United States Department of Labor
Employees’ Compensation Appeals Board
____________________________________________
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and
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U.S. POSTAL SERVICE, SALT LAKE
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PERFORMANCE CLUSTER, Salt Lake City, UT, )
Employer
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____________________________________________ )
S.B., Appellant

Appearances:
David J. Holdsworth, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-507
Issued: June 19, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 2, 2013 appellant, through her attorney, filed a timely appeal of the
October 12, 2012 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her request for reconsideration as untimely filed and lacking clear evidence of error.
Because more than 180 days have elapsed from the most recent merit decision dated
September 27, 2011 and the filing of this appeal, the Board lacks jurisdiction to review the merits
of this case pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant objected to OWCP’s finding that her claim was not timely filed.
She argued that she was not informed of any change in the regulations with regard to how a
timely filing would be calculated. Appellant contended that her appeal letter was mailed on
September 24, 2012 and that she had no control over when that document was received. Finally,
she contends that she met the clear evidence of error standard.
FACTUAL HISTORY
Appellant, a former letter carrier, had three claims before OWCP. When she was 36
years old, she filed a claim alleging that strenuous continual manipulation of her thumbs and
fingers has created thumb basal joint ligament strain. OWCP accepted this claim, with a date of
injury of December 26, 1996, for left index finger contusion and left index finger infection and
later updated with bilateral thumb basal joint ligament strains and bilateral carpal tunnel
syndrome.2 It also accepted appellant’s claim for a left index finger blood clot, with a date of
injury of May 12, 1998.3 OWCP accepted a third claim, date of injury of July 1, 1998, for
Raynaud’s syndrome.4 All three claims were combined under the current OWCP File
No. xxxxxx526. OWCP paid appropriate compensation benefits.
The record reveals that appellant was offered a limited-duty position. The record further
reveals that the employing establishment withdrew her light-duty position under the National
Reassessment Process (NRP) effective August 26, 2010. Subsequently, appellant filed a claim
for compensation commencing August 26, 2010.
OWCP declared a conflict between appellant’s treating physician, Dr. David Shaskey, a
Board-certified internist with Board-certified subspecialties in rheumatology and sports
medicine, and the second opinion physician, Dr. Mark A. Jones, a Board-certified surgeon with a
subspecialty in vascular surgery, with regard to appellant’s work limitations. It referred
appellant to Dr. Robert Hansen, a Board-certified orthopedic surgeon, for an impartial medical
examination. Dr. Hansen was asked to list which diagnosed conditions were employment-related
conditions, list the limitations attributable to the employment-related conditions and determine
appellant’s ability to perform the duties of a letter carrier. In an October 7, 2010 report, he listed
his diagnoses as limited CREST autoimmune vasculitis with vasospasm secondary to cold
exposure and Raynaud’s syndrome with a history of intermittent finger ulceration. Dr. Hansen
noted that there were no disabling residuals from appellant’s accepted employment injuries, but
that, if appellant was required to be exposed to cold, she would be expected to suffer residuals of
Raynaud’s syndrome and possible finger ulceration due to vasospasm secondary to cold
exposure. He opined that her current symptoms of stiffness in her hands and tightness were
related to underlying autoimmune vasculitis and limited scleroderma.
After giving appropriate notice, by decision dated March 4, 2011, OWCP terminated
appellant’s medical and wage-loss compensation benefits effective that date as the medical
2

OWCP File No. xxxxxx403.

3

OWCP File No. xxxxxx978.

4

OWCP File No. xxxxxx526.

2

evidence established that the residuals or disability due to her accepted, employment-related
conditions had resolved. It stated that it denied her “claim for compensation benefits for
recurrence of disability and total wage loss” under NRP effective August 26, 2010 and
continuing.
In a December 14, 2010 report, Dr. Shaskey noted that appellant had a 13-year history of
limited scleroderma/CREST syndrome. He noted that this resulted in severe Raynaud’s
phenomena and that she has had numerous digital ulcers and near gangrene of her fingers.
Dr. Shaskey opined that the condition was exacerbated by cold exposure as well as repetitive
hand activities and this aggravated her Raynaud’s phenomena, which led to numerous digital
ulcers and loss of tissue/gangrene of numerous fingers. He indicated that it was his strong
opinion that appellant’s CREST syndrome was not caused by her work, but it has been
permanently aggravated by her work.
In a report dated December 14, 2010, Dr. Tracy Frech, a rheumatologist,5 noted that she
took care of appellant for systemic sclerosis and that she believed that the cold weather
exacerbated appellant’s Raynaud’s and that subsequent vasculopathy was hastened by this
exposure. She indicated that environmental trigger to Raynaud’s is well described and was made
worse by her employment. As such, Dr. Frech concluded that appellant continued to suffer from
an employment-related injury, and would support her claims that her job exposure caused both
an aggravation and acceleration of her course.
Appellant requested an oral hearing before an OWCP hearing representative, which was
held on July 11, 2011.
In an August 2, 2011 report, Dr. Shaskey noted that, when appellant returned to limitedduty work with limited exposure to cold weather, she was able to stop the progression of the
gangrene, digital ulcerations as well as the loss and damage of the tissue on her fingers. He
opined that this was the most effective treatment, and noted that the tissue loss due to the
gangrene is what changed the issue to a permanent aggravation.
By decision dated September 27, 2011, the hearing representative affirmed the
termination of compensation and medical benefits, as the weight of the medical evidence
established that appellant’s employment-related residuals had resolved.
In an undated report received by OWCP on October 11, 2011, Dr. Shaskey noted that it
was well established that not only cold exposure but repetitive activities and especially vibratory
insults can lead to Raynaud’s, and that this was clearly the case for appellant, as she had
numerous large digital ulcers precipitated by repetitive activities at work, cold exposure and
vibratory insults. He noted that the marked scarring and chronic pain in nearly all her digits was
due to these recurrent digital ulcers that were clearly exacerbated by her work exposure.
Dr. Shaskey opined that this has resulted in permanent aggravation of her underlying
scleroderma manifested by multiple digital ulcers, scarring and chronic pain. He opined that it
was absolutely necessary that she change her job to prevent future digital ulcers and potential
further loss of her digits.
5

The Board was unable to confirm whether Dr. Frech is Board-certified.

3

In an August 23, 2012 update, Dr. Frech stated that it was her professional opinion that
the repetitive use of appellant’s hands and the temperature in which she worked and
employment-related stress both caused and exacerbated appellant’s digital ulcers. She opined
that appellant now has a permanent condition.
By letter dated September 19, 2012, appellant, through her attorney, requested
reconsideration. This letter was received by OWCP on October 3, 2012. Appellant’s attorney
contended that new evidence showed that Dr. Hansen’s conclusion that the injury-related
residuals have resolved was flawed based on new medical evidence in the report of Dr. Frech.
He contended, inter alia, that appellant’s work for the employing establishment involved being
exposed to cold weather conditions which caused appellant to develop cold-induced vasospasm
of the fingers and nonhealing digital ulcerations eventually causing auto amputation of the tips of
the index and middle fingers. Dr. Hansen also argued that her work involved fine manipulation
on a repetitive basis, which also contributed to nonhealing digital ulcerations. He noted that
OWCP accommodated appellant’s restrictions from 1999 until August 26, 2010, but since that
time appellant has not been accommodated and missed many days and weeks due to her
condition. Dr. Hansen contended that, due to the unpaid leave for an indefinite period of time,
appellant accepted a job with the Department of Veterans Affairs, and appellant separated from
the employing establishment on December 31, 2011. He contended that appellant should be
entitled to compensation for wage loss for the difference between what she had been earning
with the employing establishment and what she is earning at the Department of Veterans Affairs.
By decision dated October 12, 2012, OWCP denied appellant’s request for
reconsideration as it was not timely filed and failed to establish clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file his application for review within one year of the date of that decision.6 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.7
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, OWCP must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.8 OWCP regulations and procedures provide that OWCP will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20

6

20 C.F.R. § 10.607(a).

7

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

8

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

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C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of error on the
part of OWCP.9
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.10 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.11 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.12 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.13 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.14 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.15
Section 8123(a) of FECA provides that, if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary
shall appoint a third physician (known as a referee physician or impartial medical specialist) who
shall make an examination.16 When there exist opposing medical reports of virtually equal
weight and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.17

9

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004). OWCP procedures further provide that the term clear evidence of error is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that OWCP made an
error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized
medical report which, if submitted before the denial was issued, would have created a conflict in medical opinion
requiring further development, is not clear evidence of error. Id. at Chapter 2.1602.3c.
10

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

11

See Leona N. Travis, 43 ECAB 227, 240 (1991).

12

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

13

See Leona D. Travis, supra note 11.

14

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

15

Leon D. Faidley, Jr., supra note 7.

16

5 U.S.C. § 8123(a).

17

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

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ANALYSIS
The Board finds that appellant did not file a timely request for reconsideration. OWCP
regulations were changed effective August 29, 2011. Section 10.607 of the new regulations
provide that the date of the reconsideration request for timeliness purposes was changed from the
date the request was mailed to the date the request was received by OWCP.18 In the instant case,
the last merit decision was the hearing representative’s decision dated September 27, 2011.
OWCP did not receive appellant’s request for reconsideration until October 3, 2012, over one
year after the September 27, 2011 decision. Accordingly, the request for reconsideration was not
timely filed.19
The Board finds that, as the hearing representative’s decision was issued on
September 27, 2011, after the change in the regulations, appellant’s request for reconsideration
must have been received by September 27, 2012. As it was received on October 3, 2012,
appellant’s request was not timely, and appellant must demonstrate clear evidence of error by
OWCP in denying her request for reconsideration.
Appellant has not shown clear evidence of error. The new reports submitted by
Dr. Hansen and Dr. Frech are basically repetitive of their earlier reports. Dr. Frech’s August 23,
2012 report wherein she indicated that the repetitive use of appellant’s hand and the temperature
at which she worked caused and exacerbated appellant’s digital ulcers is basically repetitive of
her earlier report of December 14, 2010 wherein she noted that the cold weather exacerbated
appellant’s Raynaud’s syndrome and that the subsequent vasculopathy was hastened by her
employment. Dr. Shaskey’s new but undated report also was repetitive of his earlier conclusions
that cold exposure and repetitive activities led to Raynaud’s and that this resulted in permanent
aggravation of appellant’s underlying scleroderma.
To establish clear evidence of error, it is not enough merely to show that the evidence
could be construed so as to produce a contrary conclusion. The new opinions of Drs. Frech and
Hansen are insufficient to overcome the special weight given the opinion of Dr. Hansen as the
impartial medical specialist who concluded that there were no employment-related residuals.
The Board finds that the evidence and argument submitted on reconsideration is insufficient to
prima facie shift the weight of the evidence and raise a substantial question that OWCP erred in
its September 27, 2011 decision. Therefore, the Board finds that appellant has not presented
clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to establish clear evidence of error.
18

20 C.F.R. § 10.607.

19

But cf. J.P., Docket No. 12-1596 (issued March 27, 2013) (where the Board found appellant’s reconsideration
request of a pre-August 29, 2011 merit decision, to be timely filed. The case was remanded to enable OWCP to
review the evidence under the proper standard for timely reconsideration requests). See also 20 C.F.R. § 10.606(b).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 12, 2012 is affirmed.
Issued: June 19, 2013
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, INDIAN HEALTH SERVICE,
Aberdeen, SD, Employer
__________________________________________

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

Docket No. 13-1736
Issued: January 16, 2014

Case Submitted on the Record

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

JURISDICTION
On July 15, 2013 appellant filed an appeal from an April 2, 2013 merit decision of the
Office of Workers’ Compensation Programs (OWCP) that suspended his wage-loss
compensation and a June 3, 2013 merit decision that denied his claim for wage-loss
compensation. 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 suspended appellant’s compensation on
November 14, 2012 due to his imprisonment based on a felony conviction; and (2) whether
appellant met his burden of proof to establish that he is entitled to wage-loss compensation for
February 9 and 10, 2012.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On December 20, 2011 appellant, then a 51-year-old housekeeper, filed a traumatic
injury claim alleging that on December 15, 2011 he injured his low back and left leg while
moving a washing machine at work. In a January 13, 2012 report, Dr. Shanelle Rice indicated
that he was seen that day. Appellant had an abnormal magnetic resonance imaging (MRI) scan.
Dr. Rice advised that he should be off work until February 13, 2012 and was being referred to a
neurosurgeon.2 On February 9, 2012 appellant filed a Form CA-7 claim for wage-loss from
January 31 to February 11, 2012. He noted that he was married on the claim form. The
employing establishment indicated that appellant received continuation of pay from
December 15, 2011 through January 30, 2012.
By decision dated March 1, 2012, OWCP denied appellant’s claim on the grounds that he
did not submit any medical evidence to establish the claimed injury.
Appellant timely requested a review of the written record, and in an August 1, 2012
decision, an OWCP hearing representative remanded the case. The hearing representative noted
that appellant had submitted medical evidence subsequent to the March 1, 2012 decision that was
sufficient to further develop the claim.
Appellant submitted a December 21, 2011 MRI scan study of the lumbar spine that
demonstrated multilevel degenerative changes, spinal stenosis at L2-3 and L3-4, grade 1
spondylolisthesis with bilateral spondylosis at L5-S1 and a disc extrusion at L5-S1. An
attending physician’s report dated January 13, 2012, that was not signed by a physician,
diagnosed spinal stenosis of the lumbar spine and a disc extrusion.3
In August 2012 OWCP referred appellant to Dr. Christopher T. Dietrich, a Boardcertified physiatrist, for a second-opinion evaluation. In a September 25, 2012 report,
Dr. Dietrich noted appellant’s complaint of radiating back pain. He provided physical
examination findings and diagnosed lumbar degenerative disc disease, lumbar spondylolysis,
acute disc herniation at L5-S1 caused by the December 15, 2011 employment injury and lumbar
radiculitis caused by the disc herniation. Dr. Dietrich advised that appellant could not return to
his usual job until after surgery but could work eight hours a day with restrictions.
On October 17, 2012 OWCP accepted that on December 15, 2011 appellant sustained an
employment-related herniated disc at L5-S1. Appellant was advised to submit claims for
compensation if wage-loss continued.
On December 12, 2012 appellant filed a Form CA-7 claim for compensation for periods
between December 15, 2011 and December 12, 2012. He listed that he was married on the claim
form. A Form CA-7a indicated that he was in leave-without-pay status on February 9
and 10, 2012.

2

Dr. Rice’s credentials could not be ascertained.

3

The record also includes medical evidence not relevant to the period of claimed wage-loss compensation.

2

In a February 8, 2012 treatment note, Dr. Daniel G. Tynan, an attending Board-certified
neurosurgeon, noted the history of injury and appellant’s chief complaint of low back and left leg
pain. He reviewed the December 21, 2011 MRI scan study and provided physical examination
findings. Dr. Tynan diagnosed low back and left leg pain, left L5 radiculopathy, L5 disc
herniation, multilevel degenerative disc disease, multilevel lumbar stenosis, L4-5 and L5-S1
spondylolisthesis and probable bilateral L5 spondylolysis. He recommended lumbar epidural
steroid injections and noted that appellant would probably need surgery in the future.
On October 29, 2012 Andrea Fields, human resources assistant at the employing
establishment, informed OWCP that appellant had been indicted by a federal grand jury and was
placed on indefinite suspension effective April 11, 2012. She attached copies of a March 29,
2012 proposed notice to suspend and a suspension letter dated April 10, 2012. The suspension
would continue pending criminal charges. On November 29, 2012 Ms. Fields informed OWCP
that appellant had been convicted and attached a November 14, 2012 press release. In a letter
dated March 19, 2013, she notified it that appellant had only two dates of claimed leave without
pay, February 9 and 10, 2012. Appellant was remanded to custody pending criminal charges on
March 26, 2012, was convicted on November 14, 2012 and sentenced on February 7, 2013. A
Notification of Personnel Action suspended appellant indefinitely effective April 11, 2012.
Ms. Fields also forwarded a copy of an indictment filed in U.S. District Court on
March 13, 2012. A U.S. District Court amended judgment filed on February 14, 2013 found
appellant guilty on one count and sentenced him to 192 months in federal prison. He was
remanded into custody on February 4, 2013.
In an April 2, 2013 decision, OWCP found that, in accordance with section 8148(b) of
FECA, appellant’s compensation benefits were suspended commencing November 14, 2012
through the date of his release from prison. In a June 3, 2013 decision, it denied wage-loss
compensation for February 9 and 10, 2012 finding that the medical evidence of record did not
support that he was totally disabled on those days.
LEGAL PRECEDENT -- ISSUE 1
Section 8148 of FECA, entitled forfeiture of benefits by convicted felons, states in part
that no benefits shall be paid or provided to any individual during any period during which such
individual is confined in a jail, prison or other penal institution or correctional facility, pursuant
to that individual’s felony under applicable law and that such individual shall not be entitled to
receive the benefits forfeited during the period of incarceration after such period of incarceration
ends.4 Section 8148 further indicates that if an individual has one or more dependents as defined
under section 8110(a), the Secretary of Labor may, during the period of incarceration, pay to
such dependents a percentage of the benefits that would have been payable to such individual
computed according to the percentages set forth in section 8133(a)(1) through (5) of FECA.5

4

5 U.S.C. § 8148(b)(1).

5

Id. at § 8148(b)(3).

3

The implementing regulations of OWCP clarify that the convicted individual forfeits all
rights to compensation during the period of incarceration:
“Whenever a beneficiary is incarcerated in a State or federal jail, prison, penal
institution or other correctional facility due to a State or federal felony conviction,
he or she forfeits all rights to compensation benefits during the period of
incarceration. A beneficiary’s right to compensation benefits for the period of his
or her incarceration is not restored after such incarceration ends, even though
payment of compensation benefits may resume.”6
OWCP procedures provide that when a claimant in receipt of benefits under FECA is
convicted and imprisoned due to a felony (for any offense other than FECA fraud), entitlement to
all medical and compensation benefits (including schedule award compensation) is suspended
during the period of imprisonment. The claimant’s dependents, however, remain entitled to
reduced benefits during the period of imprisonment. No action can be taken for any time spent
incarcerated due to a nonfelony or misdemeanor conviction or for time imprisoned while
awaiting trial. Similarly, if bail is continued following a felony conviction while the claimant
awaits sentencing, no action should be taken to suspend compensation until the date of
incarceration.7
ANALYSIS -- ISSUE 1
Appellant was found guilty of one count of sexual abuse, a felony and sentenced to 192
months imprisonment on February 14, 2013. As a convicted felon, he thereby forfeited his right
to compensation under FECA until his incarceration ends. The Board, however, finds that the
decision must be modified regarding the effective date of forfeiture. In the April 2, 2013
decision, OWCP found that appellant’s compensation benefits were suspended effective
November 14, 2012. As noted, FECA and OWCP regulations provide that the forfeiture period
is during the period of incarceration.8 Moreover, OWCP procedures clearly state that no action
should be taken to suspend compensation until the date of incarceration.9 The amended
judgment sentencing appellant to 192 months imprisonment was signed on February 14, 2013
and indicated that he was remanded into custody on February 4, 2013. The Board finds that the
effective date of forfeiture in this case is February 4, 2013.10
The Board notes that FECA provides that the Secretary of Labor may, during the period
of incarceration, pay a percentage of the benefits to qualifying dependents.11 On claim forms
filed by appellant in this case, he listed that he was married. Upon return of the case record,
6

20 C.F.R. § 10.18(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.18 (February 2013).

8

5 U.S.C. § 8148(b)(3); supra note 6.

9

Federal (FECA) Procedure Manual, supra note 7.

10

See D.D., 58 ECAB 532 (2007).

11

Supra note 8.

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OWCP should undertake development of the record to determine whether appellant has any
qualifying dependents entitled to a percentage of his compensation under FECA.
LEGAL PRECEDENT -- ISSUE 2
Under FECA, the term “disability” is defined as incapacity, because of employment
injury, to earn the wages that the employee was receiving at the time of injury.12 Disability is
thus not synonymous with physical impairment which may or may not result in incapacity to
earn the wages. An employee who has a physical impairment causally related to a federal
employment injury but who nonetheless has the capacity to earn wages he or she was receiving
at the time of injury has no disability as that term is used in FECA.13 The test of “disability”
under FECA is whether an employment-related impairment prevents the employee from engaging
in the kind of work he or she was doing when injured.14 Whether a particular injury causes an
employee to be disabled for work and the duration of that disability, are medical issues that must
be proved by a preponderance of the reliable, probative and substantial medical evidence.15
The Board will not require OWCP to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.16 Causal relationship is a medical issue. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.17
ANALYSIS -- ISSUE 2
The Board finds that appellant did not establish that he was disabled on February 9
and 10, 2012. There is no medical evidence of record that specifically addresses these dates
and/or explains the relationship between any diagnosed condition and the employment injury.
Dr. Rice indicated generally on January 13, 2012 that appellant could not work. She did not
address whether this was due to the December 15, 2011 employment injury. In a February 8,
2012 report, Dr. Tynan did not discuss whether appellant could perform his job duties.
Dr. Dietrich performed a second-opinion evaluation for OWCP in September 2012. He advised
that appellant could not perform his regular job duties at that time, but did not discuss the two

12

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

13

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

14

Corlisia Sims, 46 ECAB 963 (1995).

15

Tammy L. Medley, 55 ECAB 182 (2003).

16

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

17

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

5

days of claimed disability. The medical evidence is insufficient to establish that appellant was
totally disabled on the dates claimed.18
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 forfeited compensation beginning February 4, 2013 due to
his imprisonment based on a felony conviction and that he did not meet his burden of proof to
establish entitlement to wage-loss compensation for February 9 and 10, 2012. Upon return of the
case record, OWCP should further develop whether he has qualifying dependents and, if so, if
they are entitled to a percentage of his compensation under FECA
ORDER
IT IS HEREBY ORDERED THAT the June 3, 2013 decision of the Office of Workers’
Compensation is affirmed. The April 2, 2013 decision is affirmed as modified.
Issued: January 16, 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
Employees' Compensation Appeals Board

18

Id.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
U.S. POSTAL SERVICE, ELKINS POST
OFFICE, Elkins Park, PA, Employer
__________________________________________

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Appearances:
Paul J. Bartolomeo, Jr., Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0836
Issued: February 1, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 13, 2018 appellant, through counsel, filed a timely appeal from a September 14,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury causally
related to the accepted February 21, 2012 employment incident.

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
This case has previously been before the Board.3 The facts and circumstances as set forth
in the prior decisions of the Board are incorporated herein by reference. The relevant facts are as
follows.
On February 25, 2012 appellant, then a 52-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that, on February 21, 2012, she sustained a severe pinched nerve which
affected her neck, right shoulder, and arm when she worked with a skid of circulars/advertisements
while in the performance of duty.
By decision dated April 13, 2012, OWCP denied appellant’s claim, finding that the medical
evidence submitted was insufficient to establish that the diagnosed conditions were causally
related to the accepted February 21, 2012 employment incident.
By letter dated April 18, 2012, appellant requested a telephonic hearing before an OWCP
hearing representative. By decision dated September 26, 2012, OWCP’s hearing representative
affirmed the April 13, 2012 decision denying her claim.
On March 11, 2013 appellant, through counsel, appealed to the Board. By decision dated
September 20, 2013, the Board affirmed OWCP’s hearing representative’s September 26, 2012
decision, finding that the medical evidence of record was insufficient to establish that she sustained
neck, right shoulder, and arm conditions causally related to the accepted February 21, 2012
employment incident.4
Appellant, through counsel, subsequently requested reconsideration and submitted
additional medical evidence. By decision dated June 13, 2014, OWCP denied modification,
finding that the medical evidence of record was insufficient to establish causal relationship
between the diagnosed conditions and the accepted February 21, 2012 employment incident.
On December 9, 2014 appellant, through counsel, appealed to the Board. By decision
dated May 7, 2015, the Board affirmed OWCP’s June 13, 2014 decision, finding that the evidence
submitted was insufficient to establish causal relationship between the diagnosed conditions and
the accepted February 21, 2012 employment incident.5
On May 6, 2016 appellant, through counsel, requested reconsideration and submitted
additional evidence.
In a May 4, 2016 report, Dr. Norman B. Stempler, an osteopath specializing in orthopedic
surgery, noted that appellant was first seen on January 30, 2013 for an employment injury. He
reported that, on February 21, 2012, she sustained an injury while pulling multiple skids that were
estimated to weigh over 200 pounds per skid. Physical examination findings included right upper
extremity numbness and weakness, evidence of right grip weakness, and Spurling’s maneuver.
3

Docket No. 13-0930 (issued September 13, 2013). Docket No. 15-0384 (issued May 7, 2015).

4

Id.

5

Supra note 3.

2

Dr. Stempler opined there was a direct relationship between appellant’s current condition and
symptoms and the accepted February 21, 2012 incident. He reported that appellant had no history
of cervical or right upper extremity conditions prior to the accepted February 21, 2012 incident.
By decision dated August 4, 2016, OWCP denied modification. It found Dr. Stempler’s
report insufficient to establish appellant’s claim as he failed to explain the mechanism whereby
the accepted February 21, 2012 incident caused or aggravated the diagnosed conditions.
On January 23, 2017 appellant requested reconsideration and submitted a December 2,
2016 report from Dr. Randall Smith, a Board-certified orthopedic surgeon, and a January 17, 2017
report from Dr. Stempler.
In a December 2, 2016 report, Dr. Smith diagnosed C5-6 herniated disc, chronic pain, and
adhesive capsulitis. He reviewed medical records and diagnostic studies, and provided a
description of the accepted February 21, 2012 incident. Prior to the accepted February 21, 2012
incident, Dr. Smith reported that appellant had no musculoskeletal problems. However, following
the incident, appellant developed neck, shoulder, right arm, lower back, and leg problems.
Dr. Smith reported that appellant underwent surgery, but unfortunately she developed significant
postoperative complications from her anterior cervical discectomy and had been totally disabled
since the surgery. He concurred with Dr. Stempler in attributing appellant’s cervical condition to
the accepted February 21, 2012 employment incident. Dr. Smith explained that as a result of
pulling the skid appellant had herniated her cervical disc as result of the increased pressure placed
on her neck and shoulder. He noted that appellant appeared to have asympomatic preexisting
cervical degenerative changes. According to Dr. Smith the herniated disc aggravated her
preexisting cervical degenerative condition resulting in radiculopathy, right shoulder pain, and
myelopathy. In addition, he opined that appellant’s right shoulder adhesive condition had also
been caused by the employment incident. Dr. Smith explained that appellant was protective of her
right shoulder, due to a prior injury, and neck strain from the injury led to shoulder pain. He related
that adhesive capsulitis developed when the shoulder was held still as a method of protection.
Dr. Smith further opined that the strain from the accepted February 21, 2012 work incident was
the cause of the cervical disc herniation, shoulder pain, and resulting surgery.
Dr. Stempler, in the January 17, 2017 report, described how the February 21, 2012
accepted employment incident had occurred. He noted that in attempting to pull the heavy skid,
her cervical spine and upper body strength and musculature were involved. Dr. Stempler opined
that the accepted February 21, 2012 work incident caused appellant’s C5-6 disc herniation and
aggravated her preexisting degenerative disc disease.
On April 20, 2017 OWCP requested that Dr. Todd Fellars, an orthopedic surgeon serving
as an OWCP district medical adviser (DMA), review the medical record and a statement of
accepted facts and thereafter address whether there was causal relationship between the accepted
February 21, 2012 employment incident and the diagnosed conditions.
In a May 5, 2017 report, Dr. Fellars reviewed the medical evidence and the SOAF and
wrote “no” in response to the question of “[d]oes the medical evidence establish a cause and effect
relationship between accepted work activities and the diagnoses offered.” In narratively
addressing the issue of causation, he concluded that the accepted February 21, 2012 employment
incident was of sufficient force that her underlying degenerative condition had been aggravated
3

and caused the onset of her cervical radicular symptoms. Dr. Fellars attributed the diagnosed
dysphagia and dysphonia, which appeared to have resolved.
By decision dated September 14, 2017, OWCP denied modification, finding that the weight
of the evidence rested with the May 5, 2017 report of Dr. Fellars, the DMA.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific conditions for which compensation is claimed is causally related to the
employment injury.7 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.9 First,
the employee must submit sufficient evidence to establish that he actually experienced the
employment incident at the time, place, and in the manner alleged.10 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.11
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.12 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is causal relationship between the employee’s diagnosed condition and the
compensable employment factors.13 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty, and

6

5 U.S.C. § 8101 et seq.

7

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

8

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

9

B.F., Docket No. 09-0060 (issued March 17, 2009); Bonnie A. Contreras, supra note 7.

10

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

11

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 7.
12

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
13

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

4

must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.14
ANALYSIS
The Board finds that this case is not in posture for decision.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s June 13, 2014 decision because the Board
has already considered this evidence in its prior decisions. Findings made in prior Board decisions
are res judicata absent further review by OWCP under section 8128 of FECA.15
Following the Board’s May 7, 2015 decision OWCP reviewed additional medical
evidence. Dr. Stempler in a May 4, 2016 supplemental report related that, on February 21, 2012,
appellant sustained an injury due to pulling multiple skids that were estimated to weight over 200
pounds per skid. In a January 17, 2017 report, he indicated that appellant’s cervical spine and
upper body musculature were involved in attempting to pull the heavy skid on February 21, 2012.
Dr. Stempler concluded that this incident caused her C5-6 disc herniation and aggravated her
preexisting degenerative disc disease.
Dr. Smith, in a December 2, 2016 report, reviewed medical evidence, the injury history,
and provided examination findings. He noted that, prior to the accepted 21, 2012 incident,
appellant had a preexisting cervical degenerative condition and had a prior right shoulder injury.
Dr. Smith diagnosed C5-6 herniated disc, chronic pain, and adhesive capsulitis, which he attributed
to the accepted February 21, 2012 incident. He opined that appellant’s herniated disc was caused
by the increased pressure placed on appellant’s neck and shoulder from pulling the skid. Dr. Smith
further concluded that her preexisting cervical degenerative condition had been aggravated by the
increased pressure on her neck which caused the cervical disc herniation and subsequent
radiculopathy, right shoulder pain and myelopathy. With respect to her shoulder condition, he
opined that appellant’s protectiveness of her shoulder from a prior injury and the joint pain caused
by the neck injury caused her right shoulder adhesive capsulitis.
Based upon receipt of these new reports from Drs. Stempler and Smith, on April 20, 2017,
OWCP requested that its DMA, Dr. Fellars, review the record and the SOAF and thereafter address
causal relationship between appellant’s accepted February 21, 2012 employment incident and the
diagnosed conditions.
In the September 14, 2017 decision, OWCP found that Dr. Fellars’ May 5, 2016 report
constituted the weight of the medical evidence. The Board finds, however, that Dr. Fellars’ report
is internally inconsistent and, therefore, further development of the medical evidence is necessary
to determine whether appellant’s diagnosed conditions were caused or aggravated by the
February 21, 2012 accepted employment incident.

14

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

15

See C.C., Docket No. 18-0719 (issued November 9, 2018).

5

In his May 5, 2017 report, Dr. Fellars noted appellant’s history of injury and treatment
along with the SOAF. He wrote “no” in response to the question as “[d]oes the medical evidence
establish a cause and effect relationship between accepted work activity and the diagnoses
offered.” However, while addressing the issue of causation, Dr. Fellars concluded that the force
from the accepted February 21, 2012 incident was sufficient to have aggravated her underlying
degenerative condition and was the cause her cervical radicular symptoms. Dr. Fellars did not
offer rationale or an explanation for his conflicting opinions on the issue of causal relationship.
Further, OWCP did not seek clarification of Dr. Fellars’ opinion.
Once OWCP undertakes development of the record, it has the responsibility to obtain an
evaluation which will resolve the issue involved in the case.16 Therefore, the Board finds that the
case must be remanded for further development of the medical evidence and receipt of a reasoned
opinion regarding whether appellant’s diagnosed medical conditions are causally related to the
accepted employment incident.
The case is remanded to OWCP to refer appellant to Dr. Fellers or an alternate district
medical adviser for a rationalized medical opinion on whether the accepted February 21, 2012
employment incident caused or aggravated appellant’s diagnosed conditions. Following such
further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision

16
See C.N., Docket No. 17-1751 (issued May 3, 2018); R.A., Docket No. 14-1918 (issued March 3, 2015); Phillip L.
Barnes, 55 ECAB 426 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the September 14, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: February 1, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
OFC-Los Angeles, CA, Employer
__________________________________________

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

Docket No. 15-1434
Issued: December 3, 2015

Case Submitted on the Record

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

JURISDICTION
On June 19, 2015 appellant filed a timely appeal from a June 3, 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.
ISSUE
The issue is whether appellant has established that his accepted condition has reached
maximum medical improvement thereby entitling him to payment of a schedule award.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated February 3, 2015, the
Board affirmed OWCP’s April 29, 2014 decision finding that OWCP had not abused its
1

5 U.S.C. § 8101 et seq.

discretion in denying appellant’s request for reimbursement of travel expenses.2 On August 14,
2015 the Board issued an order dismissing appeal as there was no final adverse decision of
OWCP over which it had jurisdiction.3 The facts as presented in the previous Board decisions
are incorporated herein by reference.
On March 27, 2000 appellant, then a 50-year-old senior customs inspector, filed a (Form
CA-2) occupational disease claim for exposure to different irritants during his assignments in
Ismail, Ukraine; Los Angeles International Airport; and Ontario International Airport. He first
became aware of his condition in October 1992 and realized that it was caused or aggravated by
his employment on August 21, 1999. OWCP accepted appellant’s claim for precipitation of
extrinsic asthma and restrictive airways disease, aggravation of diabetes mellitus without
complication, Type 2, aggravation of hypertension, obstructive sleep apnea, bilateral carpal
tunnel syndrome, bilateral polyneuropathy secondary to diabetes, and left ulnar mononeuritis.4
On October 22, 2014 appellant filed claim for an increased schedule award (Form
CA-7).5 He advised, in an October 22, 2014 letter, that the schedule award claim was for his
erectile dysfunction, a natural consequence of his accepted claim for bilateral polyneuropathy
secondary to diabetes.
Regarding this condition, OWCP received a July 30, 2013 report from Dr. Edmund Ko,
an urologist, who noted that appellant was seen for a history of erectile difficulty. Dr. Ko noted
that appellant was not interested in treatment of erectile dysfunction, but was looking for
diagnostic proof of the condition. He concluded that the type of diagnostic testing appellant was
seeking was not offered by his office.
OWCP also received a September 6, 2013 report from Dr. Gautam Ganguly, a Board
certified neurologist, who related that appellant sought advice as to where he could undergo
electromyography and nerve conduction testing for erectile dysfunction. Dr. Ganguly noted a
number of diagnoses, including erectile dysfunction.
In a January 14, 2014 report, Dr. Irwin Goldstein, a Board-certified urologist, noted
appellant’s multiple medical conditions and noted that he was seen that day to establish a
diagnosis for the nature of his erectile dysfunction. He noted various options available for
appellant to use to achieve an erection and addressed several medical concerns. Dr. Goldstein
related various treatment strategies, but noted that appellant was not interested in treatment for
his suspected medical conditions of hypogonadism or hypothyroidism or in seeking treatment of
his erectile dysfunction. He reported that appellant’s sexual function was zero percent of
previous capabilities. Dr. Goldstein opined that appellant’s erectile dysfunction was causally
related to his federal employment as diabetic complications of neuropathy and microvascular
2

Docket No. 14-1662 (issued February 3, 2015).

3

Docket No. 15-0692 (issued August 14, 2015).

4

Appellant also has an accepted hearing loss claim under master file number xxxxxx532.

5

By decision dated October 30, 2012, appellant received a schedule award for six percent right upper extremity
impairment and nine percent left upper extremity impairment.

2

disease. He noted results of quantitative sensory testing and duplex Doppler ultrasonography
performed during pharmacologic erection. Dr. Goldstein further opined that, according to the
criteria for rating permanent impairment due to penile disease, appellant was class 3 grade B
rating.
On March 12, 2014 OWCP referred the case file to its medical adviser for an opinion on
whether the medical evidence was sufficient to establish that appellant developed erectile
dysfunction as a consequence of his work-related diabetes. In a May 30, 2014 report,
Dr. Anthony Cerone, an osteopath and an urologist, noted the history of injury and reviewed the
medical reports of record pertinent to appellant’s erectile dysfunction. He opined that appellant’s
erectile dysfunction, as evidenced by neurologic and vascular erectile function testing
abnormalities, appeared to be related to the diabetic complications of neuropathy and
microvascular disease. While other risk factors were contributory, Dr. Goldstein indicated that it
was not possible to determine what percentage of appellant’s erectile dysfunction was caused by
each of those risk factors.
On February 11, 2015 OWCP expanded appellant’s claim to include acceptance of
erectile dysfunction as work related. On February 11, 2015 it referred his case file to an OWCP
medical adviser for an opinion regarding permanent functional loss of use of the penis and date
of maximum medical improvement.
In a May 21, 2015 report, Dr. Isaac Koziol, an urologist and OWCP medical adviser,
reviewed appellant’s medical records. Dr. Koziol reported that appellant’s erectile dysfunction
was complete and that he takes oral medications for it. He noted that on appellant’s last visit
with Dr. Goldstein on January 15, 2014 penile revascularization surgery was offered. Dr. Koziol
reported that erectile dysfunction from diabetes was not a static disease process. He opined that
appellant had not reached maximum medical improvement at the time of his visit and that he was
focused on a diagnosis and noted that options such as therapy, surgery, continued trials of
injection therapy, or even a possible penile prosthesis were suggested. Dr. Koziol noted that
maximum medical improvement would be obtained if and when appellant could achieve
adequate erections for sexual function with whatever method of treatment that he pursued.
By decision dated June 3, 2015, OWCP denied appellant’s schedule award claim. It
found that he had not established that his accepted erectile dysfunction condition had reached
maximum medical improvement.
LEGAL PRECEDENT
Section 8107(c)(22) of FECA6 provides for the payment of compensation for permanent
loss of any important external or internal organ of the body as determined by the Secretary of
Labor, and pursuant to this authority the Secretary of Labor has added the breast, kidney, larynx,
lung, penis, testicle, ovary, uterus, and tongue to the schedule.7

6

5 U.S.C. 8107(c)(22).

7

See Henry B. Floyd, III, 52 ECAB 220 (2001).

3

The schedule award provision of FECA8 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) has been
adopted by OWCP for evaluating schedule losses and the Board has concurred in such adoption.9
The claimant has the burden of proving that the condition for which a schedule award is sought
is causally related to his or her employment.10
The A.M.A., Guides11 explain that impairment should not be considered permanent until
the clinical findings indicate that the medical condition is static and well stabilized. The Board
has further stated that it is understood that an individual’s condition is dynamic. Maximum
medical improvement refers to a date from which further recovery or deterioration is not
anticipated, although over time there may be some expected change. Once an impairment has
reached maximum medical improvement, a permanent impairment rating may be performed.12
ANALYSIS
OWCP has accepted that appellant has sustained a number of medical conditions in the
course of his federal employment, including erectile dysfunction. By decision dated June 3,
2015, it denied his claim for a schedule award for this condition because the medical evidence
did not establish that his accepted erectile dysfunction condition had reached maximum medical
improvement. The Board finds that appellant has not reached maximum medical improvement,
and thus, he is not entitled to a schedule award.
Before a schedule award can be awarded, it must be medically determined that no further
improvement can be anticipated and the impairment had reached a fixed and permanent state,
which is known as maximum medical improvement.13 The determination of the date of
maximum medical improvement is factual in nature and depends primarily on the medical
evidence.14 The date of maximum medical improvement is usually considered to be the date of
8

5 U.S.C. § 8107.

9

See 20 C.F.R. § 10.404; Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

10

Veronica Williams, 56 ECAB 367, 370 (2005).

11

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

12

A.M.A., Guides, Table 2-1 at page 20 (6th ed. 2009); see also Orlando Vivens, 42 ECAB 303 (1991) (a
schedule award is not payable until maximum medical improvement -- meaning that the physical condition of the
injured member of the body has stabilized and will not improve further -- has been reached).
13

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3a(1) (January 2010);
see also P.L., Docket No. 13-1340 (issued October 28, 2013).
14

J.B., Docket No. 11-1469 (issued February 14, 2012); Franklin L. Armfield, 28 ECAB 445 (1977).

4

the evaluation accepted as definitive by OWCP.15 While additional medical treatment such as
surgery may be recommended in order to improve the claimant’s condition, the claimant is not
required to undergo such treatment.16 OWCP must calculate the percentage of a schedule award
as if no further improvement were possible if the claimant declined such intervention.17
The reports from Dr. Ko dated July 30, 2013 and Dr. Ganguly dated September 6, 2013
noted that appellant was seeking a medical opinion regarding the cause of his erectile
dysfunction condition, but was not seeking medical treatment at that time. These reports offered
no discussion regarding the degree of permanent impairment or whether appellant had reached
maximum medical improvement.
Similarly, the report from Dr. Cerone, dated May 30, 2014, diagnosed erectile
dysfunction causally related to appellant’s employment, but offered no opinion regarding the
degree of impairment or whether appellant had reached maximum medical improvement.
In his January 14, 2015 report, Dr. Goldstein noted various treatment options available
for appellant. While he opined that, according to the criteria for rating permanent impairment
due to penile disease, appellant was class 3 grade B, he did not provide discussion as to how
appellant’s impairment was rated, and he did not provide an opinion as to whether appellant was
at maximum medical improvement.18
Dr. Koziol, OWCP’s medical adviser, reported on May 21, 2015 that appellant’s erectile
dysfunction was currently complete, but that it was not a static disease process. He opined that
appellant had not reached maximum medical improvement. While appellant may be granted a
schedule award for an untreated condition, the evidence of record must establish a permanent
impairment rating pursuant to the A.M.A., Guides, and the evidence must establish that appellant
had reached maximum medical improvement.19 He had not met his burden of proof to establish
entitlement to a schedule award because he has established neither.
On appeal appellant contends that since OWCP’s medical adviser noted that his erectile
dysfunction was complete, maximum medical improvement was obtained. He argued that case
law supports his positon that his erectile dysfunction had reached maximum medical
improvement as the condition has continued for a lengthy period and appeared to be of lasting or
indefinite duration. Appellant also contends that OWCP’s reliance on its medical adviser’s
opinion was misplaced and that he should be sent for a second opinion evaluation. However, the
issue of whether his erectile dysfunction has stabilized is a medical determination and the current
15

Supra note 13.

16

O.N., Docket No. 14-1744 (issued July 13, 2015).

17

Id.

18

Renee M. Straubinger, 51 ECAB 667, 669 (2000) (the Board found that, when providing an impairment rating,
a physician must provide a description of a claimant’s impairment in sufficient detail so that the claims examiner
and others reviewing the file will be able to clearly visualize the impairment and its resulting restrictions and
limitations).
19

Supra note 16.

5

medical evidence of record is devoid of such an opinion. As such, appellant has not met his
burden of proof in this case.
CONCLUSION
The Board finds that appellant has not established that his accepted condition has reached
maximum medical improvement, thereby entitling him to payment of a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the June 3, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 3, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, CENTER FOR MEDICARE &
MEDICAID SERVICES, Washington, DC,
Employer
__________________________________________

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

Docket No. 21-1098
Issued: March 28, 2022

Case Submitted on the Record

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

JURISDICTION
On July 14, 2021 appellant filed a timely appeal from a January 21, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). 1 As more than 180 days elapsed
from OWCP’s last merit decision dated October 9, 2019, to the filing of this appeal, pursuant to

1

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, appellant asserted that oral argument should be granted because OWCP’s
decisions were based on inaccurate and incorrect information and the decisions failed to provide reasons why her
arguments and evidence submitted were insufficient to modify OWCP’s denial of her claim. The Board, in exercising
its discretion, denies appellant’s request for oral argument because the arguments on appeal can adequately be
addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay issuance
of a Board decision and not serve a useful purpose. As such, the oral argument request is denied , and this decision is
based on the case record as submitted to the Board.

the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decisions and orders are incorporated herein by reference. The relevant facts
are as follows.
On June 9, 2005 appellant, then a 50-year-old management analyst, filed an occupational
disease claim (Form CA-2) indicating that years of repetitive typing, writing, and use of the adding
machine and computer caused or aggravated cervical spine arthritis and bilateral carpal tunnel
syndrome (CTS) while in the performance of duty. She first became aware of her claimed
conditions and its relationship to her federal employment on March 30, 2005. OWCP accepted
the claim for bilateral CTS, bilateral lesion of the ulnar nerve, and non-disabling mild dysthymic
disorder. Appellant underwent OWCP-approved left carpal tunnel and cubital tunnel release on
January 11, 2007 and right carpal tunnel and cubital tunnel release on June 7, 2007. She returned
to full-duty work with use of voice-activated software on February 14, 2008. OWCP paid
appellant intermittent wage-loss compensation on the supplemental rolls commencing
March 30, 2005.4
On June 22, 2010 appellant filed a notice of recurrence (Form CA-2a) claiming a
recurrence of the need for medical treatment due to a change or worsening of her accepted workrelated conditions. She noted that she received several accommodations, but she had been doing
“an overwhelming amount of keyboarding and using [her] hands to lift, turn pages, write, etc. at
work,” which aggravated her approved bilateral carpal and cubital tunnel syndrome conditions,
and caused stress and depression. Appellant indicated that the shooting finger and arm pain caused
her to take more daily pain medications, including prescription pain medications. She also
indicated that her doctors advised her to retire as she was totally disabled from performing her job.
In a July 12, 2010 letter, OWCP advised that, since appellant did not claim any lost time from

2

5 U.S.C. § 8101 et seq.

3

Docket No. 15-548 (issued May 13, 2015).

4

By decision dated October 22, 2008 and corrected on November 14, 2008, OWCP issued a schedule award for 25
percent permanent impairment of the right upper extremity and 26 percent permanent impairment of the left upper
extremity for which appellant received a requested lump-sum award on January 13, 2009. Appellant requested
increased schedule awards, which OWCP denied in decisions dated October 30, 2009 and February 17, 2010.

2

work, she had not experienced a true recurrence. It noted her claim remained open for medical
treatment of her accepted conditions. 5
On December 2, 2010 appellant submitted a Form CA-2a claiming a recurrence of
disability and the need for medical treatment, wherein she listed the date of recurrence as June 22,
2010 and related that she had stopped work on July 27, 2010. By decision dated January 12, 2012,
OWCP denied the alleged recurrence of June 22, 2010. The weight of the medical evidence was
accorded to Dr. Stuart J. Gordon, a Board-certified orthopedic surgeon and OWCP second opinion
physician. The claim remained open for medical treatment of the accepted co nditions.
On January 30, 2012 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. By decision dated May 23, 2012, an OWCP hearing
representative vacated the January 12, 2012 decision and remanded the case for further
development, including the issuance of an updated statement of accepted facts (SOAF) and referral
to a Board-certified psychiatrist for examination and evaluation.
Following further development, appellant underwent a second opinion psychiatric
examination on December 19, 2012 by Dr. Dennis M. Young, a Board-certified psychiatrist, who
provided reports dated December 22, 2012 and February 7, 2013. Dr. Young opined that
appellant’s depression was not the result of pain associated with the work injury.
By decision dated March 28, 2013, OWCP denied appellant’s recurrence claim as she had
not established that she was disabled due to a material change/worsening of her accepted workrelated conditions. It also found that her diagnosed depression was not causally related to the
original occupational conditions, but rather was self-generated as a result of her perception that
she was an undervalued and marginalized employee.
On March 14, 2014 appellant, through counsel, requested reconsideration based on new
evidence from Dr. John R. Lion, a Board-certified psychiatrist. OWCP subsequently declared a
conflict in medical opinion between Dr. Young and Dr. Lion, who opined, in his February 3, 2014
report, that appellant’s depression was the result of her work injury.
OWCP referred appellant to Dr. Bruce M. Smoller, a Board-certified psychiatrist, for an
impartial medical examination and evaluation as to whether her employment-related conditions
contributed to or caused a psychiatric condition. In a July 27, 2014 report, Dr. Smoller, serving as
the impartial medical examiner (IME), reviewed a SOAF, examined appellant’s medical record
and appellant, and noted the history of injury. He recounted interview findings and provided an
impression of mild dysthymia on a fair to good level of functioning. Dr. Smoller opined that
appellant’s dysthymia did not need further medical treatment, that she had reached maximum
medical improvement, and that no further therapy treatment was required. He reiterated his
opinion that she was not disabled from work due to the psychiatric condition.

5

On July 31, 2010 appellant voluntarily retired.

3

By decision dated August 22, 2014, OWCP accepted the additional condition of nondisabling mild dysthymic disorder. Further treatment for the newly accepted condition was not
authorized based on Dr. Smoller’s July 27, 2014 impartial medical report.
Also, by decision dated August 22, 2014, OWCP affirmed the March 28, 2013 decision in
part to reflect that appellant had not established her recurrence claim due to a material change or
worsening of her accepted work-related conditions.
Appellant appealed to the Board on January 15, 2015. By decision dated May 13, 2015,
the Board affirmed OWCP’s August 22, 2014 decision. The Board found that Dr. Smoller’s
opinion was entitled to the weight of the medical evidence as an IME as he provided a rationalized
medical opinion, which established that while there was psychological component to appellant’s
work-related condition it did not disable her from working on July 27, 2010. The Board further
found that there was no probative medical opinion evidence, which established that appellant had
a material change in her medical condition such that she was totally disabled as a result of her
accepted work-related conditions beginning July 27, 2010.6
Appellant subsequently filed a series of requests for reconsideration. In decisions dated
April 10, 2017, August 10, 2018, and October 9, 2019, OWCP denied modification of the merits
of the claim. The decisions detailed appellant’s legal and factual arguments and found no error or
evidence to support the allegations raised. The decisions further found that the medical evidence
of record remained unsupported by rationalized medical evidence to demonstrate that the accepted
conditions prevented appellant from working on or after July 27, 2010 causally related to the
accepted March 30, 2005 employment injury.
On September 9, 2020 appellant requested reconsideration. In an accompanying letter also
dated September 2, 2020, she requested reconsideration and a “face to face hearing.” Appellant
contended that OWCP’s merit reviews were based on inaccurate and incorrect information and
that OWCP had failed to review the evidence and arguments she provided in all her reconsideration
requests. She argued that Dr. Young’s opinion was relevant and supported her disability claim,
the opinion of Dr. Lion, her physician, supported Dr. Young’s opinion, and Dr. Smoller’s report
was vague and speculative. Appellant also wanted to know why OWCP did not find certain facts,
circumstances and evidence relevant to the fact that she had to retire on disability. She alleged
that her supervisor and the employing establishment ignored her initial accommodation requests
only to grant the same request over a year later. The delay of such accommodation by appellant’s
supervisor and the employing establishment violated the law and the ineffective accommodations
caused appellant excruciating physical pain and mental anxiety, continued use of addicting drugs,
and having to perform repetitive motion that caused her recurrence. The only evidence submitted
in support of her reconsideration request was a petition for writ of certiorari in the Supreme Court
of the United States.
In November 18 and December 8, 2020 letters, OWCP informed appellant that, as her
September 2, 2020 letter indicated that she was requesting both a reconsideration and “face to face
hearing,” she could only request one method of appeal. Appellant was informed of her appeal
6

Supra note 3.

4

rights and provided 10 days to respond to the request. On December 11, 2020 she advised that she
was requesting reconsideration.
By decision dated January 21, 2021, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 7
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or argument which: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP. 8
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 9 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 10 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 11
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s August 22, 2014 merit decision. The Board
considered that evidence in its May 13, 2015 decision. Findings made in prior Board decisions

7

5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); L.D., Docket No. 18-1468 (issued
February 11, 2019); W.C., 59 ECAB 372 (2008).
8

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
9

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
10

Id. at § 10.608(a); F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 231 (2007).

11

Id. at § 10.608(b); B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued
March 18, 2010).

5

are res judicata absent further review by OWCP under section 8128 of FECA. 12 The Board,
therefore, will not review the evidence or arguments addressed in its prior appeal.
Appellant’s request for reconsideration neither alleged nor demonstrated that OWCP
erroneously applied or interpreted a specific point of law. Additionally, the Board finds that it did
not advance a relevant legal argument not previously considered by OWCP. Appellant’s
September 2, 2020 letter contained variations of legal and factual arguments previously
considered, which revolved around the conflict in medical evidence with Dr. Young and the fact
Dr. Smoller’s opinion was accorded the special weight provided an IME. The Board previously
reviewed the record, detailed the medical evidence as to how the conflict in medical arose and
discussed why the reports from appellant’s physicians were not sufficient to establish her
recurrence claim. The Board also specifically found that OWCP properly afforded the special
weight of the medical opinion evidence to Dr. Smoller who found that appellant had a nondisabling
dysthymic disorder. As noted above, the findings made in prior Board decisions are res judicata
absent further review by OWCP under section 8128 of FECA. 13 In its previous decisions OWCP
also addressed appellant’s contentions with regard to the employing establishment’s
accommodations, testimony, and alleged violations under other statues and found no evidence of
error as it related to the subject recurrence claim. Thus, appellant has not raised any new or
relevant legal and factual arguments not previously considered. Consequently, she is not entitled
to further review of the merits of her claim based on either the first or second above -noted
requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant did not submit relevant and pertinent new evidence
in support of her reconsideration request. The Board has held that the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case. 14 Appellant submitted a petition for writ of certiorari in the Supreme Court of
the United States. This evidence does not address the subject recurrence claim and, thus, does not
constitute a basis for reopening the claim. 15 No other evidence was submitted. As appellant failed
to provide relevant and pertinent new evidence, she is not entitled to a merit review based on the
third requirement under 20 C.F.R. § 10.606(b)(3).
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

12

K.K., Docket No. 20-1394 (issued July 26, 2021); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

13

Id.

14

L.M., Docket No. 20-0315 (issued October 8, 2021); A.J., Docket No. 20-0926 (issued January 26, 2021);
Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew Diekemper, 31 ECAB 224 (1979).
15

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the January 21, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 28, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, NORTH
PHILADELPHIA STATION, Philadelphia, PA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-184
Issued: June 17, 2008

Case Submitted on the Record

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

JURISDICTION
On October 23, 2007 appellant filed a timely appeal from the decision of the Office of
Workers’ Compensation Programs dated October 12, 2007 which denied his claim for an
additional schedule award for impairment to both upper extremities. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant has established impairment greater than 16 percent of his
right upper extremity and 4 percent of his left upper extremity, for which he received schedule
awards.

FACTUAL HISTORY
This is the second appeal in this case before this Board. The facts and the law of the
Board’s June 5, 2007 decision are hereby incorporated by reference.1 The relevant facts are
briefly set forth below.
Appellant’s May 13, 2004 claim was accepted by the Office for bilateral carpal tunnel
syndrome. On May 16, 2006 Dr. George L. Rodriguez, a Board-certified physiatrist, rated
appellant’s impairment as a 27 percent impairment of the left upper extremity and a 37 percent
impairment of the right upper extremity. The Office referred appellant to Dr. Kevin F. Hanley, a
Board-certified orthopedic surgeon, for a second opinion evaluation. In a report dated October 5,
2006, Dr. Hanley rated impairment as 16 percent of the right upper extremity and 4 percent of
the left upper extremity. In a decision dated November 13, 2006, the Office issued schedule
awards for 16 percent loss of the right upper extremity and 4 percent loss to the left upper
extremity.
In the June 5, 2007 decision,2 the Board found that the impairment ratings of
Dr. Rodriguez and Hanley were in conflict. The Board noted that Dr. Rodriguez found a range
of motion impairment to appellant’s right 3rd and 4th fingers whereas Dr. Hanley concluded that
appellant’s trigger finger condition had resolved without any impairment. The Board remanded
the case to the Office for further development of the medical evidence.
By letter dated August 1, 2007, the Office referred appellant to Dr. Joseph J. Mesa, a
Board-certified orthopedic surgeon, for an impartial medical examination. The Office instructed
Dr. Mesa to resolve the conflict in medical opinion regarding the extent of permanent
impairment to each upper extremity. In an opinion dated August 29, 2007, Dr. Mesa stated:
“With regard [sic] to his overall impairment rating, he calculates as follows: With
regard to his range of motion, he has near normal range of motion of both hands
and has no evidence for any impairment rating with regards to his range of
motion. With regard to his right median nerve impairment, the patient has a right
median nerve sensory deficit, which corresponds to a Grade 3 deficit as defined
by Table 16-10 on the fifth edition of the [A.M.A., Guides]. I rate the present
sensory deficit as 40 percent, and using the maximal upper extremity impairment
with regard to the median nerve below the forearm from Table 16.15, gives a 39
percent upper extremity impairment, which when multiplied, the 40 by 39 percent
get a 15.6 impairment rating for the right upper extremity. The second criteria for
determination of his impairment is his grip strength. Evaluation of his grip
strength by dynameter gives a score of 20. The normal grip strength and the
normal average grip strength in a male 50 to 59 in the dominant hand which is his
right hand is 45.9. Determination of strength loss index percentage, the grip
strength, is taken from Table 16-32. The determination of strength loss index
percentage is normal strength minus the limited strength divided by the normal
1

L.H., Docket No. 07-339 (issued June 5, 2007).

2

L.H., supra note 1.

2

strength, which comes to 5, and in using Table 16-34, gives a 20 percent upper
extremity impairment. Combine that to the 15.6 and the total right upper
extremity impairment is 35.6 with regards to the right upper extremity. With
regards to the left upper extremity, he has left medial nerve impairment, which I
agree is Grade 4, which I have given as a 10 percent deficit multiplied by 39 gives
a 3.9 percent of upper extremity impairment. However, he has grip strength loss
on that side as well. With his measurement being 20 and the normal measurement
in the nondominant arm is 43.5, which when using the strength loss index
percentage calculation gives a percentage strength loss index of 54 percent which
again is 20 percent upper extremity impairment. Combine that with the 4 percent
from the sensory loss and it is a 24 percent impairment of the upper extremity
impairment with regards to the left upper extremity.
In a decision dated October 12, 2007, the Office denied appellant’s claim for an
additional schedule award. The Office noted that Dr. Mesa’s findings regarding impairment of
the median nerves established 15.6 percent impairment of the right upper extremity and a 3.9
percent impairment of the left upper extremity. The Office further noted that Dr. Mesa included
ratings for loss of grip strength that could not be used under the A.M.A., Guides.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act3 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.4 The Act, however, does not specify the manner by which the
percentage loss of a member, function, or organ shall be determined. To ensure consistent
results and equal justice for all claimants under the law, good administrative practice requires the
use of uniform standards applicable to all claimants.5 The A.M.A., Guides has been adopted by
the implementing regulation as the appropriate standard for evaluating schedule losses.6
The standards for evaluation of the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.7 Chapter 16 of
the fifth edition of the A.M.A., Guides provides a detailed grading scheme and procedure for
determining impairments of the upper extremities due to pain, discomfort, loss of sensation or
loss of strength.8 However, loss of grip strength impairment is used only in rare cases.9
3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8107.

5

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

6

20 C.F.R. § 10.404.

7

See Paul A. Toms, 28 ECAB 403 (1987).

8

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

9

Id. at 508.

3

Additionally, decreased strength is not to be rated in the presence of decreased motion painful
conditions, deformities or absence of parts that prevent effective application of maximal force in
the region being evaluated.10
The Act provides that, if there is a disagreement between a physician making an
examination for the United States and the physician of the employee, the Office will appoint a
third physician to make an examination.11 The implementing regulation provides that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser or consultant, the Office must
appoint a third physician to make an examination. This is called a referee examination and the
Office is required to select a physician who is qualified in the appropriate specialty and who has
had no prior connection with the case.12 It is well established that when a case is referred to an
impartial medical specialist for the purpose of resolving a conflict the opinion of such specialist,
if sufficiently well rationalized and based on proper factual and medical background, must be
given special weight.13
ANALYSIS
The Board finds that this case is not in posture for decision.
The Board remanded this case to resolve a conflict between appellant’s physician,
Dr. Rodriguez, and the second opinion physician, Dr. Hanley, with regard to extent of
impairment to appellant’s upper extremities. Accordingly, the Office referred appellant to
Dr. Mesa for an impartial medical examination.
Dr. Mesa rated appellant’s impairment with regard to median nerve sensory deficit in the
right and left upper extremities. As to the right upper extremity, Dr. Mesa noted that appellant
had a right median nerve sensory deficit which corresponded to a Grade 3 deficit as defined by
Table 16-10, page 482 of the A.M.A., Guides. Table 16-10 allows between 20 and 60 percent
for a Grade 3 sensory deficit. Dr. Mesa determined that he would rate appellant with a sensory
deficit of 40 percent. By applying Table 16-5, page 447 of the A.M.A., Guides,14 which allows a
maximum impairment of the upper extremity of 39 percent for sensory deficit to the median
nerve, Dr. Mesa determined that appellant had 15.6 percent impairment of his right upper
extremity. With regard to the left upper extremity, utilizing the same tables, he determined that
appellant had a Grade 4 impairment, for which the A.M.A., Guides allow a 1 to 25 percent
sensory deficit. Dr. Mesa concluded that appellant had a 10 percent sensory impairment. He
multiplied 10 percent by the 39 percent maximum for sensory deficit to the median nerve to find
10

Id.

11

5 U.S.C. §§ 8101-8193, 8123(a).

12

20 C.F.R. § 10.321.

13

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

14

Although Dr. Mesa refers to Table 16.5, it is evident that he properly utilized Table 16-15 of the A.M.A.,
Guides.

4

that appellant had a 3.9 percent impairment to his left upper extremity due to sensory impairment
of the median nerve.
However, Dr. Mesa also rated impairment with regard to grip strength. He combined
findings of grip strength loss with his findings on sensory impairment of the median nerve. He
concluded that appellant had a 35.6 percent impairment of the right upper extremity and a 24
percent impairment of the left upper extremity. The Board has noted that, in accordance with the
A.M.A., Guides, impairment arising from carpal tunnel syndrome should be rated only on motor
and sensory deficits.15 The A.M.A., Guides provide that, in compression neuropathies,
additional impairment values are not given for decreased grip strength.16 Carpal tunnel
syndrome is an entrapment/compression neuropathy of the median nerve.17 Therefore,
Dr. Mesa’s impairment ratings were not consistent with the A.M.A., Guides. When the Office
obtains an opinion from an impartial medical specialist for the purpose of resolving a conflict in
the medical evidence and the specialist’s opinion requires clarification or elaboration, the Office
must secure a supplemental report from the specialist to correct the defect in the original report.18
Accordingly, the Board finds that the case must be remanded for further clarification of
Dr. Mesa’s opinion on permanent impairment. Dr. Mesa should be asked to clarify whether
appellant has any motor loss involving his upper extremities. After such development as the
Office deems necessary, an appropriate merit decision shall be issued.
CONCLUSION
The Board finds that this case is not in posture for decision.

15

A.M.A., Guides 494; Robert V. Disalvatore, 54 ECAB 351 (2003).

16

Id. at 494; see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700,
Exhibit 4 (June 2003).
17

Id. at 492.

18

See Adrienne L. Currey, 53 ECAB 750 (2002).

5

ORDER
IT IS HEREBY ORDERED THAT the October 12, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this decision.
Issued: June 17, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6