United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.M., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

HARRY S. TRUMAN MEMORIAL 

VETERANS’ HOSPITAL, Columbia, MO, 

Employer

__________________________________________

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Docket No. 21-0024

Issued: February 15, 2022

Appearances: Case Submitted on the Record

Shannon Bravo, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 8, 2020 appellant, through counsel, filed a timely appeal of April 13 and 30, 

2020 merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

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

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.3

ISSUES

The issues are: (1) whether appellant received an overpayment of compensation in the 

amount of $10,049.31 for the period May 13, 2015 through January 26, 2016, for which he was 

without fault, because he was not entitled to a schedule award for more than 25 percent permanent 

impairment of the right lower extremity; (2) whether OWCP properly denied waiver of recovery 

of the overpayment; and (3) whether appellant has met his burden of proof to establish greaterthan 

20 percent permanent impairment of the left lower extremity, for which he previously received 

schedule award compensation.

FACTUAL HISTORY

On July 3, 2013 appellant, then a 54-year-old cook, filed an occupational disease claim 

(Form CA-2) alleging that he developed generative hip disease and a left heel spur due to factors 

of his federal employment, including constant walking, standing, and bending at work. He noted 

that he first became aware of his conditions and their relationship to his federal employment on 

April 26, 2011.

In an August 30, 2013 decision, OWCP denied appellant’s claim based on his failure to 

establish the implicated factors of his federal employment. By decision dated June 10, 2014, an 

OWCP hearing representative set aside the August 30, 2013 decision finding that appellant had 

established the employment factors, but determined that while the medical evidence provided an 

affirmative opinion on causal relationship, such evidence was not sufficiently rationalized, and 

thus, remanded the case to OWCP for further development of the medical evidence. Following 

additional development, by decision dated April 14, 2015, OWCP accepted appellant’s claim for 

aggravation of right hip degenerative joint disease. It retroactively authorized his October 17,

2013 total right hip replacement surgery. 

On October 27, 2015 appellant filed a claim for compensation (Form CA-7) for a schedule 

award. In a May 24, 2016 decision, OWCP granted him a schedule award for 31 percent 

permanent impairment of the right hip, based on a May 13, 2015 medical report of Dr. John W. 

Ellis, a Board-certified family practitioner, and January 27, 2016 report of Dr. Eric M. Orenstein, 

a Board-certified orthopedic surgeon serving as an OWCP district medical adviser (DMA). The 

period of the award ran for 89.28 weeks from May 13, 2015 through January 26, 2017.

On August 10, 2016 OWCP expanded the acceptance of appellant’s claim to include right 

and left carpal tunnel syndrome, right and left hip traumatic athropathy, right pelvis/thigh 

2

5 U.S.C. § 8101 et seq.

3 The Board notes that, following the April 30, 2020 decision, appellant submitted additional evidence to OWCP. 

However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the 

case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered 

by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
3

unspecified osteoarthritis, other intervertebral disc degeneration lumbosacral region, right and left 

elbow medial epicondylitis, and right and left elbow lateral epicondylitis.

OWCP subsequently received an additional report dated October 24, 2016 from Dr. Ellis

who utilized the diagnosis-based impairment (DBI) method and determined that appellant had 16

percent permanent impairment of each upper extremity, 40 percent permanent impairment of the 

right lower extremity, and 12 percent permanent impairment of the left lower extremity in 

accordance with the sixth edition of the American Medical Association, Guides to the Evaluation 

of Permanent Impairment (A.M.A., Guides).4 Dr. Ellis further determined that appellant had 

reached maximum medical improvement (MMI) as of the date of his evaluation. 

In a February 12, 2017 report, the DMA, Dr. Orenstein reviewed Dr. Ellis’ October 24, 

2016 findings. He disagreed with Dr. Ellis’ right and left upper extremity impairment ratings. The 

DMA explained that Dr. Ellis included cubital tunnel syndrome in his calculation of appellant’s 

bilateral upper extremity impairment although the condition had not been accepted as work related 

by OWCP. He further explained that he found no documentation of the presence of thenar or 

hypothenar atrophy utilized in Dr. Ellis’ impairment report. Additionally, the DMA explained that

there were no measurements recorded of appellant’s pinch strength and/or grip strength of the 

upper extremities using a dynamometer.

OWCP subsequently referred appellant, along with a statement of accepted facts (SOAF)

and the medical record, to Dr. Kevin D. Komes, a Board-certified physiatrist, for a second opinion

examination to determine the extent of his permanent impairment. In a May 25, 2017 report,

Dr. Komes indicated that he examined appellant on May 22, 2017. Using the range of motion 

(ROM) method of the sixth edition of the A.M.A., Guides, he calculated four percent permanent 

impairment of each upper extremity. Dr. Komes determined that appellant had reached MMI on 

February 28, 2012.

On June 12, 2017 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as an 

OWCP DMA, reviewed the medical record, including Dr. Komes’ May 25, 2017 findings. He 

concurred with Dr. Komes that appellant had four percent permanent impairment of each upper 

extremity. The DMA determined that MMI was reached on May 22, 2017, the date of Dr. Komes’

impairment evaluation.

OWCP, by decision dated December 8, 2017, granted appellant a schedule award for four 

percent permanent impairment of each upper extremity based on the opinions of Dr. Komes and 

the DMA, Dr. Katz. The period of the award ran for 24.96 weeks from May 22 through 

November 12, 2017. 

On December 28, 2017 OWCP requested that Dr. Katz review Dr. Ellis’ October 24, 2016 

report and provide whether he concurred with his impairment ratings. In a January 5, 2018 report,

Dr. Katz opined thatDr. Ellis’ right and left lower extremity impairment ratings were unacceptable 

for schedule award purposes, particularly regarding the issue of spinal nerve impairment. He 

recommended that OWCP refer appellant for a second opinion evaluation. 

4 A.M.A., Guides(6th ed. 2009).
4

On March 19, 2018 OWCP referred appellant to Dr. Christopher D. Main, a Boardcertified orthopedic surgeon. April 26 and May 25, 2018 memoranda of telephone calls (Form 

CA-110) indicated that appellant was examined by Dr. Main on April 13, 2018, but Dr. Main’s

report had not been received by OWCP.

On June 13, 2018 OWCP again referred appellant to Dr. Komes for a second opinion 

evaluation regarding the extent of appellant’s bilateral lower extremity permanent impairment.

Also, on June 13, 2018, OWCP received a February 28, 2018 report by Dr. Ellis who found 

that appellant had 14 percent permanent impairment of the right upper extremity, 16 percent 

permanent impairment of the left upper extremity, 31 percent permanent impairment of the right 

lower extremity, and 30 percent permanent impairment of the left lower extremity.

Dr. Komes, in a June 27, 2018 report, found that appellant had 23 percent right lower 

extremity permanent impairment due to his authorized October 17, 2013 right total hip 

replacement surgery. He noted that appellant had previously received a schedule award for 31 

percent permanent impairment of the right lower extremity, and thus, no additional impairment 

was warranted. Dr. Komes determined that appellant had two percent permanent impairment of 

the left lower extremity due to his diagnosis of left hip arthropathy/osteoarthritis. He advised that 

appellant had no spinal nerve impairment as there was no radiographic evidence of intervertebral 

disc herniation and physical examination findings were normal. Dr. Komes advised that MMI was 

reached as of the date of his evaluation.

On August 14, 2018 the DMA, Dr. Katz,reviewed Dr. Komes’ June 27, 2018 findings and 

agreed with his opinion that appellant had 23 percent permanent impairment of the right lower 

extremity and two percent permanent impairment of the left lower extremity. He determined that 

MMI was reached on June 27, 2018, the date of Dr. Komes’ impairment evaluation.

OWCP, in a March 18, 2019 decision, granted appellant a schedule award for two percent 

permanent impairment of the left leg, based on the opinions of Dr. Komes and the DMA, Dr. Katz. 

The period of the award ran for 5.76 weeks from June 27 through August 6, 2019.

In a preliminary overpayment determination dated March 19, 2019, OWCP notified 

appellant that he had received a $13,430.35 overpayment of compensation for the period May 13, 

2015 through January 26, 2017. It explained that he had received $52,313.23 for 31 percent 

permanent impairment of the right lower extremity when he was only entitled to $38,882.88 for 

23 percent permanent impairment of the right lower extremity, creating an overpayment for the 

period May 13, 2015 through January 26, 2017. OWCP also made a preliminary determination 

that appellant was without fault in the creation of the overpayment. It requested that he complete 

the enclosed overpayment recovery questionnaire (Form OWCP-20) and submit supporting 

financial documents. Additionally, OWCP provided an overpayment action request form and

notified appellant that, within 30 days of the date of the letter, he could request a telephone 

conference, a final decision based on the written evidence, or a prerecoupment hearing.

In an April 16, 2019 overpayment action request form, appellant requested a telephonic 

prerecoupment hearing before a representative of OWCP’s Branch of Hearings and Review. He 

requested waiver of recovery of the overpayment contendingthat he was unaware that he had been 
5

overpaid. In an accompanying Form OWCP-20 of even date, appellant reported $1,728.00 in 

monthly income, $2,320.00 in monthly expenses, and $220.00 in assets. He did not submit any 

supporting financial documentation. 

Also on April 16, 2019 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review regarding the March 18, 2019 schedule award decision. 

By decision dated June 17, 2019, a second OWCP hearing representative found that the 

case was not in posture for a hearing regarding the March 18, 2019 schedule award decision. She 

set aside the March 18, 2019 schedule award decision and remanded the case to OWCP for further 

development of the medical evidence because the DMA, Dr. Katz, did not comment on Dr. Ellis’ 

February 28, 2018 report, as that report was not available for Dr. Komes’ review, and the SOAF 

did not contain all accepted conditions. The hearing representative directed OWCP to update the

SOAF and forward the new SOAF along with Dr. Ellis’ February 28, 2018 report to a DMA and 

request that the DMA provide an opinion regarding whether appellant had any additional 

permanent impairment.

On August 12, 2019 appellant filed a Form CA-7 for an additional schedule award. In 

support of his claim, he submitted a July 30, 2019 report from Dr. Ellis. Dr. Ellis referenced the 

sixth edition of the A.M.A., Guides and calculated 13 percent permanent impairment of the right 

upper extremity, 10 percent permanent impairment of the left upper extremity, 37 percent 

permanent impairment of the right lower extremity, and 16 percent permanent impairment of the 

left lower extremity. 

On August 28, 2019 OWCP found a conflict in medical opinion between Dr. Ellis and

Dr. Komes regarding the extent of appellant’s bilateral upper and lower extremity permanent 

impairment, and referred appellant for an impartial medical examination in order to resolve the

conflict. In a September 27, 2019 report, Dr. Michael H. Ralph, a Board-certified orthopedic 

surgeon serving as an impartial medical examiner (IME), reviewed appellant’s medical records 

and noted examination findings. He diagnosed status post right total hip replacement that was 

objectively doing well, moderate arthritis of the left hip with correlated loss of ROM, degenerative 

arthritis of the right and left elbows, and minimal right and left carpal tunnel syndrome by nerve 

conduction velocities only. Dr. Ralph also found no evidence of radicular symptoms regarding 

the lumbar spine. He noted that appellant had normal reflexes throughout the lower extremity, he 

could walk on his toes and heels, and he had no clinical evidence of radicularsymptoms. Dr. Ralph 

utilized the DBI method to find that, under Table 16-4 (Hip Regional Grid) of the sixth edition of 

the A.M.A., Guides appellant had 25 percent permanent impairment of the right lower extremity

due to his authorized total right hip replacement. He utilized the same table and found that 

appellant had 20 percent permanent impairment of the left lower extremity due to degenerative 

arthritis of the left hip. Dr. Ralph determined that he had zero percent bilateral elbow permanent 

impairment as there were no clinical findings related to the accepted conditions of bilateral elbow 

medial and lateral epicondylitis. Using Table 15-23 (Entrapment/Compression Neuropathy 

Impairment), he found one percent permanent impairment of each upper extremity due to only 

mild elevation of nerve conduction velocity on electrodiagnostic studies, noting that there was no 

clinical evidence of carpal tunnel syndrome on either side.
6

On October 2, 2019 OWCP referred the medical evidence and a SOAF to Dr. Katz, the 

DMA, to review the findings in the September 27, 2019 report by Dr. Ralph and evaluate 

appellant’s permanent impairment under the sixth edition of the A.M.A., Guides. In an 

October 11, 2019 report, Dr. Katz found thatDr. Ralph’s report could not be accepted as probative 

because it lacked sufficient detail, including an explanation of the methodology used and 

calculations made to arrive at his impairment ratings, reference to x-ray studies used to grade lower 

extremity arthritis, the required ROM measurements to rate upper extremity impairment, and the 

date of MMI. He recommended that a supplemental report be obtained from Dr. Ralph addressing 

his concerns.

By letter dated December 18, 2019, OWCP requested that Dr. Ralph provide a 

supplemental opinion, which addressed the concerns expressed by Dr. Katz in his October 11, 

2019 report. In a January 15, 2020 supplemental report, Dr. Ralph indicated that he had reviewed 

his impairment ratings and rationale provided in support of them and maintained that no correction 

was necessary. He noted that any modification of default values would not be affected by ROM. 

Dr. Ralph further noted that his diagnoses were based on medical records. Specifically, he related 

that he had interpreted a left hip x-ray report which showed moderate arthritis, but he did not have 

any of the x-rays. Dr. Ralph maintained that the x-rays would not have changed his opinion. He

concluded that his impairment ratings were appropriate and there was no basis from an objective 

standpoint to change them. Dr. Ralph advised that appellant had reached MMI on September 27, 

2019, the date of his impairment evaluation.

OWCP, in an April 13, 2020 decision, finalized its preliminary overpayment determination. 

It found that appellant had received an overpayment of compensation in the amount of $13,430.35, 

which was reduced to $10,049.23because Dr. Ralph determined that he had 25 percent right lower 

extremity permanent impairment rather than 31 percent permanent impairment for which he 

previously received schedule award compensation. OWCP further found that appellant was 

without fault in the creation of the overpayment, but denied waiver of recovery of the overpayment

because he had not responded to the March 19, 2019 preliminary overpayment determination. It

requested that he repay the overpayment in full.

OWCP, in an April 30, 2020 decision, granted appellant an increased schedule award for 

18 percent permanent impairment of the left leg/hip, resulting in a total of 20 percent permanent 

impairment of the left lower extremity, based on the September 27, 2019 and January 15, 2020 

reports of Dr. Ralph. The period of the award ran for 51.84 weeks from September 28, 2019 

through September 23, 2020.

LEGAL PRECEDENT -- ISSUE 1

The schedule award provisions of FECA5 and its implementing regulations6 set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment from 

loss or loss of use of scheduled members or functions of the body. However, FECA does not 

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.
7

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. 

Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate 

standard for evaluating schedule losses.7 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides(2009).8 The Board has approved the use 

by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a 

member of the body for schedule award purposes.9

Section 8129(a) of FECA provides that, “when an overpayment has been made to an 

individual under this subchapter because of an error of fact or law, adjustment shall be made under 

regulations prescribed by the Secretary of Labor by decreasing later payments to which an 

individual is entitled.”

10

 When OWCP makes a determination that an overpayment of 

compensation has occurred because the claimant received an erroneous schedule award, it must 

properly resolve the schedule award issue. Before the amount of the overpayment can be 

determined, the evidence must establish the degree of permanent impairment.11

Section 8123(a) of FECA which provides that, if there is disagreement between the 

physician making the examination for the United States and the physician of the employee, OWCP 

shall appoint a third physician (known as a referee physician or impartial medical specialist) who 

shall make an examination.12 This is called a referee examination and OWCP will select a 

physician who is qualified in the appropriate specialty and who has no prior connection with the 

case.13 When there exist opposing reports of virtually equal weight and rationale and the case is 

referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of 

such specialist, if sufficiently well rationalized and based upon a proper factual background, must 

be given special weight.14

7

Id. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.5a (March 2017).

9 P.R., Docket No. 19-0022 (issued April9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10 5 U.S.C. § 8129(a).

11 See S.F., Docket No. 18-0003 (issued April19, 2018); L.S.,Docket No. 08-1247 (issued December 12, 2008);

Richard Saldibar, 51 ECAB 585 (2000).

12 5 U.S.C. § 8123(a); L.S., Docket No. 19-1730 (issued August26, 2020); M.S., 58 ECAB 328 (2007).

13 20 C.F.R. § 10.321;see also R.C., 58 ECAB 238 (2006).

14 P.B., Docket No. 20-0984 (issued November 25, 2020); DarleneR. Kennedy, 57 ECAB 414 (2006); Gloria J. 

Godfrey, 52 ECAB 486 (2001).
8

ANALYSIS -- ISSUE 1

The Board finds that this case is not in posture for decision regarding whether appellant 

received an overpayment of compensation in the amount of $10,049.31 for the period May 13, 

2015 through January 26, 2016.15

In its April 13, 2020 overpayment determination, OWCP found that an overpayment of 

compensation occurred because appellant was incorrectly paid $52,313.31 based on 31 percent 

permanent impairment of the right lower extremity. It found that he was only entitled to 

$42,264.00 for 25 percent permanent impairment of the right lower extremity, resulting in an 

overpayment of $10,049.31.

When OWCP makes a determination that an overpayment of compensation has occurred 

because the claimant received an erroneous schedule award, it must first properly calculate the 

schedule award.16 The Board finds that the overpayment issue is not in posture for decision as 

OWCP has not properly resolved the underlying issue of appellant’s entitlement to a schedule 

award. 

OWCP properly found that a conflict in the medical opinion evidence existed between 

appellant’s treating physician, Dr. Ellis, and its second opinion physician, Dr. Komes, regarding 

the extent of appellant’s bilateral upper and lower extremity permanent impairment. It properly 

referred appellant’s case to Dr. Ralph, pursuant to 5 U.S.C. § 8123(a), for an impartial medical 

examination in order to resolve the conflict in the medical opinion.17 However, the Board finds 

that further development is warranted as the reports by Dr. Ralph are insufficient to carry the 

special weight of the medical evidence.

In his September 27, 2019 report, Dr. Ralph utilized the DBI method to find that under 

Table 16-4 (Hip Regional Grid) of the sixth edition of the A.M.A., Guides appellant had 25 percent 

permanent impairment of the right lower extremity due to his authorized October 17, 2013 total 

right hip replacement surgery. 

Following his review of Dr. Ralph’s September 27, 2019 report, the DMA, Dr. Katz, 

recommended that OWCP obtain a supplemental report from the physician because he failed to

provide a sufficientlydetailed explanation of the methodology used and calculations made to arrive 

at his impairment ratings and refer to x-ray studies used to grade lower extremity arthritis.

Dr. Ralph, in his January 15, 2020 supplemental report, advised that his previous 

impairment ratings, including his 25 percent right lower extremity impairment rating, remained 

unchanged. He noted that while he had reviewed a left hip x-ray report, which showed moderate 

arthritis, he did not actually have the x-rays. Dr. Ralph maintained that the x-rays would not have 

15 S.F., supra note 11.

16 See S.F., id.; W.M.,Docket No. 13-0291 (issued June12, 2013); Federal (FECA) Procedure Manual, supra note 

8 at Chapter 2.808.9(e) (February 2013).

17 H.M., Docket No. 21-0046 (issued June1, 2021); W.C., Docket No. 19-1740 (issued June 4, 2020).
9

changed his opinion. He concluded that his impairment ratings were appropriate and there was no 

basis from an objective standpoint to change them.

Dr. Ralph did not adequately explain how he arrived at his right lower extremity permanent 

impairment rating, did not discuss grade modifiers for functional history, physical examination, or 

clinical studies, and did not adjust the impairment based on the net adjustment formula.18 As he

failed to adequately explain his opinion in accordance with the relevant standards of the A.M.A., 

Guides, the Board finds that his opinion is insufficient to resolve a conflict in the medical evidence. 

Further, at OWCP’s request, Dr. Katz reviewed the October 11, 2019 report of Dr. Ralph and 

found that this report could not be accepted as probative because it lacked sufficient detail, 

including an explanation of the methodology used and calculations made to arrive at his 

impairment ratings, reference to x-ray studies used to grade lower extremity arthritis, the required 

ROM measurements to rate upper extremity impairment, and the date of MMI.

The Board will, therefore, remand the case to OWCP for referral of the case record, a 

SOAF, and appellant to a new IME for the purposes of determining the extent and degree of his 

right lower extremity permanent impairment in accordance with the sixth edition of the A.M.A., 

Guides.

19

 After this and other such further development as deemed necessary, OWCP shall issue 

a de novo decision.20

LEGAL PRECEDENT -- ISSUE 3

As noted above, the schedule award provisions of FECA,21 and its implementing federal 

regulations,22 set forth the number of weeks of compensation payable to employees sustaining 

permanent impairment from loss, or loss of use, of scheduled members or functions of the body. 

FECA, however, does not specify the manner in which the percentage loss of a member shall be 

determined. The method used in making such a determination is a matter which rests in the 

discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized 

the use of a single set of tables so that there may be uniform standards applicable to all claimants. 

OWCP evaluates the degree of permanent impairment according to the standards set forth in the 

specified edition of the A.M.A., Guides, published in 2009.23 The Board has approved the use by 

OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a 

member of the body for schedule award purposes.24

18 D.O., Docket No. 19-1729 (issued November 3, 2020).

19 See K.W., Docket No. 20-0047 (issued November 12, 2020); D.O., id.; B.S., Docket No. 19-1717 (issued 

August 11, 2020); K.C., Docket No. 18-0234 (issued September 14, 2018).

20 In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

21 Supra notes 5.

22 Supra note 6.

23 Supra note 8.

24 Supra note 9.
10

As noted above, section 8123(a) of FECA provides that, if there is disagreement between 

the physician making the examination for the United States and the physician of the employee, 

OWCP shall appoint a third physician (known as a referee physician or impartial medical 

specialist) who shall make an examination.25 When the case is referred to an impartial medical 

specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently 

well rationalized and based on a proper factual background, must be given special weight. 26

ANALYSIS -- ISSUE 3

The Board finds that this case is not posture for decision as to whether appellant has met 

his burden of proof to establish greater than 20 percent permanent impairment of the left lower 

extremity, for which he previously received schedule award compensation.

By decision dated March 18, 2019, OWCP granted appellant a schedule award for two 

percent permanent impairment of the left lower extremity. Subsequently, in an April 30, 2020 

decision, it granted him an additional schedule award for 18 percent permanent impairment of the 

left lower extremity, totaling 20 percent permanent impairment. OWCP based its decision on the 

opinion of Dr. Ralph, who, as noted above, was properly selected as the IME to resolve a conflict 

in medical opinion regarding the extent of appellant’s bilateral upper and lower extremity 

permanent impairment. However, the Board again finds that further development is warranted as 

the reports by Dr. Ralph are insufficient to carry the special weight of the medical evidence.

In his September 27, 2019 and January 15, 2020 reports, Dr. Ralph opined that appellant 

had 20 percent permanent impairment of the left lower extremity due to degenerative arthritis of 

the left hip. He noted that while he had reviewed a left hip x-ray report, which showed moderate 

arthritis, he did not actually have the x-rays. Dr. Ralph maintained that the x-rays would not have 

changed his opinion. The Board notes that OWCP has not accepted a work-related left hip 

degenerative arthritis condition.27 Dr. Ralph did not explain how he arrived at his left lower 

extremity permanent impairment rating, did not discuss grade modifiers for functional history, 

physical examination, or clinical studies, and did not adjust the impairment based on the net 

adjustment formula.

28

 As he failed to adequately explain his opinion in accordance with the 

relevant standards of the A.M.A., Guides, the Board finds that Dr. Ralph’s opinion is insufficient 

to resolve a conflict in the medical evidence. The Board will, therefore, remand the case to OWCP 

for referral of the case record, a SOAF, and appellant to a new IME for the purposes of determining 

the extent and degree of his left lower extremity permanent impairment in accordance with the 

sixth edition of the A.M.A., Guides.

29

 After this and other such further development as deemed 

necessary, OWCP shall issue a de novo decision.

25 Supra note 12. 

26 Supra note 14.

27 P.H., Docket No. 20-0108 (issued December 18, 2020).

28 D.O., supra note 18.

29 See supra note 19.
11

CONCLUSION

The Board finds that this case is not in posture for decision regarding whether appellant 

received an overpayment of compensation in the amount of $10,049.31 for the period May 13, 

2015 through January 26, 2016.30 The Board further finds that this case is not in posture for 

decision regarding whether appellant met his burden of proof to establish greater than 20 percent 

permanent impairment of the left lower extremity, for which he previously received schedule 

award compensation.

ORDER

IT IS HEREBY ORDERED THAT the April 30 and 13, 2021 decisions of the Office of 

Workers’ Compensation Programs are set aside and the case is remanded for further proceedings 

consistent with this decision of the Board. 

Issued: February 15, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

30 See supra note 20.