United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, Midwest City, OK, Employer )
__________________________________________ )
B.B., Appellant

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

Docket No. 16-0512
Issued: May 17, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 27, 2016 appellant filed a timely appeal from an August 31, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he has
more than 21 percent monaural (left ear) loss of hearing for which he received a schedule award;
and; (2) whether OWCP used the proper pay rate in calculating appellant’s schedule award.

1

5 U.S.C. § 8101 et seq.

On appeal appellant generally asserts that he is entitled to a greater award, and that
OWCP used an incorrect pay rate.
FACTUAL HISTORY
On March 17, 2014 appellant, then a 60-year-old sheet metal mechanic (aircraft) filed an
occupational disease claim (Form CA-2), alleging that working 29 years in a noise hazard
environment caused permanent hearing loss. In letters dated April 2, 2014, OWCP informed
appellant of the information needed to support his claim and asked the employing establishment
to respond regarding noise exposure.
Appellant submitted an employment history, noting that he began working at the
employing establishment in 1981. He submitted employing establishment audiograms dated
from 1986 to 2012 completed as part of a hearing conservation program.2 On October 5, 1995
appellant had surgery to repair a ruptured tympanic membrane of the left ear.
In September 2014 OWCP referred appellant to Dr. Richard B. Dawson, a Boardcertified otolaryngologist, for a second opinion evaluation. In an October 7, 2014 report,
Dr. Dawson noted a history of noise exposure at work beginning in 1981 and his review of the
statement of accepted facts and audiometric records dating from 1986. He noted the 1995 left
ear surgery and advised that workplace noise exposure was sufficient to cause hearing loss.
Dr. Dawson described ear examination findings. The audiogram, performed on October 7, 2014
reflected testing at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per second and
revealed the following: right ear 10, 15, 25, and 40 decibels; left ear 30, 30, 45, and 50 decibels.
Dr. Dawson advised that tinnitus was not present; however, hearing aids were recommended. He
concluded that, in accordance with the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),3 appellant had
0 percent monaural loss of the right ear and 21 percent monaural loss of the left ear, or 4 percent
binaural hearing loss.
On December 17, 2014 OWCP accepted binaural sensorineural hearing loss.
In a report dated December 19, 2014, Dr. Ronald H. Blum, an OWCP medical adviser,
reviewed Dr. Dawson’s report and the October 7, 2014 audiogram. He advised that the date of
maximum medical improvement was October 7, 2014. The medical adviser agreed with
Dr. Dawson’s monaural calculations for each ear. He, however, indicated that the physician did
not properly calculate the binaural hearing loss, finding it to be 3.4 percent.
On March 9, 2015 appellant filed a schedule award claim (Form CA-7). OWCP obtained
pay rate information from the employing establishment which clarified that appellant had a fixed
40-hour workweek at an hourly wage of $26.49 or $1,063.17 per week.
2

The most recent employing establishment audiogram dated May 21, 2012, signed by an audiologist,
demonstrated testing at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per second and revealed the
following: right ear 10, 15, 25, and 40 decibels; left ear 30, 30, 45, and 50 decibels, respectively.
3

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

2

By decision dated August 31, 2015, appellant was granted a schedule award for 21
percent impairment for hearing loss of one ear (left), to run from October 7 to
December 22, 2014. The compensation rate was based on a weekly pay of $1,063.17 at the 3/4
or 75 percent augmented compensation rate, for total compensation of $8,707.36, paid in full.4
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA,5 and its implementing federal regulations,6 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.7 For decisions issued
after May 1, 2009, the sixth edition is to be used.8
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the
losses at each frequency are added and averaged.9 The “fence” of 25 decibels is then deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.10 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.11 The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
arrive at the amount of the binaural hearing loss.12 The Board has concurred in OWCP’s
adoption of this standard for evaluating hearing loss.13

4

A schedule award calculator and work sheets are found in the case record.

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

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).
9

Supra note 3 at 250.

10

Id.

11

Id.

12

Id. at 251.

13

Horace L. Fuller, 53 ECAB 775 (2002).

3

It is well established that, if calculations based on the monaural hearing loss would result
in greater compensation than calculations for binaural loss, then the monaural hearing loss
calculations should be used.14
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained binaural hearing loss due to noise exposure at
work and granted him a schedule award for 21 percent left ear, monaural, loss of hearing based
on the October 7, 2014 report of Dr. Dawson, who provided a second opinion evaluation for
OWCP, as reviewed by the OWCP medical adviser.
In the October 7, 2014 report, Dr. Dawson noted examination findings and reviewed an
October 7, 2014 audiogram that was obtained on his behalf. Using OWCP’s standard procedures
described above, he advised that appellant’s employment-related noise exposure did not cause a
ratable hearing loss on the right but was sufficient to cause 21 percent loss on the left. The
October 7, 2014 audiogram tested frequency levels of 500, 1,000, 2,000, and 3,000 decibels and
reflected losses of 30, 30, 45, and 50 decibels respectively on the left, for a total decibel loss of
155, and losses of 10, 15, 25, and 40 decibels on the right, for a decibel loss of 90.15
Following OWCP procedures described above, the decibel total of 90 for the right ear,
when divided by 4, yielded an average of 22.5, which was less than the fence of 25, for a 0
percent impairment of the right ear. Therefore, appellant’s right ear impairment was not ratable.
For the left ear, dividing the total decibel loss of 155 by 4 resulted in an average hearing loss of
38.75 decibels. This average was reduced by 25 decibels, yielding a 13.75 loss which, when
multiplied by 1.5, yielded a 20.625 monaural loss on the left. OWCP properly rounded this
fraction up to reflect a 21 percent impairment of the left ear.16 The OWCP medical adviser
supported Dr. Dawson’s calculations and conclusions regarding the ratable monaural loss of the
left ear.
The record also includes employing establishment audiometric test results from 1986 to
2012. These, however, do not provide support for any greater impairment because there is no
evidence that appellant underwent examination by a physician, that the audiometric testing was
performed by a certified audiologist, or that all the equipment used for testing met the required
standards.17 Moreover, the most recent employing establishment report was dated May 21, 2012,
more than two years prior to the October 7, 2014 audiogram and more than three years prior to
the August 31, 2015 schedule award. Thus, there is no probative medical evidence showing that
appellant had greater monaural (left ear) hearing loss than 21 percent.

14

Reynoldo R. Lichtenberger, 52 ECAB 462 (2001).

15

The decibel total of 80 on the right, when divided by 4, yields an average of 20, which is less than the fence of
25, for a 0 percent impairment of the right ear.
16

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4.b(2)(b)
(January 2010).
17

See id. at Chapter 3.600 Exhibit 4 (September 1996).

4

While section 8107(c)(13) provides separate calculations for loss of hearing in one ear
and for loss of hearing in both,18 as noted above, if calculations based on the monaural hearing
loss would result in greater compensation than calculations for binaural loss, then the monaural
hearing loss calculations should be used.19 In this case, Dr. Dawson found 4 percent binaural
impairment, whereas the OWCP medical adviser found a 3.4 percent binaural impairment,
indicating that Dr. Dawson had rounded early in the binaural calculation, rather than at the end.
Nonetheless, neither a binaural loss of 3.4 percent nor 4 percent represents an award greater than
the 21 percent monaural loss awarded for appellant’s left ear, for 76.44 days or approximately
10.92 weeks of compensation. A 3.4 percent binaural hearing loss yields 6.8 weeks of
compensation, and 4 percent binaural hearing loss yields eight weeks of compensation.
Appellant, therefore, did not establish an impairment greater than the 21 percent
monaural (left ear) hearing loss for which he received a schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Under FECA, monetary compensation for disability or impairment due to an employment
injury is paid as a percentage of monthly rate.20 Section 8101(4) provides that “monthly pay”
means the monthly pay at the time of injury or the monthly pay at the time disability begins or
the monthly pay at the time compensable disability recurs, if the recurrence begins more than six
months after the injured employee resumes regular full-time employment with the United States,
whichever is greater.21 The compensation rate for schedule awards is the same as compensation
for wage loss.22
OWCP procedures provide methodology for computing weekly pay on an annual, daily
and hourly basis.23 Regarding hourly pay, the procedure manual provides, “For regular [f]ederal
employees, the amount shown is multiplied by 2087 (by administrative determination, the
number of hours in a full work year based on a 40-hour work week). This figure is then divided
by 52.”24

18

5 U.S.C. § 8107(c)(13).

19

Supra note 14.

20

See 5 U.S.C. §§ 8105-8107.

21

Id. at § 8101(4).

22

See 20 C.F.R. § 10.404(b); K.H., 59 ECAB 495 (2008).

23

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.10 (March 2011).

24

Id. at Chapter 2.900.10.c.(2).

5

ANALYSIS -- ISSUE 2
Appellant worked a 40-hour week. His hourly wage, as shown on notification of
personnel action (Form 50) effective June 1, 2014, was $26.49. In calculating appellant’s
schedule award pay rate, OWCP relied on its procedures which provide a formula for calculating
a regular federal employee’s pay rate for compensation purposes which is based on a 40-hour
workweek or 80-hour pay period. Section 2.900.7.c(2) provides that an employee’s hourly pay
rate is multiplied by 2087 annual work hours, then divided by 52 weeks, to result in a 40-hour
pay period.25 To calculate appellant’s weekly pay rate for schedule award compensation
purposes, OWCP multiplied his hourly rate of $26.49 by 2087 hours for an annual rate of
$55,284.63, which was divided by 52, yielding a weekly pay rate of $1,063.165, rounded up to
$1,063.17. The Board finds that this calculation was mathematically correct and in accordance
with OWCP procedures for calculating a federal employee’s compensation.26
The Board notes that on appeal appellant forwarded an earnings and leave statement for
the pay period ending October 4, 2014. This showed an hourly rate of $26.49 with regular pay
of $2,119.20, based on an 80-hour, 2-week period. The statement also included four hours of
overtime pay. Section 8114(e)(1) of FECA provides that, in computing an employee’s pay rate
for compensation purposes, overtime pay is not included.27
The Board finds that OWCP properly calculated appellant’s pay rate for schedule award
purposes.
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.

25

Id.

26

Id.

27

5 U.S.C. § 8114(e)(1); see Calvin E. King, 51 ECAB 394 (2000).

6

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than 21 percent monaural (left ear) loss of hearing for which he received a schedule award,
and that OWCP used the proper pay rate in calculating appellant’s schedule award.
ORDER
IT IS HEREBY ORDERED THAT the August 31, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 17, 2016
Washington, DC

Colleen Duffy Kiko, 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
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
San Leandro, CA, Employer
__________________________________________

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

Docket No. 16-1014
Issued: October 27, 2016

Case Submitted on the Record

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

JURISDICTION
On April 12, 2016 appellant filed a timely appeal from a March 14, 2016 merit decision
of the Office of Workers’ Compensation Programs.1 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.
ISSUE
The issue is whether appellant met her burden of proof to establish wage-loss
compensation for 33.52 hours of leave without pay (LWOP) taken from November 12 to 23,
2015 causally related to her accepted September 26, 2015 employment injury.

1

The Board notes that appellant submitted new evidence on appeal. The Board however is precluded from
considering evidence which was not before OWCP at the time of its final decision. 20 C.F.R. § 501.2(c)(1).
2

5 U.S.C. § 8101 et seq.

On appeal appellant contends that reports from her attending physician establish her
partial disability and medical restrictions regarding the use of her right upper extremity during
the claimed period of disability.
FACTUAL HISTORY
On September 26, 2015 appellant, then a 59-year-old carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date she was bitten on her index finger by a dog while
picking up mail she had dropped. She stopped work on the date of injury.
In return to work instructions dated September 26, 2015, Jonathan Choi, a physician
assistant, advised that appellant was treated on that date. Mr. Choi advised that she should be
able to return to work in three to five days.
In an October 7, 2015 continuation of pay nurse report, Diane Baggett, a nurse, indicated
that appellant had returned to full-duty work on September 30, 2015.
In an October 9, 2015 doctor’s first report of occupational injury or illness,
Dr. Kadassah R. Kreiman, an attending Board-certified physiatrist, provided a history that
appellant was bitten by a dog on her right index finger while delivering mail to a house. She
provided examination findings and a primary diagnosis of open dog bite of the right finger.
On December 5, 2015 appellant filed a claim for compensation (Form CA-7) for
intermittent leave taken during the period November 12 to 23, 2015. In a time analysis form
(Form CA-7a) dated December 5, 2015, she claimed LWOP for 33.52 intermittent hours of
disability during the stated period. Appellant indicated that she missed time from work because
she was restricted to limited duty by her physician and the employing establishment only
provided four hours of limited duty on the dates in question.
In an industrial work status report dated November 2, 2015, Dr. Kreiman again diagnosed
open dog bite of the right finger. She placed appellant on modified activity at work and home
from November 12 to 23, 2015. Dr. Kreiman noted that if modified activity was not
accommodated by the employing establishment then appellant was considered temporarily
totally disabled from her regular work for the designated time period. She concluded that
appellant may work up to four hours a day with restrictions that included no lifting, pulling, or
pushing more than two pounds with her right hand.
On December 21, 2015 OWCP accepted appellant’s claim for resolved open bite of the
right index finger. It advised, however, that the evidence submitted was insufficient to establish
that her claimed wage loss was due to the accepted condition as she had been released to fullduty work as of October 1, 2015. OWCP informed appellant about the type of medical evidence
needed to establish her claim.
In a September 26, 2015 right hand x-ray report, Dr. Linda M. Gordon, a Board-certified
radiologist, provided an impression of mild degenerative narrowing and spurring at the first
interphalangeal joint. She noted that the x-ray was otherwise unremarkable.

2

A November 9, 2015 occupational health supply form with an unknown signature
provided a diagnosis of right finger pain and ordered putty for appellant’s home exercise
program.
In a March 14, 2016 decision, OWCP denied appellant’s claim for compensation for the
period November 2 to 23, 2015. It found that the medical evidence of record failed to establish
that she was disabled during the claimed period as a result of her accepted employment injury.
OWCP found that the medical evidence of record indicated a newly diagnosed right wrist sprain
and lumbar sprains, neither of which are conditions accepted as causally related to the accepted
dog bite.
LEGAL PRECEDENT
With respect to a claimed period of disability, an employee has the burden of proof to
establish 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
Whether a particular injury causes an employee to be disabled for 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.5 The medical evidence required to
establish a period of employment-related disability is rationalized medical evidence.6
Rationalized medical evidence is medical evidence based on a complete factual and medical
background of the claimant, of reasonable medical certainty, with an opinion supported by
medical rationale.7 The Board, however, 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.8 To do so, would essentially allow an employee to selfcertify their disability and entitlement to compensation.9
ANALYSIS
OWCP accepted that appellant sustained a resolved open bite of the right index finger
while in the performance of duty on September 26, 2015. Appellant claimed compensation for
3

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

See Fereidoon Kharabi, 52 ECAB 291 (2001).

6

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

7

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

8

Sandra D. Pruitt, 57 ECAB 126 (2005).

9

See William A. Archer, 55 ECAB 674 (2004); supra note 5.

3

intermittent disability from November 12 to 23, 2015. She has the burden of establishing by the
weight of the substantial, reliable, and probative evidence, a causal relationship between her
claimed disability for that period and the accepted conditions.10 The Board finds that appellant
failed to submit sufficient medical evidence to establish employment-related disability for the
period claimed due to her accepted injury.11
Dr. Kreiman’s November 2, 2015 report diagnosed open dog bite of the right finger and
placed her on modified activity at work and home, four hours a day with restrictions from
November 2 to 23, 2015. She restricted her from lifting, pulling, or pushing more than two
pounds with her right hand. However, Dr. Kreiman did not explain why appellant’s disability
and medical restrictions during the claimed period were causally related to the accepted
September 26, 2015 dog bite, nor did she provide any supportive explanation as to whether the
restrictions were related to the accepted open-wound dog bite, or the other diagnosed conditions
of right wrist sprain and lumbar strain which have not been accepted by OWCP. The Board has
held that a medical opinion not supported by medical rationale is of little probative value.12
Dr. Gordon’s September 26, 2015 diagnostic test results did not provide a medical
opinion addressing whether appellant’s mild degenerative narrowing and spurring at the first
interphalangeal joint of the right hand was causally related to the accepted September 26, 2015
employment injury. This hand condition was not accepted as work related by OWCP. For
conditions not accepted by OWCP as being employment related, it is the employee’s burden to
provide rationalized medical evidence sufficient to establish causal relation.13 Further,
Dr. Gordon did not provide an opinion addressing the relevant issue of whether appellant had
any disability during the claimed period due to the accepted work injury. The Board has held
that medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.14
The November 9, 2015 occupational health supply form was not adequately signed and,
thus, has no probative medical value as it cannot be established that the author is a physician.15
On appeal appellant contends that medical evidence from Dr. Kreiman is sufficient to
establish her partial disability and medical restrictions regarding the use of her right upper
extremity from November 2 to 23, 2015. For the reasons previously stated, the Board finds that
the November 2, 2015 report of Dr. Kreiman is of diminished probative value.

10

See Amelia S. Jefferson, 57 ECAB 183 (2005).

11

Alfredo Rodriguez, 47 ECAB 437 (1996).

12

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

13

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger,
51 ECAB 638 (2000).
14

K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, supra note 13; Michael E. Smith, 50
ECAB 313 (1999).
15

See D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988).

4

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish wage-loss
compensation for 33.52 hours of leave without pay from November 2 to 23, 2015 causally
related to her accepted September 26, 2015 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 14, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 27, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Warren, OH, Employer
__________________________________________

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Appearances:
Appellant, pro se
Hans Wild, Esq., for the Director

Docket No. 13-2078
Issued: September 25, 2014

Oral Argument July 8, 2014

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 11, 2013 appellant filed a timely appeal from a July 19, 2013 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.
ISSUES
The issues are: (1) whether OWCP properly found an overpayment of $11,935.71 from
April 1 to August 28, 2010; (2) whether it properly found appellant at fault in creating the
overpayment; and (3) whether OWCP properly found that an overpayment of $1,692.15 was
created from March 28, 2008 to March 31, 2010.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case was before the Board on prior appeals. In a decision dated July 19, 2012, the
Board found that the evidence supported a finding of an $11,936.00 overpayment from April 1
to August 28, 2010 due to a forfeiture of compensation. The Board noted that appellant had
pleaded no contest on April 1, 2010 to a “falsification” charge under Ohio law and found that
OWCP may forfeit appellant’s compensation as of April 1, 2010 under 5 U.S.C. § 8148. As the
Board noted, an employing establishment Office of the Inspector General’s (OIG) report dated
April 7, 2010 had indicated that appellant had earnings that were not reported on CA-1032
forms. With respect to fault, the Board found that OWCP had not made adequate findings on the
issue. In addition, the Board affirmed an overpayment from March 28, 2008 to March 31, 2010
based on an incorrect pay rate, but found OWCP did not clearly explain how the overpayment
amount of $1,589.64 was calculated.
By order dated May 13, 2013, the Board set aside a September 20, 2012 OWCP decision
and remanded the case to clarify the grounds for the finding of fault with respect to the
$11,936.00 overpayment of compensation from April 1 to August 28, 2010. The history of the
case as provided by the Board is incorporated herein by reference.
By decision dated July 13, 2013, OWCP made final determinations with respect to
overpayments of compensation. It found that a no contest plea was equivalent to a guilty plea
and since appellant had entered the equivalent to a guilty plea on April 1, 2010 for fraud related
to application for FECA benefits, her compensation should be forfeited from April 1, 2010. The
amount of the overpayment from April 1 to August 28, 2010 was $11,935.71. With respect to
fault, OWCP noted that appellant had attempted to withdraw her no contest plea. It found that
she had made an incorrect statement that she knew or should have known was incorrect and had
accepted payments she knew or should have known were incorrect. As to the overpayment from
March 28, 2008 to March 31, 2010, OWCP found that the actual amount of the overpayment was
$1,692.15, but since appellant had previously paid the original overpayment amount of
$1,589.64, no additional overpayment would be collected.
LEGAL PRECEDENT -- ISSUE 1
Public Law No. 103-333, enacted on September 30, 1994, amended FECA by adding
section 8148, which provides for forfeiture of compensation benefits by an individual convicted
of fraud with respect to receipt of compensation and prohibits the payment of compensation
benefits to an individual while incarcerated pursuant to a felony conviction. Section 8148(a)
states:
“Any individual convicted of a violation of section 1920 of title 18 or any other
Federal or State criminal statute relating to fraud in the application for a receipt
of any benefit under this subchapter or subchapter 3 of the this chapter, shall
forfeit (as of the date of such conviction) any entitlement to any benefit such
individual would otherwise be entitled to under this subchapter of subchapter 3
for any injury occurring on or before the date of such conviction. Such forfeiture

2

shall be in addition to any action the Secretary may take under section 8106 or
8129.” 2 (Emphasis added.)
ANALYSIS -- ISSUES 1 & 2
In a prior appeal, the Board addressed the issue of whether appellant had forfeited her
compensation under 5 U.S.C. § 8148. Subsequent development has raised issues regarding the
conviction under Ohio state law that have not been addressed by OWCP. As OWCP stated in its
July 19, 2013 decision, appellant pleaded no contest to Ohio Revised Code § 2921.13(B). The
Board notes in this appeal that the statute provides: “No person, in connection with the purchase
of a firearm, as defined in section 2923.11 of the Revised Code, shall knowingly furnish to the
seller of the firearm a fictitious or altered driver’s or commercial driver’s license or permit, a
fictitious or altered identification card or any other document that contains false information
about the purchaser’s identity.”3
According to OWCP procedures, the documents necessary to establish a conviction for
fraud under 5 U.S.C. § 8148 include a copy of the indictment, the plea agreement and the guilty
verdict.4 The documents of record with respect to the conviction on April 1, 2010 include a
December 15, 2009 complaint that charges appellant with a violation of section 2921.13(B)5 and
a judgment entry that she pleaded no contest to violating section 2921.13(B) on April 1, 2010
and was found guilty. Therefore the documentary evidence of record establishes that appellant
was charged and found guilty based on a plea of no contest to a violation of a state statute that
involves providing false information to the seller of a firearm.6 Moreover, the brief narrative of
the misdemeanor offense charged contained no reference to fraud or theft involving the receipt of
public benefits.
The Board finds that this is not a conviction of a violation of a state statute relating to
fraud in the application for a receipt of FECA benefits as required by 5 U.S.C. § 8148. In the
absence of a conviction the finding of forfeiture will be reversed.
In view of the Board’s finding as to the issue of forfeiture, the remainder of the issues
concerning overpayment are moot.

2

5 U.S.C. § 8148(a).

3

Ohio Rev. Code § 2921.13(B) (2010).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.17(c) (February 2013).

5

The complaint alleges that appellant knowingly made a false statement to mislead a public official, but states
that the violation was Ohio Rev Code § 2921.13(B).
6

Cf. Harvey P. Milstein, Docket No. 95-1907 (issued May 27, 1998) (the Board found evidence established and
the claimant acknowledged, that he pled guilty on March 15, 1994 to violating 18 U.S.C. § 1920. The Board noted
that one court document had a typographical error referring to a guilty plea on that date of violating 18
U.S.C. § 1001, but it was noted that this was also a statute relating to making false statements to a government
agency).

3

CONCLUSION
The Board finds that OWCP failed to establish that appellant forfeited her compensation.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 19, 2013 is reversed.
Issued: September 25, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge, Concurring:
I concur with my colleagues holding in this appeal. OWCP’s decision in this appeal
should be reversed because appellant was not “convicted” within the definition of FECA
forfeiture provision.1 As explained above, the purported conviction of appellant in the Municipal
Court of Warren Ohio of a violation of Ohio Revised Code § 2921.13(B) does not and cannot
form the basis for finding an overpayment from April 1 to August 28, 2010 and for a forfeiture
of future FECA benefits.
It appears this question may be one of first impression for the Board. The case merits
some further exploration.
The first question is whether a ruling on the forfeiture is within the authority of the Board
in this specific appeal. The Board, in a prior decision states:
“The record establishes that appellant was charged with violation of Ohio Revised
Code § 2921.13(B) in connection with providing false information on her Form
1

5 U.S.C. § 8148(a).

4

CA1032. Appellant pled no contest and the Municipal Court accepted the plea
and entered a guilty verdict on April 1, 2010.”2
In its prior opinion, the Board did not examine the text of the charging document
mentioned above, nor did it show awareness of other defects in the Ohio proceedings. The
validity of the Warren, Ohio misdemeanor conviction was not reached and certainly not affirmed
in the Board’s prior decision. The Board again considered the claim and issued an Order
Remanding Case without a substantive review of the issues raised in the appeal now before us.3
That issue was clearly raised by a January 4, 2014 letter from appellant which stated her basis for
taking this appeal. The issue now presented to the Board in this appeal was not previously
decided and it is before us. The Board is correct to consider and decide it.4
The second question is how 5 U.S.C. § 8148(a) defines a conviction that will trigger a
forfeiture of the right to future compensation and whether OWCP complied with the statute. The
provision in question reads:
5 U.S.C. § 8148. Forfeiture of benefits by convicted felons:
(a) Any individual convicted of a violation of section 1920 of title 18 or any other
Federal or State criminal statute relating to fraud in the application for or receipt
of any benefit under this subchapter or subchapter III of this chapter, shall forfeit
(as of the date of such conviction) any entitlement to any benefit such individual
would otherwise be entitled to under this subchapter or subchapter III for any
injury occurring on or before the date of such conviction. Such forfeiture shall be
in addition to any action the Secretary may take under section 8106 or 8129.5
At a minimum, the statute prohibits “fraud” for in “application for a receipt” of FECA
benefits and requires a “conviction” for its provisions to operate. The statute allows certain
unspecified state law convictions to serve as the equivalent of a conviction under 18 U.S.C.
§ 1920. However, the state laws in question must actually be equivalent.
Appellant, in her letter, mentions that the Ohio Code section under which she was
convicted pertains to false statements made to obtain a firearm. This is correct, as my colleagues
note.
Beyond appellant’s assertion in her letter, there are several reasons to question whether
the proceeding in the Municipal Court in Warren, Ohio resulted in a verdict that would sustain an
overpayment finding and forfeiture of all her future benefits. First, in addition to providing the
2

T.P., Docket No. 12-97 (issued July 19, 2012) (the Board remanded the case on the issue of whether appellant
was at fault regarding an overpayment of $11,936.00 found by OWCP for the period April 1 to August 28, 2010).
3

See T.P., Docket No. 13-509 (issued May 13, 2013) (the Board remanded the case to OWCP specifically for
findings as to fault and waiver regarding the alleged overpayment for April 1 to August 28, 2010).
4

S.C., Docket No. 12-776 (issued August 9, 2012); Paul R. Kuyoth, 27 ECAB 498 (1976) (the Board possesses
de novo review authority).
5

Supra note 1.

5

citation of an unrelated section of criminal law, the complaint provides a one sentence statement
of the offense charged and this fails to allege that appellant obtained benefits under FECA.6 A
criminal charge must describe a specific act or acts which violate a specific criminal law.
Rather, the charge reads that appellant “did knowingly make a false statement or knowingly
affirm the truth of a false statement previously made when the statement was made with the
purpose to mislead a public official in performing his official function….”7
The Board’s majority includes the full text of 5 U.S.C. § 8148(a). It is not a general
prohibition on all lies told to a “public official.” It has a limited definition which OWCP has
failed to recognize. Perhaps more importantly, a court cannot find a defendant guilty of offenses
that are not charged. If the offense of fraud in connection with obtaining FECA benefits is not
charged, there can be no conviction.8
Second, the Ohio rules distinguish between a plea of no contest and a guilty plea as
follows:
“(B) Effect of guilty or no contest pleas
With reference to the offense or offenses to which the plea is entered:
(1) The plea of guilty is a complete admission of the defendant’s guilt.
(2) The plea of no contest is not an admission of defendant’s guilt, but is
an admission of the truth of the facts alleged in the indictment or
complaint, and the plea or admission shall not be used against the
defendant in any subsequent civil or criminal proceeding.”9
There is no Board precedent on whether State laws and rules, if they differ from federal
rules, are relevant in FECA forfeitures if the conviction is entered by a state court, to a state
offense, following state rules of procedure. It is reasonable, however, that in this instance, where
the OIG chose to take its case to state rather than federal court, it accepted the provisions of the
Ohio Rules of Criminal Procedure. Finally, contrary to an argument made by the solicitor, it is
undeniable that a plea of “no contest” under Ohio’s rule is not equivalent to a plea of “guilty.” If
OWCP contends otherwise in this case, it must prove the point.

6

The complaint also fails to mention fraud in an attempt to obtain a firearm, FECA prohibited under Ohio
Revised Code § 2921(B). It fails to state an offense under either subsection of the relevant Ohio statute.
7

The complainant was a special agent of the postal service, OIG who must be presumed to have known the code
section he wished to use and how to state a criminal charge.
8

It is possible that the guilty verdict may be meaningless because no offense is stated. It is not possible to assign
defendant’s conviction to an offense which exists but was not pled to.
9

Rules of Criminal Procedure Ohio, Crim R 11, Pleas, rights upon plea.

6

Third, the trial judge erred in failing to explain to appellant, at the time of her plea, that
she had rights under Ohio Rule 11.10 The court did not explain to her the consequence of her
plea. Appellant has consistently asserted that she did not understand the implications of her plea
when she offered it. On the one hand, it is clear she had counsel. On the other hand, it is also
clear the court failed in its obligation to inform her, on the record, of her options at trial and the
effects of her plea. While not before us, the question of whether, because of the proceedings in
Warren, Ohio, appellant knew or should have known that her future benefits would be affected is
far from clear.
There must be a point at which a formal conviction of a criminal offense becomes too
flawed to be given credit as a finding of actual guilt. The charge, plea and conviction in this case
do not justify the application of 5 U.S.C. § 8148(a). I agree with my colleagues that this
conviction cannot support OWCP’s July 19, 2013 decision. More broadly, this case calls into
question whether state statutes and state courts should be a regular forum for an employing
establishment and indirectly, OWCP, to file a legal action intended to result in a forfeiture of
benefits and the finding of an overpayment.

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

10

See 2011 WL 3273960 (Ohio App. 11 Dist.), Parish v. Ohio. (The Appeals Court did not allow appellant to
withdraw her guilty plea.)

7


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

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

Docket No. 19-0483
Issued: October 10, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On January 2, 2019 appellant, through counsel, filed a timely appeal from a November 26,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of his right upper extremity warranting a schedule award.

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.

FACTUAL HISTORY
On September 24, 1996 appellant, then a 38-year-old mail processing clerk, injured his
neck and right upper extremity while in the performance of duty.3 OWCP accepted his traumatic
injury claim (Form CA-1) for right shoulder sprain and cervical radiculopathy.
On May 26, 2015 Dr. Frederick J. Fletcher, a Board-certified orthopedist, noted that
appellant had reached maximum medical improvement (MMI).
On December 17, 2015 appellant filed a claim for a schedule award (Form CA-7).
In a development letter dated March 16, 2016, OWCP advised appellant of the deficiencies
of his claim and requested that he submit an impairment rating in accordance with the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).4
By decision dated May 25, 2016, OWCP denied appellant’s schedule award claim finding
that the medical evidence of record was insufficient to establish permanent impairment of a
scheduled member or function of the body.
On May 6, 2016 Dr. Fletcher indicated that his orthopedic group did not perform
impairment rating evaluations.
On June 3, 2016 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
Appellant submitted a June 8, 2016 report from Dr. Stewart A. Kaufman, a Board-certified
orthopedist, who diagnosed sprain of the cervical spine and sprain of the right shoulder.
Dr. Kaufman opined that appellant had reached MMI on October 17, 2003. He provided an
impairment evaluation in accordance with the sixth edition of the A.M.A., Guides.5 Pursuant to
Table 15-34, Shoulder Range of Motion, page 475 of the A.M.A., Guides, findings for the right
shoulder flexion of 90 degrees for three percent impairment, extension of 30 degrees for one
percent impairment, abduction of 65 degrees for six percent impairment, adduction of 30 degrees
for one percent impairment, internal rotation of 40 degrees for four percent impairment, and
external rotation of 55 degrees for two percent impairment. Dr. Kaufman noted that appellant’s
QuickDASH score was 72.5. He opined, utilizing the range of motion (ROM) method for rating
permanent impairment that appellant had 17 percent permanent impairment of the right upper
extremity in accordance with the A.M.A., Guides.
By decision dated November 16, 2016, an OWCP hearing representative vacated the
May 25, 2016 decision and remanded the case for further medical development. She instructed
3

Appellant was injured pulling a hamper full of magazines out of a machine.

4

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

5

Id.

2

OWCP to refer appellant’s case and Dr. Kaufman’s report to an OWCP district medical adviser
(DMA) to provide an assessment of appellant’s permanent impairment in accordance with the
A.M.A., Guides.
On February 13, 2017 Dr. James W. Butler, Board-certified in occupational and aerospace
medicine and serving as a DMA, reviewed the medical evidence of record and indicated that he
did not have sufficient information to make an informed decision. He specifically noted that he
did not know what the shoulder or cervical spine injuries were, and he did not have
electromyogram (EMG) results.
On March 28, 2017 OWCP referred appellant for a second opinion evaluation with
Dr. Kevin Scott, a Board-certified orthopedic surgeon. In an April 12, 2017 report, Dr. Scott
reviewed the medical record, a statement of accepted facts (SOAF), and a list of questions
regarding appellant’s permanent impairment. He related appellant’s complaints of numbness and
tingling into his hands and some shoulder pain. Appellant’s physical examination of the right
shoulder revealed abduction of 150 degrees, flexion of 150 degrees, internal rotation of 60 degrees,
and external rotation of 60 degrees. With regard to his cervical spine he had 40 degrees of
extension, 40 degrees of flexion, palpable tenderness along the cervical spine area, negative
Spurling maneuver, and deep tendon reflexes of 2+ bilaterally at his elbow and wrist. Dr. Scott
noted that MMI had occurred on April 12, 2017. He opined that he did not have enough
information on the right shoulder, such as an operative report or a diagnosis from an imaging study,
to provide a permanent impairment rating. Dr. Scott opined that pursuant to the A.M.A., Guides
Chapter 17, Table 17-6 for Functional History Adjustment: Spine on page 575, Table 17-7 for
Physical Examination Adjustment: Spine on page 576, and Table 17-9 for Clinical Studies
Adjustment: Spine on page 581, appellant had six percent whole person impairment.
An EMG study dated May 17, 2017 revealed moderate-to-severe carpal tunnel syndrome
on the right side, but no evidence of cervical impingement.
On June 1, 2017 appellant underwent a magnetic resonance imaging (MRI) scan of the
cervical spine which revealed C4-5 left lateral recess and left neural foraminal stenosis, C5-6 right
neural foraminal stenosis, and C6-7 mild left neural foraminal stenosis.
On July 20, 2017 OWCP requested that Dr. Scott provide a permanent impairment rating
pursuant to Chapter 15 of the sixth edition of the A.M.A., Guides and The Guides Newsletter,
Rating Spinal Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The
Guides Newsletter. It indicated that he provided a rating for whole person permanent impairment
which was not accepted by OWCP. OWCP further requested that Dr. Scott note the documentation
he would need to provide a rating for the right shoulder.
Appellant underwent right upper extremity MRI scan on September 13, 2017 which
revealed: mild-to-moderate supraspinatus tendinopathy with multiple small partial articular
surface tears of the distal tendon, likely chronic; mild infraspinatus tendinopathy with tiny
interstitial tear along the distal tendon; small interstitial tear extending into the musculotendinous
junction, likely chronic; mild subscapularis tendinopathy; proximal long head biceps tendinopathy
with partial longitudinal interstitial tear, likely chronic; and mild-to-moderate osteoarthritis
especially in the acromioclavicular joint.
3

In a report dated July 21, 2017, Dr. Scott indicated that his April 12, 2017 cervical
examination and EMG findings revealed no evidence of nerve root impingement and no evidence
of cervical radiculopathy. Therefore, the impairment rating for the cervical spine would be zero.
With regard to the right shoulder, Dr. Scott referenced a September 13, 2017 MRI scan which
revealed mild-to-moderate osteoarthritis of the acromioclavicular joint and glenohumeral joint, a
partial tear of his infraspinatus, and supraspinatus tear of the longhead of the biceps. He rated
appellant utilizing the diagnosis-based impairment (DBI) methodology under the A.M.A., Guides
for arthritis utilizing Table 15-5 on page 405, and placed him into a class of diagnosis (CDX) 1
and assigned a grade modifier of 1 for functional history (GMFH), a grade modifier of 1 for
physical examination (GMPE), and found a grade modifier of 2 for clinical studies (GMCS) which
showed a partial tear of the rotator cuff. Using the net adjustment formula (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX), Dr. Scott calculated that appellant had a net adjustment of
(1-1) + (1-1) + (2-1) = +1, equaling a grade D. Based on these calculations, he concluded that
appellant had seven percent permanent impairment of the right upper extremity.
On November 17, 2017 OWCP requested that Dr. Scott provide clarification of his
impairment rating, and specifically indicate whether there was a connection between the right
shoulder sprain on September 24, 1996 and the MRI scan findings of September 13, 2017. It
further requested that he provide an impairment rating pursuant to The Guides Newsletter.
In a second supplemental report dated November 22, 2017, Dr. Scott indicated that he had
not been provided medical records for the initial injury on September 24, 1996 and therefore he
could not comment on a connection between the most recent MRI scan of September 13, 2017 and
the original injury. He further noted that using The Guides Newsletter, appellant had zero percent
impairment. Dr. Scott advised that appellant’s permanent impairment of the right upper extremity
remained at seven percent.
On February 17, 2018 the DMA reviewed Dr. Scott’s April 12, July 21, and November 22,
2017 reports. He disagreed with the determination of Dr. Scott. The DMA noted that there was
no evidence of cervical radiculopathy on either the EMG findings or Dr. Scott’s examination.
Therefore, he opined that there would be no rating for an injury to the cervical spine. With regard
to the right shoulder, a right shoulder MRI scan 21 years post-injury showed normal changes one
would expect as part of the aging process. The DMA advised that there was nothing to show that
appellant’s right shoulder sprain had not resolved or that he experienced long-term residuals of the
injury in 1996. He indicated that Dr. Scott’s seven percent upper extremity impairment was based
on arthritis, which was not a direct result of the sprain, and therefore his rating should be
discounted. The DMA further reviewed the evaluation of Dr. Kaufman who assigned 17 percent
impairment for loss of ROM of the right shoulder and determined that he too based his impairment
rating on arthritic changes that could not be associated with the accepted sprain. He noted that a
simple sprain/strain had resolved and would not cause problems 21 years later. The DMA found
zero percent permanent impairment of the right upper extremity. He found the date of MMI to be
in April 2005.
By decision dated March 28, 2018, OWCP denied appellant’s schedule award claim.

4

On April 3, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on
September 12, 2018.
By decision dated November 26, 2018, the hearing representative affirmed the March 28,
2018 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA,6 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 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards. 9
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment CDX condition, which is then adjusted by GMFH, GMPE, and GMCS. The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10 OWCP 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 permanent impairment specified. 11
The A.M.A., Guides also provide that the ROM impairment method is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
diagnosis-based sections are applicable. 12 If ROM is used as a stand-alone approach, the total of
motion impairment for all units of function must be calculated. All values for the joint are
measured and added. 13 Adjustments for functional history may be made if the evaluator

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
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
10

A.M.A., Guides 411.

11
See P.R., Docket No. 18-0022 (issued April 9, 2018); Federal (FECA) Procedure Manual, supra note 9 at Chapter
2.808.6f (March 2017).
12

A.M.A., Guides 461.

13

Id. at 473.

5

determines that the resulting impairment does not adequately reflect functional loss and functional
reports are determined to be reliable. 14
Regarding the application of ROM or DBI methodologies in rating permanent impairment
of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.”15 (Emphasis in the original.)
The Bulletin further advises: “If the rating physician provided an assessment using the
ROM method and the [A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the
DMA should independently calculate impairment using both the ROM and DBI methods and
identify the higher rating for the CE.”16
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole. 17 However, a
schedule award is permissible where the employment-related spinal condition affects the upper
and/or lower extremities. 18 The sixth edition of the A.M.A., Guides (2009) provides a specific
methodology for rating spinal nerve extremity impairment. It was designed for situations where a
particular jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for
the spine. The FECA-approved methodology is premised on evidence of radiculopathy affecting
the upper and/or lower extremities. The appropriate tables for rating spinal nerve extremity
impairment are incorporated in the procedure manual. 19
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage
14

Id. at 474.

15

FECA Bulletin No. 17-06 (issued May 8, 2017); A.G., Docket No. 18-0329 (issued July 26, 2018).

16

Supra note 15; V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., id.

17

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b).

18

Federal (FECA) Procedure Manual, supra note 9 at Chapter 2.808.5(c)(3) (March 2017).

19

Id. at Part 3 -- Medical, Schedule Awards, Chapter 3.700.5, Exhibit 4 (January 2010).

6

of impairment in accordance with the A.M.A., Guides, with the medical adviser providing
rationale for the percentage of impairment specified. 20
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP accepted that appellant sustained a right shoulder sprain and cervical radiculopathy
due to a September 24, 1996 employment injury. On December 17, 2015 appellant filed a claim
for a schedule award.
Appellant submitted a June 8, 2016 report from Dr. Kaufman who diagnosed sprain of the
cervical spine and sprain of the right shoulder. Dr. Kaufman provided findings on examination,
including ROM measurements of the right shoulder. He determined that appellant had 17 percent
permanent impairment of the right upper extremity pursuant to Table 15-34 of the A.M.A.,
Guides,21 due to loss of ROM of the shoulder. However, the DMA opined that Dr. Kaufman’s
June 8, 2016 impairment rating of 17 percent permanent impairment of the right shoulder due to
loss of ROM was based on arthritis and could not be associated with the accepted right shoulder
sprain.
Similarly, OWCP referred appellant for a second opinion examination to Dr. Scott who in
reports dated April 12, July 21, and November 22, 2017 diagnosed mild-to-moderate osteoarthritis
of the acromioclavicular joint and glenohumeral joint and a partial tear of his infraspinatus, and
supraspinatus tear of the longhead of the biceps. Dr. Scott noted findings on examination. He
rated appellant utilizing the DBI methodology under the A.M.A., Guides for arthritis utilizing
Table 15-5 on page 405. Dr. Scott calculated that appellant had seven percent permanent
impairment of the right upper extremity. On February 17, 2018 the DMA evaluated the second
opinion reports from Dr. Scott dated April 12, July 21, and November 22, 2017, and discounted
Dr. Scott’s evaluation as it was related to arthritis and not related to the accepted right shoulder
sprain.
The Board finds that OWCP did not follow the procedures outlined in FECA Bulletin No.
17-06. As noted above, FECA Bulletin No. 17-06 provides detailed instructions for obtaining
sufficient evidence to conduct a complete impairment evaluation. 22 It indicates that, if the rating
physician provides an assessment using the ROM method, the DMA should independently
calculate impairment using both the ROM and DBI methods and identify the higher rating. FECA
Bulletin No. 17-06 further provides that the evaluator should obtain three independent
measurements for ROM and that the greatest measurement should be used to determine the extent
of impairment.23 FECA Bulletin No. 17-06 indicates that OWCP should instruct the physician to

20

See Federal (FECA) Procedure Manual, supra note 9 at Chapter 2.808.6(f) (February 2013).

21

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

22

FECA Bulletin No. 17-06 (May 8, 2017).

23

Id.

7

obtain three independent measurements. 24 As OWCP did not follow the procedure set forth in the
A.M.A., Guides and FECA Bulletin No. 17-06, the Board will remand the case for OWCP to
further develop the ROM measurements of the upper extremity in accordance with the A.M.A.,
Guides. After it obtains the evidence necessary to complete the rating as described above, the case
should be referred to the DMA to independently calculate using both ROM and DBI methods and
identify the higher rating.25 Following this and such further development as deemed necessary,
OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 26, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this decision of the Board.
Issued: October 10, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

24

Id.

25

See J.V., Docket No. 18-1052 (issued November 8, 2018); M.C., Docket No. 18-0526 (issued
September 11, 2018).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
U.S. POSTAL SERVICE, BURLINGTON POST
OFFICE, Burlington, NC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0944
Issued: March 23, 2022

Case Submitted on the Record

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

On June 1, 2021 appellant filed a timely appeal from a January 13, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as 21-0944.
On February 4, 2016 appellant, then a 54-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sustained injuries on January 20, 2016 when she fell down
steps while delivering mail. OWCP accepted the claim for contusion of right hip, contusion of left
hip, left side lumbago with sciatica, left hip trochanteric bursitis, and lumbar intervertebral disc
displacement. It authorized lumbar spinal decompression surgery, which occurred on
December 15, 2016. OWCP paid appellant wage-loss compensation intermittently on the
supplemental rolls and on the periodic rolls from May 28, 2016 until January 4, 2019.
In a report dated June 17, 2019, Dr. Mark Dumonski, a Board-certified orthopedic surgeon,
diagnosed left sacroiliac joint dysfunction and status post L3-4 decompression and fusion. He
opined that appellant had 30 percent permanent impairment of her back, which was based upon 25
percent permanent impairment for L3-4 fusion and 5 percent permanent impairment of the left
sacroiliac joint.
On September 3, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule
award.

On September 18, 2019 OWCP referred appellant to Dr. Chason S. Hayes, a Boardcertified orthopedic surgeon, for a permanent impairment rating. In a report dated October 11,
2019, Dr. Hayes diagnosed lumbar radiculopathy. He found appellant was at maximum medical
improvement (MMI). Using the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides), he found that appellant had an eight
percent permanent impairment of the lumbar spine. In an addendum dated November 5, 2019,
Dr. Hayes noted that he had been requested to recalculate appellant’s permanent impairment based
upon her peripheral nerve impairment. He concluded that under this method, as appellant had no
motor or sensory deficits she had zero percent permanent impairment.
In a report dated December 10, 2019, Dr. Arthur Harris, a Board-certified orthopedic
surgeon serving as the district medical adviser (DMA), noted his disagreement with Dr. Hayes’
October 11, 2019 impairment rating for lumbar spine impairment as this permanent impairment
rating was not based on The Guides Newsletter Rating Spinal Nerve Extremity Impairment Using
the Sixth Edition (July/August 2009) (The Guides Newsletter) for rating spinal nerve impairments.
He explained that appellant did not have any neurologic deficit causing sensory or motor loss,
therefore she had a Class 0 placement using Table 2 of The Guides Newsletter resulting in zero
percent lower extremity permanent impairment, due to her lumbar radiculopathy.
By decision dated December 30, 2019, OWCP denied appellant’s claim for a schedule
award as the medical evidence of record was insufficient to support an impairment to a member or
function of the body.
In a report dated November 20, 2020, Dr. Dumonski diagnosed left sacroiliac joint
dysfunction. He explained that appellant’s 30 percent permanent impairment rating was based
upon her sacroiliac joint dysfunction, which caused pain to extend into her left leg.
On January 5, 2021 OWCP received appellant’s request for reconsideration of the
December 30, 2019 decision.
By decision dated January 13, 2021, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
The Board, having duly considered the matter, finds that this case is not in posture for
decision.
The Board finds that OWCP did not make findings regarding the evidence appellant
submitted in support of the reconsideration request. 1 OWCP summarily denied appellant’s request
for reconsideration without complying with the review requirement of FECA a nd its implementing
regulations.2 As noted, section 8124(a) of FECA provides that OWCP shall determine and make
1
See R.C., Order Remanding Case, Docket No. 20-1671 (issued May 6, 2021); J.K., Order Remanding Case,
Docket No. 20-0556 (issued August 13, 2020); C.D., Order Remanding Case, Docket No. 20-0450 (issued August 13,
2020); T.B., Order Remanding Case, Docket No. 20-0426 (issued July 27, 2020).
2

See M.G., Docket No. 21-0893 (issued December 27, 2021); Order Remanding Case, W.D., Docket No. 20-0859
(issued November 20, 2020); Order Remanding Case, C.G., Docket No. 20-0051 (issued June 29, 2020); Order
Remanding Case, T.P., Docket No. 19-1533 (issued April 30, 2020); see also 20 C.F.R. § 10.607(b).

2

a finding of fact and make an award for or against payment of compensation. 3 Its regulations at
20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings and
facts and a statement of reasons. 4 As well, OWCP’s procedures provide that the reasoning behind
OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence which would overcome it.5
In the January 13, 2021decision, OWCP did not reference or consider the November 20,
2020 medical report of Dr. Dumonski that appellant submitted in support of her request for
reconsideration. It failed to analyze this evidence. OWCP summarily denied appellant’s request
for reconsideration without complying with the review requirements of FECA and its
implementing regulations. 6 Section 8124(a) of FECA provides that OWCP shall determine and
make a finding of fact and make an award for or against payment of compensation. 7 Its regulations
at 20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings of
fact and a statement of reasons. 8 As well, OWCP’s procedures provide that the reasoning behind
OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence which would overcome it. 9
The Board will therefore set aside OWCP’s January 13, 2021 decision and remand the case
for an appropriate decision on appellant’s reconsideration request, which considers the evidence
submitted. Accordingly,

3

5 U.S.C. § 8124(a).

4

20 C.F.R. § 10.126.

5

Federal (FECA) Procedure Manual Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013) (all
decisions should contain findings of fact sufficient to identify the benefit being denied and the reason for the
disallowance).
6

See C.G., supra note 2; T.P., supra note 2; see also 20 C.F.R. § 10.607(b).

7

5 U.S.C. § 8124(a).

8

20 C.F.R. § 10.126.

9

Supra note 5.

3

IT IS HEREBY ORDERED THAT the January 13, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 23, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birnamwood, WI, Employer
__________________________________________

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

Docket No. 08-1686
Issued: April 7, 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 May 28, 2008 appellant filed a timely appeal from a May 1, 2008 merit decision of
the Office of Workers’ Compensation Programs denying her claim for a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award
decision.
ISSUE
The issue is whether appellant has established that she sustained a permanent impairment
of the upper extremities.
FACTUAL HISTORY
This case is before the Board for the second time on this issue. By decision dated
February 8, 2008, the Board set aside a January 18, 2007 decision finding that appellant had no

impairment of the upper extremities entitling her to a schedule award.1 The Board found that the
Office medical adviser did not adequately consider the medical evidence or the provisions of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed.
2001) (A.M.A., Guides) in finding that she did not have an impairment due to carpal tunnel
syndrome. The Board noted that the record contained a January 13, 2006 electromyogram
(EMG) showing sensory and demyelinating minimal median neuropathies of the wrists.2 The
findings of fact and conclusions of law from the prior decision are hereby incorporated by
reference.
On March 3, 2008 an Office medical adviser asserted that he had considered the
January 2006 postoperative EMG study but maintained that “abnormal electrical studies
following release of the median nerve at the wrist are very common, and do not seem to correlate
with [appellant’s] symptoms.3 Thus, while this test was recognized, knowing that it does not
necessarily correlate with the clinical exam[ination], it was somewhat disregarded.” The Office
medical adviser asserted that there was no basis for an award for an upper extremity impairment.
He recommended an evaluation by a specialist.
On April 1, 2008 the Office referred appellant to Dr. Paul Cederberg, a Board-certified
orthopedic surgeon, for a second opinion examination to determine the extent of any upper
extremity impairment. In a report dated April 21, 2008, Dr. Cederberg reviewed the history of
injury and the medical evidence of record. He diagnosed chronic pain syndrome of uncertain
etiology. On examination, Dr. Cederberg found full range of shoulder, wrist, elbow, shoulders
and fingers bilaterally. He measured grip strength of 60 pounds on the right and 52 pounds on
the left. Dr. Cederberg noted that with “abduction of her arm and Valsalva maneuvers, she did
obliterate both of the radial pulses.” He found that she had no numbness “specific for the
dorsum or volar aspect of the fifth finger in either finger” but experienced mild tenderness over
the medial and lateral right epicondyle. Dr. Cederberg stated:
“With regard to bilateral carpal tunnel syndromes, [appellant] has no loss of
sensation, normal excursion of the digits, no physical findings and excellent grip
strength in both hands. In my opinion, she has [zero] percent permanency rating
to either wrist for the whole person due to her carpal tunnel syndrome. There are
no objective findings of permanency or impairment regarding [appellant’s] hands.

1

Docket No. 07-1462 (issued February 8, 2008). The Office accepted that appellant sustained right forearm
tendinitis, bilateral carpal tunnel syndrome, thoracic outlet syndrome, neck strain and bilateral elbow epicondylitis
due to factors of her federal employment. Appellant underwent a right carpal tunnel release on August 5, 2005, a
left carpal tunnel release on September 16, 2005 and a right rib resection on October 25, 2005.
2

In a decision dated April 9, 2008, the Board affirmed January 8 and July 18, 2007 decisions reducing appellant’s
compensation based on her actual earnings. Docket No. 07-2165 (issued April 9, 2008).
3

In a report dated February 20, 2007, Dr. Susan M. Schneider, a family practitioner, related that appellant
experienced a “significant amount of pain associated with the majority of her activities.” She opined that appellant
had reached maximum medical improvement. Dr. Schneider did not provide an opinion regarding the extent of any
permanent impairment.

2

“With regard to [appellant’s] forearm, she has full excursion of her elbows and
she has normal grip strength in her right and left hands. In my opinion, she has no
ratable permanency regarding her medial and lateral epicondylitis.
“With regard to [appellant’s] thoracic outlet syndrome, she has full excursion, and
her global symptoms are not in keeping with thoracic outlet syndrome. Using the
[A.M.A., Guides], there is no rating for thoracic outlet syndrome. Therefore, she
has no ratable permanency under those guidelines for her thoracic outlet
syndrome.”
By decision dated May 1, 2008, the Office denied appellant’s claim for a schedule
award.4
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,5 and its
implementing federal regulations,6 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 for all
claimants, the Office has adopted the A.M.A, Guides as the uniform standard applicable to all
claimants.7 Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in
2001, for all decisions made after February 1, 2001.8
ANALYSIS
The Office accepted appellant’s claim for right forearm tendinitis, bilateral carpal tunnel
syndrome, thoracic outlet syndrome and bilateral elbow epicondylitis. Appellant underwent
right and left carpal tunnel releases and a right rib resection in 2005. He filed a claim for a
schedule award for the upper extremities, which the Office denied by decision dated
January 18, 2007. On February 8, 2008 the Board remanded the case for further consideration of
the medical evidence. The Board noted that it was unclear whether the Office medical adviser
considered a January 13, 2006 EMG which showed evidence of median neuropathy prior to
finding that she had no permanent impairment of the upper extremities.
On remand the Office medical adviser explained that he had considered the January 13,
2006 EMG but noted that it did not correlate with the clinical findings. It referred appellant to
4

The Office cited legal precedent relevant to examinations by impartial medical examiners; however,
Dr. Cederberg performed a second opinion examination. Any error is harmless as it does not affect the disposition
of the case.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

3

Dr. Cederberg for a second opinion evaluation. In a report dated April 21, 2008, Dr. Cederberg
diagnosed chronic pain syndrome of unclear etiology. He found that appellant had no loss of
range of motion of the upper extremities or loss of strength. Dr. Cederberg noted that she had
mild tenderness over the right medial and lateral epicondyle but no numbness over the “dorsum
or volar aspect of the fifth finger” bilaterally. He concluded that appellant had no impairment
due to carpal tunnel syndrome as she had no loss of sensation, grip strength, loss of motion or
other physical findings. Dr. Cederberg additionally found no impairment of the forearm or due
to thoracic outlet syndrome. The Board finds that he conducted a thorough examination and that
his report represents the weight of the evidence. Appellant, consequently, has not met her
burden of proof to establish that she has a permanent impairment of either upper extremity.
CONCLUSION
The Board finds that appellant has not established that she sustained a permanent
impairment of the upper extremities.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 1, 2008 is affirmed.
Issued: April 7, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Palmdale, CA, Employer
__________________________________________

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

Docket No. 17-1005
Issued: October 19, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 7, 2017 appellant filed a timely appeal from a January 31, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 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.
ISSUE
The issue is whether appellant has met her burden of proof to establish disability for work
commencing February 24, 2016, causally related to accepted left upper extremity conditions.

1

Appellant did not appeal a February 2, 2017 decision denying, in part, a claim for wage-loss compensation from
August 22 to November 11, 2016.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on or before November 2, 2015 appellant, then a 54-year-old rural
carrier assigned to case and deliver her duty station’s rural route 6, sustained a left shoulder
strain and an unspecified tear or rupture of the left rotator cuff due to repetitive upper extremity
motion while casing and delivering mail. Appellant’s date-of-injury position required lifting up
to 70 pounds. She stopped work on November 2, 2015. Appellant filed claims for wage-loss
compensation (Form CA-7) and OWCP issued wage-loss compensation from November 5, 2015
to February 23, 2016.
On March 8, 2016 appellant filed a claim for compensation (Form CA-7) commencing
February 24, 2016. She remained off work.
Additional medical evidence had been received into the record. Dr. Katayoom Shahrokh,
an attending Board-certified physiatrist, provided periodic reports commencing November 2015
diagnosing left rotator cuff syndrome and left lateral epicondylitis.
In reports dated February 23, 24, and 26, 2016, Dr. Shahrokh diagnosed left rotator cuff
syndrome with pain and restricted motion. She released appellant to modified duty with no
lifting above shoulder level with the left arm; lifting, pushing, pulling, and carrying no more than
10 pounds; and repetitive left hand motions for no more than 15 minutes an hour.
On February 26, 2016 the employing establishment had offered appellant a modified
version of her date-of-injury job, casing and carrying rural route six for nine hours a day. The
position would not require her to reach above shoulder level with the left arm; lift, carry, or push
more than 10 pounds with either arm; or perform repetitive left hand motions more than 15
minutes each hour. Appellant declined the position on March 1, 2016, pending her physician’s
review.
In a March 8, 2016 report, Dr. Shahrokh diagnosed left rotator cuff syndrome and left
lateral epicondylitis. She restricted lifting, carrying and pushing with the left arm to five pounds,
and driving for no more than two hours a day. Dr. Shahrokh also directed that appellant be
allowed to rest her hands and arms for 15 minutes each hour.3
In a March 29, 2016 report, Dr. Shahrokh diagnosed left rotator cuff syndrome and left
lateral epicondylitis, with limited motion and pain on palpation. She reiterated the restrictions
given on February 23, 2016, with lifting limited to 10 pounds.
By April 13, 2016 letter, OWCP notified appellant of the additional evidence needed to
establish her claim for wage-loss compensation, including a report from her attending physician
explaining how the accepted left shoulder condition would disable her for work on and after
February 24, 2016. It afforded appellant 30 days to submit such evidence.
In response, appellant provided April 19 and May 10, 2016 reports from Dr. Shahrokh,
reiterating prior restrictions, but with lifting then limited to five pounds.
3

Appellant participated in physical therapy in February and March 2016.

2

On May 11, 2016 appellant accepted a new modified assignment to case and carry rural
route 6, with lifting, carrying, and pushing limited to 10 pounds, no reaching above shoulder
level with the left upper extremity, repetitive left hand motions restricted to 25 percent of the
work shift, and driving no more than two hours a day. She could rest her arms for 15 minutes
each hour. Appellant noted that the restrictions listed were not reflective of the latest limitations
given by her physician.
Appellant did not report for duty beginning May 12, 2016 and used accrued leave. In a
May 12, 2016 letter, she contended that the employing establishment pressured her into
accepting a modified assignment on May 11, 2016 even though it was not within her medical
restrictions.
By decision dated June 1, 2016, OWCP denied appellant’s claim for compensation for
the period commencing February 26, 2016, finding that light-duty work was available within her
restrictions and that the medical evidence of record was insufficient to establish that she was
unable to perform the offered position. It paid wage-loss compensation for two days,
February 24 and 25, 2016.
In June 1 and 15, 2016 reports, Dr. Shahrokh diagnosed left lateral epicondylitis and left
rotator cuff syndrome. She limited appellant to lifting, carrying, pulling, and pushing no more
than five pounds; no reaching above shoulder level with the left upper extremity; and driving for
more than two hours a day. From July 6 through August 17, 2016, Dr. Shahrokh increased
lifting, pulling, and pushing to 20 pounds.
On August 19, 2016 the employing establishment again offered appellant a position as a
modified rural carrier, with custodial duties up to 40 hours a week, and training up to 8 hours a
day. The job limited lifting, carrying, and pushing to 20 pounds intermittently and with driving
up to two hours a day. Appellant accepted the position on August 19, 2016. She worked part
time, intermittently commencing August 23, 2016. OWCP paid intermittent wage-loss
compensation.
On October 12, 2016 appellant requested reconsideration of the June 1, 2016 decision.
She contended that she should not have been compelled to accept a position that exceeded her
medical restrictions. Appellant alleged that supervisors advised her that she would not receive
accommodations or assistance in complying with her medical restrictions. She contended that
there was no medical report of record dated February 24, 2016, and that there were documents in
the case record that were not hers. Appellant submitted additional evidence.
Dr. Shahrokh provided September 8 and 28, and November 23, 2016 reports reiterating
prior diagnoses and restrictions, with a 20-pound lifting limitation. She noted renewing
modified-duty restrictions on May 10, 2016. Dr. Shahrokh indicated that the custodial duties
appellant performed beginning on August 23, 2016 aggravated her left arm.
The employing establishment responded by November 8, 2016 letter, contending that
they were unaware of any documents submitted incorrectly to the file. It asserted that the
February 26 and May 11, 2016 limited-duty job offers were both within appellant’s work
restrictions and that assistance or extra time would be provided as needed.

3

Appellant replied by November 30, 2016 letter, contending that the February 26 and
May 11, 2016 job offers were not within her medical limitations. She reiterated that rural route 6
required 9.2 hours to case and deliver and that the employing establishment had not explained
how it would assist her in completing the route in eight hours. Also, the October 11, 2016 duty
status report indicated that rural route 6 required six hours of driving to complete.
On December 19, 2016 OWCP obtained a second opinion from Dr. Kevin F. Hanley, a
Board-certified orthopedic surgeon, to determine appellant’s work capacity. He reviewed the
medical evidence of record and a statement of accepted facts. Dr. Hanley noted that appellant’s
date-of-injury position required lifting up to 70 pounds, sorting mail, loading her delivery
vehicle, and delivering mail and parcels. He commented that, although OWCP accepted an
unspecified tear or rupture of the left rotator cuff, there were no definitive imaging studies of
record. On examination, Dr. Hanley found abduction of the left shoulder limited to 120 degrees,
painful external rotation, and a positive impingement sign. He diagnosed left rotator cuff
tendinitis, rule out rotator cuff tear, and myofascial pain of the left forequarter. Dr. Hanley
explained that appellant continued to have objective findings of the accepted left shoulder
condition, including limited motion and objective tenderness to palpation. He opined that she
had not reached maximum medical improvement. Dr. Hanley restricted appellant to light
demand level work, with no reaching above the shoulder with the left arm; other reaching limited
to four hours a day; no climbing, pushing, pulling and lifting up to four hours a day; and lifting,
pulling, and pushing up to 25 pounds.
In a December 19, 2016 report, Dr. Shahrokh found that appellant had attained maximum
medical improvement. She restricted lifting to 20 pounds and driving and deliveries to two hours
a day as of October 19, 2016.
On December 30, 2016 the employing establishment offered appellant a modified
position as a rural carrier on route 6, for 9.2 hours a day, 46 hours a week. The job offer
complied with appellant’s restrictions against lifting, carrying, or pushing with the left arm more
than 20 pounds and for no more than three hours a shift. Appellant accepted the position on
December 30, 2016.
By decision dated January 31, 2017, OWCP denied modification, finding that the
additional evidence and argument submitted were insufficient to establish that the position
offered on February 23, 2016 was not within her restrictions. It found that appellant’s belief that
the position exceeded her medical limitations was tantamount to “self-certifying” her disability,
as she did not attempt to return to work.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.4 Under FECA, the term
“disability” is defined as an inability, due to an employment injury, to earn the wages the
employee was receiving at the time of the injury, i.e., an impairment resulting in loss of wage4

Joe D. Cameron, 41 ECAB 153 (1989).

4

earning capacity.5 For each period of disability claimed, the employee has the burden of
establishing that he or she was disabled for work as a result of the accepted employment injury. 6
Whether a particular injury causes an employee to become disabled for work and the duration of
that disability are medical issues that must be proved by a preponderance of probative and
reliable medical opinion evidence.7 The fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.8 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 her disability and entitlement to
compensation.9
ANALYSIS
OWCP accepted that on or before November 2, 2015 appellant sustained a left shoulder
strain and an unspecified tear or rupture of the left rotator cuff. It paid wage-loss compensation
from November 5, 2015 through February 25, 2016.
Appellant filed a claim for recurrence of disability beginning February 24, 2016. The
Board finds that she has failed to meet her burden of proof to establish disability due to the
accepted employment injury.
Dr. Shahrokh provided reports dated from February 23 to 26, 2016 restricting appellant
from pushing, pulling, carrying and lifting up to 10 pounds; no lifting above shoulder level with
the left arm; and repetitive left hand motions to no more than 15 minutes an hour. On
February 26, 2016 the employing establishment offered appellant a modified rural carrier
position, listing the restrictions given by Dr. Shahrokh.
Appellant declined the February 26, 2016 modified job offer contending that it exceeded
her medical restrictions. She has the burden of proof to establish by the weight of the
substantial, reliable, and probative evidence that she was totally disabled for work for the
claimed period due to the accepted left shoulder condition.10
The February 26, 2016 modified-duty job offer lists the same restrictions assigned by
Dr. Shahrokh from February 23 to 26, 2016. There is no indication that the position exceeded
appellant’s medical limitations as of the date of the offer. Dr. Shahrokh did not explain any
disagreement with the position as offered or opine that the accepted left shoulder conditions
disabled appellant from performing the job. While she noted a 5-pound lifting restriction in her
5

See Prince E. Wallace, 52 ECAB 357 (2001).

6

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

7

Gary J. Watling, 52 ECAB 278 (2001).

8

Manuel Garcia, 37 ECAB 767 (1986).

9

Fereidoon Kharabi, 52 ECAB 291 (2001).

10

Alfredo Rodriguez, 47 ECAB 437 (1996).

5

March 8, 2016 report, Dr. Shahrokh reiterated the 10-pound lifting restriction on and after
March 29, 2016, but did not provide any explanation for the temporary decrease. Her opinion is
therefore insufficient to meet appellant’s burden of proof to establish disability for the claimed
period.11
OWCP also obtained a second opinion on December 19, 2016 from Dr. Hanley, who
found appellant able to perform light-duty work with no reaching above the shoulder with the
left arm; reaching limited to four hours a day; and lifting, pulling, and pushing up to 25 pounds
for up to four hours a day. The Board finds that the February 26, 2016 job offer was within these
restrictions.
As appellant did not submit sufficient medical evidence demonstrating that the accepted
left upper extremity conditions disabled her for work beginning on February 24, 2016, OWCP’s
January 31, 2017 decision denying the claimed period of disability is proper under the
circumstances of this case.12
On appeal appellant asserts that when she reported for duty on May 12, 2016, a
supervisor informed her that the two hours of driving allowed would not include delivery time,
which necessitated an additional four hours of driving. The Board concludes that there is
insufficient evidence of record to establish this allegation as factual.
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 total disability
commencing February 24, 2016, causally related to her accepted left upper extremity conditions.

11

Supra note 6.

12

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 31, 2017 is affirmed.
Issued: October 19, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7