United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, HARKER HEIGHTS
POST OFFICE, Harker Heights, TX, Employer
__________________________________________

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

Docket No. 19-0955
Issued: February 3, 2020

Case Submitted on the Record

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

JURISDICTION
On April 1, 2019 appellant, through counsel, filed a timely appeal from a March 11, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the March 11, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
disability for the period commencing March 28, 2018 causally related to her accepted
November 15, 2017 employment injury.
FACTUAL HISTORY
On November 16, 2017 appellant, then a 37-year-old postal support employee (PSE) mail
clerk, filed a traumatic injury claim (Form CA-1) alleging that on November 15, 2017 she sprained
and bruised her right foot and leg when an equipment gate fell and hit her leg while in the
performance of duty. On the reverse side of the claim form, the employing establishment indicated
that appellant received medical treatment on November 16, 2017 and returned to work on
November 17, 2017. OWCP accepted the claim for right ankle sprain and right foot sprain.
Appellant stopped work on November 21, 2017.
A November 28, 2017 right ankle magnetic resonance imaging (MRI) scan demonstrated
marrow edema within the anterior process of the calcaneous and subarticular marrow edema along
the dorsal and posterior cuboid, mild tendinosis of the noninsertional Achilles tendon, and
thickening of the anterofibular ligament (ATFL). It also noted no osteochondral defect present.
A right foot MRI scan of even date revealed an osteochondral (OCD) injury affecting the distal
medial aspect of the proximal phalanx of the great toe, mild-to-moderate joint effusion at the first
metatarsophalangeal, mild effusions at the second through fifth metatarsophalangeal joints,
intermetatarsal bursitis, nonspecific plantar foot pad edema, mild arthrosis of the first
metatarsophalangeal joint space, subtle marrow edema noted along the lateral aspect of the fifth
metatarsal head, and focal probable adventitial bursitis at the level of the head of the fifth
metatarsal along the plantar aspect.
In a December 4, 2017 narrative report, Dr. Thomas Martens, a family practitioner,
recounted that he examined appellant for complaints of right leg and foot pain due to a
November 15, 2017 employment injury. Examination of appellant’s right ankle revealed edema
and tenderness, especially over the lateral ligament. Range of motion was limited secondary to
pain. Dr. Martens also observed tenderness in the right foot between the toes. He diagnosed other
specific joint derangements of the right ankle and foot. Dr. Martens opined that appellant’s
diagnosed conditions were caused by the November 15, 2017 employment injury. He released
appellant to work modified duty.
On December 13, 2017 appellant returned to part-time work in a limited-duty capacity, for
approximately six hours per day.
Appellant received medical treatment from Dr. Ryan Shock, a podiatrist. In a March 14,
2018 report, Dr. Shock recounted appellant’s complaints of right ankle pain and severe pain in the
first metaphalangeal. Upon examination of appellant’s right lower extremity, he noted positive
Tinel’s sign at the right tibial nerve and effusion of the ankle. Dr. Shock diagnosed right ankle
sprain.
Dr. Martens completed duty status reports (CA-17 forms) dated March 14, 2018, which
noted a date of injury of November 15, 2017 and described findings related to her right ankle and
right foot. He advised that appellant could work part-time modified duty up to four hours per day.
2

In a March 28, 2018 Form CA-17, Dr. Martens described the November 15, 2017
employment injury and noted clinical findings related to her right ankle and right foot. He
completed an additional Form CA-17 dated April 11, 2018, which indicated that he had not advised
appellant to resume work.
In an April 6, 2018 report, Dr. Shock reviewed appellant’s history and noted examination
findings of positive Tinel’s at the right tibial nerve. He related that appellant had failed to improve
with boot immobilization and continued to complain of pain deep within the ankle joint. Dr. Shock
diagnosed right ankle sprain. He indicated that an MRI scan showed an OCD in the talus, which
was likely causing her pain. Dr. Shock reported that, although appellant’s injury was diagnosed
as a sprain, an OCD can take time to present on an MRI scan.
In an April 25, 2018 Form CA-17, Dr. Martens noted that appellant could work part-time
modified duty, effective April 30, 2018, up to five hours per day.
In an April 27, 2018 report, Dr. Shock recounted appellant’s complaints of continued pain
in her right ankle. He noted right lower extremity findings of effusion of the ankle and severe pain
with range of motion (ROM). Dr. Shock diagnosed right ankle sprain.
On April 30, 2018 appellant accepted a modified job offer as a PSE mail clerk.
In a May 15, 2018 letter, Dr. Martens noted appellant’s accepted conditions of right ankle
and right foot sprains. He provided examination findings and noted that an MRI scan of the right
foot revealed OCD injury versus a bone contusion. Dr. Martens opined that the OCD injuries of
the right ankle and foot were a direct result of the already approved right foot and ankle injury. He
explained that OCD of the right ankle and foot were consequential to the original claim and
requested that they be added to her claim. Dr. Martens indicated that appellant could continue
working with current restrictions.
On May 5, 2018 appellant filed claims for wage-loss compensation (CA-7 forms) for
partial disability on March 28, 2018 and for total disability for the period March 30 through
April 28, 2018. On the reverse side of the CA-7 form, a human resource manager, indicated that
an eight-hour job offer was on file and that no medical rationale was provided for reduced work
hours. In the subsequent time analysis forms (CA-7a forms), appellant indicated that on March 28,
2018 she worked for 1.5 hours and claimed leave without pay (LWOP) for 1.5 hours. Beginning
March 30, 2018 she claimed three hours of LWOP each day.4 Appellant indicated that the leave
use was because the doctor had reduced her work hours to zero.
In a May 21, 2018 development letter, OWCP informed appellant that it had received her
claims for wage-loss compensation for the period March 28 through April 28, 2018. It advised
her that the evidence received was insufficient to establish that she was temporarily totally disabled
from work during the claimed period. OWCP afforded appellant 30 days to submit the requested
information.
OWCP referred appellant’s case, along with a statement of accepted facts (SOAF), to an
OWCP medical adviser for an opinion on whether appellant had developed OCD of the right ankle
4

In a January 26, 2018 Form CA-7a, the employing establishment indicated that appellant was entitled to 15 hours
per week and did not have a fixed 40-hour workweek.

3

and foot as a consequence of her accepted November 15, 2017 employment injury. In a May 30,
2018 report, Dr. Ari Kaz, a Board-certified orthopedic surgeon serving as an OWCP medical
adviser, indicated that he had reviewed the SOAF and noted that appellant’s claim was accepted
for right foot and right ankle sprains. He discussed the medical records he had reviewed and
indicated that the November 28, 2017 MRI scan report of the right foot and ankle “clearly stated
that there was no osteochrondral defect.” Dr. Kaz opined that there was no evidence to support
that appellant had OCD in her right ankle.
In a July 12, 2018 letter, Dr. Martens indicated that as appellant’s treating physician, his
goal was that appellant would have the ability to perform clerical finance duties in six months. He
completed a Form CA-17, which indicated that appellant could work part-time modified duty up
to six hours.
In a July 20, 2018 report, Dr. Shock noted examination findings of continued right ankle
pain and effusion of the medial ankle. He diagnosed right ankle sprain.
By decision dated August 6, 2018, OWCP denied appellant’s claim for wage-loss
compensation “for the period March 28 through April 28, 2018.” It found that the medical
evidence submitted was insufficient to establish that she was unable to work her modified-duty
position during the claimed period due to her accepted November 15, 2017 employment injury.
OWCP received CA-17 forms dated August 9 and 24, 2018 by Dr. Martens, who indicated
that appellant could work full time with restrictions.
On September 5, 2018 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative. The telephonic hearing was held on February 8, 2019.
In a September 10, 2018 report, Dr. Shock recounted appellant’s complaints of continued
right ankle pain and effusion of the medial ankle. He indicated that diagnostic testing of the right
ankle showed medial joint space narrowing. Dr. Shock diagnosed right ankle sprain.
In a September 10, 2018 Form CA-17, Dr. Martens indicated that appellant could work
part-time, modified duty up to six hours per day. In an October 26, 2018 Form CA-17, he reported
that she could work her usual job.
In reports dated December 27, 2018 and March 8, 2019, Dr. Shock noted that appellant
complained of a new area of pain in the plantar midfoot of her right foot. He reported examination
findings of reduced ROM with diffuse tenderness to palpation along the subtalar joint and lateral
ankle. Dr. Shock diagnosed ankle sprain.
By decision dated March 11, 2019, an OWCP hearing representative affirmed the
August 6, 2018 decision.5

5

The hearing representative further noted that OWCP had yet to issue a formal decision regarding the claimed
consequential injuries.

4

LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim.7 For each period of disability claimed, the employee has
the burden of proof to establish that he or she was disabled from work as a result of the accepted
employment injury.8 Whether a particular injury causes an employee to become disabled from
work, and the duration of that disability, are medical issues that must be proven by a preponderance
of probative and reliable medical opinion evidence.9 The Board will not require OWCP to pay
compensation for disability in the absence of medical evidence directly addressing the specific
dates of disability for which compensation is claimed. To do so would essentially allow an
employee to self-certify his or her disability and entitlement to compensation.10
OWCP’s implementing regulations define a recurrence of disability as an inability to work
after an employee has returned to work, caused by a spontaneous change in a medical condition,
which resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment.11 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties, or a reduction-in-force) or when the physical
requirements of such an assignment are altered such that they exceed the employee’s physical
limitations.12
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the burden
of proof to establish, by the weight of the reliable, probative, and substantial evidence, a recurrence
of total disability and an inability to perform such limited-duty work. As part of this burden of
proof, the employee must show a change in the nature and extent of the injury-related condition or
a change in the nature and extent of the limited-duty job requirements.13

6

Supra note 2.

7

See B.K., Docket No. 18-0386 (issued September 14, 2018); see also Amelia S. Jefferson, 57 ECAB 183 (2005);
Nathaniel Milton, 37 ECAB 712 (1986).
8

See D.G., Docket No. 18-0597 (issued October 3, 2018); Amelia S. Jefferson, id.

9

Amelia S. Jefferson, supra note 7; William A. Archer, 55 ECAB 674 (2004).

10

See S.G., Docket No. 18-1076 (issued April 11, 2019); William A. Archer, id.; Fereidoon Kharabi, 52 ECAB 291
(2001).
11

20 C.F.R. § 10.5(x).

12

Id.

13

S.D., Docket No. 19-1245 (issued January 3, 2020); L.S., Docket No. 18-1494 (issued April 12, 2019); A.M.,
Docket No. 09-1895 (issued April 23, 2010); Terry R. Hedman, 38 ECAB 222 (1986).

5

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability commencing March 28, 2018 causally related to her accepted November 15, 2017
employment injury.
First, the Board notes that appellant did not allege, and the evidence does not establish, a
change in the nature and extent of appellant’s light-duty job requirements. Additionally, there is
no indication from the record that the employing establishment withdrew light-duty work. The
remaining issue is whether the medical evidence demonstrated a worsening of appellant’s accepted
right ankle and right foot sprains.
The medical evidence received in support of appellant’s claim included a series of CA-17
forms and reports by Dr. Martens dated March 14 to October 26, 2018. In a March 14, 2018 CA-17
form, Dr. Martens advised that she could work part-time modified duty up to four hours per day.
In CA-17 forms dated March 28 and April 11, 2018, he recommended that appellant not work.
The Board finds, however, that Dr. Martens has not explained how her conditions had worsened
such that she was suddenly unable to perform her modified-duty position.14 Dr. Martens has not
provided an explanation or referred to objective evidence to support appellant’s inability to work,
nor did he explain why she was unable to work her part-time limited-duty position as a result of
her accepted right foot and ankle sprain injuries.15 His remaining reports and CA-17 forms
postdate the claimed period of disability, and do not otherwise, address her inability to work.16 Dr.
Martens’ opinion is, therefore, of diminished probative value and is insufficient to establish
appellant’s claim.
Appellant was also treated by Dr. Shock. In reports dated April 27, 2018 to March 8, 2019,
Dr. Shock related appellant’s complaints of continued right ankle pain, despite using a boot and
undergoing physical therapy. He provided examination findings and diagnosed right ankle sprain.
Dr. Shock did not, however, provide an opinion or specify that appellant could not work her
modified-duty position due to her November 15, 2017 employment injury. Accordingly, his
reports fail to establish disability from work during the claimed time period due to appellant’s
accepted employment injury.17
As appellant has not submitted rationalized medical evidence establishing a recurrence of
disability for the period commencing March 28, 2018 causally related to the accepted
November 15, 2017 employment injury, she has not met her burden of proof.
On appeal counsel contends that the March 11, 2019 hearing decision was contrary to law
and fact. As explained above, the medical evidence submitted is insufficient to establish that
14

See S.H., Docket No. 18-1398 (issued March 12, 2019); S.B., Docket No. 13-1162 (issued December 12, 2013).

15

See M.C., Docket No. 16-1238 (issued January 26, 2017); see also Jaja K. Asaramo, 55 ECAB 200 (2004) (the
Board found that for conditions not accepted or approved by OWCP as due to an employment injury, the claimant
bears the burden of proof to establish that the condition is causally related to the employment injury). M.M., Docket
No. 16-0541 (issued April 27, 2010).
16

Id.

17

See A.W., Docket No. 19-0400 (issued July 8, 2019).

6

appellant was unable to work her modified-duty position for the period commencing March 28,
2018 as a result of her November 15, 2017 employment injury.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability for the period commencing March 28, 2018 causally related to her accepted
November 15, 2017 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 11, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 3, 2020
Washington, DC

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

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

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

7


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

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1111
Issued: March 14, 2017

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 April 29, 2016 appellant, through counsel, filed a timely appeal from a January 19,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish more than 21 percent
permanent impairment of the left lower extremity and 21 percent permanent impairment of the
right lower extremity for which he previously received schedule awards.
On appeal counsel asserts that the report of the attending physician should carry the
weight of the medical evidence because OWCP’s referral physician performed a very cursory
physical examination and did not sufficiently explain his findings and conclusions.
FACTUAL HISTORY
On June 3, 2011 appellant, then a 47-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that years of carrying mail and other job duties caused bilateral knee
arthritis. On March 30, 2012 OWCP accepted bilateral degenerative joint disease of the knees.
Appellant stopped work on June 14, 2012 when Dr. David L. Chalnick, a Board-certified
orthopedic surgeon, performed bilateral total knee replacement surgery, which had been
authorized by OWCP. He returned to full-time modified duty on February 1, 2013.
On November 14, 2013 appellant, through counsel, requested a schedule award (Form
CA-7). In a September 25, 2013 report, Dr. Arthur Becan, an orthopedic surgeon, related
appellant’s history, reviewed medical evidence including preoperative x-rays, and provided
physical examination findings noting no effusion or tenderness, and diminished range of motion
bilaterally. There was no evidence of varus or valgus instability of either knee, and anterior
drawer sign and posterior drop back were negative. Quadriceps strength was 4/5 and
gastrocnemius 5/5. Dr. Becan diagnosed cumulative and repetitive occupational trauma, severe
varus deformity of the knees bilaterally, advanced osteoarthritis of the right knee, moderately
advanced osteoarthritis of the left knee, and status post bilateral total knee arthroplasty. He
advised that his impairment rating was based on subjective factors of daily bilateral knee pain,
with intermittent swelling and instability, and restrictions to activities of daily living. Objective
factors were a mildly guarded gait pattern, diminished range of motion, and diminished
quadriceps strength. Dr. Becan found that, in accordance with the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A.,
Guides),4 under Table 16-3, Knee Regional Grid, appellant had a class 3 bilateral impairment for
a diagnosis of total knee arthroplasty with instability, for 37 percent permanent impairment of
each leg. He found bilateral grade modifiers of 2 for functional history and physical
examination, and a grade modifier of 3 for clinical studies. Dr. Becan then applied the net
adjustment formula, finding an adjustment of minus two. He concluded that appellant had 34
percent permanent impairment of each leg.
3

On December 13, 2013 Dr. Chalnick reported that appellant had continued bilateral pain,
but was greatly improved from his preoperative condition. He noted that x-rays revealed that the
implants were in good position with no signs of loosening. Dr. Chalnick provided permanent
3

Appellant filed a schedule award claim (Form CA-7) on July 14, 2014.

4

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

2

restrictions of no squatting, kneeling, and climbing. On February 14, 2014 he reported that
appellant had fallen on ice four days previously, which caused pain and a click. On examination
Dr. Chalnick noted excellent bilateral knee motion and no gross signs of instability. X-rays
again demonstrated that the implants were in good position with no signs of loosening.
Dr. Chalnick diagnosed a strain and contusion, and advised that appellant could continue
restricted duty.
On August 15, 2014 Dr. Henry J. Magliato, an OWCP medical adviser who is a Boardcertified orthopedic surgeon, reviewed the record including Dr. Becan’s September 25, 2013
report. The medical adviser advised that maximum medical improvement (MMI) was reached
on September 25, 2013, the date of Dr. Becan’s report, and agreed with his conclusion that
appellant had 34 percent permanent impairment of each knee.
OWCP referred appellant to Dr. Stanley Askin, a Board-certified orthopedic surgeon, for
a second opinion medical examination and impairment evaluation. In an October 17, 2014
report, Dr. Askin noted the history of present injury, appellant’s complaint that exertion caused
some knee discomfort, and his review of the statement of accepted facts and medical record.
Lower extremity examination revealed bilateral knee scars, and that muscle function of the hip
abductors, hip adductors, hip flexors, hip extensors, quadriceps, hamstrings, and ankle and toe
motors was preserved bilaterally. Other than an area of decreased sensation lateral to surgical
scars, sensation was otherwise preserved about both lower extremities. Deep tendon reflexes at
the knees were symmetrical and straight leg raising was negative. Dr. Askin advised that
appellant had excellent smooth range of motion from 0 to 120 degrees and that neither knee
demonstrated significant instability, although effusion was present bilaterally. He reviewed
February 14, 2014 x-rays which showed bilateral satisfactory implants. Dr. Askin diagnosed
status post bilateral total knee replacements. He advised that, in accordance with Table 16-3 of
the A.M.A., Guides, appellant had a class 2 impairment for a diagnosis of total knee
replacement. Dr. Askin found a grade modifier of 0 for functional history, noting that appellant
had no gait derangement, a grade modifier of 1 for physical examination for minimal findings of
swelling, and a grade modifier of 0 for clinical studies because appellant’s x-rays confirmed
successful knee replacements. He applied the net adjustment formula, finding an adjustment of
minus five which corresponded to class A for 21 percent permanent bilateral lower extremity
impairment under Table 16-3. Dr. Askin indicated that he could not account for Dr. Becan’s
findings and would give more credit to Dr. Chalnick’s description of appellant. He concluded
that he based his evaluation on appellant’s presentation on October 17, 2014.
OWCP asked its medical adviser, Dr. Magliato, to again review the record, including
Dr. Askin’s October 17, 2014 report and Dr. Chalnick’s finding of no instability. In an
October 30, 2014 report, Dr. Magliato noted that, while Dr. Becan found instability in each knee
on September 25, 2013, on February 4, 2014 Dr. Chalnick found no instability. He advised that
Dr. Askin also found no instability and reported that appellant demonstrated a good result on
examination and on x-ray studies. Dr. Magliato concluded that he agreed with Dr. Askin’s
calculations under the A.M.A., Guides and his conclusion that appellant had 21 percent
permanent impairment of the right lower extremity and 21 percent permanent impairment of the
left lower extremity.

3

In a report dated November 18, 2014, Dr. Chalnick noted appellant’s complaint of right
knee pain that caused limping. Right knee physical examination demonstrated motion from 0 to
130 degrees. There was no pain on palpation of the implant, and no pain of motion of the hip,
with pain present proximal to the implant in the quadriceps tendon. No defect was palpable and
appellant could perform a straight leg raise. X-rays demonstrated that the implant was in good
position with no signs of loosening. Dr. Chalnick diagnosed right quadriceps tendinitis. He
opined that he did not believe that there was an issue with the implant in and of itself.
On July 23, 2015 OWCP granted appellant a schedule award for 21 percent permanent
impairment of each lower extremity, for a total of 120.96 weeks, to run from October 17, 2014,
which was the date of Dr. Askin’s report, to February 9, 2019.
Appellant, through counsel, timely requested a hearing before an OWCP hearing
representative. At the hearing, held on November 20, 2015, he described letter carrier job duties
and maintained that his knees were unstable and painful. Appellant generally asserted that
Dr. Askin’s evaluation was cursory. Counsel argued that Dr. Askin’s opinion was insufficient to
carry the weight of the medical evidence, and that Dr. Becan’s report and Dr. Chalnick’s recent
evaluation established instability.
In a December 1, 2015 report, Dr. Chalnick noted appellant’s report of discomfort in each
knee, right greater than left. He indicated that appellant continued to work as a letter carrier, and
walking his route and going up and down stairs aggravated his knees. Physical examination
demonstrated that the knees were stable to varus/valgus, flexion and extension, with motion
approximately 0 to 140 degrees in each knee. There was no swelling or tenderness, and the
calves were soft. The incisions had healed well. Dr. Chalnick concluded that appellant’s knees
looked good, but advised that his work activity caused worsening discomfort, and opined that he
should consider changing his job to a driving route or other more sedentary work.
In a decision dated December 21, 2015, OWCP corrected the term of the schedule award
to reflect that the period of the award was October 17, 2014 to February 9, 2017. The remainder
of the award, including impairment ratings, was unchanged.
By decision dated January 19, 2016, an OWCP hearing representative affirmed OWCP’s
July 23, 2015 decision, finding that appellant had no more than 21 percent permanent
impairment of each lower extremity, for which he previously received schedule awards. The
hearing representative found that Dr. Askin provided a thorough review of the medical evidence,
examined appellant, and provided excellent rationale for his opinion.
LEGAL PRECEDENT
It is the claimant’s burden of proof to establish a permanent impairment of a scheduled
member or function as a result of any employment injury.5

5

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

4

The schedule award provision of FECA6 and its implementing federal regulations,7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.8 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).10 Under the sixth edition, for lower extremity impairments, the evaluator
identifies the impairment class for the diagnosed condition Class of Diagnosis (CDX), which is
then adjusted by grade modifiers based on Functional History (GMFH), Physical Examination
(GMPE), and Clinical Studies (GMCS).11 The net adjustment formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).12 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.13 Section 16.2a of the A.M.A., Guides, provides that, if the
class selected is defined by physical examination findings or clinical studies results, these same
findings may not be used as grade modifiers to adjust the rating.14
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.15 In determining entitlement to a
schedule award, preexisting impairment to the scheduled member is to be included.16

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

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

A.M.A., Guides, supra note 4 at 4, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
11

Id. at 494-531.

12

Id. at 521.

13

Id. at 23-28.

14

Id. at 500.

15

See supra note 9 at Chapter 2.808.6f (February 2013).

16

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

5

Section 8123(a) of FECA provides that if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.17
ANALYSIS
The Board finds that this case is not in posture for decision as a conflict in the medical
evidence has been created between the opinions of Dr. Becan, appellant’s physician, and
Dr. Askin, an OWCP referral physician, regarding the extent of impairment of appellant’s
bilateral lower extremities.
The accepted condition in this case is bilateral degenerative joint disease of the knees.
Appellant had bilateral total knee replacement surgery on June 14, 2012. The sixth edition of the
A.M.A., Guides classifies the lower extremity impairment by diagnosis, which is then adjusted
by grade modifiers.18 Section 16.2a includes instructions for performing an impairment analysis
using the regional grids. This includes identifying a diagnosis and applying the grade
modifiers.19
Both Dr. Becan and Dr. Askin based their impairment analysis on Table 16-3, Knee
Regional Grid, of the A.M.A., Guides,20 for a diagnosis of total knee arthroplasty.
While Dr. Becan concluded that appellant had a class 3 impairment, described under
Table 16-3 as a fair result with fair position, mild instability, and/or mild motion deficit.
Dr. Askin found a class 2 impairment described as a good result with good position, stable, and
functional.
In his report dated September 25, 2013, Dr. Becan reported physical examination
findings of no effusion, tenderness, and diminished range of motion bilaterally. There was no
evidence of varus or valgus instability of either knee and anterior drawer sign and posterior drop
back were negative. Quadriceps strength was 4/5 and gastrocnemius 5/5. Dr. Becan diagnosed
cumulative and repetitive occupational trauma, severe varus deformity of the knees bilaterally,
advanced osteoarthritis of the right knee, moderately advanced osteoarthritis of the left knee, and
status post bilateral total knee arthroplasty. He advised that his impairment rating was based on
subjective factors of daily bilateral knee pain, with intermittent swelling and instability, and
restrictions to activities of daily living. Objective factors were a mildly guarded gait pattern,
diminished range of motion, and diminished quadriceps strength. Dr. Becan found that, under
Table 16-3, Knee Regional Grid, appellant had a class 3 bilateral impairment for a diagnosis of
total knee arthroplasty with instability, for 37 percent permanent impairment of each leg. He
found bilateral grade modifiers of 2 for functional history and physical examination, and a
modifier of 3 for clinical studies. Dr. Becan then applied the net adjustment formula, finding an
17

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

18

A.M.A., Guides, supra note 4 at 497-500.

19

Id. at 499-500.

20

Id. at 509-11.

6

adjustment of minus two. He concluded that appellant had 34 percent permanent impairment of
each leg.
In his October 17, 2014 report, Dr. Askin noted lower extremity physical examination
findings of bilateral knee scars and that muscle function of the hip abductors, hip adductors, hip
flexors, hip extensors, quadriceps, hamstrings, and ankle and toe motors was preserved
bilaterally. Other than an area of decreased sensation lateral to surgical scars, sensation was
otherwise preserved about both lower extremities. Deep tendon reflexes at the knees were
symmetrical and straight leg raising was negative. Dr. Askin advised that appellant had excellent
smooth range of motion from 0 to 120 degrees and that neither knee demonstrated significant
instability although effusion was present bilaterally. He reviewed February 14, 2014 x-rays
which showed bilateral satisfactory implants. Dr. Askin diagnosed status post bilateral total knee
replacements and advised that, in accordance with Table 16-3, appellant had a class 2
impairment for a diagnosis of total knee replacement. Dr. Askin found a grade modifier of 0 for
functional history, noting that appellant had no gait derangement, a grade modifier of 1 for
physical examination for minimal findings of swelling, and a grade modifier of 0 for clinical
studies because appellant’s x-rays confirmed successful knee replacements. He applied the net
adjustment formula, finding an adjustment of minus five which corresponded to class A for 21
percent permanent bilateral lower extremity impairment under Table 16-3. Dr. Askin indicated
that he could not account for Dr. Becan’s findings, and would give more credit to Dr. Chalnick’s
description of appellant. He concluded that he based his evaluation on appellant’s presentation
on October 17, 2014.
As previously noted, when there is disagreement between an OWCP physician and the
employee’s physician, OWCP will appoint a third physician who shall make an examination.21
For a conflict to arise, the opposing physician’s viewpoints must be of virtually equal weight and
rationale.22 The Board finds the differing physical examination findings and conclusions found
by Dr. Becan and Dr. Askin to be of equal weight. Thus, a conflict in medical opinion evidence
has been created regarding the extent of appellant’s bilateral lower extremity impairments. The
Board will set aside the January 19, 2016 decision and remand the case for OWCP to refer
appellant to an appropriate impartial medical specialist to resolve the conflict. After such further
development as it deems necessary, OWCP shall issue a de novo decision regarding the extent of
appellant’s bilateral lower extremity impairments.
CONCLUSION
The Board finds this case is not in posture for decision as a conflict in medical evidence
has been created regarding the extent of appellant’s bilateral lower extremity impairments.

21

Supra note 15.

22

Darlene R. Kennedy, 57 ECAB 414 (2006).

7

ORDER
IT IS HEREBY ORDERED THAT the January 19, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this opinion of the Board.
Issued: March 14, 2017
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Stockton, CA, Employer
__________________________________________

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Appearances:
Norman F. Nivens, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-627
Issued: April 2, 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 December 31, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated November 26, 2007, which denied modification of her
wage-earning capacity determination. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this decision.
ISSUES
The issue is whether appellant has established that the Office’s wage-earning capacity
determination should be modified.
FACTUAL HISTORY
Appellant, then a 35-year-old packer, filed a Form CA-2 claim for benefits on
October 11, 1999, alleging that she developed an elbow condition caused by employment factors.
The Office accepted the claim for bilateral lateral and medial epicondylitis. Appellant received
appropriate compensation for total disability and was placed on the periodic rolls.

In a report dated March 8, 2001, Dr. Ronald K. Robinson, a specialist in preventive
medicine and appellant’s treating physician, recommended that appellant be restricted from
repetitive pushing, pulling, lifting, lifting exceeding five pounds and working in cold
environments.
On September 5, 2002 the Office referred appellant for vocational rehabilitation
counseling. In reports dated February 24 and March 31, 2003, a vocational rehabilitation
counselor indicated that a job as a receptionist was within appellant’s physical restrictions.
In a report dated April 9, 2003, Dr. Robinson stated that appellant had missed a
considerable amount of work because the employing establishment had been unable to
accommodate her work restrictions. He advised that she did not appear to require any further
treatment as her symptoms were currently minimal.1
On April 22, 2003 Dr. Corwin Hull, a specialist in preventive medicine and an attending
physician, stated that he had reviewed the job description for receptionist, the Department of
Labor’s, Dictionary of Occupational Titles, DOT #237.367-038 and found that the position was
physically appropriate for appellant.
By letter dated June 19, 2003, the Office advised appellant that the job of receptionist,
selected by her vocational rehabilitation counselor, was within her physical limitations.
In order to determine her current condition and her ability to secure gainful employment,
the Office referred appellant to Dr. John R. Chu, Board-certified in orthopedic surgery, for a
second opinion examination. In a February 1, 2005 work capacity evaluation, Dr. Chu stated
that appellant could perform an eight-hour workday with restrictions on repetitive activities
involving her wrists and elbows for more than two hours out of an eight-hour workday, with no
lifting for more than two hours and no lifting exceeding 20 pounds. He also instructed her to
take 5-minute breaks per every 30 minutes of repetitive activities. Dr. Chu also advised that
appellant might have some difficulty with reading and arithmetic.
In a December 27, 2005 report, Dr. Robinson advised that he had reviewed Dr. Chu’s
report. He related that appellant had asserted that her vocational rehabilitation training was not
adhering to Dr. Chu’s work restrictions, as she was required to do repetitive motion on a daily
basis. Dr. Robinson stated that, if her schooling required more repetitive motion than this or if
the work that she will be performing once she is finished with school will require more repetitive

1

The job description for receptionist stated: “Receives callers at establishment, determines nature of business
and directs callers to destination. Obtains caller’s name and arranges for appointment with person called upon.
Directs call to destination and records name, time of call, nature of business and person called upon. May operate
PBX telephone console to receive incoming messages. May type memorandums, correspondence, reports and other
documents. May work in office of medical practitioner or in other health care facility and be designated outpatient
receptionist (medical services) or receptionist, [physician’s] office (medical services). May issue visitor’s pass
when required. May make future appointments and answer inquiries.... May perform variety of clerical duties ...
and other duties pertinent to type of establishment. May collect and distribute mail and messages.”

2

motion than this, she will not be able to perform these activities. He concluded: “I would like
her to continue her current regiment of activity.” 2
The vocational rehabilitation counselor submitted a June 20, 2006 report summarizing
her efforts to rehabilitate, train and find employment for appellant. She stated:
“Areas of concern that impact [appellant’s] return to work [include] her
perception that she learned nothing during her training. She feels she has no skills
to present to employers and to my knowledge has not attempted to increase her
skill level. [Appellant] continues to approach potential employers with the
inquiry about whether the potential job exceeds her physical abilities, which she
indicates is the inability to use her arms for more than two hours per day. She
indicates all employers report the jobs are beyond her abilities. [Appellant]
indicates [that] she has requested various employers to write letters on her behalf
indicating the employment opportunities exceed her abilities.
“[Appellant] indicates [that] she only wants to return to federal employment and
intends to make [an] application [with] her time of injury employer. This
counselor has encouraged [appellant] to follow-up with all potential employers
regarding jobs that fall within the job titles that have been identified as suitable.”
“[Appellant] believes she is unjustly being forced to participate in vocational
services that exceed her physical limitations. She claims that Goodwill did not
provide suitable training for which she received certification. [Appellant]
indicates [that] she will be taking legal action against all parties involved in her
vocational rehabilitation. Her attitude is not conducive to a successful return to
work.”
In a closure report dated June 30, 2006, the vocational rehabilitation manager issued a
closure report. She stated:
“[Appellant] attended her approved training program on a somewhat inconsistent,
sporadic basis. Her attendance was characterized by a near obsessive focus on her
perceived medical issues and a pronounced sense of entitlement. Despite this
mindset, [appellant] eventually managed to complete her training successfully.
Immediately upon completion, she was transitioned into a focused and
personalized direct placement effort beginning on March 8, 2005. In addition to
direct job placement, the assigned rehabilitation counselor attempted to focus the
claimant on such ancillary skills as resume preparation, application completion,
interviewing presentation and techniques, general organization of a job search as
2

The Board notes that in a December 9, 2005 progress report from the vocational rehabilitation counselor,
received by the Office on December 20, 2005, appellant’s counselor stated that her instructor from the Goodwill
training course indicated that appellant had been encouraged to take breaks every 30 minutes and change activities
as needed. The instructor reiterated that no one was forcing appellant to exceed her medical restrictions. In fact, the
opposite phenomenon had occurred, as appellant’s restrictions were being strictly accommodated and the Goodwill
staff was strictly monitoring her training activities to ensure that nothing was being done to increase her pain or
symptomatology.

3

well as utilization of appropriate community resources and the development of
effective networking skills. Unfortunately, the claimant’s pronounced sense of
entitlement to permanent benefits from [the Office] and her apparently deep
seated belief that she is unable to work in any capacity (despite medical evidence
to the contrary) effectively trumped the RC’s efforts. Not surprisingly, the
claimant continued to fail in the placement process despite the Herculean attempts
by [the vocational counselor] to motivate her.”
***
“[Appellant’s] failure to secure employment is directly and solely attributable to
her own lack of motivation and pronounced sense of entitlement. [She]
consistently remained focused on her real and perceived medical issues and [on]
her belief that she should be afforded essentially lifelong benefits from [the
Office]. This set of unfortunate characteristics effectively precluded any potential
for success in the rehabilitation placement process.”
The vocational rehabilitation service recommended that a position for appellant listed in
the Department of Labor’s Dictionary of Occupational Titles, which, it determined, reasonably
reflected appellant’s ability to earn wages, that of receptionist, DOT #237.367-038. The
vocational rehabilitation counselor selected the receptionist position based on listings from five
employers, displaying wages of $8.00 to $12.00 per hour.
By notice of proposed reduction dated July 19, 2006, the Office advised appellant of its
proposal to reduce her compensation because the factual and medical evidence established that
she was no longer totally disabled and that she had the capacity to earn wages as a receptionist.3
By decision dated August 24, 2006, the Office advised appellant that it was reducing her
compensation effective on September 3, 2006 because the weight of the medical evidence
showed that she was no longer totally disabled for work due to effects of her October 1999
employment injury and that the evidence of record showed that the position of receptionist
represented her wage-earning capacity.
On August 20, 2007 appellant, through her attorney, requested reconsideration.
Appellant’s attorney contended that: (1) appellant was not qualified for the receptionist position
because she had a learning disability; (2) the work and training requirements at Goodwill
exceeded appellant’s work restrictions; and (3) the vocational rehabilitation counselor and the

3

The Office found that this position was suitable and within appellant’s work restrictions based on the
rehabilitation counselor’s closure report. It noted that the receptionist job provided more varied duties and
flexibility than a cashier position, which was also available pursuant to the rehabilitation counselor’s survey. The
Office further found that the jobs identified were reasonably available in sufficient numbers in appellant’s local
labor market and general commuting area.

4

Office did not take into account appellant’s low IQ and academic deficiencies, which made it
extremely difficult to interview for jobs and consequently obtain employment as a receptionist.4
Appellant submitted her own affidavit dated February 22, 2007 as well as two reports
from a learning disability specialist, Dr. Elizabeth Maloney, dated March 10, 2006 and
June 29, 2007. In her affidavit, she outlined her 28-year employment history with the employing
establishment, her physical restrictions and her opinions regarding the vocational rehabilitation
training she had received. Regarding her ability to perform the duties of a receptionist, appellant
noted that she was a slow typist. In her March 10, 2006 report, Dr. Maloney noted that tests
indicated that appellant had low academic skills, significant difficulty in math fluency,
short-term memory and verbally-related IQ tasks; she recommended that appellant take a
memory and thinking course. However, she also stated that “in reviewing her certificates
obtained from [Goodwill] along with her testing done by the Learning Disabilities department at
San Joaquin Delta College and [the vocational rehabilitation counselor’s] medical evaluation, I
am recommending employment in positions such as receptionist.”
In her June 29, 2007 report, Dr. Maloney stated that, with regard to the receptionist
position and the effect of her learning disability on her ability to handle the job, she believed
appellant would be able to answer calls but might experience difficulty in taking messages
properly. She stated that when she suggested appellant should seek a receptionist position in her
March 2006 report she was referring to a position where appellant would not be the primary
contact source in the office. Dr. Maloney considered that appellant best suited for sheltered
employment.
By decision dated November 26, 2007, the Office denied modification of the August 23,
2006 wage-earning capacity determination.
LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.5 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.6
ANALYSIS
Subsequent to the Office’s August 23, 2006 wage-earning capacity decision, appellant’s
attorney argued that the Office erred in finding the receptionist job suitable because the
vocational rehabilitation counselor failed to consider appellant’s learning disability, low IQ and
4

Appellant’s attorney also contended that the Office erred in finding a cashier job suitable. However, as the
Office selected the receptionist position in reducing her wage-earning capacity, the Board will not address
appellant’s arguments regarding her unsuitability for the cashier job.
5

Tamra McCauley, 51 ECAB 375 (2000).

6

Linda Thompson, 51 ECAB 694 (2000).

5

academic difficulties. The Board record does not establish this contention. The progress reports
from the vocational rehabilitation service indicated that appellant had sufficient cognitive ability
to complete the training program despite her demonstrated recalcitrance. The vocational
rehabilitation counselor in fact noted that appellant had successfully completed her training
program for placement in the private sector despite her own insistence that she was entitled to
either compensation benefits or federal employment. The counselor further noted that, following
appellant’s successful completion of the training program, focused and directed placement
efforts were initiated with private employers, but these efforts were undermined by appellant.
The counselor concluded: “unfortunately, the claimant’s pronounced sense of entitlement to
permanent benefits from [the Office] and her apparently deep seated belief that she is unable to
work in any capacity (despite medical evidence to the contrary) effectively trumped the RC’s
efforts.”
In support of appellant’s allegation that she was vocationally unable to perform the duties
of receptionist and that the wage-earning capacity determination was therefore issued in error,
she submitted reports from Dr. Maloney. In the March 2006 report, Dr. Maloney noted that
appellant had low academic skills, significant difficulty in math fluency, short-term memory and
verbally-related IQ tasks. However, she also recommended that appellant be reemployed in a
position as a receptionist based upon the vocational rehabilitation training she had received at
Goodwill and the testing performed by the Learning Disabilities department at San Joaquin Delta
College. Dr. Maloney subsequently reported on June 29, 2006 that when she suggested appellant
should seek a receptionist position in her March 2006 report, she was referring to a position
where appellant would not be the primary contact source and that appellant was best suited for
sheltered employment. She however offered no rationalized explanation as to why she
“recommended” in March 2006 that appellant be employed as a receptionist, but changed her
opinion in June 2006 to a finding that appellant should only be employed in a sheltered position.
In her March 2006 report, Dr. Maloney stated that she had reviewed the vocational training
reports from Goodwill as well as aptitude tests results from the Learning Disabilities department
at San Joaquin Delta College. In her June 2006 report, she did not cite any new test results that
would collaborate her revised opinion regarding appellant’s vocational abilities.
Appellant’s representative also alleged that the wage-earning capacity was issued in error
because appellant’s physical restrictions were not met by the vocational training program.
Dr. Robinson commented on this allegation in his December 27, 2005 report, wherein he noted
that appellant had asserted that her vocational rehabilitation training was not adhering to
Dr. Chu’s work restrictions, as she was required to do repetitive motion on a daily basis. He
stated that, if her schooling required more repetitive motion than this or if the work that she will
be performing once she is finished with school will require more repetitive motion than this, she
will not be able to perform these activities. However, rejecting appellant’s allegations
Dr. Robinson concluded: “I would like her to continue her current regimen of activity.”
Appellant did not submit the necessary probative evidence to establish that the Office
erred in determining her wage-earning capacity.7 As she did not submit evidence showing that
the Office’s original determination with regard to her wage-earning capacity was erroneous, she
7

The Board notes that Dr. Maloney has a doctorate in education; she is not a physician, so her opinion does not
constitute medical evidence pursuant to section 8101(2).

6

has not met her burden of proof to establish that the Office’s wage-earning capacity decision
should be modified.8
CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation benefits
effective September 3, 2006 on the grounds that she had the capacity to earn wages in the
selected position of receptionist. The Board further finds that appellant has not established that
the Office’s wage-earning capacity determination should be modified.
ORDER
IT IS HEREBY ORDERED THAT the November 26, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 2, 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

8

The Board notes that appellant’s attorney has filed a brief in support of her appeal. The Board finds that the
contentions counsel raises on appeal are identical to those considered and properly rejected by the Office in its
November 26, 2007 decision.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Baltimore, MD,
Employer
__________________________________________

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

Docket No. 07-2213
Issued: February 20, 2008

Case Submitted on the Record

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

JURISDICTION
In April 2006 appellant filed a timely appeal from a November 1, 2006 decision of the
Office of Workers’ Compensation Programs, denying his claim for a low back condition.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained a
low back condition in December 2005 causally related to factors of his employment.
FACTUAL HISTORY
In April 2006 appellant, then a 46-year-old distribution clerk, filed an occupational
disease claim alleging that he developed a lumbar disc condition in December 2005 because he
was forced to rely on other parts of his body for support after having knee surgery on
October 20, 2005. The employing establishment controverted his claim.

On January 6, 2006 Dr. Scott Reeser diagnosed possible sciatica or myalgia.
recommended x-rays and a magnetic resonance imaging (MRI) scan.

He

In a report dated March 3, 2006, an employing establishment physician diagnosed
degenerative joint disease of the lumbar spine. Dr. Reeser noted that appellant had experienced
lower back pain with prolonged standing or heavy lifting.
In a March 10, 2006 disability certificate, Dr. Cyrus Pezeshki, an orthopedic surgeon,
diagnosed “PFA.”
Appellant submitted reports from a nurse and a physician’s assistant.
On April 21, 2006 the Office requested additional factual and medical evidence,
including a comprehensive medical report containing a diagnosis and a rationalized explanation
as to how appellant’s condition was causally related to his employment.
On May 12, 2006 Dr. Jennifer Lee, a specialist on critical care and anesthesiology, stated
that appellant was a patient in the hospital’s Acute Pain Clinic. She diagnosed chronic lower
back pain, secondary to spondylosis and degenerative disc disease and cervical spine disease.
Dr. Lee opined that appellant’s job duties aggravated his condition. She recommended no
repetitive lifting or lifting activities.
By decision dated June 13, 2006, the Office denied appellant’s claim on the grounds that
the medical evidence did not establish that his low back condition was causally related to his
employment.
Appellant requested reconsideration. He submitted an August 14, 2006 report in which
Dr. Margit L. Bleeker, an occupational neurologist and neuropsychiatrist, diagnosed “diffuse
disease in the low back” which became symptomatic when appellant handled a high volume of
mail in December 2005.
By decision dated November 1, 2006, the Office denied modification of the June 13,
2006 decision.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized medical
evidence.1 Rationalized medical opinion evidence is medical evidence which includes a
1

Michael S. Mina, 57 ECAB ___ (Docket No. 05-1763, issued February 7, 2006).

2

physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.2
ANALYSIS
The Board finds that appellant has failed to meet his burden of proof in establishing that
he sustained a low back condition causally related to factors of his employment.
Dr. Lee diagnosed chronic lower back pain secondary to spondylosis and degenerative
disc disease. She stated that appellant’s job duties aggravated his condition. However, Dr. Lee
did not describe his particular job duties and explain how these duties caused an aggravation of
his back condition. Lacking a complete and accurate factual background and sufficient medical
rationale, Dr. Lee’s opinion on causal relationship is of diminished probative value. Therefore,
her report is not sufficient to establish that appellant’s low back condition was causally related to
his employment.
Dr. Bleeker diagnosed “diffuse disease in the low back” which became symptomatic
when appellant handled a high volume of mail in December 2005. However, a diagnosis of
diffuse low back disease is too general a diagnosis to be probative on the issue of causal
relationship. Dr. Bleeker’s description of how the condition occurred differs from that of
appellant who stated that he developed a low back condition because he relied too much on other
parts of his body for support after his knee surgery. Appellant did not mention problems with a
high volume of mail in December 2005. Additionally, Dr. Bleeker did not provide sufficient
medical rationale explaining how handling a heavy volume of mail caused or aggravated
appellant’s back condition. For these reasons, her report is insufficient to establish that appellant
sustained a low back condition that was caused or aggravated by his employment.
Dr. Reeser diagnosed possible sciatica or myalgia and recommended diagnostic tests. He
did not provide a specific diagnosis. Dr. Reeser did not provide an explanation as to how
appellant’s back condition was causally related to his employment. For these reasons, his report
is not sufficient to establish that appellant’s back condition was work related.
The employing establishment physician diagnosed degenerative joint disease of the
lumbar spine. Dr. Reeser noted that appellant had experienced lower back pain with prolonged
standing or heavy lifting. However, he did not explain how appellant’s job duties caused or
aggravated his degenerative joint disease. Therefore, this report is not sufficient to discharge
appellant’s burden of proof.
Appellant submitted reports from a nurse and a physician’s assistant. Registered nurses,
licensed practical nurses and physician’s assistants are not “physicians” as defined under the

2

Gary J. Watling, 52 ECAB 278 (2001); Gloria J. McPherson, 51 ECAB 441 (2000).

3

Federal Employees’ Compensation Act and their opinions are of no probative value.3 Therefore,
these reports are insufficient to establish a work-related back injury.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof in establishing that his
low back condition is causally related to factors of his employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 1, 2006 is affirmed.
Issued: February 20, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

3

See 5 U.S.C. § 8101(2) which provides: “physician’ includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by state law”; see also Roy L. Humphrey, 57 ECAB ___ (Docket No. 05-1928, issued November 23, 2005).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
U.S. POSTAL SERVICE, MID-AMERICA
PERFORMANCE CLUSTER, Kansas City, MO,
Employer
__________________________________________

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

Docket No. 08-1718
Issued: March 11, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 2, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 25, 2008 decision denying his request for an oral hearing as
untimely filed and a January 11, 2008 merit decision concerning a schedule award. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof in establishing that he has
more than 19 percent right upper extremity impairment for which he received a schedule award;
and (2) whether the Office properly denied his request for an oral hearing as untimely filed.
FACTUAL HISTORY
On October 10, 2006 appellant, then a 55-year-old city carrier, tore a muscle in his right
arm while lifting a full tray of flats. He returned to limited-duty work the next day. The Office

accepted his claim for a right rotator cuff rupture and authorized surgery, which was performed
on November 20, 2006. Appellant returned to limited-duty work on December 30, 2006.
On June 5, 2007 appellant filed a claim for a schedule award. In a June 11, 2007 letter,
the Office advised appellant of the medical evidence necessary to be eligible for a schedule
award.
In a June 13, 2007 report, Dr. Erich J. Lingenfelter, a Board-certified orthopedic surgeon,
advised that appellant had a severe irreparable rotator cuff tear. He stated the latissimus dorsi
tendon transfer surgery resolved appellant’s pain symptoms but full functional active motion was
not achieved. Appellant could not raise his arm above his head and developed pseudoparalysis.
Based on examination, Dr. Lingenfelter advised that appellant may have ruptured his
subscapularis as a result of all the stresses on his shoulder from the one remaining portion of the
rotator cuff that was viable prior to surgery. He opined that appellant had a 60 percent right
upper extremity impairment under the fifth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).1
The Office referred Dr. Lingenfelter’s report and the case record to a medical adviser
who, in a report dated August 2, 2007, found that Dr. Lingenfelter provided insufficient objective
measurements to calculate a schedule award.
On August 21, 2007 the Office referred appellant for a second opinion to Dr. Joseph G.
Sankoorikal, Board-certified in physical medicine and rehabilitation, for an evaluation of the
extent of any permanent impairment in accordance with the A.M.A., Guides. In a report dated
October 5, 2007, Dr. Sankoorikal noted the history of injury and presented his findings on
examination. He found no wasting of any muscles in the upper extremities. Using a
dynamometer, Dr. Sankoorikal found grip strength was 80 pounds bilaterally with no focal
weakness. He noted decreased range of motion limited his strength examination. Examination
of the shoulder revealed tenderness, minimal diffuse wasting secondary to decreased range of
motion on the posterior aspect of the deltoid. Overall flexion of the arm revealed 4/5 strength,
abduction revealed 3/5 strength and extension revealed 4/5 strength. Shoulder range of motion
revealed 70 degrees flexion, 50 degrees extension, 50 degrees abduction and 40 degrees
adduction.
Internal rotation was 80 degrees and external rotation was 40 degrees.
Dr. Sankoorikal found that, under page 476-79 of the A.M.A., Guides, the range of motion
deficits totaled 14 percent. Under Table 16-35 of the A.M.A., Guides, the loss of strength due to
decreased range of motion and disuse was six percent impairment. Dr. Sankoorikal applied the
combined chart and found that appellant had a total permanent impairment of 19 percent for the
right arm.
On December 30, 2007 the Office medical adviser concurred with Dr. Sankoorikal’s
impairment rating, finding it was based on the A.M.A., Guides. Maximum medical
improvement was noted to be October 5, 2007.

1

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

2

By decision dated January 11, 2008, the Office granted appellant a schedule award for a
19 percent impairment of the right upper extremity. The award was for 59.28 weeks for the
period October 5, 2007 to November 22, 2008.
In an undated letter postmarked February 13, 2008, appellant disagreed with the
January 11, 2008 decision and requested a review of the written record. He submitted a
February 11, 2008 report from Dr. Lingenfelter.
By decision dated March 25, 2008, the Office’s Branch of Hearings and Review denied
appellant’s request for review of the written record, finding that it was not made within 30 days
of the January 11, 2008 decision. The Branch of Hearings and Review further denied the request
finding that the issue could equally well be addressed through the reconsideration process.2
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.5
The standards for evaluation the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.6 Chapter 16 of
the fifth edition of the A.M.A., Guides provides a detailed grading scheme and procedures for
determining impairments of the upper extremities due to pain, discomfort, loss of sensation or
loss of strength.7

2

Subsequent to the filing of the appeal on June 2, 2008, the Office issued a June 24, 2008 decision on a separate
issue, appellant’s wage-earning capacity. The Board has no jurisdiction over this other issue as the Board’s
regulations contemplate that the Board only has jurisdiction over Office decisions issued within one year prior to the
filing of an appeal. See 20 C.F.R. §§ 501.2(c) and 501.3(d).
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (2002).

5

Id. See B.C., 58 ECAB ___ (Docket No. 06-925, issued October 13, 2006).

6

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

7

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

3

ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a right rotator cuff rupture and authorized a
latissimus dorsi tendon transfer surgery. It granted appellant a schedule award for 19 percent
impairment to the right arm due to restricted motion and decreased strength. This was based on a
review by an Office medical adviser of an October 5, 2007 examination of Dr. Sankoorikal,
Board-certified in physical medicine and rehabilitation and Office referral physician.
The Board notes that, although Dr. Lingenfelter opined that appellant had a 60 percent
right upper extremity impairment in his June 13, 2007 report, he failed to cite to the tables or
charts he utilized under the A.M.A., Guides in support of this impairment rating. Moreover,
Dr. Lingenfelter report did not provide sufficient details as to measurements of the shoulder joint
or other factors considered in making his rating. The Board finds that he did not properly follow
the A.M.A., Guides. A physician’s opinion is of diminished probative value where the A.M.A.,
Guides are not properly followed.8
The Office referred appellant to Dr. Sankoorikal who presented findings on examination
and concluded that appellant had 19 percent impairment of the right arm. In a December 30,
2007 report, an Office medical adviser reviewed Dr. Sankoorikal’s report and concurred with his
impairment rating. According to Figure 16-40, page 476,9 Figure 16-43, page 47710 and Figure
16-46, page 47911 of the A.M.A., Guides, appellant had a 14 percent impairment of the right
upper extremity due to restricted motion, as follows: 7 percent for flexion limited to 70 degrees;
0 percent for extension limited to 50 degrees; 6 percent for abduction limited to 50 degrees; 0
percent for adduction limited to 40 degrees; 0 percent for internal rotation of 80 degrees; and 1
percent for external rotation of 40 degrees. While both Dr. Sankoorikal and the Office medical
adviser accorded six percent impairment for strength deficit under Table 16-35, page 510 of the
A.M.A., Guides, the Board finds this is an improper application of the A.M.A., Guides.
According to page 508 of the A.M.A., Guides, a rating for weakness cannot be rated in
conjunction with a rating for restricted motion. The Board finds that the medical evidence
establishes that appellant has no more than 14 percent impairment, which is less than the 19
percent schedule award.12

8

See Paul R. Evans, Jr., 44 ECAB 646 (1993); John Constantin, 39 ECAB 1090 (1988) (medical report not
explaining how the A.M.A., Guides are utilized is of little probative value).
9

A.M.A., Guides 476, Figure 16-40 is entitled Pie Chart of Upper Extremity Motion Impairments Due to Lack of
Flexion and Extension of Shoulder.
10

Id. at 477, Figure 16-43 is entitled Pie Chart of Upper Extremity Motion Impairments Due to Lack of
Abduction and Adduction of Shoulder.
11

Id. at 479, (5th ed.) Figure 16-46 is entitled Pie Chart of Upper Extremity Impairments Due to Lack of Internal
and External Rotation of Shoulder.
12

Following the Office’s January 11, 2008 decision, appellant submitted a February 11, 2008 report from
Dr. Lingenfelter. As the Office did not consider this evidence in reaching a final decision, the Board may not review
the evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

4

On appeal, appellant notes that his accepted condition has affected his ability to engage in
hobbies such as competitive fishing and has also affected the types of jobs he can perform.
However, the amount payable pursuant to a schedule award does not take into account the effect
that the impairment has on employment opportunities, wage-earning capacity, sports, hobbies or
other lifestyle activities.13
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that, before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his
claim before a representative of the Secretary.14 Section 10.615 of the federal regulations
implementing this section of the Act provides that a claimant shall be afforded a choice of an
oral hearing or a review of the written record.15 The Office’s regulations provide that the request
must be sent within 30 days of the date of the decision for which a hearing is sought and also that
the claimant must not have previously submitted a reconsideration request (whether or not it was
granted) on the same decision.16
The Board has held that the Office, in its broad discretionary authority in the
administration of the Act,17 has the power to hold hearings in certain circumstances where no
legal provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing.18 The Office’s procedures, which require the
Office to exercise its discretion to grant or deny a hearing when the request is untimely or made
after reconsideration, are a proper interpretation of Board precedent.19
ANALYSIS -- ISSUE 2
The Office issued its decision concerning appellant’s schedule award on
January 11, 2008. Appellant’s request for a review of the written record before the Office’s
Branch of Hearings and Review was postmarked February 13, 2008. As his request for a review
was filed more than 30 days after the January 11, 2008 decision, the Board finds that the Office
properly found that the request was untimely.

13

See Harry D. Butler, 43 ECAB 859 (1992); Robert R Kuehl, 13 ECAB 77 (1961).

14

5 U.S.C. § 8124(b)(1).

15

20 C.F.R. § 10.615.

16

20 C.F.R. § 10.616(a).

17

5 U.S.C. §§ 8101-8193.

18

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

19

Teresa M. Valle, 57 ECAB 542 (2006). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and
Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).

5

Although the Office determined that appellant’s request was untimely, it nevertheless
exercised its discretion by further considering his request for review. It determined that
appellant could equally well pursue his claim by submission of a request for reconsideration
along with new evidence. Accordingly, the Board finds that the Office also properly exercised
its discretion in denying appellant’s request for review. There is no evidence of an abuse of
discretion in this case.20
CONCLUSION
The Board finds that appellant has no more than 19 percent permanent impairment of the
right upper extremity, for which he received a schedule award. The Board further finds that the
Office properly denied appellant’s request for a review of the written record as untimely filed.
ORDER
IT IS HEREBY ORDERED THAT the March 25 and January 11, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 11, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

20

See Daniel J. Perea, 42 ECAB 214 (1990).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JACKSON VETERANS ADMINISTRATION
MEDICAL CENTER, Jackson, MS, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-1494
Issued: October 27, 2014

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 June 16, 2014 appellant, through his attorney, filed a timely appeal from a
May 2, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established a recurrence of total disability on June 4, 2013.
On appeal, counsel asserts that the May 2, 2014 decision is contrary to law and fact.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On November 15, 2007 appellant, then a 44-year-old human resources specialist, fell
down three stairs at work. OWCP accepted the claim for sprain of hip, iliofemoral, right and
displacement of lumbar herniated discs at L4-5 and L5-S1. On December 12, 2007 appellant
underwent lumbar discectomy at L5-S1. He returned to regular duty on September 8, 2008 with
the accommodation of an ergonomic chair.
On November 13, 2012 appellant filed a Form CA-7 claim for compensation, indicating
that he stopped work on October 29, 2012. OWCP accepted the recurrence of disability and paid
wage-loss compensation.
In a work capacity evaluation dated April 4, 2013, Dr. John B. Adams, Board-certified in
family and pain medicine, indicated that appellant could return to four hours of modified duty
daily with no twisting and a 10-pound lifting restriction. Sitting limited to 30-minute intervals
and standing to 15-minute intervals and appellant was to be allowed breaks. Appellant returned
to four hours of modified duty on May 1, 2013. The position description indicated that he would
work four hours a day, five days a week and would be able to perform his regular job duties as a
human resources specialist, with a modification that he could sit and stand as needed and was not
required to lift anything over 10 pounds or to walk for more than 15 minutes intermittently.2
Appellant continued to receive appropriate compensation for four hours daily.
On June 12, 2013 appellant filed a Form CA-7 claim for compensation, noting that he
stopped work on June 4, 2013. A May 6, 2013 report of contact advised that he called Patricia
Till, a human resources specialist, to report that his ergonomic chair had been used by an
extremely obese person in his absence. It was disfigured and did not support appellant’s back,
such that he had to get up every 30 minutes due to pain. Appellant received compensation for
four hours a day.
In a treatment note dated June 4, 2013, Dr. Adams advised that appellant was seen for
continued radiating low back pain. Appellant reported that he tried to return to work but, in his
absence, his chair was given to someone who was morbidly obese, which disfigured his chair,
making it no longer useful. Dr. Adams provided physical examination findings and diagnosed
lumbar spondylosis and lumbar post-laminectomy syndrome. He stated that, due to the lack of a
recommended ergonomic chair and apparent difficulty with accommodation, appellant should
not work until after a functional capacity evaluation.
By report dated June 19, 2013, Dr. Carmela G. Osborne, a Board-certified physiatrist,
noted the history of injury and appellant’s complaint of low back pain with radiation to the left
lower extremity. She reported that when he returned to work in 2008, he used an ergonomic
chair until he stopped work in 2012 due to an increase in pain. After his return to work in
May 2013, appellant had a significant amount of desk work and noted increasing pain.
Dr. Osborne indicated that he had an antalgic gait and walked with a cane. Straight leg raise was

2

On May 20, 2013 OWCP finalized an overpayment of compensation of $193.20 that occurred because appellant
received wage-loss compensation after his return to work.

2

negative bilaterally. Dr. Osborne diagnosed radiating low back pain, status post lumbar fusion
and recommended a functional capacity evaluation.
By letter dated July 8, 2013, OWCP informed appellant that the evidence submitted was
insufficient to establish his claim. The medical evidence established that he could not perform
the duties of his part-time work. Appellant was asked to provide a comprehensive narrative
report from his physician that included specific work duties he could not perform and the
relationship between the claimed disability and his employment injury.
A functional capacity evaluation was completed on July 22 and 23, 2013. It determined
that appellant was functioning at a sedentary/light level of work and that, due to his complaint of
pain. It was recommended that he be allowed to switch positions after sitting for 20 minutes or
so and, if possible, that he be accommodated with a table that would elevate to his standing
height so that he could continue to work while standing.
In a July 25, 2013 report, Dr. Adams advised that appellant continued to have
lumbosacral pain in the moderate to severe range with limited lumbar flexion and extension. On
his last evaluation, appellant had exquisite tenderness over the left sacroiliac joint. Dr. Adams
diagnosed lumbar postlaminectomy syndrome, lumbosacral spondylosis without myelopathy,
chronic pain syndrome and therapeutic drug monitoring, due to the 2007 employment injury and
noted that appellant also had concomitant depression. He had not reviewed the functional
capacity evaluation and would defer a description of duties appellant could perform to
Dr. Osborne. On August 5, 2013 Dr. Adams recommended a radiofrequency thermocoagulation
neurotomy for therapeutic benefit.
The Office of Personnel Management approved appellant’s disability retirement
application on August 7, 2013.
Appellant stated that his retirement was effective
August 8, 2013. His partial disability compensation continued through July 26, 2013.
By decision dated August 13, 2013, OWCP denied appellant’s total disability claim. It
found that the medical evidence did not establish that he was unable to perform the duties of his
modified position. OWCP noted that appellant remained entitled to partial disability
compensation and medical benefits.
A conference call was held between an OWCP claims examiner, appellant’s supervisor,
and Valerie Palmer of the employing establishment on August 13, 2013. Ms. Palmer noted that
when appellant reported that his chair was no longer useful, she advised him to present medical
documentation and another chair would be purchased. She also stated that the occupational
health specialist found no problems with his chair.
In reports dated August 15, 2013, received by OWCP on September 9, 2013, Dr. Osborne
reviewed the functional capacity evaluation. Appellant had permanent restrictions of no lifting
greater than 10 pounds occasionally; no repetitive bending, twisting or stooping; and that he be
allowed to change position sitting to standing every 20 minutes, with rest breaks.
On August 16, 2013 OWCP referred appellant to Dr. Byron Thomas Jeffcoat, a Boardcertified orthopedic surgeon, for a second opinion. Dr. Jeffcoat was provided a statement of
accepted facts, a list of questions and the medical record. In a September 12, 2013 report, he
3

noted the history of injury and appellant’s complaint of increasing back pain. Examination of the
back demonstrated that appellant was able to stand on his heels and his toes; could flex his toes
back and forth; could fully squat and recover; had two plus reflexes in his knees and ankles; and
that straight leg raise caused some back pain but no radicular pain on either side. When lying
prone and flexing his knees, he complained of back pain and he was tender over his right
sacroiliac joint. Motor and sensory functions were normal and he had no calf atrophy. In answer
to specific OWCP questions, Dr. Jeffcoat found that appellant could return to full duty as a
human resource specialist, based on the medical history and physical examination that day,
which was fairly normal. He advised that no work restrictions or accommodations were
necessary. Dr. Jeffcoat noted that appellant had a history of back problems prior to the
November 7, 2007 employment injury, as characterized by magnetic resonance imaging (MRI)
scan and computerized tomography studies dated April 28 to August 10, 2007. In an attached
work capacity evaluation, he listed that appellant could push, pull and lift 25 to 30 pounds for
four hours daily.
Appellant, through his attorney, timely requested a hearing. In a January 16, 2014 report,
Dr. Adams noted that appellant reported that his light-duty job had changed and had become
more demanding such that more exertion was required, which he could not tolerate. He
recommended that appellant return to work at a sedentary level with frequent opportunities to
stand and stretch, to begin four hours a day. It was Dr. Adams’ understanding that appellant’s
light-duty position was no longer available and further recommended that, because appellant’s
ergonomic chair was no longer usable, a new chair be obtained.
At the February 13, 2014 hearing, appellant testified that his back pain became so severe
in June 2013 that he could no longer work and that he was now retired on disability.
By decision dated May 2, 2014, an OWCP hearing representative affirmed the
August 13, 2013 decision. She determined that the medical evidence did not establish that
appellant was unable to perform his light-duty job.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.3 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.4

3

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

4

Id.

4

When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the
weight of reliable, probative and substantial evidence a recurrence of total disability. As part of
this burden of proof, the employee must show either a change in the nature and extent of the
injury-related condition or a change in the nature and extent of the light-duty requirements.5
ANALYSIS
The Board finds that appellant did not establish a recurrence of total disability on
June 4, 2013 causally related to the accepted, iliofemoral right hip sprain and displacement of
lumbar herniated discs at L4-5 and L5-S1 caused by the November 15, 2007 employment injury.
Appellant did not establish that the nature and extent of his injury-related condition changed so
as to prevent him from continuing to perform his modified part-time assignment.
A partially disabled claimant who returns to a light-duty job has the burden of proving
that he or she cannot perform the light duty, if a recurrence of total disability is claimed.6 The
issue of whether an employee has disability from performing a modified position is primarily a
medical question and must be resolved by probative medical evidence.7 A claimant’s burden
includes the necessity of furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury and supports that conclusion with sound medical rationale.
Where no such rationale is present, the medical evidence is of diminished probative value.8
Based on an April 4, 2013 work capacity evaluation, appellant returned to four hours of
modified duty on May 1, 2013. The job duties of the part-time position were within the
restrictions provided by Dr. Adams who advised that appellant would work four hours a day, five
days a week and was able to perform his regular job duties as a human resources specialist, with
a modification that he could sit and stand as needed. Appellant was limited from lifting anything
over 10 pounds or walk for more than 15 minutes intermittently. He continued to receive
wage-loss compensation for four hours a day.
On August 15, 2013 Dr. Osborne advised that appellant had permanent restrictions of no
lifting greater than 10 pounds occasionally; no repetitive bending, twisting or stooping; and that
he be allowed to change positions from sitting to standing every 20 minutes, with rest breaks.
While the modified position appellant was performing when he stopped work on June 4, 2013
did not specifically limit twisting, bending and stooping; his position as a human resources
specialist was sedentary. The position description noted that normal body mechanics should be
used for these functions. The other restrictions provided by Dr. Osborne are in accordance with
appellant’s modified job duties. Dr. Osborne did not state whether she was familiar with
5

Shelly A. Paolinetti, 52 ECAB 391 (2001); Terry R. Hedman, 38 ECAB 222 (1986).

6

See William M. Bailey, 51 ECAB 197 (1999).

7

Cecelia M. Corley, 56 ECAB 662 (2005).

8

Mary A. Ceglia, 55 ECAB 626 (2004).

5

appellant’s job duties other than to note he had a significant amount of desk work. Her reports
are insufficient to establish a recurrence of disability on June 4, 2013.
Dr. Adams submitted reports from June 4, 2013 to January 16, 2014, but his opinion is
also insufficient to establish appellant’s claim. He diagnosed lumbar spondylosis and lumbar
postlaminectomy syndrome, neither of which are accepted conditions. On June 4 and July 2,
2013 Dr. Adams indicated that, due to the lack of a recommended ergonomic chair and apparent
difficulty with accommodation, appellant should not work until a functional capacity evaluation
was completed. The testing was completed on July 22 and 23, 2013 and determined that
appellant was functioning at a sedentary/light level of work. Due to his complaint of pain, it was
recommended that he be allowed to switch positions after sitting for 20 minutes or so and, if
possible, that he be accommodated with a table that would elevate to his standing height so that
he could work while standing. As of July 25, 2013 Dr. Adams had not reviewed the functional
capacity evaluation and deferred a description of duties appellant could perform to Dr. Osborne.
On January 16, 2014 he noted that appellant reported that his light-duty job had changed and had
become more demanding such that more exertion was required, which he could not tolerate.
Dr. Adams recommended that appellant return to work at a sedentary level with frequent
opportunities to stand and stretch, to begin four hours a day. Further, because appellant’s
ergonomic chair was no longer usable, a new chair was obtained.
Although Dr. Adams recommended the functional capacity evaluation, in none of his
reports did he acknowledge the results of the examination. Moreover, the restrictions provided
in his January 16, 2014 report are within the modified duties of the part-time position appellant
accepted on May 6, 2013. While Dr. Adams indicated that a new ergonomic chair was obtained,
when appellant informed the employing establishment that his chair was no longer usable, he
was told to present medical documentation and another chair would be purchased. The
employing establishment further noted that an occupational health specialist found no problem
with appellant’s chair despite his allegation that it had been broken. There is no evidence in the
record that appellant ever complied with this recommendation and no indication, as maintained
by Dr. Adams, that appellant’s modified part-time job duties required more exertion. Dr. Adams
did not relate appellant’s total incapacity to any of the accepted conditions and failed to explain
how appellant’s complaints of low back pain were a result of change in the nature and extent of
his November 15, 2007 employment injury. He did not provide sufficient medical rationale to
support any objective worsening of appellant’s accepted lumbar condition which caused his
inability to work. Accordingly, appellant’s reports are insufficient to establish that his claimed
disability beginning June 4, 2013 was due to the November 15, 2007 employment injury.
In a September 12, 2013 report, Dr. Jeffcoat, an OWCP referral physician, advised that
appellant could return to full duty as a human resource specialist, based on appellant’s medical
history and his physical examination that day, which was fairly normal. He indicated that no
work restrictions or accommodations were necessary.

6

As appellant did not submit sufficient medical evidence to establish that he sustained a
recurrence of total disability on June 4, 2013 causally related to the November 5, 2007
employment injury, he did not meet his burden of proof.9
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a recurrence of total disability on or after June 4, 2013 caused by the
November 15, 2007 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 2, 2014 is affirmed.
Issued: October 27, 2014
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

9

Id.

7