United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.V., Appellant
and
U.S. POSTAL SERVICE, MANKATO
PROCESSING & DISTRIBUTION CENTER,
Mankato, MN, Employer
__________________________________________

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

Docket No. 15-1145
Issued: September 8, 2015

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 April 24, 2015 appellant filed a timely appeal of a December 19, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than one year
has elapsed from the last merit decision, dated December 13, 2013, and the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3 the
Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for a review of the
written record as untimely filed.
FACTUAL HISTORY
On October 28, 2008 appellant, then a 53-year-old mail processing clerk, filed an
occupational disease alleging that he had developed left carpal tunnel syndrome removing rubber
1

5 U.S.C. § 8101 et seq.

bands from bundles of mail in the performance of duty. Appellant’s attending physician,
Dr. Edwin D. Harrington, a Board-certified orthopedic surgeon, diagnosed moderate carpal
tunnel syndrome in the left arm. Appellant underwent electrodiagnostic testing which indicated
moderate right median nerve mononeuropathy at the wrist or carpal tunnel syndrome. By
decision dated December 10, 2008, OWCP accepted his claim for left carpal tunnel syndrome.
Dr. Harrington performed appellant’s left carpal tunnel release on January 26, 2009. Appellant
returned to light-duty work on March 3, 2009 and full duty on April 10, 2009.
On February 19, 2010 Dr. Harrington diagnosed left wrist osteoarthritis. He referred
appellant to a rheumatologist on November 24, 2010. Dr. Harrington examined appellant on
April 27, 2011 and found swelling over the left wrist extensors. He diagnosed intersection
syndrome left wrist consistent with tendinitis. Appellant reported left wrist pain on July 15,
2011 and Dr. Harrington provided work restrictions. Appellant underwent a magnetic resonance
imaging (MRI) scan which demonstrated a degenerative tear within the scapholunate ligament,
advanced left wrist arthropathy, and flexor carpal radialis tenosynovitis with multiple ganglia
type cysts. On August 5, 2011 Dr. Harrington diagnosed carpal tunnel syndrome on the left and
left wrist arthritis.
Dr. Steven L. Moran, a Board-certified plastic and hand surgeon, examined appellant on
September 19, 2011 and diagnosed Kienbock’s disease with a large cyst in the right wrist and
grade 1 scaphoid lunate advanced collapse arthritis on the left. Appellant underwent right wrist
four corner fusion on October 10, 2012. He returned to work on January 21, 2013 following this
procedure.
Appellant filed a claim for a recurrence of disability on April 4, 2013 alleging on
March 20, 2013 he became disabled as a result of his October 15, 2008 employment injury. He
stated that following his return to work on January 21, 2013 he developed left wrist pain
radiating to his fingers. Appellant stated that he experienced swelling in the fingers of his left
hand and his physician found he was disabled. Dr. Moran submitted a report dated March 21,
2013 diagnosed episodic synovitis over the metacarpal phalangeal (MCP) joints. He
recommended left wrist surgical fusion.
In a letter dated October 2, 2013, OWCP requested additional factual and medical
evidence in support of appellant’s alleged recurrence of disability. Appellant responded and
stated that he was using his left wrist more due to his right wrist pain. He listed his employment
duties as lifting, sweeping, and carrying mail. Appellant stated that he believed that he was
compensating for his right wrist condition. He stated that he returned to work four hours a day
on April 1 through September 2, 2013.
By decision dated December 13, 2013, OWCP denied appellant’s claim for recurrence of
disability finding that he failed to submit the necessary medical opinion evidence to establish a
spontaneous change in his employment-related left wrist condition resulting in disability for
work.
Appellant requested a review of the written record and reconsideration via a form dated
October 10, 2014 and received by OWCP on November 4, 2014. The form was postmarked
October 31, 2014.

2

By decision dated December 19, 2014, the OWCP Branch of Hearings and Review
denied appellant’s request for a review of the written record as a matter of right, finding his
October 31, 2014 request was made more than 30 days after the December 13, 2013 OWCP
decision. The Branch of Hearings and Review further considered his case and determined that
the issue in the case could equally well be addressed by requesting reconsideration from OWCP
and submitting evidence not previously considered which established that he had sustained a
recurrence of disability.2
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his or
her claim before a representative of the Secretary.3 Section 10.615 of the federal regulations
implementing this section of FECA provides that a claimant shall be afforded a choice of an oral
hearing or a review of the written record.4 OWCP regulations provide that the request must be
sent within 30 days of the date of the decision for which a hearing is sought and also that the
claimant must not have previously submitted a reconsideration request (whether or not it was
granted) on the same decision.5
The Board has held that OWCP, in its broad discretionary authority in the administration
of FECA,6 has the power to hold hearings and reviews of the written record in certain
circumstances where no legal provision was made for such reviews and that OWCP must
exercise this discretionary authority in deciding whether to grant a hearing or review of the
written record.7 OWCP procedures, which require OWCP to exercise its discretion to grant or
deny a hearing or review of the written record when the request is untimely or made after
reconsideration, are a proper interpretation of FECA and Board precedent.8
ANALYSIS
In the present case, appellant requested review of the written record on October 31, 2014.
His request was made more than 30 days after the date of issuance of OWCP’s December 13,
2013 merit decision. Therefore, OWCP properly found in its December 19, 2014 decision that
appellant was not entitled to an oral hearing or examination of the written record as a matter of
right because his request was not made within 30 days of its December 13, 2013 decision.
2

The Board notes that appellant also requested reconsideration from OWCP on November 4, 2014. Upon return
of the case record, OWCP should address this timely request for reconsideration.
3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. § 10.615.

5

Id. at § 10.616(a).

6

5 U.S.C. §§ 8101-8193.

7

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

8

Teresa M. Valle, 57 ECAB 542 (2006).

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OWCP then properly exercised its discretion by stating that it had considered the matter
and had denied appellant’s request for an examination of the written record because the issue of
recurrence of disability could be addressed through the reconsideration application. The Board
has held that the only limitation on OWCP’s authority is reasonableness and an abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deduction from
established facts.9 In this case, the evidence of record does not indicate that OWCP abused its
discretion in its denial of appellant’s request for a review of the written record. Accordingly, the
Board finds that OWCP properly denied his request.
CONCLUSION
The Board finds that OWCP’s Branch of Hearings and Review properly denied
appellant’s request for a review of the written record on the grounds that the request was
untimely and could be addressed through the reconsideration process.
ORDER
IT IS HEREBY ORDERED THAT the December 19, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 8, 2015
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

9

Daniel J. Perea, 42 ECAB 214, 221 (1990).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 14-1660
Issued: April 28, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 28, 2014 appellant filed a timely appeal from a January 28, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish entitlement to medical
benefits.

1

Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 20
C.F.R. § 501.5(b). The Board denied the request in a March 27, 2015 order as her arguments could be adequately
addressed based on a review of the case record. Order Denying Request for Oral Argument, Docket No. 14-1660
(issued March 27, 2015).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 20, 2013 appellant, then a 55-year-old, former clerk and mail handler, filed a
traumatic injury claim (Form CA-1) alleging a hand injury due to her employment on
January 12, 1983. She stated that a machine started automatically when she tried to remove an
envelope from the machine. Appellant stopped work on January 12, 1989.
Appellant submitted treatment notes dated January 20 to April 5, 1985 from the
employing establishment health unit.
In a March 27, 2013 letter, the employing establishment contended that appellant’s claim
was not timely filed.
By letter dated April 10, 2013, OWCP advised appellant that the evidence submitted was
insufficient to establish her claim. It requested factual and medical evidence, including evidence
that she provided timely notification of her injury. OWCP also requested that the employing
establishment provide information regarding its knowledge of the alleged injury and submit
medical evidence, if appellant had been treated at its medical facility. In an April 23, 2013 letter,
it requested that the employing establishment provide whether the medical unit notes submitted
by appellant were signed by a physician.
On April 20, 2013 appellant stated that her medical records documented what happened
at the time of injury. She denied any prior disability and alleged an aggravation of an
unspecified connective tissue disorder. On May 7, 2013 appellant stated that she stopped work
at the employing establishment in 1986 and resigned in 1989.
By letter dated May 2, 2013, the employing establishment submitted health unit treatment
notes dated January 12 to April 1983. A January 12, 1983 treatment note provided a history that
appellant had attempted to clear a jam from a machine with her right hand. The machine came
on and hit her hand. A supervisor submitted a Form 3756 to document the injury. An
examination revealed slight redness and a small superficial abrasion on the back of the right
hand. A cold pack was applied. In a January 14, 1983 treatment note, a Dr. Rosa Ong, a former
employing establishment physician,3 reported a superficial abrasion on the back of appellant’s
right hand. The wound was covered with a band aid. In a January 24, 1983 treatment note,
Dr. Ong reported a healing abrasion and applied betadine and a band aid.
In a July 17, 2013 decision, OWCP accepted appellant’s claim for resolved abrasion or
friction burn of the right hand without infection. It stated that the January 12 and 14, 1983
employing establishment health unit chart notes established a timely filed claim. The notes
included a history of injury and appellant’s diagnosis of superficial abrasion on the back of her
right hand. OWCP noted that there were no other chart note entries for the abrasion and no other
medical evidence was submitted. It advised appellant that the abrasion has resolved and the
claim was closed with no need for further medical care.

3

The Board notes that Dr. Ong’s professional qualifications are not contained in the case record.

2

By letter dated August 14, 2013, appellant requested a review of the written record by an
OWCP hearing representative. She cited Board precedent and contended that the July 17, 2013
was contrary to the facts and laws of FECA. Appellant reiterated her prior contention that her
accepted condition aggravated her preexisting unspecified connective tissue disorder and
contended that she was entitled to medical benefits.
In a January 28, 2014 decision, an OWCP hearing representative affirmed the July 17,
2013 decision. He found that the medical evidence established that the January 12, 1983
employment injury had resolved and that appellant was not entitled to further medical treatment.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability, or aid in lessening the amount of the monthly
compensation.4 While OWCP is obligated to pay for treatment of employment-related
conditions, the employee has the burden of establishing that the expenditure is incurred for
treatment of the effects of an employment-related injury or condition.5 Proof of causal relation
must include rationalized medical evidence.6
ANALYSIS
OWCP accepted that appellant sustained an abrasion or friction burn of the right hand
without infection while in the performance of duty on January 12, 1983. It, however, closed her
claim and found that she was not entitled to further medical treatment as the medical evidence
established that the accepted condition had resolved. The Board finds that appellant has failed to
submit sufficient medical evidence to establish the need for further medical treatment for her
work-related injury.
On January 14, 1983 Dr. Ong diagnosed and treated a superficial abrasion on the back of
appellant’s right hand. Her January 24, 1983 treatment note reported a healing abrasion to which
she applied betadine and a band aid. There is no bridging evidence of ongoing residuals as a
result of the accepted employment-related right hand abrasion. There are no medical records
after January 24, 1983 which address appellant’s work injury. The employing establishment
health unit treatment notes dated February 3 and April 1, 1983 and January 20 to April 5, 1985
addressed her complaints of nasal congestion, high blood pressure, headache, soreness after
going to a disco, neck and right wrist pain, and tiredness in both legs. The Board finds that
Dr. Ong’s treatment note represents the weight of the medical evidence and establishes that
appellant’s January 12, 1983 work-related right hand abrasion had resolved and needed no
further medical treatment. Appellant has not met her burden of proof.
4

5 U.S.C. § 8103; see Dona M. Mahurin, 54 ECAB 309 (2003).

5

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

6

Debra S. King, 44 ECAB 203 (1992).

3

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established entitlement to medical benefits.
ORDER
IT IS HEREBY ORDERED THAT the January 28, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 28, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, San Diego, CA, Employer
__________________________________________

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

Docket No. 13-2143
Issued: February 7, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 25, 2013 appellant filed a timely appeal from the August 16, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review this decision.
ISSUE
The issue is whether appellant’s work activities on May 21, 2013 caused an injury.
FACTUAL HISTORY
On May 21, 2013 appellant, a 56-year-old immigration enforcement agent, filed a
traumatic injury claim alleging that he sustained an injury in the performance of duty during

1

5 U.S.C. § 8101 et seq.

pistol qualification training. He indicated that he experienced light-headedness, blurred vision,
problems with speech, and numbness to the left side of his face and left arm.
Appellant sought emergency medical services that day. He advised that he was at the
shooting range around noon. Appellant was talking to someone and felt “something moving” on
the left side of his face. He felt numbness and tingling, had difficulty speaking for a few
seconds, followed by a mild headache to the left side. Appellant stated that it resolved after a
few seconds, then recurred for several more seconds a little bit later. He stated that his vision
went blurry a little bit during the episode. Given the speech changes and facial numbness,
Dr. Aaron A. Abrahamsen, Board-certified in emergency medicine, was concerned about a
possible transient ischemic attack.
Dr. Payam Emdad, a Board-certified physiatrist, examined appellant on June 3, 2013. He
diagnosed sprain or strain of the cervical spine2 and history of transient ischemic attack.3
Dr. Emdad indicated that causation would be determined after a neurological consultation.
OWCP received treatment notes, hospital records and diagnostic test reports.
In a decision dated August 16, 2013, OWCP denied appellant’s injury claim. It found
that his work activities on May 21, 2013 occurred as alleged, but the medical evidence did not
establish that these activities caused an injury.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.4 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his claim. When an employee
claims that he sustained an injury in the performance of duty, he must submit sufficient evidence
to establish that he experienced a specific event, incident or exposure occurring at the time, place
and in the manner alleged. He must also establish that such event, incident or exposure caused
an injury.5
Causal relationship is a medical issue,6 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,7 must be
2

Appellant indicated that earlier in his training he fell and hit his head.

3

Dr. Emdad noted a history of seizure when appellant was 40 years old, after a fall and head injury in the
military.
4

5 U.S.C. § 8102(a).

5

John J. Carlone, 41 ECAB 354 (1989).

6

Mary J. Briggs, 37 ECAB 578 (1986).

7

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

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one of reasonable medical certainty,8 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.9
The mere fact that a condition manifests itself or worsens during a period of federal
employment raises no inference of causal relationship between the two.10
ANALYSIS
OWCP accepts that appellant’s work activities on May 21, 2013 occurred as alleged.
Appellant was at the shooting range around noon. He was talking to someone when his
symptoms began to manifest. Appellant has met his burden to establish that he experienced a
specific event, incident or exposure occurring at the time, place and in the manner alleged.
The question that remains is whether appellant’s work activities that morning caused an
injury. None of the medical evidence submitted to the record provides a physician’s opinion to
that effect. Dr. Abrahamsen, the emergency medicine specialist, was concerned about a possible
transient ischemic attack, but he did not firmly diagnose the condition and did not attribute it to
any particular work activity on the morning of May 21, 2013. Dr. Emdad, the physiatrist, noted
a history of transient ischemic attack, but again did not firmly diagnose the condition and did not
attribute it to the performance of appellant’s duties on May 21, 2013.
Although it appears that some medical condition manifested during a period of federal
employment, the Board finds that appellant has failed to establish a causal relationship between his
work activities during postal qualification training on May 21, 2013 and the medical condition he
suffered. There is no well-reasoned medical opinion to support his claim for compensation.
Accordingly, the Board will affirm OWCP’s August 16, 2013 decision.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden to establish that his work activities
on May 21, 2013 caused an injury.

8

See Morris Scanlon, 11 ECAB 384, 385 (1960).

9

See William E. Enright, 31 ECAB 426, 430 (1980).

10

Steven R. Piper, 39 ECAB 312 (1987).

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ORDER
IT IS HEREBY ORDERED THAT the August 16, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 7, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


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

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

Docket No. 14-928
Issued: November 21, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 11, 2014 appellant, through her attorney, filed a timely appeal from a
February 12, 2014 decision of the Office of Workers’ Compensation Programs (OWCP)
regarding a schedule award. 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 OWCP properly denied appellant’s claim for a schedule award.
FACTUAL HISTORY
On September 4, 2010 appellant, then a 42-year-old distribution clerk, was moving an allpurpose container and tripped over a net injuring her right leg and foot. OWCP accepted her
claim for right foot strain, right lower leg strain, right ankle sprain and expanded her claim to
include right foot plantar fasciitis and rupture of other tendons of the right foot and ankle.
1

5 U.S.C. §§ 8101-8193.

Appellant returned to limited-duty work. She received appropriate wage-loss compensation for
intermittent time missed from work.
Appellant submitted a September 4, 2010 x-ray of the right foot which revealed a
calcaneal spur.
She was treated by Dr. Laurie A. Nielsen-Haak, a podiatrist, from
September 28, 2010 to May 15, 2012 for a work-related right foot injury that occurred on
September 4, 2010. Appellant diagnosed muscle tear of the right foot, plantar fascia rupture of
the foot with nerve damage. A magnetic resonance imaging (MRI) scan of the right foot dated
December 8, 2010 revealed severe right plantar fasciitis involving medial fibers, a partial tear of
the muscular fibers of the abductor digiti minimi and adjacent subcutaneous edema of the right
heel, tiny foci of subchondral bone marrow edema involving the medial and lateral talar dome
consistent with osteochondral lesion. A March 15, 2011 electromyogram (EMG) revealed no
clear evidence of tarsal tunnel syndrome, lumbar radiculopathy or peripheral neuropathy. A
December 29, 2011 MRI scan of the right foot revealed active plantar fasciitis pattern including
plantar fascial thickening and low grade interstitial and deep fiber attachment tearing in the
medial and lateral cord, mild Achilles tendinosis and peritendinitis, chronic osteochondral
injuries of the medial and lateral talar dome, chronic collateral ligament sprain pattern at the
tibiotalar joint and atrophy of the abductor digiti minimi muscle.
On January 24, 2013 appellant filed a claim for a schedule award. She submitted a
December 6, 2012 report from Dr. Nielsen-Haak, who noted that appellant reached maximum
medical improvement and released appellant from her care.
On January 31, 2013 OWCP requested that appellant submit a rating of permanent
impairment pursuant to the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).2
In a February 26, 2013 report, Dr. Nielsen-Haak indicated that she was unable to provide
an impairment rating. On April 11, 2013 OWCP referred appellant for a second opinion to
Dr. E. Gregory Fisher, a Board-certified orthopedic surgeon, for a determination of permanent
impairment attributable to her accepted conditions.
On April 22, 2013 OWCP received an April 10, 2013 report from Dr. Martin Fritzhand, a
Board-certified physiatrist, who noted a history of injury and subsequent treatment.
Dr. Fritzhand noted findings on examination of the right ankle for dorsiflexion of 20 degrees,
plantar flexion of 40 degrees, inversion of 10 degrees and eversion of 20 degrees. He noted that
the plantar surface of the mid-foot was tender to palpation, muscle strength was intact, the right
calf measured 15½ inches and the left calf was 16 inches, pinprick and light touch were
diminished over the medial aspect of the right lower leg and right foot and the right Achilles
tendon reflex was absent. Dr. Fritzhand noted that range of motion of the right foot was 10
degrees on inversion for mild motion impairment,3 there was significant atrophy of the right leg
associated with sensory loss, appellant found it difficult to stand and weight bear for more than
short periods of time, participate in household chores and recreational activities. He noted
2

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

3

See id. at Table 16-20.

2

appellant’s subjective symptoms were corroborated by objective findings. Dr. Fritzhand opined
that pursuant to Chapter 16 of the sixth edition of the A.M.A., Guides appellant had one percent
right lower extremity impairment. In a permanent impairment worksheet, he diagnosed chronic
ankle pain and ankle instability. Dr. Fritzhand noted under Table 16-2, Foot and Ankle Regional
Grid, ruptured tendons of the ankle, she was a class 1 with mild motion deficits.4 The American
Association of Orthopedic Surgeons inventory score of 13. Applying Table 16-6 for Functional
History (GMFH) grade modifier of 0, Table 16-7 for Physical Examination (GMPE) grade
modifier of 1 and Table 16-8 for Clinical Studies (GMCS) grade modifier of 0, to the net
adjustment formula moved the default grade of C to grade A. Dr. Fritzhand found that this
yielded one percent impairment to the right lower extremity.
In a May 15, 2013 report, Dr. Fisher noted reviewing the statement of accepted facts,
history of injury and subsequent treatment. He noted that appellant was not wearing splints,
braces or orthotics and did not walk with external support. Dr. Fisher noted normal alignment of
the foot and ankle, normal gait, normal dorsalis pedal pulse and posterior tibia pulse, no
swelling, thickness or redness over the right foot, range of motion for the right ankle was 10
degrees for dorsiflexion, 40 degrees for plantar flexion, normal subtalar and mid tibial motion
and negative Tinel’s sign over tarsal tunnel and peroneal nerve. He noted that palpation over the
right heel plantar surface and plantar fascia was nontender, there was no pain over the medial or
lateral side of the heel, no sensory loss to light touch over the right ankle, mid tarsal, forefoot or
toes of the right foot, intact Achilles tendon, intact strength of the right foot and ankle and intact
range of motion of the foot and ankle. Dr. Fisher noted no objective findings of right ankle
sprain, right foot sprain, right lower leg strain, muscle tear over the right foot or right foot plantar
fasciitis. He noted that appellant’s symptom of numbness over the right heel did not correlate
with an EMG performed in March 2011 which was normal. Dr. Fisher noted that she reached
maximum medical improvement on June 21, 2012. He diagnosed resolved right foot sprain,
right lower leg strain, right ankle sprain, right foot plantar fasciitis and right foot muscle tear.
Dr. Fisher opined that pursuant to Chapter 16 of the sixth edition of the A.M.A., Guides
appellant had zero percent right lower extremity impairment. In a permanent impairment
worksheet, he diagnosed plantar fasciitis, foot sprain, lower leg sprain, ankle sprain and muscle
tear. Dr. Fisher noted under Table 16-2, Foot and Ankle Regional Grid, sprains/strains and
plantar fasciitis, appellant was a class 0 for zero percent impairment. He noted no significant
abnormalities over the right foot or ankle, no pain on palpation over the plantar surface of the
right heel or other finding denoting residuals of plantar fasciitis. With regards to the
sprains/strains involving the right foot/ankle and lower leg and muscle tear of the right foot, there
was no positive residuals on examination or objective findings of the right foot, ankle and heel,
no swelling or pain over the medial or lateral side of the right ankle and foot, no evidence of
muscle tear of the right foot with intact motor strength of the right ankle on the dorsal and plantar
surface. Pursuant to Table 16-2, page 501, sprains/strains and muscle tears of the right foot,
ankle and lower leg, appellant was a class 0 for zero percent leg impairment.
In a May 30, 2013 report, the medical adviser reviewed Dr. Fisher’s report and concurred
in his determination that appellant sustained zero percent impairment of the right lower extremity

4

This rating has a grade C default impairment of two percent of the leg. See A.M.A., Guides, Table 16-2, 501.

3

in accordance with the A.M.A., Guides. He noted that Dr. Fisher found no objective evidence of
right foot plantar fasciitis and right ankle strain.
On June 26, 2013 OWCP requested that the medical adviser review Dr. Fritzhand’s
April 10, 2013 report. In a report dated June 27, 2013, the medical adviser noted that
Dr. Fritzhand did not document performing valid range of motion measurements for rating
purposes. He noted Dr. Fritzhand’s findings of diminished sensation over the medial aspect of
the right lower leg and right foot and tenderness to palpation over the mid foot were inconsistent
with Dr. Fisher’s May 15, 2013 findings of good range of motion, no muscle loss, no atrophy
and no objective sensory deficits. The medical adviser opined that Dr. Fritzhand’s evaluation
represented a temporary aggravation of appellant’s symptoms as her condition had significantly
improved and stabilized by the May 15, 2013 examination. He disagreed with the one percent
impairment of the right leg by Dr. Fritzhand as this was during a temporary exacerbation of
symptoms which resolved by May 15, 2013. The medical adviser opined that appellant had no
impairment of the right lower extremity.
In a decision dated July 3, 2013, OWCP denied appellant’s claim for a schedule award.
On July 8, 2013 appellant requested an oral hearing which was held on November 25, 2013.
In a decision dated February 12, 2014, an OWCP hearing representative affirmed the
decision dated July 3, 2013.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing federal regulations6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions issued
beginning May 1, 2009, the sixth edition of the A.M.A., Guides, will be used.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).9 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the Class of Diagnosis (CDX), which is then adjusted by
grade modifiers based on Functional History, Physical Examination and Clinical Studies.10 The
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

FECA Bulletin No. 09-03 (issued March 15, 2009).

9

A.M.A., Guides, 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement.
10

Id. at 494-531.

4

net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11 The grade
modifiers are used on the net adjustment formula described above to calculate a net adjustment.
The final impairment grade is determined by adjusting the grade up or down the default value C,
by the calculated net adjustment.12
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the medical adviser for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides with the medical adviser providing rationale
for the percentage of impairment specified.13
ANALYSIS
On appeal, appellant contends that she is entitled to a schedule award for permanent
impairment of the right lower extremity. OWCP accepted her claim for right foot strain, right
lower leg strain, right ankle sprain, right foot plantar fasciitis and rupture of other tendons of the
right foot and ankle. The Board finds that there is a conflict in medical opinion between
Dr. Fisher, the second opinion physician, and the medical adviser, for OWCP and Dr. Fritzhand,
appellant’s treating physician.
The medical adviser, in a June 27, 2013 report, disagreed with Dr. Fritzhand’s rating,
opining that, based on the A.M.A., Guides, appellant had no impairment of the right leg. He
based his conclusions on the May 15, 2013 report of Dr. Fisher, the second opinion physician,
who opined that pursuant to the A.M.A., Guides appellant had zero percent right leg impairment.
In a permanent impairment worksheet, Dr. Fisher noted no significant abnormalities over the
right foot or ankle, no pain on palpation over the plantar surface of the right heel or other finding
denoting residuals of plantar fasciitis. He noted that, under Table 16-2, Foot and Ankle Regional
Grid, sprains/strains and plantar fasciitis, appellant was a class 0 for zero percent impairment.
With regards to the sprains/strains involving the right foot/ankle and lower leg and muscle tear of
the right foot, there were no positive residuals on examination or objective findings. Pursuant to
Table 16-2, page 501, sprains/strains and muscle tears of the right foot, ankle and lower leg,
appellant was a class 0 for zero percent lower extremity impairment.
By contrast, in an April 10, 2013 report, Dr. Fritzhand advised that based on the A.M.A.,
Guides appellant had one percent impairment of the right lower extremity. He noted range of
motion of the right foot was diminished to 10 degrees on inversion for mild motion impairment,
there was significant atrophy of the right leg associated with sensory loss. Dr. Fritzhand noted
that, under Table 16-2, Foot and Ankle Regional Grid, ruptured tendons of the ankle, appellant
was a class 1 with mild motion deficits and applying the grade modifier and net adjustment
formula yielded an impairment of one percent impairment to the right lower extremity. He
supported an impairment rating of the right lower extremity, noting the basis of his rating under
11

Id. at 521.

12

Id. at 497.

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).

5

the A.M.A., Guides, while the medical adviser and second opinion physician opined that
appellant sustained no ratable permanent impairment of the right lower extremity pursuant to the
A.M.A., Guides. Each physician used the A.M.A., Guides to come to differing calculations
regarding appellant’s permanent impairment of the right lower extremity.
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”14 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.15 The Board finds that OWCP should have referred appellant to an impartial medical
specialist to resolve the medical conflict regarding the extent of permanent impairment arising
from appellant’s accepted employment injury.
Therefore, in order to resolve the conflict in the medical opinions, the case will be
remanded to OWCP for referral of the case record, including a statement of accepted facts and, if
necessary, appellant, to an impartial medical specialist for a determination regarding the extent
of her right lower extremity impairment as determined in accordance with the relevant standards
of the A.M.A., Guides.16 After such further development as OWCP deems necessary, an
appropriate decision should be issued regarding the extent of appellant’s right lower extremity
impairment.

14

5 U.S.C. § 8123(a).

15

William C. Bush, 40 ECAB 1064 (1989).

16

See Harold Travis, 30 ECAB 1071, 1078-79 (1979).

6

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 12, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
development in accordance with this decision.
Issued: November 21, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Macomb, IL, Employer
__________________________________________

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

Docket No. 13-1482
Issued: March 10, 2014

Case Submitted on the Record

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

JURISDICTION
On June 10, 2013 appellant, through counsel, filed a timely appeal from a May 1, 2013
merit decision of the Office of Workers’ Compensation Programs. 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 claim.
ISSUE
The issue is whether appellant has more than 16 percent impairment of the left lower
extremity for which he received a schedule award.
FACTUAL HISTORY
OWCP accepted that on December 12, 2009 appellant, then a 46-year-old letter carrier,
sustained left trimalleolar ankle fracture, left syndesmotic ligament strain, left ankle deltoid
strain and left ankle dislocation due to a slip and fall on a patch of ice. It paid appropriate
1

5 U.S.C. §§ 8101-8193.

benefits, including authorizing several surgeries which appellant underwent on December 12,
2009, March 26 and August 4, 2010.
Appellant eventually returned to full duty on
February 8, 2011.
On April 22, 2011 appellant filed a claim for a schedule award. By decision dated
August 1, 2011, OWCP granted him a schedule award for 10 percent impairment to the left
lower extremity, based on the opinion of its medical adviser, who used the medical evidence of
file and the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) to arrive at an impairment rating.
On August 12, 2011 appellant’s attorney requested a telephonic hearing, which was held
on November 15, 2011. In an August 12, 2011 report, Dr. William N. Grant, a Board-certified
internist, noted the history of injury and presented examination findings. He opined that
appellant reached maximum medical improvement and has 36 percent left lower extremity
impairment under the sixth edition of the A.M.A., Guides. Dr. Grant provided detailed
calculations as to how this figure was determined, citing tables and pages used. He opined that
for the closed left fracture trimalleolar, there was 13 percent impairment. For the left ankle
strain, there was 13 percent impairment. For the left strain of ankle deltoid, there was seven
percent impairment. For left closed dislocation ankle, there was 13 percent impairment. There
was five percent peripheral nerve involvement.
By decision dated February 2, 2012, an OWCP hearing representative set aside the
August 1, 2011 decision and remanded the case for further medical development based on
Dr. Grant’s August 12, 2011 report.
In a February 5, 2012 report, Dr. Sanjai Shukla, a Board-certified family practitioner and
an OWCP medical adviser, reviewed Dr. Grant’s report and opined that he had incorrectly used
the A.M.A., Guides in arriving at his impairment rating as he had rated each of appellant’s
individual injuries separately, which is not consistent with a diagnosis-based impairment rating,
and he had rated appellant for nerve involvement despite that the attending physician had
indicated in reports of record that appellant was neurovascularly intact. Dr. Shukla used the
medical evidence of record and found 16 percent impairment to the left lower extremity.2 He
provided detailed calculations as to how this figure was determined and cited tables and pages
used from the A.M.A., Guides.
By decision dated March 20, 2012, OWCP granted appellant an additional 6 percent
impairment above the prior schedule award, for a total left lower extremity impairment of 16
percent. Appellant was paid 17.28 weeks’ compensation for the period November 11, 2011 to
March 10, 2012.
On March 28, 2012 appellant’s attorney requested a telephonic hearing. By decision
dated May 25, 2012, an OWCP hearing representative vacated the March 20, 2012 decision and
2

In a November 10, 2011 report, Dr. Benjamin Stevens noted the history of injury and provided examination
findings of the left lower extremity. These included a neurovascularly intact left lower extremity, well-preserved
ankle motion with no crepitus but tenderness to palpation anteromedially and mild edema. An assessment of stable
left ankle with mild arthritis was provided.

2

remanded the case for further medical development as there was an unresolved conflict in
medical evidence between Dr. Grant and Dr. Shukla, the medical adviser, regarding the extent of
appellant’s left lower extremity impairment. OWCP was directed to update the statement of
accepted facts, refer appellant to an impartial medical examiner to resolve the conflict in medical
opinion and issue a de novo decision on schedule award entitlement.
On May 30, 2012 OWCP expanded the case to include the condition of post-traumatic
arthritis of the left ankle and issued a new statement of accepted facts. In August 2012 it referred
appellant, along with the updated statement of accepted facts, the medical record and questions,
to Dr. Steven G. Potaczek, a Board-certified orthopedic surgeon, for an impartial medical
examination and an opinion on the extent of the permanent impairment of his left lower
extremity.
In an October 12, 2012 report, Dr. Potaczek noted the history of injury, his review of
appellant’s medical record and set forth his examination findings of September 28, 2012. He
diagnosed post-traumatic arthritis, left ankle, with some continued symptoms. Dr. Potaczek
opined that appellant reached maximum medical improvement on November 10, 2011, when the
medical record indicated appellant’s condition was stable. He stated that his impairment
calculation agreed with that of Dr. Shukla’s 16 percent impairment assessment. Dr. Potaczek
stated that he agreed with the diagnosis-based impairment rating method employed by
Dr. Shukla and could not accept the methodology employed by Dr. Grant. He further indicated
his agreement with Dr. Shukla’s comments that there could be no rating for peripheral nerve
involvement as his review of the medical records showed appellant was repeatedly documented
to have normal neurovascular status.
By decision dated October 16, 2012, OWCP found appellant was not entitled to
additional schedule award compensation beyond the 16 percent total left lower extremity
impairment previously awarded. Special weight was accorded to the opinion of Dr. Potaczek,
the impartial medical specialist.
On October 22, 2012 appellant’s attorney requested a telephonic hearing, which was held
on February 12, 2013. He argued that he disagreed with the impairment rating provided by
Dr. Potaczek as he failed to consider the diagnosis of polyneuritis and had failed to provide his
own opinion regarding appellant’s impairment of the left lower extremity. Appellant testified as
to his continued symptoms.
By decision dated May 1, 2013, an OWCP hearing representative affirmed the
October 15, 2012 decision finding that Dr. Potaczek’s opinion was well reasoned, and consistent
with the evidence of record and the sixth edition of the A.M.A., Guides.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations3 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
3

20 C.F.R. § 10.404.

3

specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.4 For
consistent results and to ensure equal justice under the law to all claimants, good administrative
practice necessitates the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.7 The implementing regulations
state 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 OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.8 In situations where 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.9
Board case precedent provides that, when OWCP 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, OWCP must secure a supplemental
report from the specialist to correct the deficiency in his original report. If the impartial
specialist is unable to clarify or elaborate on his original report or if his supplemental report is
incomplete, vague, speculative or lacking in rationale, OWCP should refer the claimant to a
second impartial specialist.10
ANALYSIS
OWCP accepted that on December 12, 2009 appellant sustained left trimalleolar ankle
fracture, left syndesmotic ligament strain, left ankle deltoid strain, and left ankle dislocation due
to a slip and fall on a patch of ice. On May 30, 2012 it expanded the claim to include the
4

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

5

Ronald R. Kraynak, 53 ECAB 130 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
7

5 U.S.C. § 8123(a).

8

20 C.F.R. § 10.321.

9

Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

10

See Nancy Keenan, 56 ECAB 687 (2005).

4

condition of post-traumatic left ankle arthritis. The record establishes that appellant received a
schedule award for 10 percent left lower extremity impairment on August 1, 2011 and an
additional schedule award for 6 percent left lower extremity impairment on March 20, 2012, for
a total left lower extremity impairment of 16 percent. It subsequently determined that there was
an unresolved conflict in medical opinion between Dr. Grant, appellant’s treating physician, and
Dr. Shukla, an OWCP medical adviser, with regard to the issue of permanent impairment to the
left lower extremity. Dr. Shukla referred appellant for an impartial medical examination with
Dr. Potaczek. On October 16, 2012 and May 1, 2013 OWCP denied appellant an additional
schedule award to the left lower extremity based on the October 12, 2012 report of Dr. Potaczek,
a Board-certified orthopedic surgeon who served as an impartial medical specialist.
On appeal, appellant’s counsel argued that OWCP’s decision is contrary to law and fact.
The Board initially notes that OWCP improperly determined that a conflict in medical opinion
arose regarding the extent of appellant’s left lower extremity impairment between Dr. Grant and
Dr. Shukla. Dr. Grant noted 36 percent left lower extremity by providing impairment ratings for
closed left fracture trimalleolar; left ankle sprain; left sprain of ankle deltoid; closed left
dislocation ankle; and peripheral nerve involvement. Dr. Shukla, OWCP’s medical adviser,
noted that Dr. Stevens, in a November 10, 2011 report, found appellant’s ankle neurovascularly
intact and that the resultant deficit was from post-traumatic arthritis, which was noted as mild.
Additionally, Dr. Shukla properly found that a diagnosed-based impairment does not rate each
individual injury separately; but rather focuses on the end result, or mild arthritis as assessed by
Dr. Stevens. The A.M.A., Guides states that typically only one diagnosis is used per region to
determine impairment.11 As Dr. Grant’s rating did not conform to the A.M.A., Guides, it is of
diminished probative value.12 His report did not create a conflict in medical opinion with
Dr. Shukla. Therefore, the referral to Dr. Potaczek is not as an impartial medical examiner but as
a second opinion physician.
The Board further finds that Dr. Potaczek’s impairment rating is not sufficiently thorough
or well reasoned. As appellant’s counsel argued, Dr. Potaczek did not adequately explain his
rating of impairment in the October 12, 2012 report. He did not set forth findings from
examination in sufficient detail to allow the Board to fully visualize the nature and extent of
permanent impairment. It is well established that a physician’s opinion should include a
description of impairment, including the loss in degrees, range of motion of affected members,
any atrophy or deformity, decreases in strength or disturbance of sensation in such detail as those
reviewing the file will be able to clearly visualize the impairment with all its limitations.13
Dr. Potaczek noted range of motion findings and diagnosed post-traumatic arthritis in left ankle.
He also indicated that the record demonstrated that appellant had normal neurovascular status
and thus there could be no rating for peripheral nerve involvement as Dr. Grant found. However,
Dr. Potaczek did not provide sufficient explanation or factual support regarding why he
concurred with the diagnosed-based impairment rating method employed by Dr. Shukla nor did
he reference any tables or pages from the A.M.A., Guides. The opinion of Dr. Potaczek thus
11

A.M.A., Guides 389, 499.

12

Mary L. Henninger, 52 ECAB 408 (2001).

13

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

5

requires further clarification. On remand, OWCP should request a supplemental report from
Dr. Potaczek.
The Board will set aside OWCP’s May 1, 2013 decision and remand the case to OWCP
to request a supplemental report from Dr. Potaczek. After such further development as may be
required, OWCP shall issue an appropriate final decision on appellant’s claim for a schedule
award.
CONCLUSION
The Board finds that the case is not in posture for decision as further clarification is
required from OWCP’s second opinion physician, Dr. Potaczek, regarding the extent of
permanent impairment to appellant’s left leg.
ORDER
IT IS HEREBY ORDERED THAT the May 1, 2013 decision of the Office of Workers’
Compensation Programs be set aside and the case is remanded to OWCP for further action
consistent with this decision of the Board.
Issued: March 10, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chandler, AZ, Employer
__________________________________________

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

Docket No. 11-663
Issued: December 15, 2011

Case Submitted on the Record

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

JURISDICTION
On January 19, 2011 appellant, through his attorney, filed a timely appeal from a
September 3, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying intermittent periods of disability. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant established intermittent periods of disability from
January 29, 2008 through October 19, 2009.
FACTUAL HISTORY
On August 13, 2008 appellant, then a 47-year-old regular rural letter carrier, filed a claim
alleging his diabetic polyneuropathy and left carpal tunnel syndrome were causally related to
1

5 U.S.C. § 8101 et seq.

factors of his federal employment. OWCP accepted the claim for bilateral wrist sprain and
bilateral carpal tunnel syndrome. Appellant underwent authorized carpal tunnel surgeries on
March 17, April 14 and October 20, 2009 and January 12, 2010.
On December 8, 2008 appellant claimed intermittent disability, from January 29 through
July 19, 2008, that totaled 336 hours. Doctor visits in 2008 were listed as being on January 29,
February 5 and 28, April 24, May 7, 21 and 28, June 17 and 23 and July 2, 2008. Appellant
submitted prescription notes from Dr. Martin H. Rubin, a Board-certified internist, commencing
February 8, 2008. In a July 25, 2008 medical note, Dr. Rubin noted the dates of treatment, the
type of treatment provided and stated that appellant was unable to work due to pain.
In a January 27, 2009 letter, OWCP asked that appellant provide rationalized medical
evidence supporting that the claimed disability was due to the accepted conditions.
In a January 28, 2009 report, Dr. Rubin stated that appellant’s chronic daily pain, due to
his bilateral carpal tunnel syndrome, led to frequent loss of hand function, worse on the left. He
noted that while pain medication provided some symptom relief, the side effects prevented
appellant from performing even light duty. In prescription notes dated February 10, 11, 132
and 16,3 2009, Dr. Rubin stated that appellant was unable to work due to carpal tunnel syndrome.
On February 16, 2009 he released appellant to work with restrictions.
In a February 16, 2009 work release, Dr. Kraig M. Burgess, an orthopedic surgeon,
released appellant to light-duty work effective February 17, 2009. In a February 23, 2009 work
release, he opined that appellant could work with restrictions effective February 24, 2009.
Appellant subsequently filed a claim for compensation for intermittent periods from
September 2, 2008 through October 19, 2009. From September 2, 2008 through February 28,
2009 he claimed 208 hours of leave without pay. The employing establishment certified 144
hours, noting that appellant used either annual or sick leave or was scheduled to be off for the
claimed dates of September 8, October 20, November 9, December 16 and 17, 2008 and
January 5, 6 and 22, 2009. From March 2 through 13, 2009, appellant claimed 72 hours due to
hand pain and a March 12, 2009 doctors visit. From March 14 to 20, 2009, appellant claimed 48
hours of total disability. From March 17 through May 30, 2009, appellant claimed total
disability as a result of recovery from the March 17, 2009 left carpal tunnel release and the
April 14, 2009 right carpal tunnel release. For the period June 1 through 6, 2009, appellant
claimed 40 hours of total disability. The employing establishment stated that appellant worked
part-time light duty as of June 1, 2009 and that the claimed eight hours leave without pay on
June 6, 2009 was a scheduled day off. From June 8 through 20, 2009, appellant claimed 56
hours while, from June 27 to July 4, 2009, appellant claimed 12 hours leave without pay and 16
leave buyback hours for June 29 and 30, 2009. For the period July 6 through 10, 2009, appellant
submitted a Form CA-7, but no time analysis form. From July 13 to 17, 2009, appellant claimed

2

Dr. Rubin opined appellant was totally disabled due to carpal tunnel syndrome February 12 and 13, 2009.

3

Dr. Rubin opined appellant was totally disabled on February 14, 2009 from a flare-up of carpal tunnel
syndrome. He opined that appellant could return to limited-duty work.

2

12 hours leave without pay and 16 hours leave buyback, which the employing establishment
denied. For the period July 20 through 31, 2009, appellant claimed 47.25 hours.
Appellant also filed a recurrence of disability claim for the period July 24 through
October 19, 2009. The employing establishment stated that he was released to full-time work
effective July 20, 2009, but he worked part time through July 24, 2009. Appellant missed work
on July 27, 2009, worked 4.75 hours on July 28, 2009, missed work on July 29, 2009, worked a
full day on July 30, 2009 and stopped work completely on July 31, 2009.
Medical notes beginning in 2008 were submitted, including those for treatment and
disability due to the March 17, April 14 and October 20, 2009 and January 12, 2010 carpal
tunnel surgeries. Dr. Burgess released appellant to light-duty work effective February 24, 2009.4
In a March 9, 2009 duty status report, Dr. Rubin stated that appellant could not work due to left
hand pain and the effects of pain medication. Appellant underwent carpal tunnel surgeries on
March 17 and April 14, 2009. On June 1, 2009 he returned to part-time light-duty work. On
July 20, 2009 Dr. Burgess released appellant to full-time work effective July 21, 2009. In his
July 20, 2009 report, Dr. Burgess noted that appellant had increased pain which he attributed to
checking trucks over a two-day period. The objective examination was essentially normal.
Dr. Burgess opined that appellant could return to full-time limited-duty work. He also noted that
from a surgical standpoint, appellant could return to his original rural letter carrier job. In a
July 27, 2009 report, Dr. Burgess noted that appellant reported a difficult time performing job
activities. Examination showed full digital and wrist mobility with discomfort on extremes of
wrist flexion and extension. A positive Tinel’s and Phalen’s examination was noted, greater on
the left than the right. Dr. Burgess referred appellant to repeat electrodiagnostic studies and
released him to full-time light-duty work. A work release with appellant’s restrictions was
provided.
In medical notes dated August 3 and 7, 2009, Dr. Rubin noted that appellant was seen for
increased pain. In an August 10, 2009 report, Dr. Burgess noted that appellant advised that he
was unable to work due to severe pain and simple daily tasks and activities had become
impossible. Physical examination showed objective findings out of proportion to subjective
complaints. Motor strength testing in all major groups revealed weakness which was likely
effort related. Dr. Burgess provided an impression of status post bilateral carpal tunnel release
and unexplained chronic hand pain bilateral. He noted that appellant and his wife stated that he
was incapable of any work, even light duty. Dr. Burgess provided appellant an off-work slip
with no return to work until seen in follow up after his electromyogram evaluation and pain
management consultation.
In a September 14, 2009 report, Dr. Burgess indicated that appellant underwent repeat
neurodiagnostic evaluation and a second opinion. He noted that appellant related the decline in
his progress to being sent back to work to check all of the locked car doors at the worksite.
Examination revealed discomfort with neurogenic testing of the median nerve as Palen’s and
Tinel’s maneuver bilaterally. Review electrodiagnostic evaluation showed normal ulnar, motor
and sensory components in addition to improvement in the right median conduction but
4

There are no medical notes supporting claimed temporary total disability for the period September 2, 2008
through February 28, 2009.

3

worsening of the left median nerve compared to the August 2008 study. Dr. Burgess placed
appellant in an off-work status pending results of further testing and examination.
On September 30, 2009 OWCP requested additional information. It noted the medical
evidence required to support disability causally related to the accepted work injury as well as
time off for medical appointments. From September 2, 2008 to February 28, 2009, it found the
medical evidence supported that appellant attended medical appointments on October 2 and
November 9, 2008 and January 28, February 10 and 23, 2009, but he was only entitled to 16 total
hours of compensation as November 9, 2008 was a scheduled day off. From March 2 to 13,
2009, OWCP noted that the medical evidence supported that appellant could perform limited
duty. From March 14 to 16, 2009, no medical evidence was provided to support either a medical
appointment or total disability.
OWCP accepted that appellant was totally disabled for the period March 17 through
May 29, 2009 due to the March 17, 2009 left carpal tunnel release and the April 14, 2009 right
carpal tunnel release.5 From June 1 to 6, 2009, it noted that appellant was released to part-time
limited duty as of June 1, 2009 and thus compensation was only established for 4 hours per day,
although appellant was paid 32 hours of the 40 claimed for this period. The eight hours claimed
for June 6, 2009 was not payable as it was a scheduled day off. OWCP paid the total claimed for
the period June 8 through 20, 2009 (56 hours) and for the period June 27 through July 4, 2009
(12 hours). For the period July 6 through 10, 2009, it noted that a leave analysis form (CA-7a)
was not provided and the employing establishment would not certify the claim without such
form. From July 13 to 17, 2009, OWCP paid the 12 hours of leave claimed for partial disability
while, from July 20 to 31, 2009, OWCP found that appellant established 16 hours total for time
off for medical appointments on July 20, 24, 27 and 29, 2009. It found additional factual and
medical evidence were needed to support appellant’s recurrence claim for the period beginning
July 24, 2009. It noted that appellant was released to full-time work, effective July 20, 2009, but
he worked part time through July 24, 2009, missed work on July 27, 2009, worked 4.75 hours on
July 28, 2009, missed work on July 29, 2009, worked 8 hours on July 30, 2009 and stopped work
beginning July 31, 2009. OWCP informed appellant that no action would be taken on his leave
buyback requests as it was within the employing establishment’s discretion. Appellant was
requested to provide additional factual and medical evidence to support his claims.
On September 10, 2009 Dr. Peter J. Campbell, a Board-certified orthopedic surgeon,
conducted a fitness-for-duty examination based on Dr. Burgess’ recommendation. He opined
that, although OWCP accepted appellant’s carpal tunnel as work related, the condition more
likely represented idiopathic carpal tunnel-related syndrome that was multifactorial and more
likely due to appellant’s morbid obesity and diabetes mellitus. Dr. Campbell opined that the
cause of appellant’s subjective complaints was unknown and examination was limited secondary
to his withdrawal-type reaction to any attempted examination. He noted that appellant’s
subjective complaints of postoperative pain exceeded that which would be expected for normal
postoperative pillar pain. For the right hand, the nerve condition study supported improvement,
with findings borderline normal, while, on the left, there was a noted worsening of the left
5

OWCP indicated that it would correct any difference in the pay rate between the date-of-injury pay rate of
January 28, 2008 and the accepted date disability began of March 17, 2009 when it received corrected pay rate
information from the employing establishment.

4

median nerve conduction compared to the August 2008 study. A repeat neurolysis was needed
to assure complete depression. Appellant could work with left hand restrictions but no
restrictions on the right hand. He opined that the only benefit of a functional capacity evaluation
would be to evaluate appellant’s effort and reliability during the examination.
In an October 5, 2009 report, Dr. Burgess noted that the employing establishment offered
appellant a position with unrestricted use of his right hand in which he would case mail and
deliver mail, which appellant did not think he could perform. He stated that appellant felt he was
disabled. Dr. Burgess noted no significant change in appellant’s examination. While appellant
had extreme weakness to grip and thenar motor strength testing, Dr. Burgess felt it was
somewhat effort related. Dr. Burgess noted the electrodiagnostic evaluation revealed persisted
left median nerve entrapment compared to the 2008 study and opined that appellant may have
had an incomplete medial release and repeat surgery was necessary. He opined that appellant
could not safely drive a vehicle and case a route with one hand.
In two separate decisions dated March 5, 2010, OWCP addressed appellant’s multiple
claims for compensation from January 29, 2008 through October 19, 2009. For the period
January 28 through July 19, 2008, OWCP found the employing establishment certified only 72
hours of the 336 hours claimed and, of the 72 certified hours, appellant was entitled to only 4
hours for a February 5, 2008 medical appointment. It found there was no clear medical opinion
with objective findings which supported the claimed temporary total disability was causally
related to the accepted injury and that he had used either annual or sick leave or was scheduled to
be off for the other dates claimed.
For the period September 2, 2008 through October 19, 2009, OWCP granted appellant
the time lost for medical appointments and temporary total and partial disability which were
supported by the medical evidence and certified by the employing establishment as noted in its
September 30, 2009 letter. It found that appellant did not establish claimed total disability for
the 144 certified hours for the period September 2, 2008 through February 28, 2009 other than
the 16 hours payable for medical appointments. For the claimed 72 hours covering the period
March 2 through 13, 2009 and the claimed 24 hours for the period March 14 through 16, 2009, it
found no medical evidence supported either a medical appointment or total disability.
Compensation for the period July 6 through 10, 2009 was denied as no CA-7a was received. For
the remaining 31.25 hours claimed for the period July 20 through 31, 2009, it found the medical
evidence insufficient to support disability due to the accepted injury. It denied appellant’s
recurrence claim for the period July 24 through October 19, 2009 but found appellant had
established 40 total hours for medical appointments on July 24, 27 and 29, August 4, 7 and 10,
September 10, 14 and 21, and October 5, 2009, which the employing establishment certified.
Appellant requested a telephonic hearing, which was held on June 15, 2010.
By decision dated September 3, 2010, an OWCP hearing representative affirmed
OWCP’s March 5, 2010 decisions, finding that the remaining dates of claimed disability were
not causally related to the accepted employment conditions.

5

LEGAL PRECEDENT
The term disability as used in FECA means the incapacity because of an employment
injury to earn the wages that the employee was receiving at the time of injury.6 For each period
of disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.7 Whether a particular injury caused an
employee disability for employment is a medical issue which must be resolved by competent
medical evidence.8 The fact that a condition manifests itself during a period of employment does
not raise an inference that there is a causal relationship between the two.9
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 an employee to self-certify their disability and
entitlement to compensation.10
Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled for work.11 Appellant’s burden of proving he was disabled on particular
dates requires that he furnish medical evidence from a physician who, on the basis of a complete
and accurate factual and medical history, concludes that the disabling condition is causally
related to the employment injury and supports that conclusion with medical reasoning.12 Where
no such rationale is present, the medical evidence is of diminished probative value.13 Generally,
findings on examination are needed to justify a physician’s opinion that a claimant is disabled for
work.14
An injured employee may be entitled to compensation for lost wages incurred while
obtaining authorized medical services.15 This includes the actual time spent obtaining the
medical services and a reasonable time spent traveling to and from the medical provider’s
location.16 As a matter of practice, OWCP generally limits the amount of compensation to four
6

Paul E. Thams, 56 ECAB 503 (2005).

7

Sandra D. Pruitt, 57 ECAB 126 (2005); Dennis J. Balogh, 52 ECAB 232 (2001).

8

G.T., 59 ECAB 447 (2008); Gary J. Watling, 52 ECAB 278 (2001).

9

D.I., 59 ECAB 158 (2007).

10

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

11

S.F., 59 ECAB 525 (2008).

12

Ronald A. Eldridge, 53 ECAB 218 (2001).

13

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

14

See Dean E. Pierce, 40 ECAB 1249 (1989); Paul D. Weiss, 36 ECAB 720 (1985).

15

See 5 U.S.C. § 8103(a) (2006); Gayle L. Jackson, 57 ECAB 546, 547-48 (2006).

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16a
(October 2009).

6

hours with respect to routine medical appointments.17 However, longer periods of time may be
allowed when required by the nature of the medical procedure and/or the need to travel a
substantial distance to obtain the medical care.18
ANALYSIS
OWCP accepted that appellant sustained bilateral wrist sprain and bilateral carpal tunnel
syndrome and it authorized several surgeries. Appellant returned to work with restrictions
following his carpal tunnel surgeries. He requested intermittent periods of compensation for the
period September 2, 2008 through October 19, 2009.
For the period January 28 through July 19, 2008, appellant claimed a total of 336 hours.19
There is no medical evidence of record supporting that the claimed temporary total disability is
causally related to the accepted conditions or that appellant attended a medical appointment due
to the accepted conditions. Medical notes dated February 5 and July 25, 2008, listed the dates of
treatment, treatment provided and stated that appellant was unable to work due to pain; however,
there was no finding that appellant was disabled from work on those dates due to his
employment-related conditions or any explanation as to why a work-related condition caused any
disability. Appellant has not established additional entitlement to compensation for temporary
total disability or wage-loss compensation for authorized medical services during the period
January 28 through July 19, 2008.
For the period September 2, 2008 through February 28, 2009, appellant claimed 208 total
hours of leave without pay. The medical evidence fails to support additional temporary total
disability or medical appointments beyond the 20 hours deemed payable for medical
appointments on October 2, 2008,20 and January 28, February 10, 11 and 13, 2009. Dr. Rubin
indicated in his January 28, 2009 report that medication side effects prevented him from
performing light-duty work. However, he failed to identify any particular period of total
disability or provide a medical explanation as to why such side effects from the medication were
disabling. Furthermore, Dr. Rubin opined that appellant could work with restrictions on
February 16, 2009 and did not indicate whether the pain medication was discontinued.
Dr. Burgess released appellant to light duty effective February 17, 2009 and again released him
to work with restrictions on February 24, 2009, but Dr. Burgess provided no explanation as to
why appellant was unable to work, due to his accepted conditions, for any uncompensated period
prior to the work release dates. Thus, appellant has not established additional entitlement to
compensation for wage-loss compensation during this period.
OWCP denied the claimed 72 hours of disability for the period March 2 through 13, 2009
and the claimed 24 hours of disability for the period March 14 through 16, 2009. There is
insufficient medical evidence to establish that this disability was causally related to the accepted
17

Id. at Part 3 -- Medical, Administrative Matters, Chapter 3.900.8 (November 1998).

18

Id.

19

Appellant was paid four hours for a medical appointment on February 5, 2008.

20

Compensation for November 9, 2008 is not payable as this was a scheduled day off.

7

conditions. In his March 9, 2009 report, Dr. Rubin opined that appellant was unable to work due
to hand pain. However, Dr. Rubin failed to indicate any objective findings or medical reasoning
to support how appellant’s accepted condition changed such that appellant could not continue
working light duty, which Dr. Burgess had released appellant effective February 24, 2009. A
physician’s opinion, which does not address causal relationship, is of diminished probative
value.21 While appellant claimed eight hours for a March 12, 2009 doctor’s appointment there is
no medical evidence supporting that appellant received authorized medical services on that date.
There is no other medical evidence to support temporary total disability for the periods claimed.
Thus, appellant has not established entitlement to compensation for total disability or wage-loss
compensation for authorized medical services during the claimed periods.
For the period March 17 through May 30, 2009, OWCP paid temporary total disability
from March 17 through May 29, 2009. There was no medical evidence to support work-related
total disability for May 30, 2009. For the period June 1 through 6, 2009, appellant was paid 32
hours of the claimed 40 hours. The eight hours claimed for June 6, 2009 was a scheduled day
off; thus, appellant is not entitled to compensation for that day. No other evidence was provided
to support entitlement for that day. From June 27 through July 4, 2009, appellant received 12
hours of leave without pay, but was denied compensation for 16 hours of leave buyback for
June 29 and 30, 2009. The Board notes that there is no medical evidence that appellant was
treated for his accepted condition or was totally disabled due to his accepted condition on either
of these dates. Thus, OWCP properly denied appellant’s claim for 16 hours of leave buyback for
June 29 and 30, 2009.
For the period July 6 through 10, 2009, appellant did not provide a Form CA-7a detailing
his claimed disability. The record reflects that appellant returned to work in a part-time lightduty position on June 1, 2009. Dr. Burgess saw appellant on July 6, 2009 and released him to
limited-duty work effective July 7, 2009. The record also indicates that appellant attended
physical therapy on July 9, 2009. Thus, appellant is entitled to four hours compensation for his
medical appointment of July 6, 2009 and four hours compensation for his physical therapy
session of July 9, 2009, for a total of eight hours. The record contains no medical evidence to
support total disability due to the accepted conditions, or wage-loss incidental to medical
treatment for the accepted conditions, for July 7, 8 or 10, 2009.
From July 13 to 17, 2009, OWCP paid appellant 12 hours of leave without pay, but noted
the 16 hours of leave buyback was denied by the employing establishment. In situations where
compensation is claimed for periods when leave was used, OWCP has the authority and the
responsibility to determine whether the employee was disabled during the period for which
compensation is claimed.22 It determines whether the medical evidence establishes that an
employee is disabled by an employment-related condition during the period claimed for leave
buyback, after which the employing establishment will determine whether it will allow the

21

See A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
22

See Glen M. Lusco, 55 ECAB 148 (2003); see also 20 C.F.R. § 10.425.

8

employee to buy back the leave used.23 The Board has no authority to overrule an employing
establishment’s determination regarding leave buyback.24
For the period July 20 through 31, 2009, appellant claimed 47.25 hours but received 16
hours of compensation for medical appointments on July 20, 24, 27 and 29, 2009. The record
indicates that Dr. Burgess released him to full-time full-duty work beginning July 20, 2009.
While appellant saw Dr. Rubin on July 24 and 29, 2009, he indicated that appellant was seen for
bilateral hand pain, treated with medication and placed on temporary total disability. Dr. Rubin,
however, did not support disability due to the accepted work conditions or explain how appellant
became totally disabled due to his accepted conditions after Dr. Burgess, a treating physician,
released him to full-duty work. Thus, Dr. Rubin’s reports are insufficient to establish that
appellant sustained intermittent disability between July 20 through 31, 2009 due to his accepted
employment conditions.
The record reflects that appellant stopped work completely on July 31, 2009. The
medical evidence does not establish a causal connection between the claimed disability
beginning this date and the accepted work conditions. As noted, on July 20, 2009 Dr. Burgess
released appellant to regular work. This was based on an essentially normal objective
examination. In his July 27, 2009 report, Dr. Burgess performed an objective examination and
imposed some restrictions pending diagnostic testing. However, he released appellant to fulltime light-duty work.25 In his August 10, 2009 report, Dr. Burgess noted that appellant’s
objective findings were out of proportion to his subjective complaints. He provided appellant an
off-work slip with no return to work based on appellant’s report he was unable to work and
pending further evaluation. The Board has held that when a physician’s statements regarding a
claimant’s ability to work consist only of a repetition of the claimant’s complaints that he hurt
too much to work, without objective signs of disability being shown, the physician has not
presented a medical opinion on the issue of disability or a basis for payment of compensation.26
In his September 14, 2009 report, Dr. Burgess reported a worsening of the left median nerve and
placed appellant in an off-work status pending further testing. He did not offer an opinion as to
how appellant’s left hand condition was due to the accepted condition and why it necessitated
total disability. On October 5, 2009 Dr. Burgess noted that there was no significant change in
appellant’s examination and the weakness in grip and thenar motor strength testing were effort
related. While he opined that appellant may have had an incomplete release and a repeat
operation was necessary, he offered no opinion explaining why appellant’s disability was
causally related to his accepted conditions.
Dr. Rubin’s notes of August 3 and 7, 2009 report seeing appellant for increased pain.
However, they fail to support total disability as Dr. Rubin did not offer an opinion on disability
or provide any objective findings. Medical evidence which does not offer an opinion regarding
23

Id..

24

Id.

25

There is no evidence to indicate that the employing establishment did not make appropriate light-duty work
available.
26

John L. Clark, 32 ECAB 1618 (1981).

9

the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.27
While Dr. Campbell noted a worsening of appellant’s left hand on September 10, 2009,
based on a review of diagnostic testing, he did not support that appellant was totally disabled due
to the accepted conditions. Instead, he opined that appellant could work with no restrictions on
the right hand and restrictions on the left hand. He further noted that appellant’s subjective
complaints of pain exceeded that which would be expected for normal postoperative pain.
Appellant has not submitted a well-reasoned medical opinion explaining how his claimed
total disability is causally related to his accepted conditions. The Board finds that appellant has
not met his burden of proof, except as noted, to establish that his claimed disability is causally
related to his accepted conditions.
On appeal, appellant’s counsel argues that OWCP’s decision is contrary to fact and law.
As explained, except for finding appellant is entitled to wage-loss compensation on July 6 and 9,
2009, for wage-loss incidental to medical treatment for his accepted employment injury,
appellant has not established entitlement to the claimed period of compensation.
CONCLUSION
Appellant is entitled to four hours of wage-loss compensation on both July 6 and 9, 2009
for a total of eight hours for medical treatment received in connection with his accepted
employment injury. Appellant has not otherwise established entitlement to wage-loss
compensation for total disability for intermittent periods from January 29, 2008 through
October 19, 2009.

27

See supra note 21.

10

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated September 3, 2010 is affirmed, as modified.
Issued: December 15, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-826
Issued: July 3, 2014

Case Submitted on the Record

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

JURISDICTION
On February 28, 2014 appellant filed a timely appeal from the September 10, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are:
(1) whether appellant received a $3,169.74 overpayment of
compensation; and (2) whether OWCP abused its discretion by refusing to waive recovery of the
overpayment.
FACTUAL HISTORY
OWCP accepted that on April 10, 1999 appellant, then a 31-year-old mail handler,
sustained a lumbar sprain, displacement of L4 disc without myelopathy and lumbosacral neuritis
1

5 U.S.C. §§ 8101-8193.

due to moving large amounts of mail at work. Appellant stopped work and received
compensation on the daily rolls for periods of disability. He later received compensation on the
periodic rolls.
On June 5, 2003 OWCP granted appellant a schedule award for a six percent permanent
impairment of his left leg. The award ran for 17.28 weeks from April 30 to August 28, 2003.
Appellant last worked for the employing establishment in April 2010. He began
participating in an OWCP-sponsored vocational rehabilitation program in December 2010 but he
did not return to work.
In a June 27, 2013 decision, OWCP terminated appellant’s wage-loss compensation and
medical benefits effective June 30, 2013 finding that he had no residuals of his April 10, 1999
work injury after that date. It based the termination on the March 15, 2013 report of Dr. Ivan
Atosh, a Board-certified orthopedic surgeon serving as an OWCP referral physician, and on an
April 8, 2013 report of Dr. Howard Cotler, an attending Board-certified orthopedic surgeon.
Appellant retired from the employing establishment in May 2013. While she was
receiving compensation payments, OWCP failed to properly make Federal Employees’ Group
Life Insurance (FEGLI) deductions. OWCP was advised of this by the Office of Personnel
Management (OPM) by letter dated May 31, 2013 for the period April 23, 2011 to June 1, 2013.
It had failed to deduct $3,169.74 from appellant’s compensation for FEGLI for the period
April 23, 2011 to June 1, 2013.
In a July 17, 2013 notice, OWCP advised appellant of its preliminary determination that
he received a $3,169.74 overpayment of compensation because it had failed to deduct the correct
amount of FEGLI coverage during the period April 23, 2011 to June 1, 2013. It made a
preliminary determination that he was not at fault in the creation of the overpayment. OWCP
advised appellant that he could submit evidence challenging the fact, amount, or finding of fault
and request waiver of the overpayment. It informed him that he could submit additional
evidence in writing or at prerecoupment hearing, but that a prerecoupment hearing must be
requested within 30 days of the date of the written notice of overpayment. OWCP requested that
appellant complete and return an enclosed financial information questionnaire within 30 days
even if he was not requesting waiver of the overpayment. Appellant did not provide any
response within the allotted time.
In a September 10, 2013 decision, OWCP determined that appellant received a $3,169.74
overpayment of compensation. It found that appellant was not at fault in the creation of the
overpayment, but that the overpayment was not subject to waiver because he did not submit any
information to support waiver of recovery of the overpayment within the allotted time period.2

2

OWCP requested that appellant forward payment for the full amount of $3,169.74 within 30 days. As recovery
from continuing compensation benefits under FECA is not involved in this case, the Board has no jurisdiction over the
method of OWCP’s recovery of the overpayment. Lorenzo Rodriguez, 51 ECAB 295 (2000); 20 C.F.R. § 10.441.

2

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.3 Section 8129(a) of FECA provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”4
Under FEGLI, most civilian employees of the Federal Government are eligible to
participate in basic life insurance and one or more of the options.5 The coverage for basic life
insurance is effective unless waived6 and the premiums for basic and optional life coverage are
withheld from the employee’s pay.7 While the employee is receiving compensation under
FECA, deductions for insurance are withheld from the employee’s compensation.8 At separation
from the employing establishment, the FEGLI insurance will either terminate or be continued
under “compensationer” status. If the compensationer chooses to continue basic and optional life
insurance coverage, the schedule of deductions made will be used to withhold premiums from
his or her compensation payments.9 When an underwithholding of life insurance premiums
occurs, the entire amount is deemed an overpayment of compensation because OWCP must pay
the full premium to OPM upon discovery of the error.10
ANALYSIS -- ISSUE 1
The Board finds that appellant received a $3,169.74 overpayment of compensation. In
the present case, OWCP did not deduct the proper amount for zero percent postretirement
reduction under FEGLI coverage during the period April 23, 2011 to June 1, 2013. The record
contains a May 31, 2013 document from OPM showing that the commencement date of the
failure to deduct FEGLI was April 23, 2011. Other documents, including a worksheet covering
the period April 23, 2011 to June 1, 2013, show that OWCP failed to take out $3,169.74 from
appellant’s compensation for zero percent postretirement reduction covering the period April 23,

3

5 U.S.C. § 8102(a).

4

Id. at § 8129(a).

5

Id. at § 8702(a).

6

Id. at § 8702(b).

7

Id. at § 8707.

8

Id. at § 8707(b)(1).

9

Id. at § 8706(b).

10

Id. at § 8707(d); see Keith H. Mapes, 56 ECAB 130 (2204); James Lloyd Otte, 48 ECAB 334 (1997).

3

2011 to June 1, 2013. Therefore, OWCP properly determined that appellant received a
$3,169.74 overpayment.
On appeal, appellant discussed his belief that he had been harassed by management with
respect to his medical restrictions and his filing of Equal Employment Opportunity claims.
However, he did not explain how these matters were relevant to the overpayment matter
presently before the Board.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.11 These statutory
guidelines are found in section 8129(b) of FECA which states: “Adjustment or recovery [of an
overpayment] by the United States may not be made when incorrect payment has been made to
an individual who is without fault and when adjustment or recovery would defeat the purpose of
this subchapter or would be against equity and good conscience.”12 When a claimant is found to
be without fault in the matter of the overpayment, then, in accordance with section 8129(b),
OWCP may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of FECA nor be against equity and good conscience.
Section 10.438 of OWCP’s regulations provide:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses and assets as specified by OWCP. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of FECA or be against equity and good conscience.
This information will also be used to determine the repayment schedule, if
necessary.
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver, and no further request for waiver shall be
considered until the requested information is furnished.”13
ANALYSIS -- ISSUE 2
OWCP properly determined that appellant did not establish entitlement to waiver of
recovery of the $3,169.74 overpayment under the relevant standards. As noted above, failure to
submit the requested information within 30 days to determine entitlement to waiver of recovery
of a given overpayment shall result in denial of waiver, and no further request for waiver shall be
considered until the requested information is furnished.14 Appellant did not provide the
11

See Robert Atchison, 41 ECAB 83, 87 (1989).

12

5 U.S.C. § 8129(b).

13

20 C.F.R. § 10.438.

14

Id.

4

requested information within the appropriate time period to show that he was entitled to waiver
of recovery of the overpayment and OWCP properly denied such waiver.15
CONCLUSION
The Board finds that OWCP properly found that appellant received a $3,169.74
overpayment of compensation and that it properly denied waiver of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the September 10, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 3, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

15

Appellant did not complete and submit the financial questionnaire as requested by OWCP or submit any
response within the allotted time.

5