timely appeal from a February 13,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the

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

OWCP assigned File No. xxxxxx294 to appellant’s claim for the present appeal. In the appeal papers, counsel
inadvertently reversed the third and second to last two digits of this file number. The Board finds that this constitutes
harmless error in the filing of the present appeal as the content and context of the appeal papers, when considered as
a whole, demonstrate the intent to file an appeal from OWCP’s February 13, 2020 decision under OWCP File No.
xxxxxx294.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 4
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish greater than
31 percent permanent impairment of the left lower extremity, for which he previously received
schedule award compensation; and (2) whether OWCP’s Branch of Hearings and Review properly
denied appellant’s request for the issuance of a subpoena.
FACTUAL HISTORY
On September 16, 1992 appellant, then a 47-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging injury to his knees due to factors of his federal employment.
OWCP accepted his claim for permanent aggravation of bilateral degenerative joint disease of the
knees and paid wage-loss compensation for periods of disability. Appellant underwent OWCPauthorized knee surgery, including total right knee replacement on March 19, 2002 and total left
knee replacement on April 30, 2002.5
On September 7, 2012 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In an August 16, 2012 report, Dr. Bryon Hartunian, an attending Board-certified
orthopedic surgeon, determined that appellant had 67 percent permanent impairment of each lower
extremity based on the standards of the sixth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides).6 Dr. Morley Slutsky, a Boardcertified occupational medicine specialist and OWCP district medical adviser (DMA)
subsequently determined on December 4, 2012 that appellant had 31 percent permanent
impairment of each lower extremity based on the standards of the sixth edition of the A.M.A.,
Guides. After extensive development of the medical evidence, including referral to multiple

3

5 U.S.C. § 8101 et seq.

4

Appellant, through counsel, submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b).
Pursuant to the Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R.
§ 501.5(a). In support of his oral argument request, appellant asserted that oral argument should be granted in order
to present argument demonstrating that he had greater lower extremity permanent impairment than had previously
been found by OWCP. The Board, in exercising its discretion, denies his request for oral argument because this matter
requires an evaluation of the medical evidence required. As such, the arguments on appeal can be adequately
addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay issuance
of a Board decision and not serve a useful purpose. Therefore, the oral argument request is denied and this decision
is based on the case record as submitted to the Board.
5

OWCP administratively combined OWCP File No. xxxxxx239 with the file for the present claim, OWCP File
No. xxxxxx294, with the latter serving as the master file.
6

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

2

impartial medical specialists, OWCP granted appellant schedule awards which, in total, provided
compensation for 31 percent permanent impairment of each lower extremity.
In June 2019, OWCP determined that a conflict in the medical opinion evidence existed
regarding permanent impairment and referred appellant, along with an updated statement of
accepted facts, for an impartial medical examination with Dr. Alan Solomon, a Board-certified
orthopedic surgeon. It requested that he provide an opinion on appellant’s lower extremity
permanent impairment under the sixth edition of the A.M.A., Guides.
In a July 26, 2019 report, Dr. Solomon discussed appellant’s factual and medical history
and reported the findings of his physical examination. He referenced the sixth edition of the
A.M.A., Guides and utilized the diagnosis-based impairment (DBI) rating method to find that,
under Table 16-3 (Knee Regional Grid), page 511, the class of diagnosis (CDX) for appellant’s
total left knee replacement resulted in a class 3 impairment for the left lower extremity with a
default value of 37. Dr. Solomon noted that, upon examination, appellant had left knee flexion of
0 to 79 degrees, which under Table 16-23 on page 549 represented a class 3 condition.7 For the
left lower extremity, he assigned a grade modifier for functional history (GMFH) of 1 and a grade
modifier for physical examination (GMPE) of 2. Dr. Solomon found that a grade modifier for
clinical studies (GMCS) was not applicable as the clinical studies were used to establish the
diagnosis and proper placement in the regional grid. He utilized the net adjustment formula,
(GMFH - CDX) + (GMPE - CDX) = (1 - 3) + (2 - 3) = -3, which resulted in a grade A or 31 percent
permanent impairment of the left lower extremity. Dr. Solomon provided a separate calculation
for the right lower extremity to find 31 percent permanent impairment and found that appellant
reached maximum medical improvement (MMI) on the date of his examination.
By decision dated August 14, 2019, OWCP determined that appellant was not entitled to
additional schedule award compensation for either lower extremity. It found that the special
weight of the medical evidence rested with the well-rationalized opinion of the impartial medical
specialist, Dr. Solomon, who found 31 percent permanent impairment of each lower extremity.
On August 22, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. Prior to the hearing, appellant
submitted a September 3, 2019 report from Dr. John J. Walsh, a Board-certified orthopedic
surgeon, who asserted that appellant was entitled to a class 4 rating, rather than a class 3 rating,
for appellant’s left knee under Table 16-3 and Table 16-23 of the sixth edition of the A.M.A.,
Guides. Dr. Walsh opined that, given such a class 4 rating, the permanent impairment of
appellant’s left lower extremity utilizing Table 16-3 would fall under the default value of 67
percent.
Prior to the hearing, appellant, through counsel, requested a subpoena for Dr. Solomon,
which was denied by OWCP on November 6, 2019.
During the hearing held on January 3, 2020, counsel advised that appellant was not
contesting the permanent impairment rating he received for his right lower extremity. He argued
that appellant was entitled to a class 4 rating, rather than a class 3 rating, for the left knee under
7

Dr. Solomon also noted that appellant had right knee flexion of 0 to 85 degrees.

3

Table 16-3 of the sixth edition of the A.M.A., Guides. Counsel asserted that the permanent
impairment of appellant’s left lower extremity was properly calculated in Dr. Walsh’s
September 3, 2019 report which found 67 percent permanent impairment of that extremity. He
argued that he needed to question Dr. Solomon in order to properly assess appellant’s permanent
impairment.
By decision dated February 13, 2020, OWCP’s hearing representative affirmed the
August 14, 2019 decision. The hearing representative noted that the prior denial of appellant’s
request to subpoena Dr. Solomon was now finalized and indicated that counsel failed to establish
a sufficient basis to warrant issuance of such a subpoena as he did not prove that oral testimony
was the best or only way to obtain additional information from Dr. Solomon. The hearing
representative noted that Dr. Solomon had already provided detailed medical reasoning explaining
his opinion regarding appellant’s permanent impairment.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA 8 and its implementing federal regulations 9 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. How ever,
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 and the Board has
concurred in such adoption.10 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used
to calculate schedule awards. 11
Chapter 16 of the sixth edition of the A.M.A., Guides, pertaining to the lower extremities,
provides that diagnosis-based impairment is the primary method of calculation for the lower limb
and that most impairments are based on the diagnosis-based impairment where impairment class
is determined by the diagnosis and specific criteria as adjusted by the grade modifiers for
functional history, physical examination, and clinical studies. It further provides that alternative
approaches are also provided for calculating impairment for peripheral nerve deficits, complex
regional pain syndrome, amputation, and range of motion. Range of motion is primarily used as a
physical examination adjustment factor. 12 The A.M.A., Guides, however, also explain that some
of the diagnosis-based grids refer to the range of motion section when that is the most appropriate
mechanism for grading the impairment. This section is to be used as a stand -alone rating when

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id.; see V.J., Docket No. 1789 (issued April 8, 2020); Jacqueline S. Harris, 54 ECAB 139 (2002).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); see also Chapter 3.700.2 and Exhibit 1 (January 2010).
12

A.M.A., Guides (6 th ed. 2009) 497, section 16.2.

4

other grids refer to this section or no other diagnosis-based sections of the chapter are applicable
for impairment rating of a condition. 13
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the left knee, the relevant portion of the left leg for the present case,
reference is made to Table 16-3 (Knee Regional Grid) beginning on page 509. 14 After the CDX is
determined from the Knee Regional Grid (including identification of a default grade value), the
net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).15 Under Chapter 2.3, evaluators
are directed to provide reasons for their impairment rating choices, including choices of diagnoses
from regional grids and calculations of modifier scores. 16
Section 8123(a) of FECA provides that, if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination. 17 For a conflict to arise, the opposing physicians’ opinions must be of
virtually equal weight and rationale. 18 In situations where the case is properly referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such specialist,
if sufficiently well rationalized and based upon a proper factual background, must be given special
weight.19
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish greater than 31
percent permanent impairment of the left lower extremity, for which he received schedule award
compensation.

13

Id. at 543; see also M.D., Docket No. 16-0207 (issued June 3, 2016); D.F., Docket No. 15-0664 (issued
January 8, 2016).
14

Id. at 509-11.

15

Id at 515-22.

16

Id. at 23-28.

17

5 U.S.C. § 8123(a); see E.L., Docket No. 20-0944 (issued August 30, 2021); R.S., Docket No. 10-1704 (issued
May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).
18

P.R., Docket No. 18-0022 (issued April 9, 2018).

19

See D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31
ECAB 1010 (1980).

5

OWCP properly determined that there was a conflict in the medical opinion ev idence
regarding appellant’s lower extremity permanent impairment and, pursuant to 5 U.S.C. § 8123(a),
referred him for an impartial medical examination and impairment evaluation with Dr. Solomon.20
In his July 26, 2019 report, Dr. Solomon discussed appellant’s factual and medical history
and reported the findings of his physical examination. He referenced the sixth edition of the
A.M.A., Guides and utilized the DBI rating method to find that, under Table 16-3 (Knee Regional
Grid), page 511, the CDX for the total left knee replacement resulted in a class 3 impairment for
the left lower extremity with a default value of 37. Dr. Solomon noted that, upon examination,
appellant had left knee flexion of 0 to 79 degrees, which under Table 16 -23 on page 549
represented a class 3 condition. For the left lower extremity, he assigned a GMFH of 1 and a
GMPE of 2. Dr. Solomon found that a GMCS was not applicable as the clinical studies were used
to establish the diagnosis and proper placement in the regional grid. He properly utilized the net
adjustment formula, (GMFH - CDX) + (GMPE - CDX) = (1 - 3) + (2 - 3) = -2, which resulted in
a grade A or 31 percent permanent impairment of the left lower extremity. Dr. Solomon found
that appellant reached MMI on the date of his examination, July 26, 2019.
Appellant submitted a September 3, 2019 report from Dr. Walsh, who asserted that
appellant was entitled to a class 4 rating, rather than a class 3 rating, for appellant’s left knee under
Table 16-3 and Table 16-23 of the sixth edition of the A.M.A., Guides. Dr. Walsh opined that,
given such a class 4 rating, the permanent impairment of appellant’s left lower extremity utilizing
Table 16-3 would fall under the default value of 67 percent. The Board notes, however, that
Dr. Walsh failed to adequately explain why appellant’s left knee was entitled to a class 4 rating,
rather than a class 3 rating.
The Board therefore finds that the special weight of the medical evidence with respect to
the permanent impairment of appellant’s left lower extremity rests with the well-rationalized
opinion of the impartial medical specialist, Dr. Solomon and establishes that appellant has no
greater than 37 percent impairment of the left lower extremity. Appellant may request a schedule
award or increased schedule award at any time based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
In requesting a subpoena, a claimant must explain why the testimony is relevant to the
issues in the case and why a subpoena is the best method or opportunity to obtain such evidence
because there is no other means by which the testimony could have been obtained.21 The hearing
representative of OWCP’s Branch of Hearings and Review has discretion to approve or deny a
subpoena request. 22 Abuse of discretion is generally shown through proof of manifest error, a
20

See supra notes 17 and 18. The Board notes that appellant is not contesting OWCP’s determination regarding
right lower extremity permanent impairment.
21

See 20 C.F.R. § 10.619.

22

See id.

6

clearly unreasonable exercise of judgment, or actions taken which are clearly contrary to logic and
probable deductions from established facts.23
ANALYSIS -- ISSUE 2
The Board finds that OWCP’s hearing representative properly denied appellant’s request
for the issuance of a subpoena.
OWCP’s hearing representative did not commit an abuse of discretion in denying
appellant’s request, through counsel, to subpoena Dr. Solomon. The hearing representative noted
that counsel failed to establish a sufficient basis to warrant issuance of such a subpoena when he
did not prove that oral testimony was the best or only way to obtain additional information from
those individuals. The hearing representative noted that Dr. Solomon had already provided
detailed medical reasoning explaining his opinion regarding appellant’s permanent impairment.
The Board finds that the hearing representative’s denial of counsel’s request to subpoena
Dr. Solomon did not constitute as abuse of discretion under the above-noted standard. 24
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish greater than 31
percent permanent impairment of the left lower extremity, for which he previously received
schedule award compensation. The Board further finds that OWCP’s Branch of Hearings and
Review properly denied appellant’s request for the issuance of a subpoena.

23

B.M., Docket No. 17-1157 (issued May 22, 2018); Gerald A. Carr, 55 ECAB 225 (2004).

24

See id.

7

ORDER
IT IS HEREBY ORDERED THAT the February 13, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 21, 2022
Washington, DC

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

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

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

8


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

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

Docket No. 08-2171
Issued: February 20, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 4, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ schedule award decision dated June 5, 2008. Under 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 13 percent permanent impairment to his
right lower extremity and 13 percent impairment for the left lower extremity.
FACTUAL HISTORY
On October 3, 2000 appellant, a 40-year-old letter carrier, filed a Form CA-2 claim for
benefits, alleging that he developed two herniated discs in his lower back due to factors of his
employment. The Office accepted his claim for aggravation of degenerative disc disease.
On August 8, 2001 Dr. Marc Levin, Board-certified in neurosurgery and appellant’s
treating physician, performed surgery to correct lumbar stenosis and lumbar disc herniation at

L3. He performed the procedures consisting of bilateral L3-4 and L4-5 laminectomies,
foraminectomies and excision of an L3 disc herniation.
On March 10, 2004 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of his right and left lower extremities.
In a report dated May 2, 2004, Dr. Levin stated:
“[Appellant] was evaluated in my office on April 12, 2004. He has basically
reached maximum medical improvement. On examination, he had diminution of
range of motion of the lumbosacral spine, flexion to 35 degrees, hyperextension
10 degrees, lateral bending 10 degrees. Reflexes were diminished in both lower
extremities at the knee and ankle. [Appellant] has constant pain of what he states
is 5 to 6 out of 10, and occasional pain as high as 8 out of 10. Bilateral leg pain is
on the right greater than the left.
“[Appellant] has reached maximum medical improvement. Restrictions placed on
him are permanent. His permanent partial impairment rating, according to the
American Medical Association’s Guides to the Evaluation of Permanent
Impairment (fifth edition) [A.M.A., Guides], is 25 percent of the person as a
whole. This is based on the A.M.A., Guides, according to the DRE [diagnosisrelated estimate] Category V.”
In a memorandum/impairment evaluation dated September 20, 2004, an Office medical
adviser reviewed Dr. Levin’s findings and determined that appellant had a five percent
impairment of the right lower extremity and a five percent impairment of the left lower
extremity. He noted that appellant had complaints of pain in the buttocks on the right, radiating
into the right leg, which worsened with increased activity. The Office medical adviser advised
that there were no significant left lower extremity symptoms. He stated that Dr. Levin’s May 2,
2004 report noted diminution of lumbar spine range of motion on physical examination. The
Office medical adviser stated:
“The only lower extremity impairment which could be derived from current
medical narratives is the residual L4 and L5 radicular pain in each leg. Table 1517 at page 424 [of the A.M.A., Guides], combined with Table 16-10, page 482 of
the A.M.A., Guides, allows five percent for Grade 3 radicular pain in the
distribution of the L4 and L5 nerve roots. Date of maximum medical
improvement is estimated to have occurred one year postoperatively,
August 8, 2002.”1
By decision dated November 9, 2004, the Office granted appellant a schedule award for a
five percent permanent impairment of the right lower extremity and a five percent permanent

1

The Office medical adviser incorrectly stated in this report that appellant had a 55 percent left lower extremity
impairment. He amended this typographical error in an October 25, 2004 supplemental report, in which he advised
that the proper amount of left lower extremity impairment was five percent.

2

impairment of the left lower extremity for the period August 8, 2002 to February 25, 2003, for a
total of 28.8 weeks of compensation.
In an April 18, 2005 report, Dr. Levin stated that he had reexamined appellant and
determined that he had some mild weakness, rating a 4.5 out of 5, in the left and right
quadriceps.
On October 21, 2005 appellant filed a Form CA-7 claim for an additional schedule award
based on a partial loss of use of his right and left lower extremities.
In a report dated November 14, 2005, the Office medical adviser found that appellant had
an additional eight percent bilateral lower extremity permanent impairment based on Dr. Levin’s
findings of a Grade 4 out of 5 strength in the distribution of the L4 and L5 nerve roots bilaterally
according to Tables 15-15 and 15-18 at page 424 of the A.M.A., Guides. This amounted to a
total 13 percent impairment for the right and left lower extremities.
By decision dated December 27, 2005, the Office granted appellant an additional eight
percent schedule award for his right and left lower extremities for the period February 26, 2003
to January 14, 2004, for a total of 46.8 weeks of compensation.
On August 25, 2006 appellant underwent a magnetic resonance imaging (MRI) scan of
the lumbar spine at the behest of Dr. Kevin G. Waldron, a specialist in neurosurgery. The results
of the MRI scan indicated mild to moderate central canal stenosis at L2-3, secondary to disc
bulge and facet/ligamentum flavum hypertrophy; postlaminectomy changes at L3-4 and L4-5;
mild central canal stenosis at these levels with slight neural foraminal narrowing, with no large
recurrent disc protrusion; and moderate to severe bilateral neural foraminal narrowing at L5-S1,
secondary to disc bulge and facet hypertrophy.
Appellant underwent an electromyogram (EMG) test on September 12, 2006, the results
of which showed no electromyographic evidence of any lumbar radiculopathy.
On January 18, 2007 appellant filed a Form CA-7 claim for an additional schedule award
based on a partial loss of use of his right and left lower extremities.
In a report dated May 24, 2007, Dr. John W. Ellis, a Board-certified family practitioner,
found that appellant had a 25 percent impairment for the right lower extremity and a 25 percent
impairment for the left lower extremity pursuant to Tables 15-15, 15-16 and 15-18 at page 424 of
the A.M.A., Guides. He rated a 13.2 percent impairment based on pain in the right spinal nerve
root at L4 for the right lower extremity. Dr. Ellis found that appellant had a Grade 3 sensory
deficit at page 424, which yielded a 3.0 percent impairment derived from a 60 percent sensory
deficit impairment (Table 15-15) times 5 percent (Table 15-18), and a Grade 3 motor deficit,
which yielded a 10.2 percent impairment based on a 30 percent impairment (Table 15-16) times
34 percent (Table 15-18) for a 13.2 percent impairment. He then calculated a 14 percent
impairment right lower extremity based on pain in the right spinal nerve root at L5. Dr. Ellis
derived a 3.0 Grade 3 sensory deficit, derived from a 60 percent sensory deficit impairment (at
Table 15-15) multiplied times 5 percent impairment (Table 15-18), and an 11.1 Grade 3 motor
deficit impairment based on 30 percent motor deficit (at Table 15-16) times 37 percent
impairment of function (at Table 15-18), for a 14.1 total added impairment of the right lower
3

extremity, for a combined 25 percent impairment for the right lower extremity. He then made
similar calculations with regard to the left lower extremity to arrive at a 25 percent impairment
for the left lower extremity.
In a report dated June 25, 2007, an Office medical adviser determined that appellant was
not entitled to an award for an additional bilateral lower extremity impairment greater than the
13 percent already awarded. He opined that Dr. Ellis did not present sufficient objective
evidence in his May 24, 2007 report to support any lower extremity impairment than that already
awarded for weakness and residual radicular sensory loss in the L4 and L5 nerve roots. The
Office medical adviser noted that appellant underwent an EMG test on September 12, 2006
which showed no evidence of any lumbar radiculopathy, and a lumbar MRI scan which only
showed mild to moderate central canal stenosis at L2-5 with moderate to severe bilateral neural
foraminal narrowing at L5-Sl. He also stated that the MRI scan noted no significant disc
protrusion and that the rest of Dr. Ellis’ physical examination was unremarkable.
By decision dated July 12, 2007, the Office denied appellant an additional schedule
award.
On August 14, 2007 appellant requested reconsideration.
In a report dated September 18, 2006, received by the Office on August 17, 2007,
Dr. Waldron found that appellant had a 48 percent whole person impairment which, when
divided by .75, yielded a 64 percent impairment of the lumbar spine. He stated:
“I had the pleasure of seeing [appellant] for a follow-up in the office following
him obtaining a new lumbar spine MRI [scan] and EMG and nerve conduction
velocity test. The lumbar spine MRI [scan] demonstrates mild to moderate L2-3
degenerative disc disease with mild spinal stenosis. There are post-laminectomy
changes at L3-4 and L4-5 with mild canal stenosis and mild foraminal stenosis
without disc protrusion. There is also moderate bilateral neural foramen
narrowing at L5-Sl. No spondylolisthesis is noted. No ongoing severe canal
stenosis noted. [Appellant’s] EMG and nerve conduction velocity test fails to
demonstrate any electromyographic evidence of lumbar radiculopathy. [His]
subjective complaints have remained the same in symptomatology.”
Dr. Waldron noted that appellant’s physical examination was unchanged from his
previous visits. He accorded 12 percent impairment of the whole person for a lumbar
decompression at L3-4 plus 1 percent for L4-5, based on loss of range of motion; an additional 4
percent for loss of flexion and 5 percent for loss of extension plus 3 percent each for limited
lateral bending; 3 percent for limited L3 function bilaterally and an additional 5 percent for
limited L4 function bilaterally. Dr. Waldron added 1 percent each for approximately 26 percent
loss of sensory deficit with ongoing pain which interfered with activities within the L3 and L4
nerve root distributions. This totaled 48 percent whole body impairment and a 64 percent lumbar
spinal impairment when divided by .75.
The Office found that there was a conflict in the medical evidence between Dr. Ellis and
Dr. Waldron regarding whether appellant was entitled to an additional award for a greater degree

4

of bilateral lower extremity impairment stemming from his accepted degenerative disc condition.
The Office referred appellant to Dr. Charles W. Mercier, a Board-certified orthopedic surgeon,
for a referee medical examination. In an April 15, 2008 report, Dr. Mercier found that appellant
was not entitled to an award for bilateral lower extremity impairment greater than the 13 percent
already awarded. He stated:
“Given the accepted facts, the patient’s pathology at L3-4 and L4-5 is work
related. Based on the patient’s postoperative MRI [scan], any preoperative
pathology has been corrected. There is no residual pathology noted on the MRI
[scan] that would cause radicular low back pain, continuing disability, or
neurological loss in the lower extremities. This is supported by the patient’s postoperative EMG nerve conduction velocity revealing only a peripheral neuropathy.
This nonwork[-]related peripheral neuropathy could be confused with an L4
sensory dysfunction. In fact, no low back nerve root dysfunction was noted on the
patient’s electrodiagnostic testing. No motor dysfunction was coming from either
the back or his peripheral nerves.”
Dr. Mercier noted that the August 25, 2006 lumbar MRI scan showed postoperative
changes at L3-4 and L4-5 with very mild spinal stenosis, with degenerative pathology at other
levels causing various degrees of spinal stenosis. He noted no significant pathology at the
operative levels that would cause neurological losses in the lower extremities. Dr. Mercier
advised that appellant’s subjective low back pain was increased with trunk rotation, and that he
exhibited extensive subjective nonanatomical motor and sensory loss in both lower extremities.
He also noted that appellant’s straight leg testing was markedly contradictory and
nonanatomical, bilaterally. Dr. Mercier opined that these findings represented “extensive false
reporting” to clinical testing, which decreased the reliability of his clinical examination. He
concluded:
“Based on the information I have, the patient’s prior permanent partial
impairment rating was exceedingly generous. His exam[ination] today does not
reveal any reliable objective findings to warrant any increase in what he had
already been paid.”
In a report dated May 26, 2008, the Office medical adviser found that appellant was not
entitled to an additional schedule award. He noted that Dr. Mercier indicated that the August 25,
2006 MRI scan results showed that appellant did not have any residual pathology which would
cause radicular low back pain, continuing disability, or neurological loss in the lower extremities,
and that the September 12, 2006 EMG was negative for any lower lumbar nerve root
dysfunction. The Office medical adviser also noted that Dr. Mercier believed that appellant’s
subjective complaints were unreliable, exaggerated and largely unsupported by objective, clinical
findings.
By decision dated June 5, 2008, the Office found that appellant was not entitled to an
additional schedule award for the left and right lower extremities.

5

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 set forth the
number of weeks of compensation to be paid for permanent loss, or loss of use of the members
of the body listed in the schedule. Where the loss of use is less than 100 percent, the amount of
compensation is paid in proportion to the percentage loss of use.3 However, the Act does not
specify the manner in which the percentage of loss of use of a member is to be determined. For
consistent results and to ensure equal justice under the law to all claimants, the Office has
adopted the A.M.A., Guides (fifth edition) as the standard to be used for evaluating schedule
losses.4
ANALYSIS
In this case Dr. Mercier, the impartial specialist, found that appellant was not entitled to
any additional impairment for the right and left lower extremities due to his accepted
degenerative disc condition. The Office medical adviser relied on Dr. Mercier’s opinion that any
preoperative pathology stemming from appellant’s accepted conditions had since been corrected.
His opinion was based on the August 2006 MRI scan results which showed no residual
pathology causing radicular low back pain, continuing disability, or neurological loss in the
lower extremities and the September 5, 2006 EMG results which demonstrated only a peripheral
neuropathy. Dr. Mercier noted no L4 sensory dysfunction, nerve root dysfunction, or motor
dysfunction coming from either the back or his peripheral nerves. The Office medical adviser
stated that the MRI scan results showed postoperative changes at L3-4 and L4-5 with very mild
spinal stenosis, with degenerative pathology at other levels causing various degrees of spinal
stenosis; there was no significant pathology at the operative levels that would cause neurological
losses in the lower extremities. He also noted that Dr. Mercier believed appellant’s subjective
complaints of low back pain and lower extremity pain were not reliable, and constituted
“extensive false reporting” to clinical testing; Dr. Mercier concluded that appellant’s
examination did not reveal any reliable objective findings to warrant any increase in his schedule
award for a bilateral lower extremity impairment. The Board finds that the Office properly relied
on the findings of the Office medical adviser, who found based on Dr. Mercier’s referee opinion
that appellant was not entitled to an award greater than that already awarded for a 13 percent
bilateral lower extremity impairment.
As there is no other probative medical evidence establishing that appellant sustained any
additional permanent impairment, the Office properly found that appellant was not entitled to
more than a 13 percent impairment for the right lower extremity and a 13 percent impairment to
the left lower extremity impairment.

2

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

3

5 U.S.C. § 8107(c)(19).

4

20 C.F.R. § 10.404.

6

CONCLUSION
The Board finds that appellant has no additional permanent impairment to his right and
left lower extremities.
ORDER
IT IS HEREBY ORDERED THAT the June 5, 2008 decision of the Office of Workers’
Compensation Programs be affirmed.
Issued: February 20, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Denver, CO, Employer
__________________________________________

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Appearances:
Linda Temple, for the appellant
Office of Solicitor, for the Director

Docket No. 08-439
Issued: October 24, 2008

Case Submitted on the Record

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

JURISDICTION
On November 26, 2007 appellant filed a timely appeal from the September 12, 2007
merit decision of the Office of Workers’ Compensation Programs, which denied modification of
an earlier decision to terminate her compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation on the
grounds she refused an offer of suitable work.
FACTUAL HISTORY
On December 4, 1994 appellant, then a 44-year-old city carrier, filed a claim alleging that
she sustained an emotional condition as a result of her federal employment. The Office accepted

her claim for a temporary aggravation of depression and paid compensation for temporary total
disability.1
On July 13, 1998 the employer offered appellant a modified carrier position at the
Terminal Annex in downtown Denver. On July 20, 1998 the Office found this position suitable
and gave her 30 days to accept or explain her reasons for refusing.
Appellant’s clinical psychologist wanted a job analysis so she could address the
suitability of the offer. She stated she would not approve the job without an interview for
appellant. On July 20, 1998 appellant attended an interview with her new manager. However, it
did not take place at the Terminal Annex location, but in Commerce City, where the employer
was now offering her the position of purchasing clerk. An Office rehabilitation counselor
prepared a job analysis of the purchasing clerk position for appellant’s clinical psychologist, who
disapproved because of the length of the commute to Commerce City. When the Office asked
the employer to clarify the commuting issue, the employer explained that it was approximately
one hour’s drive from appellant’s home to the Terminal Annex in downtown Denver.
The Office found that appellant’s reason for not accepting the offered position was
unjustified and gave her 15 days to accept. On October 30, 1998 it terminated her compensation
under 5 U.S.C. § 8106(c)(2) for refusing a suitable job offer as a modified letter carrier. On
November 16, 1998 appellant’s clinical psychologist found that she was permanently
psychologically disabled and would not be able to function in any capacity within the U.S. Postal
Service.
The Board set aside the Office’s termination of compensation and returned the case
record to the Office for reconstruction and a de novo decision to protect appellant’s appeal
rights.2 The Office issued a de novo decision on March 16, 2001, again terminating her
compensation for refusing a suitable job as a modified letter carrier.
On July 13, 2001 an Office hearing representative set aside the termination of
compensation and remanded the case for further development of the medical evidence. A
conflict in medical opinion then arose when an Office second-opinion psychiatrist reported that
appellant was capable of returning to work in July 1998.3

1

OWCP File No. xxxxxx875. In a previous claim, OWCP File No. xxxxxx732, the Office accepted reactive
depressive disorder with associated anxiety.
2

Docket No. 99-1053 (issued July 24, 2000).

3

The Office supplied the psychiatrist with a statement of accepted facts finding that the job location at the
Terminal Annex in downtown Denver was within appellant’s commuting ability.

2

On March 1, 2002 an impartial medical specialist reviewed the job description for
modified letter carrier. He found that appellant was capable of returning to work under the
circumstances present for the job that the employer offered her in July 1998. The medical
specialist based his opinion, in part, on the work environment described in the job analysis for
the position of purchasing clerk in Commerce City. The physician stated:
“The environment of the 1998 offered workplace was described as being
‘exceptional’ because of the supervisor’s and coworkers’ ability to empathize
with and adapt to restrictions required by other employees. The job was described
as ‘low pressure … all duties would be tailored to [appellant’s] physical
restrictions.’ It was also noted that the supervisor himself had been disabled and
that the work environment was ‘warm and accepting.’”
On April 3, 2002 the Office terminated appellant’s compensation on the grounds that she
was capable of performing the offered job of modified letter carrier and failed to take the job
without justification. In decisions dated May 28, 2003 and September 12, 2007, it reviewed the
merits of her case and denied modification of its prior decision.
LEGAL PRECEDENT
Section 8106(c)(2) of the Federal Employees’ Compensation Act states that a partially
disabled employee who refuses to seek suitable work, or refuses or neglects to work after
suitable work is offered to, procured by, or secured for her is not entitled to compensation.4 The
Office has authority under this section to terminate compensation for any partially disabled
employee who refuses or neglects suitable work when it is offered. Before compensation can be
terminated, however, the Office has the burden of demonstrating that the employee can work,
setting forth the specific restrictions, if any, on the employee’s ability to work, and has the
burden of establishing that a position has been offered within the employee’s work restrictions,
setting forth the specific job requirements of the position.5 In other words, to justify termination
of compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision, the Office has the
burden of showing that the work offered to and refused or neglected by appellant was suitable.6
As a penalty provision, section 8106(c)(2) must be narrowly construed.7
ANALYSIS
The Office terminated appellant’s compensation for wage loss on the grounds that she
refused the employer’s July 13, 1998 offer to return to work as a modified letter carrier at the
Terminal Annex in downtown Denver. However, after the July 13, 1998 offer was made, the
employer introduced a second position. Just as the Office made its finding that the position of
4

5 U.S.C. § 8106(c)(2).

5

Frank J. Sell, Jr., 34 ECAB 547 (1983).

6

Glen L. Sinclair, 36 ECAB 664 (1985).

7

Stephen R. Lubin, 43 ECAB 564, 573 (1992).

3

modified letter carrier was suitable, the employer interviewed her for a purchasing clerk position
in Commerce City. While it attempted to follow its suitable work procedures with respect to the
original position in downtown Denver, the employer, the Office rehabilitation counselor,
appellant and her clinical psychologist focused on returning appellant to a purchasing clerk
position in Commerce City. The employer interviewed appellant for that position, the Office
rehabilitation counselor prepared a job analysis for that position, her clinical psychologist
reviewed it and did not approve. The impartial medical specialist found the environment in
Commerce City supportive and the personnel empathetic. However, this was not the position the
Office reviewed when it made its July 20, 1998 finding of suitability and this was not the
position on which the Office based its termination of compensation.
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation. The employer prepared no written job offer for the Commerce City position. The
Office made no finding that the Commerce City position was suitable. It took appellant’s
reasons for not accepting the Commerce City position and found they did not justify her refusal
of the modified carrier position in downtown Denver. In the end, the Office invoked 5 U.S.C.
§ 8106(c)(2), a penalty provision, based on appellant’s refusal to accept a position that the
employer was no longer offering. The Board finds that the employer effectively withdrew its
July 13, 1998 offer for the modified letter carrier position at the Terminal Annex in downtown
Denver when it interviewed appellant for the purchasing clerk position in Commerce City.
For these reasons, the Board finds that the Office has not met its burden to justify the
termination of appellant’s compensation under 5 U.S.C. § 8106(c)(2). The Board will reverse
the Office’s September 12, 2007 decision denying modification of its prior decision.
CONCLUSION
The Board finds that the Office improperly terminated appellant’s compensation under 5
U.S.C. § 8106(c)(2).

4

ORDER
IT IS HEREBY ORDERED THAT the September 12, 2007 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 24, 2008
Washington, DC

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

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

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

5