United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF THE NAVY, San Diego, CA,
Employer
__________________________________________

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

Docket No. 11-797
Issued: December 22, 2011

Case Submitted on the Record

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

JURISDICTION
On February 8, 2011 appellant filed a timely appeal from an August 13, 2010 decision of
the Office of Workers’ Compensation Programs (OWCP), which denied his reconsideration
request on the grounds that it was untimely filed and failed to present clear evidence of error.
Because more than one year elapsed between the most recent OWCP merit decision of May 14,
1997 to the filing of this appeal on February 8, 2011, the Board lacks jurisdiction to review the
merits of appellant’s claim pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly determined that appellant’s July 31, 2010 request
for reconsideration was not timely filed and failed to present clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 22, 1982 appellant, then a 28-year-old aircraft worker, injured his low
back as he was lifting a canopy from a stand. OWCP accepted his claim for lumbar subluxations
at L3-4, aggravation of herniated disc at L5-S1 and lumbar strain. Appellant worked
intermittently and stopped on February 15, 1984.
By decision dated September 12, 1994, OWCP terminated appellant’s compensation
benefits effective that date. It found that the opinions of a multi-specialty panel consisting of
Dr. Barry Friedman, a Board-certified orthopedic surgeon, Dr. David Hubbard, a Board-certified
neurologist, and Dr. William Hughson, a Board-certified internist, who provided second opinion
examinations, established that he had no further residuals of his September 22, 1982 work injury.
On September 23, 1994 appellant requested an oral hearing. In a decision dated
February 5, 1996, an OWCP hearing representative affirmed the September 12, 1994 OWCP
decision. On March 23, 1996 and April 21, 1997 appellant requested reconsideration and
submitted additional medical evidence. In decisions dated May 23, 1996 and May 14, 1997,
OWCP denied modification of the prior decision. On August 18, 1997, August 30, 1998 and
July 18, 2003 appellant requested reconsideration and submitted additional medical evidence. In
decisions dated December, 10, 1997, September 24, 1998 and October 29, 2003, OWCP denied
appellant’s reconsideration request finding that the request was insufficient to warrant merit
review of the prior decision. In an October 25, 2005 decision, OWCP denied appellant’s
August 10, 2005 reconsideration request finding that the request was untimely filed and that it
did not establish clear evidence of error.
On July 31, 2010 appellant requested reconsideration. He argued that OWCP made a
clear error in terminating his benefits in 1994. Appellant noted that neither x-rays nor physician
examinations were done to show a cessation of residuals of the accepted neck and thoracic injury
prior to termination. He indicated that federal law required that benefits for a work injury cannot
be stopped unless OWCP proves by the weight of the evidence that the injury no longer exists.
Appellant requested OWCP provide documentation that his residuals of his accepted condition
ceased.
Appellant submitted a Doctor’s First Report of Occupational Injury or Illness from
Dr. Debbie Goldring, a chiropractor, dated October 1, 1987, who noted that he sustained a low
back injury on February 14, 1984 while working on an aircraft while at work. Dr. Goldring
diagnosed cervical, thoracic sprain with neuritis, intervertebral disc syndrome and lumbosacral
sprain with radiculitis bilaterally. Also submitted was a July 11, 1988 progress report from her,
which noted that appellant was under active care and was showing slow improvement due to
damaged spinal ligaments. Also submitted was an OWCP record of telephone call dated
August 23, 1988 authorizing Dr. Goldring to perform chiropractic treatments pending a second
opinion examination. All of these documents were previously of record.
Appellant was seen by Dr. Richard Thien Nguyen, a Board-certified internist, on
April 23, 2008, to obtain a referral to a neurologist to follow up on an electromyogram
performed in 2002. Dr. Nguyen diagnosed cervical spondylosis with myelopathy. Also
submitted was a November 26, 2008 report from Dr. David E. Gaussoin, a chiropractor, who

2

treated appellant for low back pain caused by reaching overhead at work on February 14, 1984.
Appellant reported a history of injury on February 14, 1984 and two other work-related back
injuries in September and October 1982. Dr. Gaussoin noted reviewing x-rays and diagnosed
lumbar subluxations at L3-4 and L4-5. He noted that appellant remained totally disabled as a
result of the injuries sustained while employed at the employing establishment. Dr. Gaussoin
opined that appellant’s back condition began following the industrial accident on September 22,
1982 to his low back and that his condition was subsequently aggravated by the work-related
accident on February 14, 1984. He noted that appellant was asymptomatic prior to the industrial
injuries and that a 100 percent of appellant’s injury involving the lower back was the result of the
industrial injuries described while working. Dr. Gaussoin noted that the diagnosed subluxations
at L3-4 and L4-5 that arose following the February 14, 1984 injury were treated successfully
with chiropractic modalities.
Appellant also submitted correspondence through his congressional representatives dated
April 30 and May 5, 2010 requesting assistance with his compensation claim. He reiterated a
history of his claim and accepted injuries and asserted that OWCP wrongfully terminated his
compensation based on a second opinion examination. Also submitted was an excerpt from the
OWCP’s procedure manual regarding the termination of benefits.
By decision dated August 13, 2010, OWCP denied appellant’s request for reconsideration
as it was untimely and did not establish clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review, may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”2
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a) provides that
it will not review a decision unless the application for review is filed within one year of the date
of that decision.3 However, OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation, if the claimant’s application for review shows
clear evidence of error on the part of OWCP in its most recent merit decision. To establish clear
evidence of error, a claimant must submit evidence relevant to the issue that was decided by

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.607(b); Annie L. Billingsley, 50 ECAB 210 (1998).

3

OWCP. The evidence must be positive, precise and explicit and must be manifest on its face that
OWCP committed an error.4
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.5
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to establish clear evidence of error.6 It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.7 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of OWCP.8 The Board makes an independent determination
as to whether a claimant has submitted clear evidence of error on the part of OWCP.9
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. OWCP’s procedures provide that the one-year time limitation period for
requesting reconsideration begins on the date of the original OWCP decision.10 A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.11
As appellant’s July 31, 2010 request for reconsideration was submitted more than one year after
the most recent merit decision of May 14, 1997, it was untimely. Consequently, he must
demonstrate clear evidence of error by OWCP in denying his claim for compensation.12
Appellant’s correspondence on reconsideration asserts that OWCP committed clear error
in terminating his benefits for his accepted condition. As the reports of the second opinion
physicians neither took x-rays nor performed an examination.13 He asserted that benefits for a
work injury cannot be stopped unless OWCP proves by the weight of the evidence that the injury
no longer exists. While appellant addressed his disagreement with OWCP’s decision to
4

Id.; Fidel E. Perez, 48 ECAB 663, 665 (1997).

5

Annie L. Billingsley, supra note 3.

6

Jimmy L. Day, 48 ECAB 652 (1997).

7

Id.

8

Id.

9

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765,770 (1993).

10

20 C.F.R. § 10.607(a).

11

Robert F. Stone, 57 ECAB 292 (2005);

12

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

13

A review of Dr. Friedman’s January 14, 1994 and Dr. Hubbard’s February 24, 1994 reports indicates that each
physician conducted a physical examination and reviewed the medical record which included diagnostic testing.

4

terminate his compensation benefits, his general allegations do not establish clear evidence of
error as his arguments do not raise a substantial question as to the correctness of OWCP’s
decision. He has not established any specific error in OWCP’s most recent merit decision that
warrants a finding of clear evidence of error. Appellant did not explain how any of his
arguments or any of the evidence of record raised a substantial question concerning the
correctness of OWCP’s decision.
The Board notes that the underlying issue is medical in nature and that, on
reconsideration, appellant submitted a Doctor’s First Report of Occupational Injury or Illness
from Dr. Goldring dated October 1, 1987, a July 11, 1988 progress report from Dr. Goldring and
an OWCP record of telephone call dated August 23, 1988. However, OWCP had previously
considered this evidence and he, in submitting these documents, did not explain how this
evidence was positive, precise and explicit in manifesting on its face that OWCP committed an
error in terminating his benefits in 1994 because he had no residuals of his work injury. It is not
apparent how resubmission of these documents is sufficient to raise a substantial question as to
the correctness of the OWCP’s decision.
Appellant submitted an April 23, 2008 report from Dr. Nguyen, who diagnosed cervical
spondylosis with myelopathy. Also submitted was a November 26, 2008 report from
Dr. Gaussoin, who reviewed appellant’s history of treatment and noted that appellant remained
totally disabled from work as a result of the injuries sustained at work. However, this report is
insufficient to establish clear evidence of error. To establish clear evidence of error, it is not
enough merely to show that the evidence could be construed so as to produce a contrary
conclusion. The term clear evidence of error is intended to represent a difficult standard. The
submission of a detailed well-rationalized medical report, which, if submitted before the denial
was issued, would have created a conflict in medical opinion requiring further development, is
not clear evidence of error.14 This evidence is not so positive, precise and explicit that it
manifests on its face that OWCP committed an error. Consequently, the Board finds that
Drs. Nguyen and Gaussoin’s reports submitted on reconsideration are insufficient to raise a
substantial question as to the correctness of OWCP’s decision. Thus, appellant has not
established clear evidence of error by OWCP in its September 12, 1994 decision.
The excerpt from OWCP’s procedure manual does not establish that OWCP committed
an error. Appellant has not explained how there was a breach of specific OWCP procedures that
raises a substantial question as to the correctness of OWCP’s decision
On appeal, appellant asserts that he was disabled due to his work injury when benefits
were terminated and disagreed with the findings of the second opinion physician’s who opined
that his work-related condition had resolved. As discussed, however, he has not raised any
argument or submitted any evidence sufficient to raise a substantial question regarding the
correctness of OWCP’s last merit decision. On appeal, appellant reiterated his arguments that
OWCP failed to meet its burden of proof in terminating his benefits. The issue of whether there
is clear evidence of error in OWCP’s most recent merit decision is the only matter over which
14

D.G., 59 ECAB 455 (2008); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations,
Chapter 2.1602.3(c) (January 2004).

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the Board has jurisdiction. As explained, appellant has not established clear evidence of error in
OWCP’s decision.
Appellant, therefore, has not submitted evidence on reconsideration that meets the
standard for establishing clear evidence of error.
CONCLUSION
The Board finds that appellant’s request for reconsideration dated July 31, 2010 was
untimely filed and did not demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the August 13, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 22, 2011
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF HOMELAND SECURITY, )
CUSTOMS & BORDER PROTECTION,
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San Diego, CA, Employer
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__________________________________________ )
L.C., Appellant

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

Docket No. 10-544
Issued: October 26, 2010

Case Submitted on the Record

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

JURISDICTION
On December 22, 2009 appellant filed a timely appeal from the August 5, 2009 schedule
award decision of the Office of Workers’ Compensation Programs and the December 3, 2009
decision denying his request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant has more than 22 percent impairment to his left
lower extremity; and (2) whether the Office abused its discretion in denying his request for
reconsideration under section 8128(a).
On appeal appellant contends that the Office should have applied the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment to its
August 5, 2009 schedule award decision.

FACTUAL HISTORY
On August 17, 2006 appellant, then a 47-year-old border patrol agent, slipped and twisted
his left knee in the performance of duty. On August 28, 2006 he underwent left knee medial and
lateral meniscal debridement and chondroplasty performed by Dr. Enass N. Rickards, a Boardcertified orthopedic surgeon. The Office accepted his claim for a left knee medial meniscus tear
and meniscal derangement. On April 30, 2007 appellant filed a claim for a schedule award.
In a June 7, 2007 decision, the Office granted appellant a schedule award based on 10
percent left lower extremity impairment, for 28.8 weeks, from February 23 to
September 12, 2007. The extent of impairment was rated under the fifth edition of the A.M.A.,
Guides.1
In a December 4, 2007 decision, the Office granted him five percent additional left lower
extremity impairment.
On June 18, 2008 appellant underwent left knee arthroscopic surgery, including partial
chondroplasty of the medial femoral condyle and arthroscopic resection of medial plica and
removal of a loose body, performed by Dr. Michael R. Lenihan, a Board-certified orthopedic
surgeon, who conducted a schedule award rating on January 13, 2009. On March 16, 2009
Dr. Arthur S. Harris, a Board-certified orthopedic surgeon and Office medical adviser, reviewed
the findings provided by Dr. Lenihan. He concluded that appellant had a 17 percent permanent
impairment of the left lower extremity.
In an April 6, 2009 decision, the Office granted a schedule award for two percent
additional left lower extremity impairment.
In an April 28, 2009 report, Dr. Mark T. Selecky, a Board-certified orthopedic surgeon
and associate of Dr. Lenihan, reviewed the medical history and provided findings on physical
examination. In assessing appellant’s degree of left knee permanent impairment, Dr. Selecky
explained that appellant’s remaining problems with the knee were due to loss and damage of the
articular cartilage, from the accepted injury, which required partial medial and lateral
menisectomies. He explained that the most accurate and appropriate rating would be based upon
Table 17-31, page 544, for arthritis impairment based on cartilage intervals. Since weightbearing
films showed one millimeter of medial joint space; applying Table 17-31 provided a 25 percent
left lower extremity impairment. Dr. Selecky added that an additional five percent would be
given for patellofemoral compartment changes, which were the result of direct trauma, for
crepitation and complaints of pain, as outlined in text below Table 17-31, and which had already
been agreed upon by Dr. Lenihan and Dr. Harris. He concluded that appellant had 29 percent
left lower extremity impairment based on arthritis impairment under Table 17-31 of the fifth
edition of the A.M.A., Guides.

1

The Federal Employees’ Compensation Act provides for 288 weeks of compensation for 100 percent loss or loss
of use of the lower extremity. 5 U.S.C. § 8107(c)(2). Multiplying 288 weeks by 10 percent equals 28.8 weeks of
compensation.

2

On July 11, 2009 Dr. Harris reviewed the record pursuant to the sixth edition of the
A.M.A., Guides. He stated that Dr. Lenihan had evaluated appellant on April 28, 2009 and rated
a 29 percent impairment based upon the fifth edition of the A.M.A., Guides.2 Dr. Harris found,
however, that appellant had 22 percent left lower extremity impairment due to residual moderate
degenerative joint disease of the knee with documented joint space narrowing. He applied Table
16-3 at page 511 of the sixth edition of the A.M.A., Guides, that state: “as a result of posttraumatic arthritis as a result of having undergone prior arthroscopic partial medial and lateral
meniscal debridement.” Dr. Harris explained that the increase in impairment from the previous
17 percent awarded was based upon the April 28, 2009 report, as well as the sixth edition of the
A.M.A., Guides.
On August 5, 2009 the Office granted appellant a schedule award for an additional 5
percent left lower extremity impairment based on the sixth edition of the A.M.A., Guides, or a
total left leg rating of 22 percent.
Appellant requested reconsideration. In an August 26, 2009 report, Dr. Harbinder S.
Chadha, a Board-certified orthopedic surgeon and an associate of Dr. Lenihan and Dr. Selecky,
opined that the Office should have applied the fifth edition of the A.M.A., Guides in its
August 5, 2009 schedule award decision because the examining physician’s report was dated
April 28, 2009.
By decision dated December 3, 2009, the Office denied appellant’s request for
reconsideration.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the 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
ANALYSIS -- ISSUE 1
On appeal appellant contends that he has 29 percent impairment of the left leg extremity,
pursuant to the fifth edition of the A.M.A., Guides, based upon Dr. Selecky’s April 29, 2009
2

It is clear that Dr Harris is mistaken in this regard. Appellant was evaluated on April 28, 2009 by Dr. Selecky,
an associate of Dr. Lenihan.
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404.

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report. His request was for an increased schedule award. The sixth edition of the A.M.A.,
Guides was made applicable to Office decisions issued after May 1, 2009, notwithstanding an
examining physician’s report dated prior to May 1, 2009.6 The sixth edition of the A.M.A.,
Guides was the proper volume utilized for the August 5, 2009 decision granting appellant an
increased schedule award.
The Board, however, finds that this case is not in posture for decision.
On April 28, 2009 Dr. Selecky found that appellant had 29 percent left lower extremity
impairment based on arthritis and Table 17-31 at page 544 of the fifth edition of the A.M.A.,
Guides. Dr. Selecky found that appellant was entitled to 25 percent impairment of the left lower
extremity for one millimeter loss of the knee cartilage interval, and an additional 5 percent for
patellofemoral pain and crepitation, but without patellofemoral joint space narrowing.
Due to the change from the fifth to the sixth edition of the A.M.A., Guides, the Office
requested that Dr. Harris, the Office medical adviser review Dr. Selecky’s findings pursuant to
the sixth edition. On July 11, 2009 Dr. Harris applied the sixth edition of the A.M.A., Guides.
He found that appellant had residual moderate degenerative joint disease of the knee with
documented joint space narrowing, resulting in 22 percent (Class of Diagnosis 2D) left lower
extremity impairment following arthroscopic partial medial and lateral meniscal debridement,
according to Table 16-3 at page 511 of the sixth edition of the A.M.A., Guides.
Dr. Selecky found that appellant had a one millimeter cartilage interval of the knee joint.
Dr. Harris stated that he was utilizing Dr. Selecky’s findings in calculating the 22 percent
permanent of appellant’s left knee. Pursuant to Table 16-3, of the sixth edition, a one millimeter
cartilage interval from knee joint arthritis falls into a Class 3 impairment, which is rated from 26
percent to 34 percent. Dr. Harris calculation of a 22 percent impairment, which he noted was
based upon a Class 2D, would be for a two millimeters cartilage interval. He did not explain
why he selected the Class 2D, rather than Class 3 A-E, which reflects the one millimeter
cartilage loss.
This case will be remanded for further development as the Office medical adviser did not
properly rate the degree of impairment within Class 3. The Office should request that appellant’s
treating physician or the Office medical adviser further describe the extent of appellant’s
impairment pursuant to the sixth edition, Table 16-3. After such further development as
necessary, the Office shall issue an appropriate decision.7
CONCLUSION
The Board finds that this case is not in posture for decision.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.6.a (January 2010).
7

Given the Board’s remand for further development of the case, issue 2 relating to the Office’s denial of merit
review is moot.

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ORDER
IT IS HEREBY ORDERED THAT the December 3 and August 5, 2009 decisions of
the Office of Workers’ Compensation Programs are set aside. The case is remanded to the
Office for further development consistent with this decision.
Issued: October 26, 2010
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, VERNON HILLS
POST OFFICE, Vernon Hills, IL, Employer
__________________________________________

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Appearances:
Stephanie Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1209
Issued: March 24, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 5, 2021 appellant, through counsel, filed a timely appeal from a June 16, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than five
percent permanent impairment of the left lower extremity, for which he has received schedule
award compensation.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 17, 2017 appellant, then a 55-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date he sprained his left thigh and upper leg when he lost
his footing and slipped on mud and ice while in the performance of duty. He stopped work on
January 18, 2017. OWCP accepted the claim for a strain of the left thigh muscle. On June 30,
2017 appellant underwent an OWCP-authorized left L3-4 foraminotomy and microdiscectomy.
OWCP subsequently expanded acceptance of the claim to include L3-4 disc protrusion and lumbar
radiculopathy secondary to left L3-4 disc protrusion. It paid appellant wage-loss compensation on
the supplemental rolls from March 4 until May 26, 2017.
In an impairment evaluation report dated April 25, 2019, Dr. Neil Allen, a Board-certified
internist and neurologist, obtained a history of appellant’s January 17, 2017 employment injury
and discussed his continued complaints of back pain radiating into the left thigh. On examination
he found some thigh and calf atrophy, intact sensation, and full strength of the lumbar spine and
left hip. To ascertain the range of motion (ROM), Dr. Allen performed three measurements of the
left hip, with the highest measurement yielding 70 degrees flexion, plus 6 degrees extension, 45
degrees external rotation, 55 degrees internal rotation, 61 degrees abduction, and 24 degrees
adduction. Dr. Allen found 10 percent permanent impairment of the left lower extremity due to
loss of ROM. Referencing The Guides Newsletter, Rating Spinal Nerve Extremity Impairment
Using the Sixth Edition (July/August 2009) (The Guides Newsletter), which is a supplemental
publication of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides),4 Dr. Allen found no sensory or motor impairment of
either lower extremity due to a spinal condition. He determined that using the diagnosis-based
impairment (DBI) method for the diagnosis of hip strain yielded a lower extremity impairment
rating between five and seven percent. Dr. Allen reported that the ROM method resulted in a
greater impairment rating.
On May 22, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule
award.

3

Docket No. 20-1146 (issued December 18, 2020).

4

(6 th ed. 2009).

2

On October 8, 2019 5 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving
as a DMA, concurred with Dr. Allen’s finding that appellant had no impairment of either lower
extremity due to a spinal nerve impairment under The Guides Newsletter. He found that ROM
was not permitted as an alternative impairment rating for the applicable class of diagnosis (CDX)
of left hip strain. Dr. Katz found that a CDX of hip strain with mild motion deficits was a Class 1
impairment, which yielded a default value of two percent of the left lower extremity according to
Table 16-4 on page 512 of the A.M.A., Guides. He applied a grade modifier for functional history
(GMFH) and a grade modifier for physical examination (GMPE) of one each and indicated that a
grade modifier for clinical studies (GMCS) was inapplicable. Dr. Katz utilized the net adjustment
formula and found no change from the default value of two percent. He concluded that appellant
had two percent permanent impairment of the left lower extremity.
By decision dated October 22, 2019, OWCP granted appellant a schedule award for two
percent left lower extremity permanent impairment. The period of the award ran for 5.76 weeks
from April 25 to June 4, 2019.
On November 19, 2019 counsel requested a review of the written record before a
representative of OWCP’s Branch of Hearings and Review and submitted an addendum report
from Dr. Allen dated November 14, 2019, in which he opined that the ROM method yielded 10
percent permanent impairment due to loss of hip flexion, and thus was preferable to the DBI
method as it resulted in a higher impairment rating.
By decision dated March 23, 2020, an OWCP hearing representative affirmed the
October 22, 2019 schedule award decision.
On May 13, 2020 counsel filed an appeal with the Board. By decision dated December 18,
2020, the Board set aside the March 23, 2020 decision and remanded the case to OWCP for
clarification from the DMA as to whether the accepted conditions included a left hip strain and
whether appellant had a mild or moderate motion deficit of the left hip. 6
On January 6, 2021 OWCP requested clarification from the DMA, Dr. Katz, as to whether
the accepted conditions included a left hip strain. It also requested h e clarify his left lower
extremity impairment rating using Table 16-4 and to explain his finding that appellant had only
mild motion deficit given that Dr. Allen found he had moderately reduced hip ROM.
In an addendum dated January 7, 2021, Dr. Katz noted that appellant’s accepted left thigh
strain encompassed the left hip. He again found that ROM was not permitted as an alternative
impairment rating for the applicable CDX of left hip strain. Dr. Katz found that a CDX for hip
strain with moderate motion deficits, which is a Class 1 impairment, yielded a default value of five
percent of the left lower extremity according to Table 16-4 on page 512 of the A.M.A., Guides.
He applied a GMFH and a GMPE of one each and indicated that GMCS was inapplicable. Dr. Katz

The report notes the year as “2018” which appears to be a typographical error as OWCP referred the claim to the
DMA on September 26, 2019.
5

6

Supra note 3.

3

utilized the net adjustment formula and found no change from the default value of five percent.
He concluded that appellant had five percent permanent impairment of the left lower extremity.
By decision dated January 27, 2021, OWCP granted appellant an additional three percent
schedule award for left lower extremity permanent impairment, for a total five percent left lower
extremity permanent impairment. The period of the award ran for 8.64 weeks from June 5 to
August 4, 2019.
On February 25, 2021 counsel requested a review of the written record before a
representative of OWCP’s Branch of Hearings and Review.
By decision dated June 16, 2021, OWCP’s hearing representative affirmed the January 27,
2021 schedule award decision.
LEGAL PRECEDENT
The schedule award provisions of FECA 7 and its implementing regulations 8 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. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. OWCP
evaluates the degree of permanent impairment according to the standards set forth in the specified
edition of the A.M.A., Guides, published in 2009. 9 The Board has approved the use by OWCP of
the A.M.A., Guides for the purpose of determining the percentage loss of use of a member of the
body for schedule award purposes. 10
In determining permanent impairment of the lower extremities under the sixth edition of
the A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the
lower extremity to be rated. With respect to the hip, the relevant portion of the leg for the present
case, reference is made to Table 16-4 (Hip Regional Grid) beginning on page 512. 11 After the
CDX is determined from the Hip Regional Grid (including identification of a default grade value),
the net adjustment formula is applied using GMFH, GMPE, and GMCS. The net adjustment

7

Supra note 2.

8

20 C.F.R. § 10.404.

9

For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6 th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
10

L.E., Docket No.20-1505 (issued June 7, 2021); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro
Rivera, 12 ECAB 348 (1961).
11

A.M.A., Guides 512-15 (6 th ed. 2009).

4

formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12 Under Chapter 2.3, the
evaluators are directed to provide reasons for their impairment rating choices, including the
choices of diagnoses from regional grids and calculations of modifier scores. 13
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified. 14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than five
percent permanent impairment of his left lower extremity, for which he previously received
schedule award compensation.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s March 23, 2020 merit decision because the
Board considered that evidence in its December 18, 2020 decision. Findings made in prior Board
decisions are res judicata absent any further review by OWCP under section 8128 of FECA. 15
On prior appeal, the Board remanded the case to OWCP to request clarification from the
DMA as to whether the accepted conditions include a left hip strain, and whether appellant had a
mild or moderate motion deficit of the left hip. In a report dated January 18, 2021, Dr. Katz again
found that ROM was not permitted as an alternative impairment rating for the diagnosis of left hip
strain. Dr. Katz found that a CDX of hip strain with moderate motion deficits, which is a Class 1
impairment, yielded a default value of five percent of the left lower extremity according to Table
16-4 on page 512 of the A.M.A., Guides. He applied a GMFH and a GMPE of one each and
indicated that GMCS was inapplicable. Dr. Katz utilized the net adjustment formula and found no
change from the default value of five percent. He concluded that appellant had five percent
permanent impairment of the left lower extremity.
The Board finds that Dr. Katz adequately explained how he arrived at his rating of
permanent impairment by listing specific tables and pages in the A.M.A., Guides. The Board also
finds that Dr. Katz properly interpreted and applied the standards of the sixth edition of the
A.M.A., Guides to conclude that appellant qualified for five percent permanent impairment of the
left lower extremity. Dr. Katz’s opinion therefore represents the weight of the medical evidence
and supports that appellant has five percent permanent impairment of the left lower extremity.

12

Id. at 515-22.

13

Id. at 23-28.

14

See supra note 9 at Chapter 2.808.6(f) (March 2017).

15

T.R., Docket No. 20-0588 (issued June 25, 2021); A.G., Docket No. 18-0329 (issued July 26, 2018); Clinton E.
Anthony, Jr., 49 ECAB 476 (1998).

5

Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than five
percent permanent impairment of his left lower extremity, for which he previously received
schedule award compensation.
ORDER
IT IS HEREBY ORDERED THAT the June 16, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 24, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Newark, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-1321
Issued: April 1, 2010

Case Submitted on the Record

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

JURISDICTION
On September 16, 2008 appellant, through counsel, filed a timely appeal of the Office of
Workers’ Compensation Programs’ merit schedule award decisions dated November 29, 2007
and May 27, 2008. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has more than a five percent impairment of each lower
extremity, for which he received a schedule award.
On appeal, appellant’s attorney contended that appellant has more than a five percent
impairment of each lower extremity. Counsel argued that the medical opinion of Dr. Richard J.
Mandel, a Board-certified orthopedic surgeon, is not entitled to the special weight accorded an
impartial medical specialist as he failed to conduct a thorough physical examination and to
reference any tables and figures in the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides) (5th ed. 2001) in determining appellant’s

impairment. He further argued that an Office medical adviser cannot substitute his opinion for
that of an impartial medical specialist regarding the A.M.A., Guides impairment rating.
FACTUAL HISTORY
On May 17, 2004 appellant, then a 54-year-old border protection officer, filed a traumatic
injury claim assigned OWCP File No. xxxxxx966 alleging that on May 13, 2004 he sustained a
torn cartilage in his right knee as a result of kneeling on it during firearms qualification.1 By
letter dated July 8, 2004, the Office accepted his claim for right knee meniscus tear. On July 12,
2004 appellant underwent a right knee arthroscopic partial medial meniscectomy with removal of
loose bodies. On April 26, 2005 Dr. George T. Stollsteimer, an attending Board-certified
orthopedic surgeon, released appellant to full-duty work on May 12, 2005.
On March 10, 2006 appellant filed a claim for a schedule award. In a November 3, 2005
medical report, Dr. Nicholas Diamond, an attending Board-certified pain management specialist,
reviewed a history of appellant’s March 31 and May 13, 2004 employment injuries and July 8
and August 30, 2004 knee surgeries. Appellant complained about constant pain and stiffness in
both knees while performing his work duties and daily activities. He reported pain in his right
knee as 5 to 8 out of 10 and in his left knee as 6 to 8 out of 10. Dr. Diamond provided his
findings on physical examination which included Grade 4 out of 5 motor strength deficit of the
right and left quadriceps and Grade 4 out of 5 motor strength deficit of the right and left
gastrocnemius. He diagnosed right knee internal derangement (medial meniscus tear with loose
body) and repetitive use left knee internal derangement (partial medial meniscus tear, synovitis,
chondromalacia patella). Appellant was status post arthroscopic evaluation with partial
synovectomy, partial medial meniscectomy, chondroplasty and debridement of the left knee and
status post right knee arthroscopy and partial medial meniscectomy and arthroplasty with
removal of loose body. Utilizing the A.M.A., Guides, Dr. Diamond determined that Grade 4 out
of 5 motor strength deficit of the right and left quadriceps constituted a 12 percent impairment of
each lower extremity (A.M.A., Guides 532, Table 17-8). He further determined that Grade 4 out
of 5 motor strength deficit of the right and left gastrocnemius constituted a 17 percent
impairment of each lower extremity (A.M.A., Guides 532, Table 17-8). Dr. Diamond combined
the motor strength deficits for each lower extremity to calculate a 27 percent impairment
(A.M.A., Guides 604, Combined Values Chart). He added 3 percent impairment for pain
(A.M.A., Guides 574, Figure 18-1) in each knee, totaling a 30 percent impairment of each lower
extremity.
On May 18, 2006 Dr. Arnold T. Berman, an Office medical adviser, reviewed the
medical evidence, including Dr. Diamond’s November 3, 2005 findings. He determined that
appellant had a two percent impairment of the right lower extremity based on his partial medial
meniscectomy (A.M.A., Guides 546, Table 17-33). Dr. Berman advised that he was not entitled
to an additional impairment for pain based on his overall function. He determined that appellant
1

Prior to the instant claim, appellant filed a claim assigned OWCP File No. xxxxxx271 for a left knee injury he
sustained on March 31, 2004 as a result of running. The Office accepted his claim for left knee derangement. On
August 30, 2004 appellant underwent a left knee arthroscopic partial meniscectomy with partial synovectomy,
chondroplasty and debridement of the knee. The Office combined the claims assigned OWCP File Nos. xxxxxx271
and xxxxxx966 into a master claim assigned OWCP File No. xxxxxx966.

2

had a two percent impairment of the left lower extremity based on his partial medial
menisectomy (A.M.A., Guides 546, Table 17-33) and an additional three percent impairment for
pain (A.M.A., Guides 574, Table 18-1), totaling a five percent impairment. Dr. Berman stated
that in determining that appellant had a 30 percent impairment of each lower extremity,
Dr. Diamond failed to properly apply section 17.2e on page 531 of the A.M.A., Guides which
addressed manual muscle strength testing and Table 17-8 on page 532 of the A.M.A., Guides
which addressed impairment due to muscle weakness. Dr. Berman concluded that appellant
reached maximum medical improvement on November 3, 2005.
By decision dated June 14, 2006, the Office granted appellant a schedule award for a two
percent impairment of the right lower extremity and a five percent impairment of the left lower
extremity. In a June 19, 2006 letter, his attorney requested an oral hearing before an Office
hearing representative.
By decision dated August 23, 2006, an Office hearing representative set aside the
June 14, 2006 decision and remanded the case to the Office. She found a conflict in the medical
opinion evidence between Dr. Diamond and Dr. Berman regarding the extent of permanent
impairment to appellant’s lower extremities. On remand, the hearing representative instructed
the Office to refer appellant to an appropriate impartial medical examiner to resolve the conflict.
By letter dated September 26, 2006, the Office referred appellant, together with a
statement of accepted facts and the case record to Dr. William D. Emper, a Board-certified
orthopedic surgeon, for an impartial medical examination. In a February 13, 2007 report, he
advised that appellant had recovered 100 percent from his injuries and was capable of
performing his work duties as an immigration customs officer with no restrictions.
By letter dated March 1, 2007, the Office requested that Dr. Emper submit a
supplemental report providing whether appellant sustained any ratable permanent impairment
based on the A.M.A., Guides. No report was submitted by Dr. Emper.
By letter dated August 2, 2007, the Office referred appellant, together with a statement of
accepted facts and the case record to Dr. Richard J. Mandel, a Board-certified orthopedic
surgeon specializing in hand surgery, for an impartial medical examination. In a September 24,
2007 report, he reviewed a history of appellant’s March 31 and May 13, 2004 injuries and his
July 2004 arthroscopic right knee surgery. Dr. Mandel noted his chief complaint of anterior right
knee pain. Appellant experienced increased pain when attempting to run, descending stairs,
squatting, kneeling, standing for more than 15 minutes in one position and walking more than
100 yards. He also experienced pain when sitting on a high stool with his legs dangling after a
period of time and getting out of his car after a long drive. Appellant’s knee hurt everyday,
although he had no pain when lying supine. Dr. Mandel noted similar pain symptoms regarding
the left knee. On physical examination, he listed his normal findings with appellant’s complaints
of tenderness on the right to palpation along the medial joint line and minimally over the lateral
joint line and over the left patellar tendon and lateral joint line, and bilateral knee discomfort
when standing up from a full squat. Dr. Mandel reported minimal crepitus on range of motion of
the right knee and slightly greater crepitus on the left. He determined that appellant had a two
percent impairment of the right knee based on the A.M.A., Guides. Dr. Mandel stated that his
impairment rating differed from that of Dr. Diamond who attributed a significant impairment

3

based on muscle weakness about the right knee while he did not find any weakness in the knee or
atrophy in either knee. He indicated that the musculature was well developed, including the
velocity-modulated oscillator (VMO). Dr. Mandel stated that there was no radiographic
evidence of arthrosis. He concluded that appellant could continue performing his regular work
duties as a customs and border patrol officer.
In an October 12, 2007 letter, the Office requested that Dr. Mandel submit a
supplemental report that provided an impairment rating for appellant’s left knee based on the
A.M.A., Guides. In an October 18, 2007 report, he advised that appellant had no impairment to
his left knee. Dr. Mandel stated that x-rays of the left knee revealed no arthritic change or joint
space narrowing. He further stated that his examination revealed no limp, atrophy, loss of
motion, deformity or other such abnormality. Dr. Mandel stated that his only positive finding of
mild crepitus could reflect some very early osteoarthritic change, but any such change was
insufficient to be evident on radiographs.
On November 16, 2007 Dr. Morley Slutsky, an Office medical adviser Board-certified in
preventive medicine, reviewed the medical evidence, including Dr. Mandel’s findings. He
opined that appellant had a five percent impairment of each lower extremity. Dr. Slutsky stated
that he had no muscle weakness in either lower extremity. He determined that appellant had a
two percent impairment of each lower extremity due to his partial medial meniscectomies
(A.M.A., Guides 546, Table 17-33). Dr. Slutsky further determined that his excess pain as
reported by Dr. Diamond and Dr. Mandel and resulting limitations in both knees represented an
additional three percent impairment under Chapter 3.700 of the Office’s procedure manual2 and
section 18.3a of the A.M.A. Guides,3 totaling a five percent impairment of each lower extremity.
He concluded that appellant reached maximum medical improvement on November 3, 2005.
By decision dated November 29, 2007, the Office granted appellant an amended schedule
award for an additional three percent impairment of the right lower extremity, totaling five
percent impairment. It found that he did not have more than five percent impairment of the left
lower extremity. In a December 4, 2007 letter, appellant’s attorney requested an oral hearing.
By decision dated May 27, 2008, a second Office hearing representative affirmed the
November 29, 2007 decision. He found that Dr. Emper and Dr. Mandel had been improperly
identified as impartial medical examiners as no true conflict existed between Dr. Diamond and
Dr. Berman on the extent of appellant’s permanent impairment. The hearing representative
found that Dr. Diamond’s impairment rating did not conform to the A.M.A., Guides while
Dr. Berman’s impairment rating conformed to the A.M.A., Guides. The hearing representative
stated that Dr. Diamond did not explain why he used strength measurements to determine
permanent impairment and offered no explanation as to how his test results are concordant with
other observable pathologic signs and other evidence of record as per the A.M.A., Guides.
Moreover, Dr. Berman explained why he applied Chapter 18, page 571, section 18.3b to award
appellant an additional three percent for pain, whereas Dr. Diamond did not. Consequently, he
determined that Dr. Emper and Dr. Mandel should be considered second opinion physicians.
2

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (October 1995).

3

A.M.A., Guides 570.

4

The hearing representative concluded that appellant had no more than a five percent impairment
of each lower extremity based on Dr. Slutsky’s November 16, 2007 opinion.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 set forth the number of weeks of compensation to be paid for
permanent loss, or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.6 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.7
In some instances, an Office medical adviser’s opinion can constitute the weight of the
medical evidence. This occurs in schedule award cases where an opinion on the percentage of
permanent impairment and a description of physical findings is on file from an examining
physician, but the percentage estimate by this physician is not based on the A.M.A. Guides. In
this instance, a detailed opinion by the Office medical adviser which gives a percentage based on
reported findings and the A.M.A., Guides may constitute the weight of the medical evidence.8
ANALYSIS
Appellant contends on appeal that he has more than a five percent impairment of each
lower extremity. The Office accepted his claim for right knee meniscus tear and left knee
derangement.
Appellant underwent right and left knee arthroscopic partial medial
meniscectomies to treat the accepted conditions. By decision dated November 29, 2007, the
Office granted him a schedule award for a five percent impairment of each lower extremity. In a
May 27, 2008 decision, it found that appellant was not entitled to any additional schedule award.
The Board finds that appellant has not met his burden of proof to establish that he has
impairment greater than that already awarded.
Dr. Mandel initially served as an impartial medical specialist and was subsequently found
to be a second opinion physician as the second Office hearing representative determined that
there was no conflict in the medical evidence regarding the extent of appellant’s permanent
impairment, found that appellant sustained a two percent impairment of the right lower
extremity. The Board finds that this was a proper determination as no conflict in medical
4

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

5

20 C.F.R. § 10.404.

6

5 U.S.C. § 8107(c)(19).

7

Supra note 5.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.7(h) (April 1993).

5

opinion evidence existed between Dr. Diamond, appellant’s attending physician, and
Dr. Berman, the Office medical adviser, as Dr. Diamond did not properly apply the A.M.A.,
Guides to determine the extent and degree of appellant’s impairment rating. Unlike Dr. Berman,
Dr. Diamond did not explain why he awarded an additional three percent impairment for painrelated impairment for the left knee,9 in addition to the two percent for the partial medial
meniscectomy.10 Moreover, Dr. Diamond did not apply section 17.2e, page 531, regarding
manual muscle testing or Table 17-8, page 532, regarding impairment due to lower extremity
muscle weakness.11 As these reports were not of equal weight, no conflict existed.12
In his September 24, 2007 report, Dr. Mandel reported his primary complaint of right and
left knee pain when attempting to engage in various activities. He listed his normal findings on
physical examination with appellant’s complaints of tenderness on the right to palpation along
the medial joint line and minimally over the lateral joint line and over the left patellar tendon and
lateral joint line and bilateral knee discomfort when standing up from a full squat. Dr. Mandel
found minimal crepitus on range of motion of the right knee and slightly greater crepitus on the
left. Dr. Mandel stated that unlike Dr. Diamond who attributed a significant impairment based
on muscle weakness about the right knee, he did not find any weakness in the knee or atrophy in
either knee. He stated that the musculature was well developed, including the VMO.
Dr. Mandel further stated that there was no radiographic evidence of arthrosis. While he noted
appellant’s partial medial meniscectomy and determined that appellant was entitled to a two
percent impairment of the right lower extremity (A.M.A., Guides 546, Table 17-33), he did not
consider other factors such as, appellant’s right knee pain that potentially could affect appellant’s
overall impairment rating or explain why this factor was not applicable to appellant. As
Dr. Mandel did not properly make an impairment rating for the right lower extremity utilizing
9

Section 18.3b of the A.M.A., Guides, at 571 provides: “Examiners should not use this chapter to rate painrelated impairment for any condition that can be adequately rated on the basis of the body and organ impairment
rating systems given in other chapters of the A.M.A., Guides.
10

A.M.A., Guides 546, Table 17-33.

11

Although Dr. Diamond opined that appellant had a 30 percent impairment of each lower extremity, he failed to
properly apply the A.M.A., Guides. He determined that appellant had a 27 percent impairment of each lower
extremity and added 3 percent impairment for bilateral knee pain to calculate a 30 percent impairment of each lower
extremity (A.M.A., Guides 532, 574, Table 17-8, Figure 18-1). The Board notes that Dr. Diamond’s 27 percent
impairment rating is based on manual muscle testing resulting in lower extremity weakness. However, in section
17.2e, the A.M.A., Guides state that, for manual muscle testing to be valid, the results should be concordant with
other observable pathologic signs and medical evidence. Further, it provides that, if measurements are made by one
examiner, they should be consistent on different occasions. The A.M.A., Guides also state that candidates whose
performance is inhibited by pain are not good candidates for manual muscle testing and that other evaluation
methods should be considered. Dr. Diamond did not support his use of the manual muscle test results with other
observable pathologic signs and medical evidence, nor did he establish that he had performed the tests with
consistent results on different occasions. Moreover, he reported appellant’s pain in his right knee as 5 to 8 out of 10
and in his left knee as 6 to 8 out of 10, which would inhibit his performance during the test. In accordance with the
A.M.A., Guides, appellant’s permanent impairment should be rated based on other evaluation methods. The Board
finds that Dr. Diamond’s report is insufficient to establish that appellant is entitled to an additional schedule award.
12

In situation where there are opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such specialist if
sufficiently well rationalized and based upon a proper factual background, must be given special weight. Rose V.
Ford, 55 ECAB 449 (2004).

6

the A.M.A., Guides, his opinion is of diminished probative value in determining the extent of
appellant’s permanent impairment.13
Similarly, Dr. Mandel’s October 18, 2007 opinion that appellant had no impairment to his
left knee is of diminished probative value. He stated that there was no radiographic evidence of
arthritic change or joint space narrowing and his findings on physical examination were normal.
Dr. Mandel related that his only positive finding of mild crepitus, could reflect some very early
osteoarthritic change, but any such change was insufficient to be evident on radiographs. He did
not address whether appellant sustained any permanent impairment due to his August 30, 2004
partial medial meniscectomy and subsequent pain of the left knee. As noted, Table 17-33 on
page 546 of the A.M.A., Guides sets forth the criteria for the assessment of lower extremity
impairment due to a partial medial meniscectomy. While it appears that Dr. Mandel utilized this
table in determining that appellant sustained a two percent impairment of the right knee due to
his July 2004 partial medial meniscectomy, he did not apply the table or explain why it was not
applicable to appellant’s left knee for which he underwent the same surgery in August 2004.
Further, he did not address whether appellant sustained any additional impairment due to his left
knee pain under Table 18-1 at page 574 of the A.M.A., Guides. The Board finds that
Dr. Mandel’s opinion is of diminished probative value in determining the extent of appellant’s
permanent impairment.14
The Board further finds that Dr. Slutsky, the Office medical adviser, properly utilized the
findings of Dr. Diamond, an attending physician, and Dr. Mandel and correlated them to specific
provisions in the A.M.A., Guides to determine that appellant had a five percent impairment of
each lower extremity. On November 16, 2007 Dr. Slutsky advised that appellant had no muscle
weakness in either lower extremity. He determined that appellant had a two percent impairment
of each lower extremity for undergoing partial medial meniscectomies (A.M.A., Guides 546,
Table 17-33). Dr. Slutsky further determined that his excess pain and resulting limitations in
both knees represented an additional three percent impairment (A.M.A., Guides 570, section
18.3a), totaling a five percent impairment of each lower extremity.
Dr. Slutsky properly applied the A.M.A., Guides to Dr. Diamond’s and Dr. Mandel’s
findings and reached an impairment rating of five percent impairment for each lower extremity.
The Board finds that this evaluation conforms to the A.M.A., Guides and establishes that
appellant has no more than a five percent impairment of each lower extremity.
CONCLUSION
The Board finds that appellant has failed to establish that he has more than a five percent
impairment of each lower extremity, for which he received a schedule award.

13

See Paul R. Evans, Jr., 44 ECAB 646, 651 (1993).

14

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the May 27, 2008 and November 29, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 1, 2010
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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF LAND MANAGEMENT, Santa Fe, NM,
Employer
__________________________________________

)
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Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1262
Issued: January 11, 2017

Case Submitted on the Record

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

JURISDICTION
On May 31, 2016 appellant, through counsel, filed a timely appeal from a December 3,
2015 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 to consider the merits of the case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish total disability
from July 10, 2006 through September 26, 2013.
On appeal counsel argues that OWCP should have further developed the medical
evidence or that it should have accepted appellant’s claimed periods of disability beginning
July 10, 2006 based on the second opinion report. He alleges that the medical evidence of record
established that appellant could work no more than one hour a day as a result of material
worsening of her accepted conditions.
FACTUAL HISTORY
On February 7, 2006 appellant, a 41-year-old fire program assistant, filed a traumatic
injury claim (Form CA-1) alleging that on January 25, 2006 when she slipped on ice her body
struck her car. She alleged that she sustained a lower back injury. OWCP accepted appellant’s
claim for sprain/strain of the lumbar region on May 24, 2006.
Appellant underwent electrodiagnostic studies on June 1, 2006. These tests of the right
extremity were normal with no evidence of entrapment neuropathy, radiculopathy, peripheral
neuropathy, or myopathy.
In a July 5, 2006 note, appellant’s attending physician, Dr. Evan Nelson, a family
practitioner, provided results on examination and opined that she could return to light-duty work
on July 10, 2006 working eight hours a day with restrictions. He reported that appellant believed
that she could return to work part time with minimal lifting. Dr. Nelson provided work
restrictions of limited lifting and bending. He indicated that appellant could tentatively return to
full duty on July 17, 2006. Dr. Nelson further indicated that she had subjective complaints of
continued pain and numbness to her lower extremities, despite having negative electrodiagnostic
studies and minimal changes on x-rays.
Dr. Nelson completed a note on July 13, 2006 finding that appellant could return to at
least part-time work. In a form report dated July 14, 2006, he reiterated that she could return to
light duty on July 5, 2006, but could resume regular duties on July 17, 2006.
Appellant resigned from the employing establishment, effective August 4, 2006.
On January 23, 2007 Dr. Barrie W. Ross, a physician specializing in pain management,
provided results on examination and diagnosed cervical strain and lumbar strain. She
recommended that appellant return to light-duty work lifting no more than 20 pounds with no
frequent or repetitive bending and twisting. In a note dated April 17, 2007, however, Dr. Ross
indicated that appellant could return to work with no restrictions.
Appellant underwent a cervical magnetic resonance imaging (MRI) scan on June 23,
2007 which demonstrated mild degenerative changes worse at C3-4 with mild anterolisthesis and
uncovertebral joint hypertrophy resulting in mild bilateral neural foraminal narrowing.

2

On February 21, 2012 OWCP advised appellant’s prior counsel that, as there had been no
evidence of continuing medical care, it administratively closed the file. It noted the last
treatment had been September 24, 2010.
Appellant received a third-party settlement and refunded the appropriate sums of money
to OWCP.
Counsel requested, by letter dated July 31, 2012, justification for termination of
appellant’s medical benefits without notice.
Appellant submitted a series of reports from Dr. Peter Tiernan, a physician specializing in
preventative medicine reflecting continuous medical treatment. Dr. Tiernan provided results on
examination on September 24, 2010 and diagnosed depression and back pain, and on August 9
and December 21, 2011 and April 27, 2012 he diagnosed chronic pain.
To determine whether there was need for continuing medical treatment due to the
accepted condition of lumbar strain/sprain, OWCP referred appellant for a second opinion
examination with Dr. James H. Lubowitz, a Board-certified orthopedic surgeon, on
December 10, 2012. In his report dated January 15, 2013, Dr. Lubowitz found that appellant’s
paralumbar pain was causally related to her employment injury, but found evidence of nonworkrelated conditions, such as chronic pain and symptom magnification. He found that she was
capable of working eight hours a day with restrictions.
On May 8, 2013 OWCP proposed to terminate appellant’s medical benefits and wageloss compensation based on Dr. Lubowitz’ report. It allowed appellant 30 days to respond.
Dr. Tiernan provided results on examination on April 17, May 21, July 10, September 20,
and November 14, 2013 and diagnosed dislocation of cervical vertebra, lumbar sprain, and
chronic pain syndrome.
On September 26, 2013 appellant filed a claim for compensation (Form CA-7) and
requested compensation for leave without pay from July 10, 2006 through September 26, 2013.
By letter dated October 28, 2013, in response to the claims for wage-loss compensation,
OWCP noted that it had issued a notice of proposed termination and provided appellant 30 days
to submit additional evidence or argument. Therefore it stated that it was deferring the claim for
total wage-loss compensation for the period July 10, 2006 to September 16, 2013.
Dr. Tiernan provided additional results on examination on January 10 and 15, March 7
and 19, and May 14, 2014 due to lumbar sprain and closed dislocation of cervical vertebra.
By decision dated April 11, 2014, OWCP denied appellant’s claim for compensation for
the period July 10, 2006 through September 26, 2013. It acknowledged that she had chronic
pain, but found that neither the treating p[hysician nor the second opinion physician supported an
aggravation or worsening of the accepted condition Counsel requested an oral hearing on
April 15, 2014 from OWCP’s Branch of Hearings and Review. In a decision dated
September 29, 2014, OWCP’s hearing representative set aside OWCP’s April 11, 2014 decision
and remanded the claim for further development of the evidence. OWCP explained that the
3

October 28, 2013 letter was not a proper development letter in response to the September 26,
2013 claims for compensation.
OWCP perfected the development letter on October 2, 2014 and requested additional
factual and medical evidence in support of appellant’s claimed period of disability. It allowed
appellant 30 days for a response.
Dr. Tiernan completed a narrative report on October 27, 2014 and described appellant’s
history of injury. He opined that appellant continued to experience lumbar sprain, neck pain, and
headaches due to her accepted employment injury.
To determine the extent of appellant’s current medical condition and whether appellant
was disabled due to a work-related condition, OWCP referred appellant for a second opinion
evaluation with Dr. Keith E. Harvie, an osteopath, on November 5, 2014.
By decision dated January 28, 2015, OWCP issued a new denial of appellant’s
September 26, 2013 claim for compensation for the period July 10, 2006 through September 26,
2013 as she had failed to submit the necessary medical opinion evidence. It noted that, although
the second opinion report had not yet been received, Dr. Lubowitz was the weight of the medical
evidence of record
In a report dated January 6, 2015, Dr. Harvie described appellant’s January 25, 2006
employment-related fall. Appellant reported continued neck pain through her shoulders and
arms, pain down her back to her buttocks, and as well as right and left thoracic pain. Dr. Harvie
reviewed appellant’s medical record and performed a physical examination. He opined that she
had severe depression causally related to her employment injury as well as degenerative disc
disease, chronic pain, deconditioning, and flexion and extension injury of the cervical spine all
causally related to her employment injury. Dr. Harvie determined that the conditions of severe
depression and degenerative disc disease gradually worsened. He noted that appellant’s chronic
pain had not changed, that her injury of the cervical spine had not changed and that she
developed deconditioning due to her injury. Dr. Harvie opined that for the entire period from
July 10, 2006 through September 26, 2013 the work-related conditions rendered her only
partially disabled. He also noted that appellant had developed chronic pain and depression. Dr.
Harvie found that she was not totally disabled nor did she have any residuals of her employmentrelated conditions. Nonetheless, he found that appellant’s chronic pain was secondary to her fall
of January 25, 2016.
Dr. Harvie completed a work restriction evaluation and noted that appellant could work
for 30 minutes to 1 hour a day. He opined that she had reached maximum medical improvement
and provided specific work restrictions including sitting for 30 minutes, walking for 30 minutes,
standing for 10 minutes and reaching for 5 minutes. Dr. Harvie indicated that appellant could
push, pull, and lift five pounds for approximately eight minutes each.
OWCP requested a supplemental report from Dr. Harvie on February 5, 2015. It asked
that he provide specifics regarding appellant’s additional employment-related conditions
including aggravation of degenerative disc disease and chronic pain. OWCP also asked that
Dr. Harvie clarify appellant’s work restrictions.

4

On February 10, 2015 counsel requested reconsideration of the earlier January 28, 2015
decision denying appellant’s claims for compensation. Dr. Tiernan completed notes on
September 12, 23, and October 22, 2014 and diagnosed chronic pain syndrome and lumbago.
In a decision dated May 4, 2015, OWCP denied modification of the January 28, 2015
decision.
Dr. Harvie completed a supplemental report on June 15, 2015. He opined that appellant
had sustained an aggravation of her degenerative disc disease in the lower lumbar spine.
Dr. Harvie did not explain or modify his work restrictions or further explain appellant’s
diagnosis of chronic pain.
In a letter dated July 20, 2014, counsel requested that OWCP expand appellant’s claim to
include the additional conditions of severe depression, degenerative disc disease, chronic pain,
and deconditioning based on Dr. Harvie’s reports.
OWCP accepted additional conditions of severe depression, aggravation of degeneration
of lumbar or lumbosacral intervertebral disc, aggravation of chronic pain syndrome and muscular
wasting and disuse atrophy on September 4, 2015.
On September 11, 2015 counsel again requested reconsideration of the January 28, 2015
decision denying wage-loss compensation. He submitted an October 27, 2015 report from
Dr. Tiernan diagnosing chronic pain syndrome and lumbago.
By decision dated December 3, 2015, OWCP denied modification of the January 28,
2015 decision denying appellant’s claim for total disability for the period July 10, 2006 through
September 26, 2013. Appellant found that, even though the additional conditions had been
accepted, she voluntarily left the position that had been available to her within her restrictions.
Thus, she was found not to be entitled to wage-loss compensation.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden to establish the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.3 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.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 of
record establish that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
3

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

4

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).

5

disability and show that he or she cannot perform such light duty. As part of this burden, 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 light-duty requirements.5
Whether a particular injury causes an employee to be disabled from employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.6 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that he or she hurts too much to work, without objective findings of
disability being shown, the physician has not presented a medical opinion on the issue of
disability or a basis for payment of compensation.7 The Board will not require OWCP to pay
compensation for disability in the absence of any medical evidence directly addressing the
specific dates of disability for which compensation is claimed. To do so would essentially allow
employees to self-certify their disability and entitlement to compensation.8
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.9 Rationalized medical evidence is medical
evidence which includes a physician’s detailed medical opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the claimant.10 Neither the fact that a disease
or condition manifests itself during a period of employment nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.11
ANALYSIS
The Board finds that the case is not in posture for a decision.
The medical evidence, dating back to Dr. Nelson’s 2006 report, has supported that
appellant could work in some light-duty capacity for eight hours a day. Appellant chose to
resign from the employing establishment on August 4, 2006. In 2007 Dr. Ross also found that
5

Terry R. Hedman, 38 ECAB 222 (1986).

6

See Fereidoon Kharabi, 52 ECAB 291 (2001).

7

Id.

8

Id.

9

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

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

11

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

6

appellant could work eight hours a day with restrictions. Dr. Lubowitz, a second opinion
physician, completed a report on January 15, 2013, finding that appellant had continued residuals
of her accepted conditions, but that she was capable of working eight hours a day with
restrictions.
Appellant requested wage-loss compensation for leave without pay from July 10, 2006
through September 26, 2013. OWCP referred her for a second opinion evaluation with
Dr. Harvie. Based on this report, it accepted that appellant sustained additional employmentrelated conditions including severe depression, aggravation of degeneration of lumbar or
lumbosacral intervertebral disc, aggravation of chronic pain syndrome and muscular wasting and
disuse atrophy. Dr. Harvie also opined that she was partially disabled beginning July 10, 2006
due to her employment-related conditions. He found that appellant’s conditions of severe
depression and degenerative disc disease had gradually worsened following her accepted
employment injury. Dr. Harvie also noted that her chronic pain and cervical spine conditions
had not changed, but she developed deconditioning due to her work-related injury. He opined
that the work-related conditions rendered appellant partially disabled for the entire period
July 10, 2006 through September 26, 2013, as she developed chronic pain and depression.
Dr. Harvie found that appellant was not totally disabled as she could currently work one hour a
day.
OWCP requested a supplemental report from Dr. Harvie to address appellant’s work
restrictions and her additional diagnosed conditions in accordance with its established
procedures.12 Dr. Harvie responded on June 15, 2015 and opined that appellant sustained an
aggravation of her degenerative disc disease in the lower lumbar spine. He did not explain his
work restrictions. OWCP’s procedures require OWCP to seek clarification from the referral
physician and request a supplemental report to clarify specifically-noted discrepancies or
inadequacies in the initial second opinion report. If the second opinion physician does not
respond or does not provide a sufficient response, then the claims examiner should request a
report from another second opinion physician.
The Board finds that Dr. Harvie did not respond to OWCP’s request for clarification of
his report regarding appellant’s disability from work. He did not explain when and how
appellant’s work restrictions evolved from eight hours a day with restrictions to one hour a day
with restrictions. The Board notes that the most recent medical evidence in the record addressing
disability prior to Dr. Harvie’s reports was the December 10, 2012 report from Dr. Lubowitz,
who found that appellant could work eight hours a day with restrictions. There is no bridging
evidence in the record addressing the drastic change in appellant’s ability to work from
December 10, 2012 to January 6, 2015. Dr. Harvie did not explain the basis for his
determination or explain why and how he believed appellant’s condition had changed so
drastically. Proceedings before OWCP are not adversarial in nature and it is not a disinterested
arbiter. In a case where OWCP “proceeds to develop the evidence and to procure medical
evidence, it must do so in a fair and impartial manner.”13 It has an obligation to see that justice is
12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.9(j) (June 2015).
13

Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985).

7

done.14 As Dr. Harvie did not fully explain his opinion regarding appellant’s work restrictions,
OWCP must seek further medical opinion regarding the extent of her disability from work, when
this disability began, and her ongoing work restrictions. After this and such other develop as
OWCP deems necessary, it should issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision as it requires further
development of the medical evidence regarding the timing and extent of appellant’s work-related
disability.
ORDER
IT IS HEREBY ORDERED THAT that December 3, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: January 11, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

John J. Carlone, 41 ECAB 354, 358-60 (1989).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.G., Appellant
and
U.S. POSTAL SERVICE, TWENTY SECOND
STREET STATION, Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-1454
Issued: November 22, 2016

Case Submitted on the Record

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

JURISDICTION
On July 6, 2016 appellant filed a timely appeal from a May 26, 2016 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury in the
performance of duty.
On appeal, appellant describes her symptoms, medical treatment, and work duties that
she believes caused her claimed bilateral shoulder injury.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence with her appeal. The Board, however, is precluded from
reviewing evidence which was not before OWCP at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On March 15, 2016 appellant, then a 52-year-old city carrier, filed an occupational
disease claim (Form CA-2) under File No. xxxxxx518 alleging that she first became aware of her
“other occupational illnesses” and their relation to her federal employment on April 29, 2015.3
In an April 4, 2016 letter, OWCP notified appellant of the deficiencies of her claim and
requested that she submit factual and medical evidence, including a detailed description of the
employment-related activities that she believed contributed to her claimed medical condition,
how often she performed the described activities, and a physician’s opinion explaining how her
work-related exposure contributed to her medical condition. It afforded appellant 30 days to
provide the requested evidence.
In a June 9, 2015 right knee magnetic resonance imaging (MRI) scan report,
Dr. Michael A. Wilczynski, a radiologist, provided an impression of mild degenerative changes
in the right knee joint.
By decision dated May 26, 2016, OWCP denied appellant’s occupational disease claim.
It found that the factual element of the claim was not established. It noted that appellant had
failed to respond to its April 4, 2016 development letter requesting additional information about
her employment-related activities. OWCP also found that the medical evidence was insufficient
to establish a diagnosed medical condition causally related to a work injury or event.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.6 To establish that an injury was
sustained in the performance of duty in an occupational disease claim, a claimant must submit
the following: (1) a factual statement identifying employment factors alleged to have caused or
3

On her Form CA-2, appellant related that her claim under File No. xxxxxx518 was not filed within 30 days of
her injury because she was advised by a coordinator of a medical access group to wait until she heard from the U.S.
Department of Labor concerning her first claim under File No. xxxxxx202. File No. xxxxxx202 is not before the
Board on the present appeal.
4

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

6

S.P., id.

2

contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.7
ANALYSIS
The Board finds that appellant has failed to establish an injury in the performance of
duty. Appellant’s claim form generally stated that she sustained “other occupational illnesses”
caused or aggravated by her employment. She did not present a clear factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of her disease or condition. Appellant has not explained how work duties caused or
aggravated her claimed condition.
On April 4, 2016 OWCP informed appellant that the evidence received to date was
insufficient to establish that she experienced any employment factors that were alleged to have
caused an injury. Appellant was asked to provide a detailed description of the employmentrelated activities she believed contributed to her condition and how often she performed the
described activities. OWCP afforded her 30 days to submit this additional evidence. Appellant
did not provide any statement responding to OWCP’s inquiry. The only medical evidence of
record submitted was Dr. Wilczynski’s June 9, 2015 MRI scan report, which does not describe
appellant’s work duties.
For reasons stated, the Board finds that appellant has not sufficiently identified
employment activities alleged to have caused or contributed to her claimed conditions to meet
her burden of proof.8
As appellant has not established the factual component of her claim, the Board will not
address the medical evidence with respect to causal relationship.9
On appeal, appellant describes her symptoms, medical treatment, and work duties that
she believed caused her claimed bilateral shoulder injury. However, she did not provide this
information to OWCP prior to the issuance of its May 26, 2016 final decision and, thus, the
Board is precluded from reviewing it.10
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.

7

R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

8

R.Z., Docket No. 13-1911 (issued September 15, 2014).

9

D.D., 57 ECAB 734 (2006).

10

See supra note 2.

3

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury in
the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the May 26, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 22, 2016
Washington, DC

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

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

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

4