United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF JUSTICE, RAY BROOK
FEDERAL CORRECTIONAL INSTITUTION,
Ray Brook, NY, Employer
__________________________________________

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

Docket No. 17-0434
Issued: March 12, 2018

Case Submitted on the Record

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

JURISDICTION
On December 19, 2016 appellant filed a timely appeal from an October 31, 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 sustained greater than 13 percent binaural (both ears)
hearing loss, for which he previously received schedule awards.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted2 that on or before December 1, 2008 appellant, then a 44-year-old
correctional officer, sustained binaural sensorineural hearing loss caused by hazardous noise
exposure in the performance of duty.3 He documented exposure to weapons fire and explosives
as a firearms instructor, and participation in special response and disturbance control teams.
Appellant participated in an employing establishment hearing conservation program.4 He
remained exposed to these sources of hazardous noise through January 28, 2010.
A December 12, 2001 audiogram performed for Dr. John W. Decker, an attending Boardcertified otolaryngologist, demonstrated decibel losses at the frequency levels of 500, 1,000,
2,000, and 3,000 hertz (Hz) in the right ear of 20, 20, 20, and 15 respectively. Testing at the
same frequency levels for the left ear revealed decibel losses of 45, 45, 45, and 45 respectively.
Dr. Decker provided September 24 and October 8, 2009 reports. He noted appellant’s
employment as a firearms instructor, with a history of bilateral tympanometry with pressure
equalization. Dr. Decker reviewed a December 2001 audiogram demonstrating a mild highfrequency sensorineural hearing loss with a left-sided 25 decibel (dB) conductive overlay. A
December 2008 screening audiogram showed a “different pattern, with bilateral sloping hearing
loss of mild-to-severe degree, worse in the left ear.” Dr. Decker diagnosed “[h]earing loss with
chronic Eustachian tube dysfunction.”
On October 8, 2009 Dr. Decker obtained an audiogram showing decibel losses at the
frequency levels of 500, 1,000, 2,000, and 3,000 Hz in the right ear of 35, 25, 10, and 35
respectively. Testing at the same frequency levels for the left ear revealed decibel losses of 40,
30, 25, and 45 respectively. Dr. Decker opined that the audiogram showed a “bilateral highfrequency sensorineural hearing loss of mild to profound level,” with a small, low-frequency
conductive hearing loss, worse on the left. He noted that tympanometry demonstrated negative
pressure on both sides, worse on the left. Dr. Decker diagnosed “mixed deafness.”
A January 25, 2010 audiogram showed decibel losses at the frequency levels of 500,
1,000, 2,000, and 3,000 Hz in the right ear of 25, 20, 20, and 25 respectively. Testing at the
same frequency levels for the left ear revealed decibel losses of 45, 45, 40, and 45 respectively.
On June 23, 2010 OWCP obtained a second opinion from Dr. Jacques Piche, a Boardcertified otolaryngologist. Dr. Piche reviewed the record and a statement of accepted facts
2
OWCP initially denied the claim by decision dated March 22, 2010, finding that appellant did not submit
sufficient evidence documenting his exposure to hazardous noise. Following additional development, it accepted
the claim on July 27, 2010.
3

The employing establishment provided a December 4, 2001 occupational disease claim (Form CA-2), in which
appellant claimed that he sustained a binaural hearing loss on or before October 25, 2001 due to exposure to
“continuous loud gunfire” while working as a firearms instructor. It noted on December 28, 2001 that appellant
decided not to file a claim at that time.
December 17, 2008 employing establishment screening audiograms showed that appellant’s hearing at “pitches
vital for understanding speech” was “significantly below normal.” It recommended that appellant arrange “to be
seen by an audiologist.”
4

2

(SOAF). He noted that appellant underwent bilateral myringotomies with tube placement for
serous otitis in 2000 and 2006. The tubes were subsequently removed, with residual scarring of
the tympanic membranes. Dr. Piche obtained an audiogram on June 23, 2010 showing decibel
losses at the frequency levels of 500, 1,000, 2,000, and 3,000 Hz in the right ear of 30, 30, 40,
and 25, respectively. Testing at 500, 1,000, 2,000, and 3,000 Hz in the left ear revealed decibel
losses of 40, 35, 25, and 25 respectively. Dr. Piche diagnosed a significant binaural hearing loss
attributable to hazardous noise exposure at work, superimposed on a conductive hearing loss on
the left due to serous otitis unrelated to his job.
On July 27, 2010 OWCP requested an OWCP medical adviser review the record and a
SOAF to determine whether appellant sustained a ratable hearing loss in the right ear, according
to the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).5 On July 28, 2010 an OWCP medical adviser opined that
appellant attained maximum medical improvement (MMI) as of June 23, 2010, the date of
Dr. Piche’s audiogram. He totaled the 500, 1,000, 2,000 and 3,000 Hz decibel losses for the
right ear of 30, 30, 40, and 25 dBs to equal 125. For the left ear, the medical adviser added the
decibel losses of 40, 35, 25, and 35 respectively, totaling 135 dBs. Without providing additional
calculations, he opined that appellant had 10 percent binaural hearing loss. The medical adviser
recommended hearing aids.
OWCP’s medical adviser averaged the losses to determine that appellant had hearing loss
of 16 dBs. He then subtracted the fence of 25 dBs and multiplied the balance by 1.5, resulting in
a zero percent right ear monaural hearing loss. For the left ear, the medical adviser added the dB
losses of 20, 20, 25, and 20 respectively, to obtain an average loss of 21 dBs. After subtracting a
fence of 25 dBs, he multiplied the remaining balance by 1.5 to calculate 0 percent left ear
monaural hearing loss.
On August 9, 2010 appellant filed a claim for a schedule award (Form CA-7).
By decision dated February 1, 2011, OWCP issued appellant a schedule award for 10
percent binaural hearing loss. The period of the award ran from June 23 to November 9, 2010.
Appellant retired from the employing establishment effective February 25, 2012.
On March 14, 2016 appellant claimed an additional schedule award (Form CA-7). In a
December 28, 2015 letter, he asserted that his hearing had worsened and that he required hearing
aids. Appellant submitted a January 7, 2016 audiogram performed for Dr. Sarah Brady, a doctor
of audiology. The audiogram showed decibel losses at the frequency levels of 500, 1,000, 2,000,
and 3,000 Hz in the right ear of 35, 25, 25, and 45, respectively. Testing at 500, 1,000, 2,000,
and 3,000 Hz in the left ear revealed decibel losses of 35, 25, 40, and 55 respectively. Dr. Brady
recommended bilateral hearing aids.
On April 18, 2016 OWCP referred the case to a different OWCP medical adviser to
determine whether appellant sustained an additional hearing loss under the A.M.A., Guides. In
an April 21, 2016 report, the medical adviser opined that appellant reached MMI as of January 7,
5

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

3

2016, the date of Dr. Brady’s audiogram. He totaled the 500, 1,000, 2,000 and 3,000 Hz decibel
losses for the right ear of 35, 25, 25, and 45 dBs to equal 130, divided by 4 to equal 32.5.
Subtracting the 25 dB fence resulted in a balance of 7.5, multiplied by 1.5 to equal an 11.25
monaural hearing loss for the right ear. For the left ear, the medical adviser totaled the 500,
1,000, 2,000 and 3,000 Hz decibel losses of 35, 25, 40, and 55 dBs to equal 155, divided by 4 to
equal 38.75. He then subtracted the fence of 25 dBs and multiplied the balance of 13.75 by 1.5,
resulting in a 20.625 percent left monaural hearing loss. The medical adviser then multiplied the
11.25 monaural loss for the right ear by 5, added the 20.63 percent left ear hearing loss, and
divided the total by 6 as directed by the A.M.A., Guides, resulting in 12.8 percent binaural
hearing loss. He opined that appellant should be granted a schedule award for an additional 2.8
percent hearing loss above the 10 percent hearing loss awarded on February 1, 2011. The
medical adviser indicated that hearing aids should be authorized.
By decision dated October 31, 2016, OWCP issued an additional schedule award for 13
percent binaural hearing loss, as appellant had previously been paid an award for 10 percent
binaural hearing loss. The increased award was for 6.0 weeks of compensation and ran from
January 7 to February 17, 2016.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body.6 FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides
has been adopted by OWCP for evaluating schedule losses and the Board has concurred in such
adoption.7
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.8 Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second the
losses at each frequency are added up and averaged.9 The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss.10 The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the

6

5 U.S.C. § 8107.

7

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

8
A.M.A., Guides (6th ed. 2009) p. 250. See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700, Exhibit 1 (January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule
Awards and Permanent Disability Claims, Chapter 2.808.5a (February 2013).
9

Id.

10

Id.

4

amount of the binaural hearing loss.11 The Board has concurred in OWCP’s adoption of this
standard for evaluating hearing loss.12
ANALYSIS
OWCP accepted that appellant sustained binaural hearing loss due to noise exposure at
work. On February 1, 2011 appellant received a schedule award for 10 percent binaural loss of
hearing. He requested an additional schedule award for binaural hearing loss. By decision dated
October 31, 2016, OWCP awarded appellant an additional 3 percent binaural hearing loss, for a
total hearing loss of 13 percent.
The Board finds that appellant has not established a schedule award greater than 13
percent permanent binaural hearing impairment.
Appellant submitted a January 7, 2016 audiogram from Dr. Sarah Brady, a doctor of
audiology. Testing at 500, 1,000, 2,000, and 3,000 Hz in the right ear revealed decibel losses of
35, 25, 25, and 45, respectively. Testing at 500, 1,000, 2,000, and 3,000 Hz in the left ear
revealed decibel losses of 35, 25, 40, and 55 respectively.
OWCP procedures relating to the evaluation of schedule awards provide that the file
should be routed to its district medical adviser (DMA) for an opinion concerning the nature and
percent of impairment.13 Accordingly, OWCP referred appellant’s case to a DMA.
On April 21, 2016 OWCP’s medical adviser utilized the decibel losses found by
Dr. Brady with regard to hearing loss as found on the January 7, 2016 audiogram. He
determined that appellant had reached MMI as of the date of this audiogram. The DMA found
that he had an additional 2.8 percent binaural hearing loss, totaling 12.8 percent binaural hearing
loss. He properly applied OWCP standardized procedures to Dr. Brady’s audiogram which
recorded frequency levels at the 500, 1,000, 2,000, and 3,000 Hz and revealed decibel losses of
35, 25, 25, and 45, respectively in the right ear for a total decibel loss of 130. The DMA then
followed established procedures and divided this total by four which resulted in an average loss
of 32.5 dBs and subtracted the fence of 25 dBs to equal 7.5 dBs. He then multiplied this by the
established factor of 1.5 to result in 11.25 percent monaural hearing loss for the right ear. The
DMA then properly followed the same procedure on the left, noting that the test results at the
frequencies of 500, 1,000, 2,000, and 3,000 Hz revealed decibel losses of 35, 25, 40, and 55 dBs,
respectively, for a total of 155 dBs. He divided this by four, for an average hearing loss of 38.75
dBs, subtracted the fence of 25 dBs to equal 13.75 dBs, and multiplied this by the established
factor of 1.5, for 20.625 percent monaural hearing loss for the left ear. The DMA then
multiplied the 11.25 percent right ear hearing loss by five, added the 20.63 percent left ear
hearing loss, and divided the total by six, for a total of 12.8 percent binaural hearing loss which
11

Id.

12

P.D., Docket No. 15-1173 (issued September 2, 2015); C.C., Docket No. 11-0731 (issued October 11, 2011).

13
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6e (February 2013).

5

is rounded upward to 13 percent. He subtracted the previously awarded 10 percent binaural
hearing loss, to find that appellant had an additional 3 percent binaural hearing loss.
The Board finds that OWCP’s DMA applied the proper standards to the January 7, 2016
audiogram. The result is 12.8 percent binaural hearing loss which is rounded up to 13 percent.14
Appellant previously received a schedule award totaling 10 percent binaural hearing loss.
OWCP, therefore, properly determined that he was entitled to a schedule award for an additional
three percent binaural loss.
On appeal appellant contends that he is entitled to receive a schedule award for the period
November 10, 2010 to February 17, 2016. The Board notes, however, that OWCP issued
schedule award payments for the appropriate number of weeks, commencing with the dates of
MMI.15 Appellant has not submitted any medical evidence establishing that he is entitled to a
schedule award in addition to those previously received.
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 employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not establish greater than 13 percent binaural (both
ears) hearing loss, for which he previously received schedule awards.

14

The Board notes that OWCP’s procedures provide that in computing binaural hearing loss, percentages should
not be rounded until the final percent for award purposes is obtained and fractions should be rounded down from .49
or up from .50. Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4.b(2)(b)
(January 2010). See V.B., Docket No. 14-0008 (issued March 6, 2014).
15

See 5 U.S.C. § 8107(c)(13)(B). This provision provides that for complete loss of hearing in both ears, or 100
percent loss, the claimant is entitled to 200 weeks of compensation. So, an additional three percent loss of hearing
in both ears would yield six additional weeks of compensation (.03 x 200 = 6). This is what appellant received.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Program dated October 31, 2016 is affirmed.
Issued: March 12, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
____________________________________________
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and
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DEPARTMENT OF THE ARMY, MILITARY
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ENLISTMENT PROCESSING COMMAND,
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Seattle, WA, Employer
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____________________________________________ )
A.M., Appellant

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

Docket No. 11-1609
Issued: March 1, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 29, 2011 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) March 24, 2011 decision, which denied further merit review
and a February 24, 2011 schedule award decision. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained permanent impairment; and (2) whether OWCP properly refused to reopen appellant’s
case for further review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 7, 2010 appellant, then a 63-year-old utility worker, was injured when he felt
a pop in his right shoulder while he was throwing trash into a dumpster. He did not stop work
until February 4, 2010. OWCP accepted appellant’s claim for supraspinatus tear on the right and
authorized surgical repair.
A January 14, 2010 magnetic resonance imaging (MRI) scan read by Dr. Kelly J. Krizan,
a Board-certified diagnostic radiologist, revealed a complete tear of the supraspinatus tendon, but
no retraction and a strain or partial tear in the superior aspect of the subscapularis tendon. The
infraspinatus tendon was unremarkable. There was a high signal in the distal aspect of the
tendon for the short head of the biceps, suggesting a strain of that structure. No significant
effusion was present. The anterior glenoid labrum and superior glenoid labrum were within
normal limits and the acromioclavicular (AC) joint was unremarkable.
On February 4, 2010 Dr. Alan Alyea, a Board-certified orthopedic surgeon, performed a
surgical repair of the subscapularis and supraspinatus rotator cuff tendons, biceps tenodesis and
revision acromioplasty of the right shoulder.2 He released appellant to regular work on
October 6, 2010.
On November 8, 2010 appellant requested a schedule award. On November 9, 2010
OWCP advised him of the medical evidence needed to establish a claim of permanent
impairment.
In reports dated January 12 and 13, 2011, Dr. Larry K. Lamb, a Board-certified
physiatrist, performed an impairment evaluation. He reviewed appellant’s work injury and
treatment by Dr. Alyea, including prior right shoulder surgery in 2003. On examination there
was occasional pain in the anterior or lateral aspect of the shoulder, primarily with resisted
activity with the arm extended out in front or laterally out to the side and no radicular symptoms
in the right upper extremity. On palpation, Dr. Lamb determined that the AC joint had minimal
to no tenderness. He noted that appellant was virtually pain free with 180 degrees of range of
motion, both in flexion and in abduction. Appellant had 85 degrees of external rotation and 80
degrees of internal rotation. Neurovascular examination was normal. Dr. Lamb advised that
appellant had excellent postsurgical recovery, and he had returned to his job without restrictions
and had been doing well for several months. He found that appellant had excellent range of
motion in terms of flexion, abduction, internal and external rotation, as well as adduction.
Dr. Lamb opined that “[g]iven that the patient has had such excellent recovery from his surgery,
including excellent return in range of motion in all planes, he is not afforded partial permanent
disability.” As to the acromioplasty under the American Medical Association, Guides to the
Evaluation of Permanent Impairment (5th ed. 2001), the procedure usually warranted 10 percent
upper extremity impairment. However, Dr. Lamb explained that the most recent surgical
procedure was a revision of a prior acromioplasty, which was a preexisting condition. He
concluded that appellant was entitled to a 10 percent impairment of the right arm, which was
preexisting.
2

The record reflects that on July 9, 2003 Dr. Alyea performed a right shoulder anterior acromioplasty and distal
clavicle resection.

2

In a February 17, 2011 report, OWCP’s medical adviser noted appellant’s history of
injury and treatment, which included a repair subscapularis and supraspinatus rotator cuff
tendons, biceps tenodesis and revision acromioplasty of the right shoulder. He utilized the
January 12, 2011 report of Dr. Lamb and found that appellant was not functionally impaired as
there was a full range of motion, normal muscle strength and normal neurological examination.
The medical adviser referred to Table 15-343 for shoulder range of motion and agreed there was
no ratable impairment due to range of motion deficit. He also opined that there was no basis for
impairment in terms of the rotator cuff repair or the tenodesis. The medical adviser stated that
testing indicated that the AC joint was normal, noted that Dr. Lamb found the AC joint normal
on physical examination and found there was no other medical evidence showing that the
shoulder was anatomically modified by surgery in such a way that it was ratable as a distal
clavicle resection. He concluded that there was no ratable range of motion impairment, no
ratable functional impairment and not ratable anatomic deformity.
By decision dated February 24, 2011, OWCP denied appellant’s claim for a schedule
award. It found that the medical evidence of record did not support any permanent impairment
to a scheduled member or function of the body.
On March 14, 2011 appellant requested reconsideration. He contended that Dr. Lamb
only examined him for 10 minutes and questioned how he could formulate an opinion in such a
short time frame. Appellant indicated that Dr. Alyea was an excellent orthopedic surgeon and an
expert on shoulders.
In a March 2, 2011 report, Dr. Alyea noted that appellant was upset with the evaluation
that was performed by Dr. Lamb. He noted that appellant indicated that it was very brief and did
not take into consideration his present condition. Dr. Alyea noted that appellant had significant
deficits and was in pain every day. Appellant was unable to participate in recreational activities
such as hunting as it caused sharp pain in his shoulder. Dr. Alyea also indicated that “any
outreach exertion gives him quite a bit of difficulty.” He examined appellant and determined
that he had weakness of abduction, external rotation and flexion. Dr. Alyea found restriction of
internal rotation where appellant could bring his hand to hip pocket level, but no further, which
was not normal inside the shoulder. He opined that appellant would have lifelong difficulties
with his shoulder and another repair was not possible. Dr. Alyea explained that appellant had
“incurred further damage since his first surgery that is permanent in nature, and right now there
is no surgery or other treatment that I know of that will make him more comfortable or more
functional.” OWCP also received medical evidence previously of record.
By decision dated March 24, 2011, OWCP denied appellant’s request for reconsideration
without a review of the merits as it was repetitious and did not raise any substantial legal
questions or include new and relevant evidence.

3

A.M.A., Guides 475.

3

LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA,4 and its implementing federal regulations,5 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.6 For decisions issued
after May 1, 2009, the sixth edition will be used.7
ANALYSIS -- ISSUE 1
The evidence of record is insufficient to establish that appellant sustained permanent
impairment of his right shoulder under the sixth edition of the A.M.A., Guides.
Appellant provided the January 12 and 13, 2011 reports from Dr. Lamb. The Board notes
that, while he provided findings and calculated 10 percent preexisting impairment,8 he utilized
the fifth edition of the A.M.A., Guides. However, as noted above, the sixth edition of the
A.M.A., Guides was to be utilized effective May 1, 2009.9 The Board has held that a medical
opinion not based on the appropriate edition of the A.M.A., Guides has diminished probative
value in determining the extent of a claimant’s permanent impairment.10 As Dr. Lamb’s
impairment determination was made under the fifth edition, it is insufficient to establish
appellant’s current impairment.
Board precedent is well settled however that, when an attending physician’s report gives
an estimate of impairment, but does not indicate that the estimate is based upon the application
of the A.M.A., Guides or improperly applies the A.M.A., Guides, OWCP is correct to follow the
advice of its medical adviser or consultant where he or she has properly utilized the A.M.A.,
Guides.11
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

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

8

It is well established that in determining entitlement to a schedule award, preexisting impairment to the
scheduled member is to be included. Peter C. Belkind, 56 ECAB 580, 586 (2005). However, where a claimant does
not demonstrate any permanent impairment caused by the accepted condition, the claim is not ripe for consideration
of any preexisting impairment. Thomas P. Lavin, 57 ECAB 353 (2006). As discussed, infra, appellant has not
established permanent impairment due to the accepted condition and surgery.
9

See supra note 6.

10

Carolyn E. Sellers, 50 ECAB 393, 394 (1999).

11

See Ronald J. Pavlik, 33 ECAB 1596 (1982); Robert R. Snow, 33 ECAB 656 (1982); Quincy E. Malone, 31
ECAB 846 (1980).

4

OWCP properly referred the case to OWCP’s medical adviser who, on February 17,
2001, utilized the findings provided by Dr. Lamb. The medical adviser noted appellant’s history
of injury and treatment and utilized the sixth edition of the A.M.A., Guides. He explained that
Dr. Lamb did not provide any findings to warrant impairment. For example, Dr. Lamb reported
full range of motion, normal muscle strength and normal neurological examination. The medical
adviser correctly referred to Table 15-3412 for shoulder range of motion and determined that
there was no ratable impairment due to range of motion deficit as the findings provided by
Dr. Lamb were normal. Regarding appellant’s authorized right shoulder surgery, he explained
that testing indicated that the AC joint was normal. The medical adviser explained that there was
nothing in the operative report, or subsequent physical examinations, to suggest that the shoulder
was surgically anatomically modified in such a way that it was ratable as a distal clavicle
resection. He determined that there was no ratable range of motion loss and functional or
anatomical impairment that was ratable. Based on this, the medical adviser found that there was
no objective evidence to support impairment to the right shoulder.
Appellant did not submit any other medical evidence to support that he was entitled to a
schedule award, under the A.M.A., Guides, for a scheduled member of the body under FECA.
Accordingly, the Board finds that he has not established entitlement to a schedule award.
On appeal, appellant disagreed with the findings of Dr. Lamb and he provided new
medical evidence. The Board is unable to review new evidence for the first time on appeal.13
However, appellant may request a schedule award or increased schedule award based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,14 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provide that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”15
12

A.M.A., Guides 475.

13

20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952).

14

5 U.S.C. § 8128(a).

15

20 C.F.R. § 10.606(b).

5

Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.16
ANALYSIS -- ISSUE 2
Appellant disagreed with the amount of his schedule award and requested reconsideration
on March 14, 2011. He questioned Dr. Lamb’s examination. Appellant’s request did not show
that OWCP erroneously applied or interpreted a specific point of law or advance a relevant legal
argument not previously considered by OWCP. The underlying issue on reconsideration was
whether he had ratable permanent impairment of his right arm due to his work injury. However,
appellant did not provide any relevant or pertinent new evidence to the issue of whether he had
ratable permanent impairment.
In his March 14, 2011 request for reconsideration, appellant alleged that he was entitled
to a greater award and enclosed the March 2, 2011 report from Dr. Alyea. However, while his
report is new, Dr. Alyea did not provide any impairment rating. Thus, his report is not relevant
to the issue of whether appellant has ratable permanent impairment attributable to his accepted
condition and authorized surgery. The submission of evidence that does not address the
particular issue involved does not constitute a basis for reopening a case.17
Appellant also provided a duplicate copy of a previously received report. The submission
of evidence which repeats or duplicates evidence that is already in the case record does not
constitute a basis for reopening a case for merit review.18
Consequently, appellant has not shown that OWCP erroneously applied or interpreted a
specific point of law, advanced a relevant new argument not previously submitted, or submitted
relevant and pertinent new evidence not previously considered by OWCP. Therefore, OWCP
properly denied his request for reconsideration.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he is
entitled to a schedule award. The Board also finds that OWCP properly refused to reopen his
case for further review of the merits of his claim under 5 U.S.C. § 8128(a).

16

Id. at § 10.608(b).

17

Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000); Robert P.
Mitchell, 52 ECAB 116 (2000).
18

Khambandith Vorapanya, 50 ECAB 490 (1999); John Polito, 50 ECAB 347 (1999); David J. McDonald, 50
ECAB 185 (1998).

6

ORDER
IT IS HEREBY ORDERED THAT the March 24 and February 24, 2011 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: March 1, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Dallas, TX, Employer
__________________________________________

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

Docket No. 19-0031
Issued: April 18, 2019

Case Submitted on the Record

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

JURISDICTION
On October 4, 2018 appellant filed a timely appeal from a June 29, 2018 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 has met his burden of proof to establish a lumbar condition
causally related to the accepted August 31, 2016 employment incident.
FACTUAL HISTORY
On October 28, 2016 appellant, then a 63-year-old social worker, filed a traumatic injury
claim (Form CA-1) alleging that on August 31, 2016 he experienced pain in his left knee, hip, leg,
1

5 U.S.C. § 8101 et seq.

and back after carrying an 80-pound display 2,000 feet while in the performance of duty. He did
not stop work at the time of the alleged incident.
A November 10, 2016 lumbar magnetic resonance imaging (MRI) scan revealed multilevel
degenerative changes, especially at L3-4 and L5-S1.
Dr. Ved V. Aggarwal, a Board-certified anesthesiologist, treated appellant on
December 13, 2016 for chronic low back and bilateral leg pain. Appellant reported that his pain
started on August 31, 2016 after a lifting injury. Dr. Aggarwal noted findings of limited range of
motion of the lumbar spine, reduced sensation at L3-5, reduced motor strength with ankle
dorsiflexors and ankle plantar flexors bilaterally, and positive straight leg raising on the right. He
diagnosed other chronic pain, low back pain, radiculopathy of the lumbar region, and other
intervertebral disc degeneration of the lumbar region. Dr. Aggarwal recommended lumbar
epidural steroid injections, physical therapy, and returned him to full-time work. On December 21,
2016 he performed a fluoroscopically-guided lumbar L5-S1 epidural steroid injection and
diagnosed chronic low back pain, lumbar radiculopathy, and lumbar disc disease.
In a development letter dated January 23, 2017, OWCP informed appellant that when his
claim was received, it appeared to be a minor injury which resulted in minimal or no time lost from
work and, as the employing establishment did not controvert the claim, a limited amount of
medical expenses were administratively approved. However, the merits of the claim had not been
formally adjudicated. OWCP advised appellant that he needed to submit additional factual
information and medical evidence in support of his claim for FECA benefits. It specifically
requested that he submit a comprehensive narrative medical report from his treating physician that
included a diagnosis and a reasoned explanation as to how specific work factors and/or incidents
caused or contributed to the diagnosed condition(s). OWCP noted that the medical records
indicated that he had a history of lumbosacral disc disease, degenerative changes, and bilateral
radiculopathy and advised that his physician must provide a rationalized medical opinion which
differentiates between the effects of the work-related injury or disease and the preexisting
condition. It afforded appellant 30 days for submission of the necessary evidence. In response to
the development letter, OWCP received evidence which had previously been submitted.
By decision dated February 23, 2017, OWCP found that appellant established both
components of fact of injury, i.e., that an incident occurred and a condition had been diagnosed.
However, it denied his traumatic injury claim because the medical evidence of record failed to
establish that his lumbar condition was causally related to the accepted August 31, 2016
employment incident.
Dr. Aggarwal treated appellant in follow-up on January 17 and March 15, 2017 after
lumbar epidural steroid injections on December 21, 2016 and February 15, 2017. He reported a
50 percent decrease in leg pain with the first injection, but the second procedure had not provided
significant relief. Dr. Aggarwal noted findings of limited range of motion of the lumbar spine,
reduced sensation at L3-5, reduced motor strength with ankle dorsiflexors and ankle plantar flexors
bilaterally, and positive straight leg raising on the right. He diagnosed other chronic pain, low
back pain, radiculopathy of the lumbar region, and other intervertebral disc degeneration of the
lumbar region and returned appellant to full-time work.

2

In procedure notes dated February 15 and April 12, 2017, Dr. Aggarwal performed
fluoroscopically-guided lumbar L5-S1 epidural steroid injections and diagnosed chronic low back
pain, lumbar radiculopathy, and lumbar disc disease. He continued to treat appellant on May 9,
June 16, July 19, September 25, and October 25, 2017, for chronic low back and bilateral leg pain.
Appellant reported some relief from the injection, but was still in pain and had difficulty sleeping.
Dr. Aggarwal diagnosed other chronic pain, low back pain, radiculopathy of the lumbar region,
and other intervertebral disc degeneration of the lumbar region and continued his work full time.
He administered additional selective nerve root blocks at left L5 and S1 on August 16 and
December 8, 2017 and diagnosed lumbar disc disease, chronic low back pain, and left lumbar
radiculopathy.
Appellant was treated by Dr. Odilon Alvarado, a Board-certified internist, on March 29,
2017, for right leg and low back pain that began on August 31, 2016. He reported pain after he
lifted and carried a heavy object while in the performance of duty. Dr. Alvarado noted that this
was the first occurrence of back pain and he treated appellant over 20 years.
On January 12, 2018 appellant requested reconsideration.
By decision dated June 29, 2018, OWCP denied modification of the February 23, 2017
decision.
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 timely filed within the applicable
time limitation of FECA,3 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.4 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.5
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.6 Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
2

Id.

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

3

allegedly occurred.7 The second component is whether the employment incident caused a personal
injury.8 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.9
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.10 A physician’s opinion on whether there is causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.11 Additionally, the physician’s opinion must
be expressed in terms of a reasonable degree of medical certainty, and must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factor(s).12
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a lumbar
condition causally related to the accepted August 31, 2016 employment incident.
Dr. Aggarwal’s report dated December 13, 2016, noted treating appellant for chronic low
back and bilateral leg pain. Appellant reported that his pain started on August 31, 2016 after a
lifting injury. Similarly, in reports dated January 17 to October 25, 2017, Dr. Aggarwal treated
appellant after lumbar epidural steroid injections, which provided only temporary relief. He
diagnosed other chronic pain, low back pain, radiculopathy of the lumbar region, and other
intervertebral disc degeneration of the lumbar region. While he repeated the history of injury as
reported by appellant, Dr. Aggarwal did not provide his own opinion regarding whether his
condition was work related. To the extent that Dr. Aggarwal expressed his own opinion, he failed
to provide a rationalized opinion regarding causal relationship between appellant’s lumbar
condition and the August 31, 2016 employment incident. The Board has held that a report is of
limited probative value regarding causal relationship if it does not contain medical rationale

7

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

8

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

9

Shirley A. Temple, 48 ECAB 404, 407 (1997).

10

T.H., supra note 6; Robert G. Morris, 48 ECAB 238 (1996).

11

M.V., Docket No. 18-0884 (issued December 28, 2018).

12

Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

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explaining how a given medical condition/disability was related to employment factors.14 These
reports are therefore insufficient to establish appellant’s claim.
Dr. Aggarwal performed fluoroscopically-guided epidural steroid injections on
December 21, 2016, February 15, April 12, August 16, and December 8, 2017 and diagnosed
chronic low back pain, lumbar radiculopathy, and lumbar disc disease. However, these reports are
of no probative value and are therefore insufficient to establish the claim as they do not specifically
address whether appellant’s employment activities had caused or aggravated a diagnosed medical
condition. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship.15
Dr. Alvarado treated appellant on March 29, 2017, for right leg and low back pain and
noted that the pain began on August 31, 2016 after he lifted and carried a heavy object while at
work. He reported having treated appellant for over 20 years and noted this was the first
occurrence of this complaint. However, Dr. Alvarado appears merely to be repeating the history
of injury as reported by appellant without providing his own opinion regarding whether appellant’s
condition was work related. To the extent that he is providing his own opinion, Dr. Alvarado
failed to provide a rationalized opinion regarding the causal relationship between appellant’s low
back and right leg pain and the factors of employment believed to have caused or contributed to
such condition.16 Further, to the extent that Dr. Alvarado asserted that this was the first occurrence
of this complaint in 20 years, the Board has held that an opinion that a condition is causally related
to an employment injury because the employee was asymptomatic before the injury is insufficient,
without supporting rationale, to establish causal relationship.17 Therefore, this report is insufficient
to meet appellant’s burden of proof.
Appellant also submitted a diagnostic MRI scan of the lumbar spine dated
November 10, 2016. The Board has held that reports of diagnostic tests lack probative value as
they do not provide an opinion on causal relationship between the accepted employment factors
and a diagnosed condition.18
As appellant has not submitted rationalized medical evidence establishing that his lumbar
condition is causally related to the accepted August 31, 2016 employment incident, he has not met
his burden of proof.

14

See Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale describing the relation between work factors and
a diagnosed condition/disability).
15

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

16

Id.

17

Kimper Lee, 45 ECAB 565 (1994).

18

See J.M., Docket No. 17-1688 (issued December 13, 2018).

5

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a lumbar
condition causally related to the accepted August 31, 2016 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 29, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 18, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Boston, MA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 14-46
Issued: April 15, 2014

Case Submitted on the Record

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

On October 15, 2013 appellant filed a timely appeal of a May 16, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has more than three percent impairment of the right lower
extremity, for which she received a schedule award.
On appeal, appellant contends that there is a conflict in medical opinion between her
attending physician, Dr. Frank Graf, a Board-certified orthopedic surgeon, and OWCP’s medical
adviser regarding the extent of impairment to her right knee.

1

Appellant originally requested an oral argument before the Board, but withdrew her request on January 9, 2014.

2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on August 12, 2010 appellant, then a 52-year-old claims examiner,
sustained a medial meniscus tear, contusion of the right knee and an abrasion of the right leg
when she fell forward while going up an escalator to report for duty. On November 5, 2010 she
underwent an authorized right knee arthroscopic partial medial meniscectomy and chondroplasty
of the medial femoral condyle performed by Dr. Peter D. Buckley, a Board-certified orthopedic
surgeon,3 whose operative report indicated that a magnetic resonance imaging (MRI) scan was
positive for a medial meniscal tear. The patella showed some mild fraying, but no loose articular
cartilage. There were no loose bodies in the medial or lateral gutter or the suprapatellar pouch.
There was a complex posterior medial meniscal tear and a small area of chondromalacia changes
about the lateral aspect of the medial femoral condyle. A partial medial meniscectomy was
performed followed by chondroplasty of the medial femoral condyle. The anterior cruciate
ligament and posterior cruciate ligament were intact. There was no evidence of lateral meniscal
or chondral injury.
On October 7, 2011 appellant filed a claim for a schedule award. In a November 1, 2011
medical report, Dr. Graf provided a history of the accepted employment injuries and appellant’s
medical treatment. The pain was worse in the morning and evening with some slight
improvement in the middle of the day. Pain was also noted with change of position from sitting
to standing. Appellant rated her current pain as 5 on a scale of 0 to 10. Dr. Graft noted her
complaints of pain, weakness and continued catching and locking in her left knee. He noted his
review of the medical records and provided examination findings. Dr. Graf diagnosed persistent
synovitis at the right knee with residuals of a twisting injury to the knee; horizontal cleavage tear
of the medial meniscus; and chondromalacic changes post injury of the medial aspect of the
medial femoral condyle. Appellant was status post debridement of the medial compartment and
partial meniscectomy.
Dr. Graf advised that appellant’s work-related right knee condition was permanent. He
advised that in spite of her long-term prognosis, appellant was at a practical medical end point
and permanency could be assessed. Dr. Graf stated that, however, there was a likelihood of slow
progression over the coming years. He indicated that once the meniscus has been removed and
the cartilage surface of the femoral condyle is altered with a separate chondral injury, a slowly
progressive degenerative osteoarthritis will occur. Referencing the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A. Guides),
Table 16-3, page 511, Dr. Graf determined that appellant had class 1 primary knee arthritis with
a documented full thickness articular cartilage and meniscal defect, resulting in a default rating
of seven percent for the lower extremity. Applying the net adjustment formula of (GMFH CDX) + (GMPE - CDX) + (GMCS) - CDX), he determined that (1-1) + (2-1) + (2-1) = +2.
Dr. Graf concluded that appellant had nine percent impairment of the right lower extremity.
On December 15, 2011 Dr. David O. Zimmerman, a Board-certified internist and OWCP
medical adviser, reviewed the medical record. He determined that appellant reached maximum
medical improvement on the date of Dr. Graf’s examination. Dr. Zimmerman disagreed with
3

Appellant stopped work on November 5, 2010 and returned to full-duty work on November 30, 2010.

2

Dr. Graf’s impairment rating as the report noted that there were no loose bodies in the medial or
lateral gutter or the suprapatellar pouch. The report indicated that the patella showed some mild
fraying, but no loose articular cartilage. Dr. Zimmerman stated that Dr. Graf’s opinion that the
degeneration in the right knee would continue to worsen over time was statistically true, but an
impairment rating for schedule award purposes could not be made on the likely progression of
the underlying pathology. The impairment rating must be based on current signs, symptoms and
diagnostic test findings. Since there was no grade 4 chondromalacia (ununited osteochondral
fracture) and full thickness cartilage defects, an impairment rating could not be based on primary
knee joint arthritis. Utilizing the operative report, Dr. Zimmerman stated that the impairment
rating must be based on a partial medial meniscectomy resulting from a meniscal injury. He
determined that a partial (medial or lateral) meniscectomy to repair a meniscal tear ranged from
one to three percent impairment. Appellant fell under class 1 with a default value of C or two
percent impairment. Dr. Zimmerman advised that the grade modifiers used by Dr. Graf would
apply in exactly the same way for a partial meniscectomy, resulting in a default value of E or
three percent impairment of the right lower extremity under the sixth edition of the A.M.A.,
Guides.
In a January 12, 2012 decision, OWCP granted appellant a schedule award for three
percent impairment of the right lower extremity.
By letter dated February 9, 2012, appellant requested an oral hearing before an OWCP
hearing representative. In a February 14, 2012 report, Dr. Graf disagreed with Dr. Zimmerman’s
statement that his impairment rating was based on likely progressive changes over time. His
impairment rating was based on the review of arthroscopic photographs and Dr. Buckley’s
description of a chondroplasty to stable rim and base cartilage surface changes present at the
medial femoral condyle. Dr. Graf noted that Dr. Zimmerman did not question the application of
the grade modifier adjustment formula and he applied this modifier in the same way that it was
utilized in his November 1, 2011 report.
The difference in rating resulted from
Dr. Zimmerman’s placement of appellant’s condition in a diagnosis other than class 1 primary
knee arthritis. Dr. Graf stated that utilizing the diagnosis-based impairment method was fully
justified as his November 1, 2011 report was based on the full criteria of her history and his
examination, review of clinical studies and accurate interpretation of the operative report and
clinical photographs. The grade modifiers applied were used correctly and the assignment of
appellant to the appropriate diagnosis-based impairment class was performed accurately.
Dr. Graf opined that there was no objective basis for Dr. Zimmerman’s assignment of a lower
impairment class.
In a July 23, 2012 decision, OWCP’s hearing representative set aside the
January 12, 2012 decision and remanded the case for OWCP to obtain a medical report from
Dr. Buckley addressing the severity of appellant’s chondromalacia (arthritis) of the knee based
on his review of Dr. Zimmerman’s December 15, 2011 report, Dr. Graf’s November 1, 2011 and
February 14, 2012 reports, the arthroscopic photographs and his own operative examination.
OWCP was then instructed to refer Dr. Buckley’s report to its medical adviser to determine a
right lower extremity impairment rating. The hearing representative noted that it had not issued
a decision regarding appellant’s request to expand the acceptance of her claim to include

3

chondromalacia as work related. OWCP was instructed to conduct any necessary development
and issue a decision regarding this matter.4
In an August 13, 2012 report, Dr. Buckley advised that appellant had grade 2
chondromalacia that was mild to moderate in severity.
On September 27, 2012 Dr. Zimmerman reviewed Dr. Buckley’s August 13, 2012 report.
He stated that the report reinforced his December 15, 2011 right leg impairment rating.
Dr. Zimmerman cited to Table 16-3 and advised that Dr. Buckley’s finding of grade 2
chondromalacia permitted no consideration of primary knee joint arthritis or patellofemoral
arthritis under the diagnostic criteria (key factor). He stated that to consider primary knee joint
arthritis or patellofemoral arthritis under the diagnostic criteria (key factor), the grade must be 4.
Dr. Zimmerman concluded that Dr. Buckley’s report had no impact on his December 15, 2011
impairment rating with a date of maximum medical improvement on November 1, 2011.
In an October 24, 2012 decision, OWCP found that appellant had no more than three
percent impairment of the right lower extremity.
On October 19, 2012 appellant requested an oral hearing. A telephonic hearing was held
on March 13, 2013 at which she testified.
In a March 18, 2013 report, Dr. Buckley noted appellant’s complaint of right knee pain.
X-rays were repeated which showed continued changes in the knee consistent with
post-traumatic arthritis. Dr. Buckley advised that it was more probable than not that appellant’s
symptoms were directly related to her work-related injury.
In a May 16, 2013 decision, OWCP’s hearing representative affirmed the
October 24, 2012 schedule award decision. The hearing representative accorded determinative
weight to Dr. Zimmerman’s opinion that appellant had three percent impairment of the right leg
based on the sixth edition of the A.M.A., Guides.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing federal regulations6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
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 for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.7 The A.M.A., Guides has been adopted by the implementing
4

No decision on the expansion of the accepted condition is in the record.

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

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

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regulations as the appropriate standard for evaluating schedule losses.8 Effective May 1, 2009,
FECA adopted the sixth edition of the A.M.A., Guides9 as the appropriate edition for all awards
issued after that date.10
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).11 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
proving rationale for the percentage of impairment specified.13
ANALYSIS
OWCP accepted appellant’s claim for medial meniscus tear and contusion of the right
knee and abrasion of the right leg and authorized right knee partial medial meniscectomy and
chrondoplasty medial femoral condyle. Appellant received a schedule award for three percent
impairment of the right lower extremity. The Board finds that she did not meet her burden of
proof to establish greater impairment.
In support of her claim for a schedule award, appellant provided a November 1, 2011
report from Dr. Graf who rated impairment for the right lower extremity based on primary knee
joint arthritis. However, the Board notes that Dr. Graf referenced right lower extremity
impairment under the A.M.A., Guides, but he did not provide a reasoned explanation as to how
the extent of the arthritic condition had been established sufficient to warrant an increased
schedule award. The record does not contain any diagnostic records contemporaneous to the
work injury that demonstrate that appellant had joint arthritis prior to or subsequent to the
August 12, 2010 work injury. As noted, the right knee MRI scan demonstrated a medial
meniscal tear. Dr. Buckley’s August 13, 2012 report found that appellant had grade 2
chondromalacia, which did not allow the impairment rating to be evaluated under the diagnostic
criteria for arthritis. Dr. Zimmerman, OWCP’s medical adviser, additionally reviewed the

8

Supra note 5; Mark A. Holloway, 55 ECAB 321, 325 (2004).

9

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

10

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
11

A.M.A., Guides 494-531.

12

Id. at 521.

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

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matter14 and found no basis on which an impairment rating could be based on primary knee joint
arthritis.
Dr. Zimmerman reviewed the reports from Drs. Graf and Buckley and found that
appellant had three percent right lower extremity impairment based on her right knee partial
medial meniscectomy. Utilizing the sixth edition of the A.M.A., Guides, he determined that a
partial meniscectomy to repair a meniscal tear fell under the class with a default value of C or
two percent.15 Dr. Zimmerman applied the same grade modifiers set forth by Dr. Graf to the net
adjustment formula, resulting in a default value of E or three percent impairment of the right
lower extremity under the sixth edition of the A.M.A., Guides.16 This impairment rating is
consistent with the examination findings utilizing the A.M.A., Guides. The Board finds that the
weight of the medical evidence rests with Dr. Zimmerman, who provided sufficient medical
rationale for his conclusion that appellant, had no more than three percent impairment of the
right lower extremity.
On appeal, appellant contended that a conflict in medical opinion arose between Dr. Graf
and Dr. Zimmerman regarding the extent of impairment to her right knee. Although Dr. Graf
found a nine percent impairment of the right lower extremity under the sixth edition of the
A.M.A., Guides, the rating was based on a condition not verified by the surgical reports.
Dr. Zimmerman properly applied the A.M.A., Guides and provided a detailed and wellrationalized medical opinion for rating three percent impairment of the right lower extremity.
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 has no more than three percent impairment of the right
lower extremity.

14

See supra note 12.

15

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

16

Id.

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ORDER
IT IS HEREBY ORDERED THAT the May 16, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 15, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.L., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS MAINTENANCE,
Barstow, CA, Employer
__________________________________________

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Appearances:
Steven E. Brown, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0304
Issued: July 13, 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 December 21, 2020 appellant, through counsel, filed a timely appeal from a July 10,
2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed from OWCP’s last merit decision, dated July 19, 2018, to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of 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 OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On June 8, 2018 appellant, then a 59-year-old retired sandblaster and parts attendant, filed
an occupational disease claim (Form CA-2), alleging that he developed arsenic poisoning due to
factors of his federal employment, including the effects and process of sandblasting. He noted that
he first became aware of his condition and realized its relation to his federal employment on
April 21, 2018. On the reverse side of the claim form, the employing establishment noted that
appellant medically retired, effective January 5, 2015.3
In an April 19, 2018 summary report, Dr. Donovan Anderson, a family medicine specialist,
diagnosed diabetes, atypical chest pain, nephrotoxicity, nephropathy induced by heavy metals,
toxic effect of unspecified metal, heavy metal exposure, hypertension, chronic silicosis, and
cadmium poisoning.
Appellant also submitted an April 20, 2018 laboratory urine test result, which revealed
exposure to arsenic.
Dr. Anderson noted in an April 25, 2018 medical report that, on examination, appellant
exhibited pelvic, abdominal, and back pain.
In an undated statement, the employing establishment contended that appellant previously
filed a Form CA-2 for arsenic poisoning on March 15, 2012, which was denied. It alleged that he
told different stories to different agency representatives and filed incomplete forms that potentially
created confusion.
In a May 11, 2018 medical report, Dr. Anderson noted that appellant had elevated levels
of arsenic and appellant complained that his bones were hurting all over the body.
In an undated attending physician’s report (Form CA-20), Dr. Anderson indicated that
appellant worked at the employing establishment from 2003 to 2014 and had no history of
preexisting disease. He diagnosed arsenic poisoning and opined that it was “possible” that his
condition was caused or aggravated by an employment activity.

3

The record reflects that appellant previously filed an occupational disease claim on June 13, 2006 alleging
exposure to cadmium (lead) under OWCP File No. xxxxxx780. By decision dated August 11, 2006, OWCP denied
his claim, finding that the f medical evidence was insufficient to establish causal relationship between the claimed
condition and the accepted federal employment exposure. Appellant also previously filed an occupational disease
claim on March 9, 2012 for exposure to chemical substances, causing upper respiratory and other conditions, under
OWCP File No. xxxxxx318. By decision dated September 6, 2012, OWCP denied his claim, finding that, as he failed
to establish the employment exposure, he did not sustain an injury in the performance of duty, as alleged. Appellant’s
claims have not been administratively combined.

2

In a June 11, 2018 development letter, OWCP informed appellant of the deficiencies of his
claim. It advised him of the type of factual and medical evidence needed and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to submit the necessary
evidence.
In a December 2, 2012 Form CA-20, an unidentifiable healthcare provider indicated that
appellant was exposed to cadmium and dusts from sandblasting.
On February 4, 2013 Dr. David Bland, a Board-certified pulmonologist, completed a Form
CA-20 and noted that appellant was exposed to sandblasting dusts. He reported that appellant
experienced acneiform rash, shortness of breath, and a burning sensation in nose. Dr. Bland
diagnosed skin, eye, and nose irritation due to exposure to sandblasting products. In CA-20 forms
dated July 15, 2014 and September 3, 2015, Dr. Bland again noted that appellant experienced
acneiform rash, shortness of breath, and burning chest and lungs due to exposure to sandblasting
dusts.
A February 12, 2017 medical report by Dr. William Rappoport, Board-certified in
cardiovascular disease and internal medicine, noted that appellant previously worked as a
sandblaster for 13 years with the employing establishment, where he worked on a large variety of
equipment including vehicles, engines, and artillery. Appellant reported that he worked in a poorly
ventilated area with a compressor that was assembled improperly for approximately five years and
that his health problems began three to four years prior. Dr. Rappoport noted that appellant had
known about his pulmonary issues since 2011 and his previous physician thought that cadmium,
toxins and heavy metals could be the cause of his health conditions. He reported that appellant
had metallic taste in his mouth for the past few years and experienced burning pain in his feet and
intermittent sharp pain in his lower extremity up to his chest. Dr. Rappoport conducted a physical
examination and diagnosed chest pain, benign essential hypertension, hyperlipidemia, chronic
obstructive pulmonary disease, carotid artery stenosis, chronic kidney disease, diabetes, abdominal
mass, and obesity.
In a March 15, 2017 medical report, Dr. Kahroba Jahan, Board-certified in cardiovascular
disease and internal medicine, indicated that appellant had a history of heavy metal toxicity from
occupational exposure in 2004, which resulted in tubulointerstitial nephropathy. She noted that
appellant requested a cardiac biopsy to detect cadmium levels in his heart.
In a May 11, 2018 letter, Dr. Anderson noted that appellant was seen for possible cadmium
exposure from work. He indicated that appellant might have inhaled some suspected heavy molds
while working as a sandblaster for over 10 years. Dr. Anderson noted that a heavy metal screen
test revealed no cadmium exposure but demonstrated elevated levels of arsenic. He explained that
appellant was never tested for arsenic exposure until the April 19, 25, and May 11, 2018
evaluations.
In a June 19, 2018 statement, appellant alleged that his supervisors engaged in improper
behavior and needed to be investigated. He contended that the employing establishment
improperly removed employees’ documents and produced unlawful working conditions, creating
improper exposure to metals, leads, and unclean oxygen. Appellant asserted that his cadmium
level was extremely high.

3

In a June 20, 2018 medical report, Dr. Anderson indicated that appellant was no longer
able to work due to exposure to variety of heavy metals, including cadmium and arsenic. He
opined that appellant’s exposure to cadmium and arsenic occurred when he worked at the
employing establishment. Dr. Anderson indicated that appellant’s work environment was
improperly ventilated and that he breathed in a lot of dusts. He also noted that removing paint
from metals was appellant’s daily job. Dr. Anderson found that there was no evidence of excessive
arsenic level previously reported and that appellant was unaware of high levels of arsenic.
In a June 28, 2018 statement, appellant asserted that he previously received no medical
treatment for arsenic poisoning.
By decision dated July 19, 2018, OWCP denied appellant’s occupational disease claim,
finding that it was untimely filed. It found that appellant’s claim had not been filed within the
three years filing requirement of the date of last exposure or from the perspective of “latent”
disability, noting that the similarity of the current claim to appellant’s prior claims in OWCP File
Nos. xxxxxx780 and xxxxxx318 provided further evidence that appellant was aware of his illness.
OWCP also found that there was no evidence to support exceptional circumstances to allow for a
waiver of the timely filing requirement.
In an undated statement, appellant contended that the employing establishment engaged in
unlawful conduct including removing employees’ documents and falsifying his document.
On July 9, 2019 appellant requested reconsideration and submitted additional evidence.
In a January 23, 2019 report, Dr. Muhammad A. Nayer, a Board-certified neurologist,
diagnosed paresthesia of skin, idiopathic progressive neuropathy, and bilateral leg pain.
Dr. Suraj A. Muley, a Board-certified neurologist, noted in a February 25, 2019 medical
report that appellant had a history of significant pelvic pain, diabetes, and chronic kidney disease.
Appellant reported to him that he was exposed to cadmium in 2011 and then to arsenic in 2014.
Dr. Muley noted that appellant developed symptoms of facial numbness and pain as well as
temperature sensitivity of the face in 2012. He opined that it was possible that he had nerve
damage from exposure to cadmium in 2011.
Appellant also submitted an April 15, 2019 electromyography (EMG) study.
By decision dated July 12, 2019, OWCP denied appellant’s request for reconsideration of
the merits of his claim.
Appellant resubmitted Dr. Muley’s February 25, 2019 report and the April 15, 2019 EMG
study.
On April 16, 2020 appellant, through counsel, requested reconsideration, contending that
his claim was timely filed because he was unaware of his condition until April 21, 2018, when he
was first tested for arsenic poisoning. He further argued that OWCP erred in finding that his prior
claims for exposure to other hazardous chemicals was related to the present claim for arsenic
poisoning.

4

Counsel also submitted an internet article discussing heavy metals and the adverse effects
one’s health.
By decision dated July 10, 2020, OWCP denied appellant’s reconsideration request,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
request for reconsideration must be received by OWCP within one year of the date of OWCP’s
decision for which review is sought.4 Timeliness is determined by the document receipt date (i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS).5
The Board has found that the imposition of the one-year time limitation does not constitute an
abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.6
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s reconsideration request is untimely filed, it must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error.7 If a request demonstrates
clear evidence of error, OWCP will reopen the case for merit review.8
To demonstrate clear evidence of error, a claimant must submit evidence that is relevant to
the issue that was decided by OWCP,9 is positive, precise, and explicit, and is manifest on its face
that OWCP committed an error.10 The evidence must not only be of sufficient probative value to
create a conflict in medical opinion or establish a clear procedural error, but must also shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the correctness
of OWCP’s decision for which reconsideration is sought. Evidence that does not raise a substantial
question is insufficient to demonstrate clear evidence of error.11 It is not enough merely to
demonstrate that the evidence could be construed so as to produce a contrary conclusion. 12 A
determination of whether the claimant has demonstrated clear evidence of error entails a limited

4

20 C.F.R. § 10.607(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

6
5 U.S.C. § 8128(a); J.D., Docket No. 18-1765 (issued June 11, 2019); R.L., Docket No. 18-0496 (issued January 9,
2019); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).
7

20 C.F.R. § 10.607(b); B.C., Docket No. 18-1496 (issued May 22, 2019).

8

G.G., Docket No. 18-1074 (issued January 7, 2019); see also 20 C.F.R. § 10.607(b); supra note 5 at Chapter
2.1602.5 (February 2016).
9

F.N., Docket No. 18-1543 (issued March 6, 2019); Dean D. Beets, 43 ECAB 1153 (1992).

10

Id.

11

E.B., Docket No. 18-1091 (issued December 28, 2018).

12

J.W., Docket No. 18-0703 (issued November 14, 2018).

5

review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record.13
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed.
In the last merit decision, dated July 19, 2018, OWCP denied appellant’s occupational
disease claim, finding that he did not file his claim within the three-year limitation period provided
in 5 U.S.C. § 8122(b). As it received appellant’s request for reconsideration on April 16, 2020,
more than one year after the July 19, 2018 merit decision, the Board finds that OWCP properly
determined that it was untimely filed. Consequently, appellant must demonstrate clear evidence
of error by OWCP in denying his claim for compensation.14
The Board further finds that appellant has demonstrated clear evidence of error by OWCP
in its July 19, 2018 decision.
In its July 19, 2018 decision, OWCP denied appellant’s claim, finding that it was untimely
filed. It found that appellant’s claim had not been filed within the three years filing requirement
of the date of last exposure or from the perspective of “latent” disability, noting that the similarity
of the current claim to appellant’s prior claims in OWCP File Nos. xxxxxx780 and xxxxxx318
provided further evidence that appellant was aware of his illness.
On reconsideration, counsel contended that OWCP erred by equating one type of toxic
exposure with several others and that appellant timely filed his claim when he became aware of
his arsenic poisoning for the first time on April 21, 2018. Appellant has consistently, throughout
the development of his claim, asserted that he received no past medical treatment for arsenic
poisoning. It is well established that in cases of latent disability, the time for filing a claim does
not begin to run until the claimant is aware, or by exercise of reasonable diligence, should be aware
of the causal relationship between his condition and his employment. 15 The record reflects that,
although appellant previously filed claims under OWCP Nos. xxxxxx780 and xxxxxx318 for
exposures to cadmium and other chemical substances, he was never diagnosed with arsenic
poisoning until April 2018. In a May 11, 2018 letter and a June 20, 2018 report, Dr. Anderson
noted that appellant was not previously tested for arsenic exposure until April 2018. A review of
the record shows that appellant did not become aware of the connection between arsenic poisoning
and factors of his federal employment until April 21, 2018 when he received the results from an
April 20, 2018 laboratory urine test that revealed exposure to arsenic. Accordingly, as appellant’s
request for reconsideration is sufficient to shift the weight of the evidence and raise a substantial
question as to the correctness of OWCP’s decision, the Board finds that appellant has demonstrated
13

Supra note 11.

14

20 C.F.R. § 10.607(a); F.B., Docket No. 20-0910 (issued April 23, 2021); L.W., Docket No. 17-1630 (issued
June 7, 2018).
15
5 U.S.C. § 8122(b). See also L.S., Docket No. 20-0705 (issued January 27, 2021); D.D., Docket No. 19-0548
(issued December 16, 2019); J.M., Docket No. 10-1965 (issued May 16, 2011).

6

clear evidence of error on the part of OWCP in its July 19, 2018 decision. Thus, OWCP abused
its discretion in failing to reopen appellant’s claim for merit review. The Board will reverse
OWCP’s July 10, 2020 decision and remand the case for an appropriate decision on the merits of
his claim.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed. The Board further finds that appellant has demonstrated clear
evidence of error in OWCP’s July 19, 2018 merit decision and, thus, OWCP improperly denied
his request for reconsideration of the merits of his claim.
ORDER
IT IS HEREBY ORDERED THAT the July 10, 2020 decision of the Office of Workers’
Compensation Programs is reversed and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: July 13, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
ASSISTANT SECRETARY FOR
ADMINISTRATION & MANAGEMENT,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 07-1353
Issued: October 9, 2007

Case Submitted on the Record

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

JURISDICTION
On April 24, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated March 13, 2007 finding that she had permanent
impairment entitling her to a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has more than nine percent impairment of her right
lower extremity for which she received a schedule award; and (2) whether the Office
compensated appellant at the correct pay rate.
FACTUAL HISTORY
On April 26, 2004 appellant, then a 45-year-old senior claims examiner, sustained a low
back jury when she prepared training materials for a three-day workshop which included lifting,

stacking and arranging boxes on a dolly. In her narrative statement, she noted that she had a
prior back injury in April 1987 involving the left side of her low back which the Office denied.
Appellant sustained a second injury to her low back on October 9, 2003. The Office accepted a
claim for a herniated disc on June 8, 2004. It accepted appellant’s October 9, 2003 claim for
aggravation of herniated disc on June 8, 2004.
In a letter dated October 5, 2004, appellant requested a schedule award and contended
that her pay rate should be based on her September 2, 2004 earnings. She requested a lump sum
payment. In a report dated September 2, 2004, Dr. George Varghese, Board-certified in physical
medicine and rehabilitation, noted appellant’s history of injury on October 9, 2003 and her
complaints of low back pain with radiation into the left leg. He reviewed the medical records
and found sensory loss in the L5 distribution and residual weakness and numbness in the S1
distribution on the left side. Dr. Varghese reported no objective findings on the right side. He
opined that appellant reached maximum medical improvement on August 23, 2004.
Dr. Varghese found that she had 30 percent impairment of the S1 nerve root due to pain and
sensory deficits in the left lower extremity or 2 percent impairment of the extremity. He found
20 percent weakness in the S1 distribution or 4 percent impairment of the left lower extremity.
Dr. Varghese stated that the L5 nerve root had 20 percent sensory impairment of 1 percent
impairment of the left lower extremity and that appellant had no weakness in the L5 nerve root
distribution. He concluded that appellant had seven percent impairment of the left lower
extremity due to L5-S1 radiculopathy. Dr. Varghese did not find any impairment of the right
lower extremity.
On November 9, 2006 appellant again submitted evidence regarding her permanent
impairment and requested a schedule award. In a report dated October 18, 2006, Dr. Pedro A.
Murati, Board-certified in physical medicine and rehabilitation, noted history of injury of a fall
from her chair in 2003. He reported that appellant’s magnetic resonance imaging (MRI) scan
revealed left paracentral disc extrusion at L5-S1. Nerve conduction studies in April 2004
revealed evidence of chronic bilateral L5-S1 radiculopathy which were worse on the left.
Dr. Murati diagnosed low back pain secondary to radiculopathy and left S1 joint dysfunction.1
He opined that appellant reached maximum medical improvement on September 9, 2006.
Dr. Murati found that appellant had three percent impairment of the right lower extremity due to
pain and numbness from the L5 nerve root. He further found that appellant had weakness of the
right toe extensors due to the L5 nerve root resulting in nine percent impairment of the right
lower extremity. Dr. Murati found that appellant had a combined 12 percent impairment of the
right lower extremity. In regard to appellant’s left lower extremity, Dr. Murati found that
appellant had four percent impairment of the left lower extremity due to injury to the sensory
impairment left S1 nerve root. He further found that appellant had weakness of the left toe
extensors due to the L5 nerve root resulting in nine percent impairment of the left lower
extremity. Dr. Murati concluded that appellant had 13 percent impairment of the left lower
extremity.

1

Dr. Murati also discussed appellant’s permanent impairment due to carpal tunnel syndrome. The Office has not
accepted this condition under the claim before the Board and the Board will not address this issue. 20 C.F.R.
§ 501.2(c).

2

The Office referred appellant’s claim for a schedule award to the Office medical adviser
for review. It noted that appellant’s claim had not been accepted for diabetes, lumbar
radiculopathy, degenerative disc disease and right carpal tunnel syndrome. In a report dated
February 21, 2007, the Office medical adviser agreed with Dr. Murati that appellant had nine
percent impairment due to sensory loss and weakness of the right toe extensors. He found that,
as appellant had experienced pain in the right lower extremity on March 24, 2003 her right leg
condition was due to her employment. The Office medical adviser found that there was no
evidence in the record that appellant sustained injury to her left lower extremity. He noted that
appellant’s lumbar radiculopathy was not an accepted condition and opined that appellant’s left
lower extremity symptoms were due solely to this condition. The Office medical adviser
concluded that appellant had no impairment rating to her left lower extremity. He stated that the
date of maximum medical improvement was October 9, 2004.
By decision dated March 13, 2007, the Office granted appellant a schedule award for nine
percent impairment of her right lower extremity. It found that appellant had reached maximum
medical improvement on October 9, 2004 and that she was entitled to compensation based on her
pay rate effective March 24, 2003.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulation3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The American Medical Association, Guides to the
Evaluation of Permanent Impairment has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.4 Effective February 1, 2001, the Office
adopted the fifth edition of the A.M.A., Guides as the appropriate edition for all awards issued
after that date.5
A schedule award is not payable for a member, function or organ of the body not
specified in the Act or in the implementing regulations. As neither the Act nor the regulations
provide for the payment of a schedule award for the permanent loss of use of the back, no
claimant is entitled to such an award.6 However, as the schedule award provisions of the Act
include the extremities, a claimant may be entitled to a schedule award for permanent
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

4

Id.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a) (August 2002).
6

George E. Williams, 44 ECAB 530, 533 (1993).

3

impairment to an extremity even though the cause of the impairment originated in the spine.7 It
is well established that in determining entitlement to a schedule award, preexisting impairment to
the schedule member is to be included.8
It is well established that the period covered by a schedule award commences on the date
that the employee reaches maximum medical improvement from the residuals of the employment
injury. The Board has defined maximum medical improvement as meaning “that the physical
condition of the injured member of the body has stabilized and will not improve further.” The
Board has also noted a reluctance to find a date of maximum medical improvement, which is
retroactive to the award, as retroactive awards often result in payment of less compensation
benefits. The Board, therefore, requires persuasive proof of maximum medical improvement in
the selection of a retroactive date of maximum medical improvement.9 The determination of
whether maximum medical improvement has been reached is based on the probative medical
evidence of record and is usually considered to be the date of the evaluation by the attending
physician which is accepted as definitive by the Office.10
ANALYSIS -- ISSUE 1
Appellant submitted medical evidence regarding her permanent impairment due to her
accepted back injuries from Dr. Murati, Board-certified in physical medicine and rehabilitation.
Dr. Murati noted appellant’s initial history of injury on October 9, 2003 and reported findings of
sensory loss and weakness in both lower extremities as a result of the back injuries. He found
that appellant had sensory impairment of the L5 nerve root which resulted in three percent
impairment of the right lower extremity due to pain and numbness. Dr. Murati further found that
appellant had loss of strength due to impairment of the L5 nerve root resulting in nine percent
impairment of the right lower extremity. The Office medical adviser reviewed this report and
agreed that appellant had nine percent impairment of the right lower extremity due to loss of
strength. He did not discuss the additional three percent impairment rating for appellant’s
sensory impairment as found by Dr. Murati. As the Office medical adviser did not address
sensory loss as noted, the Board will remanded the case for the Office to consider whether
appellant is entitled to any impairment rating to the right lower extremity due to pain and loss of
sensation due to impairment of the L5 nerve.
The Office medical adviser also failed to provide any medical reasoning for the selection
of October 9, 2004 as the date of maximum medical improvement. As noted, the Board requires
persuasive proof of maximum medical improvement when a retroactive date of maximum
medical improvement is selected.11 The date of maximum medical improvement is usually
7

Id.

8

Michael C. Milner, 53 ECAB 446, 450 (2002).

9

J.C., 58 ECAB ___ (Docket No. 06-1018, issued January 10, 2007); D.R., 57 ECAB ___ (Docket No. 06-668,
issued August 22, 2006); James E. Earle, 51 ECAB 567 (2000).
10

Mark A. Holloway, 55 ECAB 321, 325 (2004).

11

Supra note 9.

4

considered to be the date of the evaluation by the attending physician which is accepted as
definitive by the Office, which in this case would be October 18, 2006. The Office did not offer
any discussion or proof that appellant had reached maximum medical improvement before this
date.12
CONCLUSION
The Board finds that the case is not in posture for decision. The medical evidence
supports that appellant has sensory impairment of her right lower extremity not considered by the
Office medical adviser. The Board further notes that the Office did not adequately address the
selected retroactive date of maximum medical improvement. For these reasons, the Office’s
March 13, 2007 decision will be set aside and the case remanded for further consideration of the
extent of appellant’s permanent impairment and the date of maximum medical improvement.13
ORDER
IT IS HEREBY ORDERED THAT the March 13, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further development
consistent with this opinion of the Board.
Issued: October 9, 2007
Washington, DC

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

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

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

12

Due to the disposition of the issue, it is not necessary for the Board to address whether the Office compensated
appellant at the correct pay rate.
13

The Board notes that the Office has not issued a final decision addressing appellant’s entitlement to a schedule
award for any employment-related permanent impairment of her left lower extremity. Therefore, the Board will not
address this issue on appeal. 20 C.F.R. § 501.2(c).

5