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

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

Docket No. 14-834
Issued: September 16, 2014

Case Submitted on the Record

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

JURISDICTION
On March 5, 2014 appellant, through his attorney, filed a timely appeal of a January 16,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than 34 percent impairment of his right leg, for
which he received a schedule award.
On appeal, counsel argued a conflict of medical evidence exists between Dr. Michael E.
Hebrard, appellant’s attending Board-certified physiatrist, and the medical adviser regarding the
extent of permanent impairment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 25, 2003 appellant, then a 39-year-old letter carrier, filed an occupational
disease claim alleging a right knee condition including swelling and pain. OWCP accepted his
claim for a right knee strain, derangement and meniscus tear on November 26, 2003. Appellant
underwent right knee arthroscopic surgery on January 27, 2004 for a lateral meniscectomy due to
a large cleavage tear and chondroplasty due to grade 3 chondromalacia of the trochlear groove,
medial femoral condyle and lateral femoral condyle. He returned to light-duty work on
February 17, 2004. On October 5, 2005 appellant reached maximum medical improvement with
a rating of two percent impairment of right lower extremity.
Appellant underwent a magnetic resonance imaging (MRI) scan on May 24, 2005, which
demonstrated subchondral sclerosis, osteophytes in all three compartments and a degenerative
tear of lateral meniscus. He underwent an MRI scan on January 2, 2007, which demonstrated a
tear in the anterior horn of the medial meniscus as well as early degenerative changes in the
medial and lateral compartments of the right knee. On August 20, 2007 Dr. Marc Friedman, a
Board-certified orthopedic surgeon, performed arthroscopic surgery for a cleavage tear of the
anterior horn of the lateral meniscus and grade 3 or 4 chondromalacia throughout appellant’s
knee.
By decision dated January 23, 2008, OWCP granted appellant a schedule award for 34
percent impairment of the right lower extremity.
Dr. Friedman recommended that appellant undergo a total knee replacement on July 24,
2008 due to tricompartmental arthritis. On September 25, 2009 the medical adviser
recommended that OWCP accept right knee osteoarthritis and stated that a total knee
arthroplasty was medically necessary and reasonable. On March 3, 2010 Dr. Friedman
performed a total right knee replacement surgery. On April 5, 2011 appellant’s March 30, 2011
bone scan showed increased uptake about the medial tibia. His knee replacement exhibited
loosening on May 10, 2011.
Dr. Jaime Hernandez, a Board-certified orthopedic surgeon, performed a revision of
appellant’s right total knee arthroplasty on September 12, 2011. On May 1, 2012 he found that
appellant’s condition was permanent and stationary. Dr. Hernandez noted that appellant had a
healed anterior incision with keloid and that his range of motion was 0 to 120 degrees. He found
no instability to varus, valgus or AP stress. Dr. Hernandez stated that x-rays did not demonstrate
loosing, component migration or subsidence. On June 19, 2012 he noted that appellant had mild
right knee pain with stiffness and swelling. Appellant’s thigh circumference on the right
measured 23 inches and on the left 24 inches. His calves were 16½ inches on the right and 16¾
inches on the left. Dr. Hernandez noted that appellant had significant keloid formation in his
incision scar. He found flexion from 0 to 125 degrees on the right with no obvious instability
medially, laterally or anterior posteriorly. Dr. Hernandez stated that appellant’s gait was normal
and that he could walk on his heels and toes. He stated that x-rays on May 1, 2012 showed the
total knee replacement. Dr. Hernandez provided an impairment rating based on the fifth edition
of the A.M.A., Guides. He noted that appellant had a good result for his total knee replacement
and a 13 percent whole person impairment.

2

Appellant requested an additional schedule award on December 20, 2012.
Dr. Leonard A. Simpson, a medical adviser, reviewed appellant’s claim on January 16, 2013 and
evaluated permanent impairment in accordance with the sixth edition of the A.M.A., Guides.2
He found that appellant had a good result following a total knee replacement in accordance with
Table 16-3 with a default rating of 25 percent.3 Dr. Simpson noted that appellant’s functional
history adjustment resulted in a grade modifier 1 or -1 net adjustment; the physical examination
adjustment resulted in a grade modifier 0 or a -2 net adjustment; and the clinical studies grade
modifier was not applicable as it was utilized for class placement. He applied the net adjustment
formula to determine that the adjustment was -3, thereby moving the impairment to a class 2,
grade A or 21 percent impairment of the right lower extremity. Dr. Simpson stated that the date
of maximum medical improvement was June 19, 2012.
In a January 29, 2013 decision, OWCP found that appellant had no additional impairment
of his right leg.
Counsel requested an oral hearing before an OWCP hearing representative on
February 4, 2013. Appellant appeared at the May 15, 2013 oral hearing and testified that he had
two replacements of the same knee. He stated that his right leg was longer than his left due to
the revision of the knee replacement. Counsel requested an additional 30 days to submit
additional medical evidence.
By decision dated July 23, 2013, the hearing representative found that appellant had no
more than 34 percent impairment of his right lower extremity for which he received schedule
awards. The hearing representative found that Dr. Hernandez’ report was of limited probative
value as it was not based on the appropriate edition of the A.M.A., Guides. Therefore
Dr. Simpson’s report was entitled to the weight of the medical evidence.
In a report dated June 26, 2013, received by OWCP on July 25, 2013, Dr. Hebrard
evaluated appellant’s permanent impairment under the sixth edition of the A.M.A., Guides. He
noted appellant’s history of injury and medical treatment. Dr. Hebrard reviewed appellant’s pain
and functional status questionnaire which demonstrated that he experienced achy radiating,
cramping, sharp, shooting, nagging, burning and throbbing pain. Appellant reported numbness,
tingling and weakness in his calf and to his foot. He also reported moderate difficulty with
cleaning, driving, sexual activity and shopping. Dr. Hebrard found that appellant’s right knee
demonstrated 20 degrees of extension and 80 degrees of flexion. He found hypoesthesia’s with
light touch along the medial aspect of the legs bilaterally and the dorsal aspect of the right foot as
well as the anterior scar region of the right knee. Dr. Hebrard stated that appellant’s motor
strength testing revealed severe weakness in knee extension and flexion. He also found
moderate laxity with varus and valgus stress of the right knee and that appellant’s gait was
mildly antalgic on the right. Dr. Hebrard measured appellant’s leg length and found umbilicus to
medial malleolus was 99 centimeters on the right and 101 on the left. He further found that
2

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010).
3

A.M.A., Guides 511, Table 16-3.

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anterior superior iliac spine to the medial malleolus was 92 centimeters on the right and 94
centimeters on the left. In regard to appellant’s leg circumference, Dr. Hebrard found that the
mid patella measured 43 centimeters on the right and 40 on the left while appellant’s calves
measured 39.5 on the right and 40 centimeters on the left.
Dr. Hebrard diagnosed localized primary osteoarthritis of the right lower leg,
derangement of the anterior horn of the right medial meniscus, tear of the right lateral meniscus
and sprain of the right knee. He stated that appellant had ongoing weakness with right knee
flexion and extension and right ankle and toes dorsiflexion. Dr. Hebrard found that appellant
had impaired sensation on the lateral aspect of his right calf and dorsal aspect of his right foot in
the superficial peroneal nerve distribution. He noted that appellant has a two centimeter leg
length discrepancy. Dr. Hebrard stated, “[Appellant] has had to make significant compensatory
movements to adjust for the discrepancy which causes him to externally rotate the hip, especially
the piriformis muscle resulting in significant muscle spasms and sciatic nerve pain.” He
attributed the aggravation of the sciatic nerve to a consequence of appellant’s functional
adjustments to his leg length discrepancies. Dr. Hebrard found that appellant had sciatic nerve
neuropathy and rated this condition under Table 16-12 of the A.M.A., Guides4 as a mild-tomoderate sensory deficit of the sciatic nerve, class 1 impairment, four percent impairment and
mild motor deficit class 1, nine percent impairment. He concluded that appellant had 13 percent
impairment due to sciatica on the right side.
As to appellant’s knee replacement, Dr. Hebrard stated that appellant had a total knee
replacement with poor results under Table 16-3 of the A.M.A., Guides5 a class 4 default
impairment of 67 percent impairment of the lower extremity. He found that appellant’s
functional history grade modifier was 2 due to an antalgic gait. Dr. Hebrard stated that physical
examination was grade modifier 3 with swelling of the knee, leg length discrepancy of
2 centimeters, swelling and atrophy greater than 2 centimeters. He found moderate to serious
instability grade modifier 3 and tenderness, swelling of grade 4 with significant keloid scaring.
Dr. Hebrard found that the net adjustment was -1 and that appellant had grade B, 63 percent
impairment of his right lower extremity.
Appellant underwent an electromyogram (EMG) and nerve conduction study on
June 26, 2013. It demonstrated right sciatic neuropathy affecting the peroneal branch of the
nerve. Counsel requested reconsideration on October 18, 2013 based on Dr. Hebrard’s report.
In a report dated October 22, 2013, Dr. Hernandez described appellant’s moderate-tosevere right medial pain and intermittent swelling in his right knee. He stated that appellant
denied any weakness, numbness or tingling down the right lower extremity. Dr. Hernandez
found that appellant’s range of motion was 0 to 110 degrees in the right knee. He reported no
tenderness to palpation over the medial and lateral joint lines. Dr. Hernandez noted hypertrophic
scarring over the incision site. X-rays demonstrated a stable right total knee arthroplasty revision
with no loosening, migration of subsidence.

4

A.M.A., Guides 535, Table 16-12.

5

Id. at 511, Table 16-3.

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Appellant requested an additional schedule award on December 10, 2013.
On January 15, 2014 Dr. Simpson reviewed Dr. Hebrard’s report which noted findings in
excess of those reported by Dr. Hernandez. The medical adviser noted that OWCP had not
accepted a back condition. He found that appellant’s schedule award should be based on his
total knee replacement and that there were discrepancies in the medical evidence.
By decision dated January 16, 2014, OWCP denied modification of its July 23, 2013
decision. It found that appellant had no more than 34 percent impairment of his lower extremity.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.8
The Board notes that the A.M.A., Guides provide that the diagnosis-based impairments is
the method of choice for calculating impairment.9 In addressing lower extremity impairments,
the sixth edition requires identifying the impairment class for the diagnosed condition (CDX),
which is then adjusted by grade modifiers based on Functional History (GMFH), Physical
Examination (GMPE) and Clinical Studies (GMCS). The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).10
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.11

6

5 U.S.C. §§ 8101-8193, 8107.

7

20 C.F.R. § 10.404.

8

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, see supra note 2; Federal (FECA) Procedure
Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
9

A.M.A., Guides 461.

10

Id. at 521. J.B., Docket No. 09-2191 (issued May 14, 2010).

11

Tommy R. Martin, 56 ECAB 273 (2005).

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ANALYSIS
OWCP accepted appellant’s claim for right knee strain, right knee derangement and right
knee tear as well arthritis and two total knee replacement surgeries. It granted him schedule
awards for 34 percent impairment of his right lower extremity. Dr. Simpson found that appellant
had a good result following a total knee replacement in accordance with Table 16-3 of that
A.M.A., Guides12 with a default rating of 25 percent. He noted that appellant’s functional
history adjustment would be grade modifier 1 or a -1 net adjustment, that physical examination
adjustment resulted in a grade modifier 0 or -2 net adjustment and that clinical studies grade
modifier was not applicable as it was utilized for class placement. Dr. Simpson found a -3 net
adjustment when applying the formula and determined that appellant had a class 2, grade A or 21
percent impairment of the right lower extremity under the sixth edition of the A.M.A., Guides.
Appellant requested an additional schedule award on December 10, 2013. Dr. Hebrard
provided a report on June 26, 2013. He found that appellant’s right knee demonstrated
20 degrees of extension and 80 degrees of flexion. Dr. Hebrard found hypoesthesia’s with light
touch along the medial aspect of the legs bilaterally and the dorsal aspect of the right foot as well
as the anterior scar region of the right knee. He stated that appellant’s motor strength testing
revealed severe weakness in knee extension and flexion. Dr. Hebrard also found moderate laxity
with varus and valgus stress of the right knee and that appellant’s gait was mildly antalgic on the
right. He measured appellant’s leg length and found umbilicus to medial malleolus was
99 centimeters on the right and 101 on the left. Dr. Hebrard further found that anterior superior
iliac spine to the medial malleolus was 92 centimeters on the right and 94 centimeters on the left.
In regard to appellant’s leg circumference, he found that the mid patella measured 43 centimeters
on the right and 40 on the left while appellant’s calves measured 39.5 on the right and 40
centimeters on the left.
Dr. Hebrard concluded that appellant had a total knee replacement with poor results
under Table 16-3 of the A.M.A., Guides13 a class 4 default impairment of 67 percent impairment
of the lower extremity. He found that appellant’s functional history grade modifier was 2 due to
an antalgic gait. Dr. Hebrard stated that physical examination was grade modifier 3 with
swelling of the knee, leg length discrepancy of 2 centimeters, swelling and atrophy greater than
2 centimeters. He found moderate to serious instability grade modifier 3 and tenderness,
swelling of grade 4 with significant keloid scaring. Dr. Hebrard found that the net adjustment
was -1 and that appellant had grade B, 63 percent impairment of his right lower extremity.
Dr. Hernandez described appellant’s moderate-to-severe right medial pain and
intermittent swelling in his right knee. He stated that appellant denied any weakness, numbness
or tingling down the right lower extremity. Dr. Hernandez found that appellant’s range of
motion was 0 to 110 degrees in the right knee. He reported no tenderness to palpation over the
medial and lateral joint lines. Dr. Hernandez noted hypertrophic scarring over the incision site.
X-rays demonstrated a stable right total knee arthroplasty revision with no loosening, migration
or subsidence.
12

A.M.A., Guides 511, Table 16-3.

13

Id.

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The Board finds that appellant’s physicians have submitted medical evidence that is not
sufficient to support an increased schedule award. Drs. Hebrard and Hernandez reported
different ranges of motion. Dr. Hernandez stated that appellant denied weakness, numbness or
tingling in the lower extremity, while Dr. Hebrard found hypoesthesias and severe motor
weakness on examination. Dr. Hebrard reported moderate laxity with varus and valgus stress of
the right knee and noted that appellant’s gait was mildly antalgic on the right. Dr. Hernandez
stated that appellant had a stable right total knee replacement with no loosening, migration of
subsidence. Dr. Simpson reviewed the record on January 13, 2014 and found that Dr. Hebrard’s
report noted physical findings in excess of those reported by Dr. Hernandez. He reiterated that
appellant’s schedule award should be based on his total knee replacement as there were
discrepancies in the medical evidence. Dr. Hebrard’s findings in support of his impairment
rating of 63 percent are not supported by appellant’s attending physician, Dr. Hernandez. The
Board finds that appellant has not submitted the sufficient probative and reliable medical
evidence to support any additional permanent impairment.
The Board finds that appellant has not submitted sufficient medical opinion evidence to
establish greater impairment of his right lower extremity due to the varying physical findings
reported by his attending physicians. As the difference of opinion is between appellant’s
attending physicians rather than between appellant’s physician and an OWCP physician, there is
no conflict of medical opinion as argued by counsel.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant failed to submit the necessary probative medical evidence
to establish additional impairment of his right lower extremity. Thus, appellant has no more than
the 34 percent impairment of the right lower extremity for which he received a schedule award.

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

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Jose, CA, Employer
__________________________________________

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Appearances:

Docket No. 17-1245
Issued: October 6, 2017

Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

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

JURISDICTION
On May 16, 2017 appellant filed a timely appeal from a December 27, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his right plantar
fasciitis and right rotator cuff syndrome were causally related to factors of his federal
employment.
FACTUAL HISTORY
On September 23, 2016 appellant, then a 56-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed right plantar fasciitis and right rotator cuff
1

5 U.S.C. § 8101 et seq.

syndrome as a result of his employment duties. He first became aware of his condition and of its
relationship to his federal employment on February 21, 2015. Appellant did not stop work.
In an accompanying September 23, 2016 narrative statement, appellant reported that he
was diagnosed with plantar fasciitis. He explained that on June 15, 2016 he experienced pain in
his right shoulder and right arm and was later diagnosed with right rotator cuff syndrome.
Appellant explained that his conditions worsened when carrying very heavy mail and when
working for more than eight hours per day. He reported having worked as a city carrier for over
22 years and described his employment duties which involved at least one hour of standing while
casing mail, seven hours of walking while delivering mail, carrying up to 35 pounds on his
shoulder, and delivering parcels weighing up to 70 pounds.
In an August 3, 2016 medical note, Dr. Edmundo Duldulao, Board-certified in family
medicine, reported that appellant was diagnosed with plantar fasciitis and rotator cuff syndrome,
likely work related. In a work status report of that same date, he diagnosed right plantar fasciitis
and rotator cuff syndrome. Dr. Duldulao placed appellant on modified work activity from
August 17 through December 31, 2016, restricting him to working no more than eight hours per
day, five days per week.
By letter dated October 6, 2016, OWCP informed appellant that the evidence of record
was insufficient to support his claim. Appellant was advised of the medical and factual evidence
needed. He was afforded 30 days to submit the necessary evidence.
In support of his claim, appellant submitted diagnostic reports dated March 10, 2015
from Dr. Tammy Sung, a Board-certified diagnostic radiologist. In a March 10, 2015 report,
Dr. Sung reported that an x-ray of the cervical spine revealed mild degenerative changes present
within the mid cervical spine. An x-ray of the lumbosacral spine revealed facet degenerative
changes in the lower lumbar spine. An x-ray of the right foot revealed calcaneal spurs.
In an October 21, 2016 diagnostic report, Dr. Joshua Clayton, a treating radiologist,
reported that an x-ray of the right shoulder revealed mild osteoarthritis.
By decision dated December 27, 2016, OWCP denied appellant’s claim, finding that the
evidence of record failed to establish that his diagnosed conditions were causally related to his
accepted federal employment duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA; that the claim was filed within the applicable
time limitation; that an injury was sustained while in the performance of duty as alleged; and that
any disability or specific condition for which compensation is claimed is causally related to the

2

Supra note 1.

2

employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred. The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.5
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence based on a complete factual and medical background, supporting such causal
relationship.7 The opinion of the physician must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion.8
ANALYSIS
OWCP accepted that appellant engaged in repetitive activities in his employment duties
as a city carrier. It denied his claim, however, finding that the evidence of record failed to
establish causal relationship between those activities and his right plantar fasciitis and right
rotator cuff syndrome. The Board finds that the medical evidence of record is insufficient to
establish that appellant developed right plantar fasciitis and right rotator cuff syndrome causally
related to factors of his federal employment as a city carrier.
3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, supra note 3.

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

8

James Mack, 43 ECAB 321 (1991).

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In an August 3, 2016 medical note, Dr. Duldulao diagnosed right plantar fasciitis and
right rotator cuff syndrome, likely work related. The Board finds that the opinion of
Dr. Duldulao is not sufficiently rationalized. The Board finds that his opinion on causation was
highly speculative as he only generally stated that the conditions were “likely work related”
without a firm conclusion that the employment factors did in fact cause or aggravate his injury.9
The opinion of a physician supporting causal relationship must not be speculative or equivocal.10
Dr. Duldalao’s statement on causation also failed to provide a sufficient explanation as to
the mechanism of injury pertaining to this occupational disease claim as alleged by appellant,
namely, how repetitive sorting, standing, walking, carrying heavy mail, and delivering
mail/packages would cause his right plantar fasciitis and right rotator cuff syndrome.11 As the
physician failed to provide a medically sound explanation of how the specific employment
factors, in particular physiologically, caused or aggravated his injuries, his report is insufficient
to establish appellant’s claim.12
The remaining medical evidence is insufficient to establish appellant’s occupational
disease claim. The reports of Dr. Sung and Dr. Clayton merely interpreted diagnostic findings
with no opinion on causal relationship. The Board has held that medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value.13
An award of compensation may not be based on surmise, conjecture, speculation, or on
the employee’s own belief of causal relation.14 Appellant’s honest belief that his occupational
employment duties caused his medical injury is not in question, but that belief, however
sincerely held, does not constitute the medical evidence necessary to establish causal
relationship. In the instant case, the record lacks rationalized medical evidence establishing
causal relationship between appellant’s federal employment duties as a city carrier and his
diagnosed right plantar fasciitis and right rotator cuff syndrome. Thus, appellant has failed to
meet his burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.

9

See Michael R. Shaffer, 55 ECAB 339 (2004).

10

Rickey S. Storms, 52 ECAB 349 (2001).

11

S.W., Docket 08-2538 (issued May 21, 2009).

12

T.G., Docket No. 14-751 (issued October 20, 2014).

13

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

14

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

4

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his right
plantar fasciitis and right rotator cuff syndrome are causally related to factors of his federal
employment as a city carrier.
ORDER
IT IS HEREBY ORDERED THAT the December 27, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 6, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF HOMELAND SECURITY, )
Philadelphia, PA, Employer
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__________________________________________ )
M.C., Appellant

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-1591
Issued: February 17, 2017

Case Submitted on the Record

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

JURISDICTION
On July 21, 2015 appellant, through counsel, filed a timely appeal of a June 5, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c)(1) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than four percent permanent impairment of his
left upper extremity for which he previously received a schedule award.
1

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

5 U.S.C. § 8101 et seq.

On appeal, counsel argues that the attending physician’s assessment of permanent
impairment should be used rather than that of OWCP’s medical adviser.
FACTUAL HISTORY
On November 22, 2010 appellant, then a 33-year-old federal air marshal, filed a traumatic
injury claim (Form CA-1) alleging that he sustained a possible sprain, strain, or tear in his left
shoulder while throwing a punch on November 5, 2010. Dr. Glenn M. Zuck, an osteopath,
examined appellant on December 6, 2010 and diagnosed a possible rotator cuff tear in the left
shoulder due to appellant’s performance of defensive tactics in his training program as a federal
air marshal. On December 8, 2010 he reviewed appellant’s magnetic resonance imaging (MRI)
scan and found a superior labral tear in the left shoulder. OWCP accepted appellant’s claim for
sprain of the shoulder and upper arm on November 15, 2010.
Appellant filed a recurrence of disability claim (Form CA-2a) on June 20, 2012 alleging
that on June 14, 2012 he sought medical treatment for his November 15, 2010 employment
injury. He stated that he had performed full duty since his injury and had developed increasing
soreness and discomfort in his shoulder and elbow.
On June 14, 2012 Dr. Marc I. Harwood, a physician of professorial rank Board-certified
in sports medicine, noted appellant’s history of injury in October 2010 and reviewed his MRI
scan findings. He noted that appellant had pain with all activities of the shoulder particularly
with overhead activities and working out. Dr. Harwood further noted that appellant’s shoulder
pain occasionally radiated down the medial aspect of his upper arm to his elbow. Appellant’s
left shoulder demonstrated 170 degrees of forward flexion with pain, 90 degrees of external
rotation, and 90 degrees of internal rotation. Dr. Harwood found positive Hawkins, O’Brien, and
Neer signs. He reported pain with no appreciable weakness to supraspinatus, infraspinatus, and
subscapularis testing. Dr. Harwood recommended an MRI scan arthrogram.
By decision dated July 17, 2012, OWCP accepted appellant’s claim for left shoulder
superior labral tear. It also accepted appellant’s recurrence of disability on June 14, 2012
through a separate decision dated July 17, 2012.
Appellant underwent a left shoulder MRI scan on July 27, 2012 which demonstrated tear
and detachment of the glenoid labrum with a partial thickness tear of the supraspinatus tendon.
Dr. Harwood reviewed this test on August 6, 2012 and diagnosed left shoulder labral tear. He
recommended surgery.
Dr. Michael G. Ciccotti, a Board-certified orthopedic surgeon,
performed a left shoulder arthroscopy with antero-inferior labral repair, superior labral repair,
posterior labral repair, and inferior labral debridement on September 12, 2012.
On February 27, 2013 Dr. Ciccotti determined that appellant sustained a retear of the
superior and posterior labrum during physical therapy in January 2013 based on a February 19,
2013 MRI scan arthrogram. On March 29, 2013 he performed a left shoulder arthroscopy with
revision posterior labral repair and labral debridement.

2

On March 6, 2013 OWCP requested that appellant provide information regarding his
benefits by completing a Form CA-1032. By decision dated May 3, 2013, it suspended
appellant’s compensation benefits due to his failure to submit a completed Form CA-1032.
In a report dated December 19, 2013, Dr. Ciccotti found that appellant had achieved a full
outcome with minimal soreness in his left shoulder. He reported forward flexion of 170 degrees,
abduction of 170 degrees, internal rotation of 35 degrees, and external rotation of 115 degrees.
Dr. Ciccotti stated that appellant demonstrated mild tenderness over his deltoid laterally and his
triceps with no periscapular tenderness, no acromiclavicular (AC) joint tenderness and no
posterior joint line tenderness.
Appellant requested a schedule award through a claim for compensation (Form CA-7)
dated July 24, 2014. OWCP requested additional medical opinion in support of appellant’s claim
on August 12, 2014.
Dr. David Weiss, an osteopath, examined appellant on June 5, 2014 and noted appellant’s
history of injury on November 15, 2010 as well as his medical treatment. He found that
appellant’s QuickDASH score was 34 percent involving the left upper extremity. Dr. Weiss
examined appellant’s left shoulder and found focal AC point tenderness as well as tenderness
along the anterior cuff. He reported appellant’s range of motion varying between flexion of 160
to 170 degrees, abduction 160 to 180 degrees, external rotation of 80 to 90 degrees and internal
rotation of 75 degrees. Dr. Weiss found crepitus with circumduction, but that appellant’s manual
muscle strength testing was normal. Dr. Weiss applied the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),3 and found that in
accordance with Table 15-34, using the range of motion method,4 appellant had three percent
impairment due to flexion of 160 degrees, three percent impairment due to abduction of 160
degrees and one percent impairment due to internal rotation of 75 degrees. He concluded that
appellant had seven percent impairment of his left upper extremity.
OWCP’s medical adviser reviewed Dr. Weiss’ report and the remainder of the medical
record on August 28, 2014. He found that the date of maximum medical improvement was
June 5, 2014. The medical adviser used the diagnosis-based impairment (DBI) rating method of
the A.M.A., Guides and found a grade modifier of 1 for functional history5 as appellant’s left
shoulder was still symptomatic, a grade modifier of 1 for physical examination due to loss of
shoulder range of motion,6 and a grade modifier of 2 for clinical studies based on the arthrogram

3

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

4

Id. at 475, Table 15-34.

5

Id. at 406, Table 15-7.

6

Id. at 408, Table 15-8.

3

and MRI scans.7 He applied the appropriate formula and determined that appellant had grade D,
four percent impairment of his left upper extremity due to a labrum lesion.8
OWCP’s medical adviser also provided an impairment rating based on the range of
motion method. He found 170 degrees of flexion or three percent impairment of the upper
extremity,9 zero percent impairment due to 170 degrees of abduction, zero percent impairment
due to 80 degrees of adduction, zero percent impairment due to 80 degrees of internal rotation,
and zero percent impairment due to 80 degrees of external rotation. The medical adviser noted
that appellant’s loss of range of motion equated to three percent impairment of the upper
extremity or grade modifier 1.10
By decision dated December 18, 2014, OWCP granted appellant a schedule award for
four percent permanent impairment of the left upper extremity.
Counsel requested reconsideration on March 5, 2015 and submitted an additional report
from Dr. Weiss. On February 25, 2015 Dr. Weiss disagreed with the grade modifier 1 for
physical examination, finding that appellant should have received a grade modifier of 2 based on
moderate palpatory findings consistently documented. He further found that based on
appellant’s diagnostic testing, the clinical studies grade modifier should be 4 as appellant’s
arthrogram demonstrated a tear and detachment of the glenoid labrum and moderate
delamination-type partial thickness tear of the supraspinatus tendon.11 Dr. Weiss concluded that
appellant was entitled five percent permanent impairment based on the DBI method.
Dr. Weiss also asserted that an impairment rating using the range of motion method was
appropriate based on the A.M.A., Guides for a labral lesion.12 He explained, “Since this
claimant had undergone two arthroscopic surgical procedures and not significant left shoulder
pain and weakness it was my opinion that the range of motion would more accurately reflect his
impairment rating.”
OWCP’s medical adviser reviewed Dr. Weiss’ February 25, 2015 report on June 4, 2015.
He opined that Dr. Weiss had appropriately applied the A.M.A., Guides to reach his calculations
of appellant’s impairment due to loss of range of motion, but had not utilized range of motion
figures demonstrating appellant’s maximum effort in his calculations and so had reached a
greater impairment rating than that to which appellant was entitled. The medical adviser stated,
“When the maximum effort is applied the final left [upper extremity impairment] is three
percent. This is less than the [DBI] method for labral injury, so the [DBI] method is used for
final calculations.”
7

Id. at 410, Table 15-9.

8

Id. at 404, Table 15-5.

9

Id. at 475, Table 15-34.

10

Id. at 477, Table 15-35.

11

Id. at 410, Table 15-9.

12

Id. at 404, Table 15-5.

4

OWCP’s medical adviser also disagreed with Dr. Weiss’ assessment of the appropriate
grade modifiers. He opined that a physical examination grade modifier of 2 was not appropriate
as appellant’s condition was mild following surgery and his range of motion figures were mild.
The medical adviser noted, “Other physicians found better [range of motion] than Dr. Weiss near
[maximum medical improvement] as well as only mild tenderness on exam[ination] (see
Dr. Ciccotti’s report dated December 19, 2013). As such the observed pathology and clinical
findings are consistent with mild underlying pathology of [physical examination grade modifier]
of 1, versus a [physical examination grade modifier] of 2 which is what Dr. Weiss assigned.”
In regard to Dr. Weiss’ assessment of the clinical studies grade modifier, the medical
adviser noted that appellant’s rotator cuff was found to be normal in both surgeries. He
concluded that as appellant had only labrum tears he was entitled to a grade modifier 2 for
clinical studies as opposed to grade modifier 4 as proposed by Dr. Weiss.
By decision dated June 5, 2014, OWCP denied modification of its December 18, 2014
schedule award decision, finding that appellant had no more than four percent permanent
impairment of his left upper extremity in accordance with the reports of OWCP’s medical
adviser.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.13 Section
8107 of FECA sets forth the number of weeks of compensation to be paid for the permanent loss
of use of specified members, functions, and organs of the body.14 FECA, however, does not
specify the manner by which the percentage loss of a member, function, or organ shall be
determined. To ensure consistent results and equal justice under the law, good administrative
practice requires the use of uniform standards applicable to all claimants. Through its
implementing regulations, OWCP adopted the American Medical Association, Guides to the
Evaluation of Permanent Impairment as the appropriate standard for evaluating schedule
losses.15
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.

13

See 20 C.F.R. §§ 1.1-1.4.

14

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).
15

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

5

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).16 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.17
ANALYSIS
The issue on appeal is whether appellant has more than four percent permanent
impairment of his left upper extremity for which he received a schedule award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the range of
motion methodology when assessing the extent of permanent impairment for schedule award
purposes.18 The purpose of the use of uniform standards is to ensure consistent results and to
ensure equal justice under the law to all claimants.19 In T.H., the Board concluded that OWCP
physicians are at odds over the proper methodology for rating upper extremity impairment,
having observed attending physicians, evaluating physicians, second opinion physicians,
impartial medical examiners, and district medical advisers use both DBI and range of motion
methodologies interchangeably without any consistent basis. Furthermore, the Board has
observed that physicians interchangeably cite to language in the first printing or the second
printing when justifying use of either range of motion or DBI methodology. Because OWCP’s
own physicians are inconsistent in the application of the A.M.A., Guides, the Board finds that
OWCP can no longer ensure consistent results and equal justice under the law for all claimants.20
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the June 5, 2015 decision.
Following OWCP’s development of a consistent method for calculating permanent impairment
for upper extremities to be applied uniformly, and such other development as may be deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper extremity
schedule award.

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
17

Isidoro Rivera, 12 ECAB 348 (1961).

18

T.H., Docket No. 14-0943 (issued November 25, 2016).

19

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

20

Supra note 18.

6

CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 5, 2015 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further action consistent with
this decision.
Issued: February 17, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
LOMA LINDA HEALTH CARE SYSTEM,
Loma Linda, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-0352
Issued: July 24, 2020

Case Submitted on the Record

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

JURISDICTION
On December 3, 2018 appellant, through counsel, filed a timely appeal from a November 6,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish more than seven
percent permanent impairment of his right lower extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
On April 24, 2013 appellant, then a 62-year-old police officer, filed a traumatic injury claim
(Form CA-1) alleging that he sustained a right knee injury on April 10, 2013 when exercising
while in the performance of duty. On December 4, 2013 OWCP accepted his claim for right knee
and leg sprain. It later expanded the accepted conditions to include internal derangement of the
meniscus of the right knee. On March 19, 2014 appellant underwent OWCP-approved arthroscopy
with partial medial meniscectomy.
On June 15, 2016 appellant filed a claim for a schedule award (Form CA-7).
In a development letter dated June 16, 2016, OWCP requested that appellant submit a
permanent impairment evaluation from his attending physician in accordance with the standards
of the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).3 It afforded him 30 days to submit the requested evidence.
In a May 10, 2016 medical report, Dr. Rick Pospisil, a Board-certified orthopedic surgeon,
provided a history of appellant’s clinical presentation. He described the April 10, 2013 incident
at work and appellant’s medical treatment, including the March 19, 2014 partial medial
meniscectomy. Dr. Pospisil reported physical examination findings for the right knee, including
a 2-degree varus deformity, mild medial joint line swelling and tenderness, marked patellofemoral
crepitus, and full extension and flexion to approximately 100 degrees. He noted slight weakness
to resisted flexion, no instability with varus/valgus stress, full extension with mild patellofemoral
crepitus, negative Lachman’s test, and negative McMurray’s test. Dr. Pospisil advised that x-rays
revealed considerable narrowing of the medial joint line, with only two millimeters of articular
surface wear medially and a large bone spur along the medial border of the patella which touched
the trochlea. He diagnosed status post right knee partial medial meniscectomy with traumatic
arthritis and noted that appellant had reached maximum medical improvement (MMI).
Dr. Pospisil then performed a diagnosis-based impairment (DBI) rating by utilizing Table
16-3 (Knee Regional Grid) beginning on page 509 of the sixth edition of the A.M.A., Guides. He
noted that appellant’s meniscal injury of the right knee warranted a class of diagnosis (CDX) at
the class 1 level with a default value of two percent of the right lower extremity. Dr. Pospisil
found that appellant had a grade modifier for functional history (GMFH) of 1, grade modifier for
physical examination (GMPE) of 1, and grade modifier for clinical studies (GMCS) of 1 (based
on changes seen on a magnetic resonance imaging (MRI) scan due to the partial medial
meniscectomy). Application of the net adjustment formula did not result in movement from the

3

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

2

two percent default value and therefore appellant had two percent permanent impairment of the
right lower extremity due to the meniscal injury.
Dr. Pospisil determined that, under Table 16-3 page 511, appellant’s right knee joint
arthritis warranted a CDX of class 2 with a default value of 20 percent. He found that, for this
condition, appellant had a GMFH of 2 (due to his gait), GMPE of 2 (due to moderate medial
patellofemoral tenderness and moderate restriction of flexion), and GMCS of 3 (due to x-ray
findings). Application of the net adjustment formula resulted in movement one space to the right
of the 20 percent default value and therefore appellant had 22 percent permanent impairment of
the right lower extremity due to primary right knee joint arthritis. Dr. Pospisil then determined
that, under Table 16-3, appellant’s right patellofemoral arthritis warranted a CDX of class 2 with
a default value of 15 percent. With respect to this condition, he indicated that appellant had “a net
of a 1+ radiograph change for assigned diagnostic grade of D.” Application of the net adjustment
formula resulted in movement one space to the right of the 15 percent default value and therefore
appellant had 16 percent permanent impairment of the right lower extremity due to right
patellofemoral arthritis. Dr. Pospisil totaled the above-described percentages to conclude that
appellant had 40 percent permanent impairment of his right lower extremity. He apportioned 10
percent of the permanent impairment to the aging process and 90 percent to appellant’s injury.
On October 21, 2016 OWCP routed Dr. Pospisil’s report, a statement of accepted facts
(SOAF), and the case file to Dr. Jovito Estaris, a Board-certified occupational medicine physician
serving as an OWCP district medical adviser (DMA). It requested that the DMA provide an
evaluation of appellant’s permanent impairment under the sixth edition of the A.M.A., Guides.
In a November 7, 2016 report, the DMA indicated that he had reviewed the SOAF and the
medical record, including Dr. Pospisil’s May 10, 2016 report. He noted that appellant had
undergone a medial meniscectomy on March 19, 2014 and returned to work at full duty on
April 26, 2014. The DMA noted that appellant’s date of MMI was May 10, 2016. He determined
that application of the DBI rating method under Table 16-3 on page 511 meant that appellant’s
primary joint arthritis (with a two-millimeter cartilage interval) fell under class 2 with a default
value of 20 percent. The DMA assigned a GMFH of 1 based on antalgic gait without use of
ambulatory aids. He assigned a GMPE of 1 based on tenderness over the medial knee with nearfull range of motion. The DMA noted that the GMCS was not applicable because clinical studies
were used in proper classification in the DBI grid. He calculated a net adjustment of -2, which
meant that appellant’s primary right knee joint arthritis fell under a CDX of class 2. The DMA
found a right lower extremity permanent impairment rating of 16 percent. He explained that his
impairment rating differed from Dr. Pospisil’s because Dr. Pospisil calculated impairment ratings
on three diagnoses for the same knee, which was not in accordance with the A.M.A., Guides. The
DMA explained that the A.M.A., Guides noted on page 497 that in most cases, only one diagnosis
in a region would be appropriate and that, if two significant diagnoses were present, the examiner
should use the diagnoses with the highest impairment rating in that region that was causally related.
He further noted that Dr. Pospisil had given different functional history modifiers for the same
knee.
On December 28, 2016 Dr. Pospisil responded to the DMA’s November 7, 2016 report.
He referenced page 529 of the A.M.A., Guides, noting that, if more than one diagnosis is to be
used for the same body part, it should have some functional basis for using those diagnoses.

3

Dr. Pospisil argued that it was well established that the conditions involved should be divided into
thirds: those that involve the inside, medial, and lateral portions of the knee. He noted that he had
used different functional history modifiers for each of these portions of the knee. Dr. Pospisil
continued to maintain that appellant had 22 percent permanent impairment due to primary right
knee arthritis, as well as 16 percent permanent impairment for right patellofemoral arthritis, for a
total of 34 percent permanent impairment of the right lower extremity. He indicated that he would
exclude the two percent he assigned for meniscal tear.
On January 30, 2017 OWCP routed Dr. Pospisil’s response to the DMA for review. In a
report dated February 9, 2017, the DMA noted that page 529 of the A.M.A., Guides indicated that
if there were multiple diagnoses within a specific region, then the most impairing diagnosis would
be rated, because it was probable that this would incorporate the functional losses of the less
impairing diagnosis. He indicated that in rare cases of complex injury, the examiner may combine
multiple impairments within a single region. The DMA explained that knee joint arthritis was not
considered a complex injury, as it was a degenerative condition that gradually occurred over time
and he indicated that, with respect to dividing the knee joint into thirds, there was no evidence that
this was accepted by the A.M.A., Guides. He further explained that, while Dr. Pospisil had given
different functional history modifiers for all three conditions, functional history was only to be
used for the single highest diagnosis-based impairment in one limb. The DMA maintained that
Dr. Pospisil had improperly used clinical studies for the GMCS when they were used for proper
classification in the DBI grid. He concluded that appellant had 16 percent permanent impairment
of the right lower extremity.
On March 30, 2017 OWCP referred appellant and the case file (including a SOAF) to
Dr. Steven Ma, a Board-certified orthopedic surgeon, for a second opinion regarding whether
appellant’s conditions had resolved.4
In a report dated May 3, 2017, Dr. Ma indicated that he had reviewed the SOAF and the
medical record. On physical examination of the right knee, he noted a normal heel-to-toe gait,
ability to adopt a semi-squatting position, extensive psoriatic lesions, arthroscopic scars present,
no effusion, no swelling, no crepitus, and no ecchymosis. Dr. Ma observed no tenderness on
compression of the patellofemoral joint, a negative apprehension sign about both patellae, no point
tenderness, and no medial or lateral joint line tenderness. Both knees went from full extension to
140 degrees of flexion and there was no ligamentous laxity about either knee. Sensory examination
was intact to light touch and pinprick in both extremities, with motor strength at 5/5 in the right
lower extremity. Dr. Ma diagnosed right knee strain and right knee internal derangement of the
meniscus, noting that appellant’s current diagnosis connected to the work injury was a medial
meniscus tear only, with incidental co-existing nonwork-related knee arthritis. He indicated that
the work-related conditions had essentially resolved.
In a June 6, 2017 telephone conversation, OWCP informed counsel that there had been a
miscommunication with regard to Dr. Ma’s second opinion report, as he had not been asked to
provide an impairment rating.

4
In an April 4, 2017 telephone conversation, OWCP informed counsel that, because there was such a large
difference between the evaluations of Dr. Pospisil and the DMA, the case had been referred for a second opinion.

4

On June 6, 2017 OWCP referred appellant and the case file, including a SOAF, to
Dr. Michael Einbund, a Board-certified orthopedic surgeon, for a second opinion regarding
appellant’s permanent impairment under the A.M.A., Guides.
In a report dated July 6, 2017, Dr. Einbund provided a history of clinical presentation and
described the accepted employment conditions, as well as appellant’s medical treatment. On
examination of the right knee, Dr. Einbund observed full range of motion, no swelling or
instability, diffuse tenderness over the medial and lateral joint, a negative McMurray’s test
medially and laterally, and some crepitus with range of motion. He noted normal knee extension
of 0 degrees and flexion of 135 degrees. Dr. Einbund indicated that x-ray findings revealed no
evidence of fracture or dislocation with slight narrowing of the medial joint to about three
millimeters, as well as mild degeneration of the patellofemoral joint. He diagnosed right knee
strain, internal derangement, and osteoarthritis. Dr. Einbund utilized the DBI rating method of the
A.M.A., Guides to calculate appellant’s right lower extremity impairment. He noted that
appellant’s accepted diagnoses were right knee strain and right knee internal derangement, and
that the diagnosis of primary arthritis had been appropriately used in the past when calculating
appellant’s right lower extremity impairment. Dr. Einbund found that, under Table 16-3, page
511, a three-millimeter joint space narrowing warranted a CDX of class 1 with a default value of
seven percent permanent impairment of the right lower extremity. He determined that appellant
had a GMFH of 1 (due to limping gait without use of an ambulatory device), and GMPE of 1 (due
to tenderness and crepitus findings on examination). Dr. Einbund advised that the GMCS was not
applicable as clinical studies had already been used as a factor in selecting the diagnosis. He
concluded that appellant had a net adjustment of zero, maintaining the default value of seven
percent permanent impairment of the right lower extremity.
On November 14, 2017 OWCP routed Dr. Einbund’s report, a SOAF, and the case file to
the DMA for review and a determination of appellant’s permanent impairment. In a November 20,
2017 report, the DMA indicated that he had reviewed the SOAF and medical record. Reviewing
Dr. Einbund’s July 6, 2017 report, he determined that application of the DBI rating method under
Table 16-3 on page 511 of the sixth edition of the A.M.A., Guides meant that appellant’s right
knee joint arthritis (three-millimeter cartilage interval) fell under a CDX of class 1 with a default
value of seven percent. The DMA assigned a GMFH of 1 (due to antalgic gait, and pain and
stiffness of the right knee), and a GMPE of 1 (due to tenderness in the right knee with crepitus).
He noted that the GMCS was not applicable because clinical studies were used in proper
classification in the DBI grid. The DMA calculated a net adjustment of zero, concurring with
Dr. Einbund’s rating of seven percent permanent impairment of the right lower extremity. He
indicated that there was a marked discrepancy between the ratings of Dr. Pospisil and Dr. Einbund
as the physicians observed different right knee cartilage intervals and Dr. Pospisil impermissibly
included multiple diagnoses for rating the same joint. The DMA indicated that appellant’s date of
MMI was July 6, 2017.
By decision dated July 31, 2018, OWCP granted appellant a schedule award for seven
percent permanent impairment of the right lower extremity (knee). The award ran for 20.16 weeks
from July 6 through November 24, 2017 and was based on the opinions of Drs. Einbund and the
DMA.

5

On August 15, 2018 appellant, through counsel, requested reconsideration of OWCP’s
July 31, 2018 decision. Counsel argued that a conflict in medical opinion evidence between
Dr. Pospisil and Dr. Einbund existed, because there was a discrepancy within the examination
itself, and not with the application of the A.M.A., Guides.
By decision dated November 9, 2018, OWCP denied modification of the July 31, 2018
decision.
LEGAL PRECEDENT
The schedule award provisions of FECA,5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
With respect to the right knee, the relevant portion of the right leg for the present case,
reference is made to Table 16-3 (Knee Regional Grid) beginning on page 509.9 After the CDX is
determined from the Knee Regional Grid (including identification of a default grade value), the
net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net adjustment
formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).10
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
extent of impairment in accordance with the A.M.A., Guides, with an OWCP medical adviser
providing rationale for the percentage of impairment specified.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than seven
percent permanent impairment of his right lower extremity, for which he previously received a
schedule award.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
9

See A.M.A., Guides 509-11 (6th ed. 2009).

10

Id. at 515-22.

11

See supra note 8 at Chapter 2.808.6(f) (March 2017).

6

OWCP accepted right knee and leg sprain, and internal derangement of the meniscus of the
right knee. By decision dated July 31, 2018, it granted appellant a schedule award for seven
percent permanent impairment of the right lower extremity (knee). The award was based on the
opinions of referral physician Dr. Einbund and the DMA. By decision dated November 9, 2018,
OWCP denied modification of the July 31, 2018 decision.
The Board finds that Dr. Einbund properly determined that appellant had seven percent
permanent impairment of his right lower extremity.12 On July 6, 2017 Dr. Einbund conducted an
evaluation of the extent of permanent impairment of appellant’s right lower extremity using the
DBI rating method described in Table 16-3 of the sixth edition of the A.M.A., Guides. He correctly
determined that, utilizing Table 16-3, the primary arthritis of appellant’s right knee had a CDX of
class 1, which yielded a default value of seven percent for permanent impairment of the right lower
extremity.13 Dr. Einbund determined that appellant had a GMFH of 1 (due to limping gait without
use of an ambulatory device), and GMPE of 1 (due to tenderness and crepitus findings on
examination). He correctly advised that the GMCS was not applicable as clinical studies had
already been used as a factor in selecting the diagnosis. Dr. Einbund properly found that
application of the net adjustment formula did not require movement from the seven percent default
value and concluded that appellant had seven percent permanent impairment of his right lower
extremity.14
The Board further finds that the DMA also properly determined that appellant had seven
percent permanent impairment of his right lower extremity. In his November 20, 2017 report, the
DMA indicated that he had reviewed Dr. Einbund’s July 6, 2017 report and concurred with his
determination that appellant had seven percent permanent impairment of his right lower extremity
due to right knee deficits under the DBI rating method. He expressed agreement with
Dr. Einbund’s choice of the greatest impairment right knee diagnosis and grade modifiers, as well
as the application of the net adjustment formula, and explained his reasons for agreement with
Dr. Einbund’s rating.
On appeal counsel argues that Dr. Pospisil’s report created a conflict in the medical opinion
evidence regarding the extent of permanent impairment of appellant’s right lower extremity,
requiring referral to an impartial medical specialist. The Board notes, however, that no such
conflict exists because Dr. Pospisil’s May 10, 2016 report is of limited probative value due to
improper application of the A.M.A., Guides, as explained by the DMA in his February 9 and
November 20, 2017 reports.15 The DMA noted, inter alia, that Dr. Pospisil impermissibly
12

The Board notes that it was appropriate for OWCP to refer appellant to Dr. Einbund for further evaluation of the
permanent impairment of his right lower extremity. There were significant discrepancies between the right lower
extremity evaluations of Dr. Pospisil and the DMA, which required further development of the medical evidence. See
supra note 8 at Chapter 2.810.8(b), (c) (September 2010) (regarding OWCP’s procedures describing the role of the
DMA in aiding OWCP in the development of evidence); R.A., Docket No. 18-0868 (issued October 25, 2018).
13

A.M.A., Guides 509-11, Table 16-3.

14

See supra notes 9 and 10.

15

See A.R., Docket No. 17-1504 (issued May 25, 2018); Carl J. Cleary, 57 ECAB 563, 568 at note 14 (2006) (an
opinion which is not based upon the standards adopted by OWCP and approved by the Board as appropriate for
evaluating schedule losses is of little probative value in determining the extent of a claimant’s impairment).

7

provided impairment ratings for all three right knee diagnoses (rather than for the most impairing
diagnosis), and improperly divided the knee joint into thirds in order to give different functional
history modifiers for all three areas.
The Board finds that appellant has not submitted probative medical evidence to establish
more than seven percent permanent impairment of his right lower extremity. As such, an
additional schedule award is not warranted.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than seven
percent permanent impairment of his right lower extremity, for which he previously received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the November 9, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 24, 2020
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
TENNESEE VALLEY HEALTH CARE
SYSTEM, Nashville, TN, Employer
__________________________________________

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

Docket No. 11-1159
Issued: January 12, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 13, 2011 appellant filed an appeal of the March 9, 2011 merit decision of the
Office of Workers’ Compensation Programs (OWCP) denying his claim for wage-loss
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established 16 hours of wage-loss compensation on
January 7, 10, 12 and 21, 2011 due to home physical therapy causally related to his accepted
employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on March 4, 2010 appellant, then a 39-year-old police officer
instructor, sustained an acromioclavicular (ACL) sprain of the left shoulder while training at the
employing establishment’s law enforcement training center. It authorized left shoulder
arthroscopic release surgery which was performed on August 4 and December 22, 2010 by
Dr. John M. Kioschos, an attending Board-certified orthopedic surgeon.
On January 5, 2011 Dr. Kioschos released appellant to return to work on January 7, 2011
with temporary physical restrictions.2 On January 12, 2011 he prescribed a continuous passive
motion (CPM) chair for three weeks to treat appellant’s left capsular release.
On January 19, 2011 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period January 7 through 14, 2011. An accompanying time analysis form (CA-7a) showed
that on January 7, 10 and 12, 2011 he used four hours of leave without pay (LWOP) each day for
physical therapy using the CPM chair at home. He used four hours of annual leave on January 7
and 10, 2011 unrelated to the accepted employment injury. Appellant worked four hours on
January 12, 2011. On January 11, 13 and 14, 2011 he worked five hours and used three hours of
LWOP each day to undergo outside physical therapy.
In a January 19, 2011 letter, the employing establishment controverted appellant’s claim
for compensation for LWOP on the dates that he underwent physical therapy at home.
By letter dated January 25, 2011, OWCP advised appellant that it authorized wage-loss
compensation for January 11 through 14, 2011. It requested that he submit medical evidence
supportive of his attendance at physical therapy on January 7 and 10, 2011.
On February 1, 2011 OWCP advised appellant that it did not provide compensation for
home physical therapy.
On February 4, 2011 appellant filed a Form CA-7 for the period January 18
through 28, 2011. An accompanying Form CA-7a showed that on January 18, 20, 27 and 28,
2011 he worked five hours and used three hours of LWOP each day to attend outside physical
therapy. On January 21, 2011 appellant used four hours of LWOP to use the CPM chair at home
and four hours of sick leave not related to the accepted injury. On January 25, 2011 he worked
four hours and used four hours of LWOP to attend outside physical therapy.
In a February 11, 2011 letter, appellant requested wage-loss compensation for 57 hours
spent in the CPM chair at home on December 25 and 26, 2010 and January 1, 2 and 7
through 21, 2011. He received compensation for the period December 22, 2010 through
January 6, 2011. Appellant contended that he was entitled to the requested compensation since
his attending physician instructed him to spend three hours a day, seven days a week in the CPM
chair as part of his medical treatment.

2

Appellant used leave and was expected to return to full-time limited-duty work on January 10, 2011. He did not
report to work on that date due to snowfall.

2

By letter dated February 18, 2011, OWCP authorized payment for 10 hours of
compensation for January 18, 20 and 25, 2011. It requested that appellant submit medical
evidence to support his physical therapy treatment on January 27 and 28, 2011.
In a March 9, 2011 decision, OWCP denied appellant’s request for wage-loss
compensation for physical therapy on January 7, 10, 12 and 21, 2011.3 It did not pay
compensation for home physical therapy performed independent of a physical therapist or other
professional.
LEGAL PRECEDENT
Section 8103(a) of FECA provides for the furnishing of services, appliances and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability or
aid in lessening the amount of monthly compensation.4
In interpreting section 8103, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA. OWCP has the general objective of ensuring that an
employee recovers from his or her injury to the fullest extent possible, in the shortest amount of
time. OWCP has broad administrative discretion in choosing means to achieve this goal. The
only limitation on OWCP’s authority is that of reasonableness.5 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 deductions from established facts. It is not
enough to merely show that the evidence could be construed so as to produce a contrary factual
conclusion.6
While OWCP is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.7 Proof of causal relationship in a case such
as this must include supporting rationalized medical evidence.8 Therefore, in order to prove that
the medical services were warranted, appellant must submit evidence to show that those services
were for a condition causally related to the employment injury and that the services were

3

The Board notes that OWCP did not issue a final decision regarding appellant’s claim for six hours of wage loss
on January 27 and 28, 2011 due to physical therapy prior to rendering its March 9, 2011 decision. As such, this
aspect of the case is not properly before the Board. See 20 C.F.R. § 501.2(c).
4

5 U.S.C. § 8103(a).

5

Dr. Mira R. Adams, 48 ECAB 504 (1997).

6

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

7

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

8

Id.

3

medically warranted. Both of these criteria must be met in order for OWCP to authorize
payment.9
With respect to claimed disability for medical treatment, section 8103 of FECA provides
for medical expenses, along with transportation and other expenses incidental to securing
medical care, for injuries.10 Appellant would be entitled to compensation for any time missed
from work due to medical treatment for an employment-related condition.11 However, OWCP’s
obligation to pay for medical expenses and expenses incidental to obtaining medical care, such
as loss of wages, extends only to expenses incurred for treatment of the effects of any
employment-related condition. Appellant has the burden of proof, which includes the necessity
to submit supporting rationalized medical evidence.12
ANALYSIS
Appellant submitted CA-7 and CA-7a forms for 41 hours of wage loss from January 7
through 28, 2011 to undergo physical therapy. OWCP paid him wage-loss compensation for 19
hours claimed on January 11, 13, 14, 18, 20 and 25, 2011 for outside physical therapy treatment.
However, it denied 16 hours of wage loss on January 7, 10, 12 and 21, 2011 for home physical
therapy.
In a January 12, 2011 prescription note, Dr. Kioschos ordered a CPM chair for
appellant’s use at home for three weeks of physical therapy to treat his capsular release. His note
did not discuss why the prescribed equipment was medically necessary to treat or alleviate the
accepted left shoulder ACL sprain. Without medical reasoning explaining why the prescribed
treatment was medically necessary due to the residuals of the accepted condition, the Board finds
that Dr. Kioschos’ prescription is of diminished probative value.
The Board finds that the medical evidence is insufficient to establish the necessity of
home physical therapy using the CPM chair. The record does not contain a rationalized medical
opinion which explains the necessity for use of this equipment in treating appellant’s accepted
left shoulder ACL sprain.
For the stated reasons, the Board finds that OWCP did not abuse its broad discretion
under section 8103 of FECA when it denied appellant’s claim for wage-loss compensation to
undergo home physical therapy.

9

R.L., Docket No. 08-855 (issued October 6, 2008).

10

5 U.S.C. § 8103(a).

11

Vincent E. Washington, 40 ECAB 1242 (1989).

12

See 5 U.S.C. § 8101(2); David P. Sawchuk, 57 ECAB 316 (2005); A.C., Docket No. 08-1453 (issued
November 18, 2008).

4

CONCLUSION
The Board finds that appellant has failed to establish that he was entitled to 16 hours of
compensation for wage loss on January 7, 10, 12 and 21, 2011 due to home physical therapy
causally related to his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 9, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 12, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.K., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, New York, NY,
Employer
__________________________________________

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

Docket No. 13-1302
Issued: August 25, 2014

Case Submitted on the Record

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

JURISDICTION
On April 30, 2013 appellant filed a timely appeal from a March 29, 2013 overpayment
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found that an overpayment in compensation
in the amount of $2,721.35 because appellant increased her work hours from 24 to 32 hours a
week on April 2, 2012 and received wage-loss compensation based on a 24-hour workweek
through June 28, 2012; and (2) whether it properly found that she was at fault in the creation of
the overpayment and therefore it was not subject to waiver.

1

5 U.S.C. §§ 8101-8193.

On appeal, appellant acknowledges that an overpayment was created but asserts that the
amount of the overpayment is incorrect.
FACTUAL HISTORY
This case has previously been before the Board.2 In a March 24, 2009 decision, the
Board affirmed the fact that appellant was at fault in the creation of an overpayment of
compensation for the period May 24 and June 12, 2004 because she received her salary for work
and wage-loss compensation. The Board found that further development was required on the
issue of amount of overpayment and remanded the case to OWCP.3 The facts of the previous
Board decision are incorporated herein by reference.
On April 24, 2006 OWCP reduced appellant’s wage-loss compensation based on
part-time earnings of 24 hours a week. It found that she had a 64 percent wage-earning capacity.
OWCP applied the principles set forth in Albert C. Shadrick.4 The pay rate for compensation
purposes was that for a Grade 12 Step 1 on the date of injury or $63,602.24 annually, $1,223.12
a week.
On March 31, 2010 OWCP accepted an aggravation of cervical radiculopathy.
On June 11, 2012 appellant contacted OWCP to advise that she increased her work from
a three day, 24-hour week schedule, to a four day, 32-hour week schedule beginning in April. In
a letter dated June 14, 2012, OWCP advised her in order to avoid an additional overpayment, she
was being removed from the periodic rolls and advised to file claims for compensation
(Form CA-7) through her employing establishment for time lost. On June 18, 2012 the
employing establishment provided pay rate information. It noted that appellant worked 32 hours
a week and, when injured on February 10, 2004, she was a Grade 12, Step 1. The current pay
rate for that grade and step was $60,274.00 and she had no additional pay elements. On
August 18, 2012 the employing establishment provided appellant’s work schedule beginning
April 1, 2012.
By letter dated October 3, 2012, OWCP issued a preliminary determination that appellant
received an overpayment of compensation in the amount of $2,721.35 from April 2 through
June 2, 2012 because she received wage-loss compensation based on a 24-hour work week but
had worked 32 hours a week during this period. It found that for the period March 11 through
April 7, 2012, she received compensation of $1,639.00 when she should have received
$1,375.65. For each of the following two pay periods, appellant received compensation of
2

Docket No. 08-2044 (issued March 24, 2009). On February 10, 2004 appellant, a language specialist, sustained
a herniated disc at L2-3 when she moved a heavy chair. She was placed on the periodic compensation rolls effective
March 26, 2004 and returned to 16 hours of work per week on June 15, 2004. In January 2005, appellant began
working three days a week.
3

The record reflects that on October 7, 2009, OWCP found an overpayment of $711.18. It deducted $100.00
from appellant’s ongoing compensation to recover the overpayment. This overpayment is not the subject of the
present appeal.
4

5 ECAB 376 (1953).

2

$1,639.00 from April 8 to May 5, 2012 and May 6 to June 2, 2012, when she should have
received $410.00 for each period, creating an overpayment of $1,229.00 for each pay period.
OWCP based its overpayment finding on a recalculation under Shadrick5 and found that she had
a wage-earning capacity of 91 percent. It found appellant at fault in creating the overpayment
because she knew or reasonably should have known that the wage loss she received after she
increased her work hours was incorrect. Appellant was provided an overpayment action request
form and questionnaire.6
On October 25, 2012 appellant returned the overpayment action request only. She
disagreed with the amount of the overpayment and attached calculations in which she maintained
that the correct amount of the overpayment was $1,843.875.7
By decision dated March 29, 2013, OWCP finalized the overpayment in the amount of
$2,721.35 for which appellant was at fault. It based the fault determination on the fact that she
accepted incorrect payments of wage-loss compensation after increasing her work hours a week
from 24 to 32.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty.8 Section 8116 of FECA defines the
limitations on the right to receive compensation benefits. This section of FECA provides that
while an employee is receiving compensation, he or she may not receive salary, pay or
remuneration of any type from the United States, except in limited circumstances.9 Section
10.500 of OWCP regulations provide that “compensation for wage loss due to disability is
available only for any periods during which an employee’s work-related medical condition
prevents him or her from earning the wages earned before the work-related injury.”10 OWCP
procedures provide that an overpayment in compensation is created when a claimant returns to
work and continues to receive compensation.11

5

20 C.F.R. § 10.403(d); see Albert C. Shadrick, 5 ECAB 376 (1953).

6

The record contains financial documents that show appellant received a total of $4,917.00 in wage-loss
compensation from April 2 to June 2, 2012 but was entitled to $2,195.65, which created an overpayment of
$2,721.35.
7

Appellant did not indicate whether she wanted a telephone conference, decision on the record or a hearing.

8

5 U.S.C. § 8102(a).

9

Id. at § 8116(a); see Danny E. Haley, 56 ECAB 393 (2005).

10

20 C.F.R. § 10.500.

11

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.2(a) (September 1994).

3

If the claimant is entitled to compensation for partial wage loss after return to work, the
claims examiner should compute entitlement using the Shadrick formula and authorize
compensation on a 28-day payment cycle.12
ANALYSIS -- ISSUE 1
The record establishes that an overpayment of compensation was created because
appellant increased her part-time work schedule on April 2, 2012 from 24 hours (3 days) a week
to 32 hours (4 days) a week. She received compensation for wage loss on the periodic rolls
through June 2, 2012 based on the 24-hour workweek schedule. Appellant received wage-loss
compensation of $4,917.00 during this period but was only entitled to compensation of
$2,195.65. Therefore an overpayment was created in the amount of $2,721.35.
The Board finds that, as appellant increased her part-time work from three days to four
days a week, she should not have received wage-loss compensation based on a three-day work
week. Thus an overpayment of compensation was created. In calculating the amount of
overpayment, OWCP utilized the Shadrick formula13 and determined that appellant had a
wage-earning capacity of 91 percent.
The Board, however, finds that the case is not in posture for decision regarding the
amount of the overpayment.
When a claimant is entitled to compensation for partial wage loss after a return to work,
OWCP should compute entitlement using the Shadrick formula and authorize compensation on a
28-day payment cycle.14 It based the 2012 Shadrick calculation on salary information provided
by the employing establishment on June 14, 2012. OWCP stated that when injured in
February 2004, appellant was at Grade 12 Step 1, that the current annual pay rate for this grade
and step was $60,274.00 and that she had no additional pay.
The record also contains conflicting information as to the weekly pay rate on which
appellant’s compensation was based beginning on the date of injury in 2004, which lists
$1,223.12 or $63,602.24 annually. This weekly pay rate was used in the April 24, 2006
wage-earning capacity determination. The evidence of record is in conflict as to appellant’s
salary when injured in 2004. The record before the Board does not contain sufficient
information to establish her weekly pay rate for compensation purposes when injured in 2004.15
Accurate financial information is essential to the application of the Shadrick formula to properly
determine the pay rate for compensation purposes. The Board will affirm the fact of
12

Id. at Chapter 2.815.3(b) (June 2013).

13

Id.

14

Id.

15

A Form CA-7 claim form submitted by appellant on April 9, 2004 indicates that on the date of injury,
February 10, 2004, she was a Grade 12 Step 1 with base annual pay of $63,602.00 and no additional pay. The form,
however, also indicates that on the day she stopped work, also February 10, 2004, she was a Grade 12 Step 2 at the
same pay. A review of the 2004 Office of Personnel Management salary table indicates that the annual salary for a
Grade 12 Step 2, with New York City locality pay, was $65,206.00.

4

overpayment but remand the case on amount. OWCP should obtain additional pay rate
information from the employing establishment. After such further development as deemed
necessary, it should render a de novo overpayment decision.
CONCLUSION
The Board finds that OWCP properly determined that appellant was at fault in the
creation of an overpayment of compensation. The case is not in posture for decision regarding
the amount of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the March 29, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed, in part, and set aside, in part. The case is
remanded to OWCP for further proceedings consistent with this decision of the Board.
Issued: August 25, 2014
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, MAMMOTH
CAVE NATIONAL PARK,
Mammoth Cave, KY, Employer
__________________________________________

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

Docket No. 20-1462
Issued: February 19, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 31, 2020, appellant filed a timely appeal from a July 16, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 16, 2020 decision, OWCP received additional evidence. The Board’s
Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was
before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for
the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a diagnosed medical
condition causally related to the accepted May 14, 2020 employment incident.
FACTUAL HISTORY
On May 20, 2020 appellant, then a 49-year-old small craft operator, filed a traumatic injury
claim (Form CA-1) alleging that on May 14, 2020 he sustained a left arm strain when he pitched
loose asphalt into the bed of a dump truck while in the performance of duty. He indicated that he
felt a pull in his left bicep and, thereafter, experienced pain in his left arm throughout the night.
Appellant stopped work on May 15, 2020.
In a June 1, 2020 development letter, OWCP informed appellant that it had received no
evidence in support of his traumatic injury claim. It advised him of the type of evidence necessary
to establish his claim and requested a narrative medical report from his treating physician
containing a detailed description of findings and a diagnosis, explaining how his work activities
caused, contributed to, or aggravated his medical condition. OWCP afforded appellant 30 days to
submit the necessary evidence.
By decision dated July 16, 2020, OWCP accepted that the May 14, 2020 employment
incident occurred, as alleged. However, it denied appellant’s traumatic injury claim, finding that
he had not submitted any medical evidence containing a medical diagnosis in connection with the
accepted employment incident. Consequently, OWCP found that appellant had not met the
requirements to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6

3

Supra note 1.

4

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. The second component is whether the employment
incident caused a personal injury and can be established only by medical evidence.7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted May 14, 2020 employment incident.
OWCP, in its June 1, 2020 development letter, notified appellant of the type of medical
evidence needed to establish his traumatic injury claim and afforded him 30 days to submit the
necessary evidence. However, no medical evidence was received prior to OWCP’s July 16, 2020
decision.
As there is no medical evidence of record establishing a diagnosed medical condition
causally related to the accepted May 14, 2020 employment incident, the Board finds that appellant
has not met his burden of proof.
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 10.607.15.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted May 14, 2020 employment incident.

7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the July 16, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 19, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

4