United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.B., Appellant

and

U.S. POSTAL SERVICE, WESTPORT POST 

OFFICE, Westport, WA, Employer

__________________________________________

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Docket No. 22-0190

Issued: June 21, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. MCGINLEY, Alternate Judge

JURISDICTION

On November 18, 2021 appellant, through counsel, filed a timely appeal from a 

November 1, 2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2

5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish a ratable permanent 

impairment of the left lower extremity causally related to her November 28, 2016 accepted 

employment injury.

FACTUAL HISTORY

On December 13, 2016 appellant, then a 51-year-old part-time flexible sales, service, and 

distribution associate, filed a traumatic injury claim (Form CA-1) alleging that on November 28, 

2016 she injured her left hip and pelvic area when she ran into a table while delivering a package 

in the performance of duty. She stopped work on December 13, 2016. 

In a report dated January 18, 2018, Dr. Eric Rudd, a Board-certified orthopedic surgeon

and OWCP referral physician, obtained a history of appellant striking her right thigh on the edge 

of a table on November 28, 2016. He diagnosed a right hip contusion and lumbar strain causally 

related to the November 28, 2016 employment incident. Dr. Rudd further found left trochanteric 

bursitis/iliotibial band inflammation due to the injury. He opined that, even though appellant’s left 

thigh had sustained no direct impact, the extent of the impact on the right side and her limping 

after the right thigh injury had resulted in left trochanteric bursitis/iliotibial band inflammation. 

Dr. Rudd found that she had no work restrictions and advised that he anticipated no rating for the 

hip/thigh when she reached maximum medical improvement (MMI).

On February 8, 2018 OWCP accepted the claim for a contusion of the right hip, a strain of 

the muscle, fascia, and tendon of the lower back, and left hip trochanteric bursitis. It paid appellant 

wage-loss compensation for the period January 21, 2017 to January 19, 2018. 

On November 20, 2018 appellant filed a claim for compensation (Form CA-7) for a 

schedule award. 

In an impairment evaluation dated December 3, 2018, Dr. Thomas L. Gritzka, a Boardcertified orthopedic surgeon, discussed appellant’s complaints of pain in her lower lumbosacral or 

sacroiliac area and left hip. On examination he measured range of motion (ROM) of the hips and 

found no paravertebral muscle spasm, intact sensation, and full strength of the lower extremities. 

Referencing Table 16-24 on page 549 of the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),3 Dr. Gritzka found that 

appellant had 30 percent permanent impairment of the left lower extremity due to reduced ROM 

of the hip.

In a supplemental report dated March 19, 2019, Dr. Rudd advised that appellant could 

return to work without restrictions as of the date of his evaluation. He indicated that she had “no 

ratable impairment for the hip/thigh issues.”

On July 2, 2019 Dr. Eric M. Orenstein, a Board-certified orthopedic surgeon serving as a 

district medical adviser (DMA), advised that he had insufficient information to rate the extent of 

3 A.M.A., Guides(6th ed. 2009).
3

appellant’s permanent impairment of the left lower extremity based on Dr. Gritzka’s report. He 

noted that Dr. Gritzka had failed to obtain three measurements or to provide the left hip ROM 

measurements. 

OWCP determined that a conflict existed between Dr. Rudd and Dr. Gritzka regarding the 

extent of appellant’s left lower extremity impairment. It referred her to Dr. Josef K. Eichinger, a 

Board-certified orthopedic surgeon, for an impartial medical examination. 

In a report dated September 17, 2019, Dr. Eichinger discussed appellant’s complaints of 

pain on the right side of her back radiating into her leg and bilateral hip pain particularly on the 

left side. On examination he found full strength and intact sensation of the lower extremities.

Dr. Eichinger diagnosed a resolved right thigh contusion due to the November 28, 2016 

employment injury. He disagreed that appellant had sustained trochanteric bursitis causally related 

to her accepted employment injury as the condition developed over time. Dr. Eichinger related, 

“A contusion to the thigh in an individual [who] is able to continue working and ambulating 

without gait abnormality at the time of injury is not a plausible cause of contralateral trochanteric 

bursitis.” He further found that appellant’s lumbar sprain and strain due to the November 28, 2016 

employment injury had more probably than not resolved. Dr. Eichinger diagnosed bilateral hip 

osteoarthritis and attributed her hip complaints to “femoroacetabular impingement which is not a 

traumatically induced condition.” He opined that appellant had no permanent impairment causally 

related to her November 28, 2016 employment injury.

By decision dated December 2, 2019, OWCP denied appellant’s schedule award claim. It 

found that the opinion of Dr. Eichinger, the impartial medical examiner (IME), represented the 

special weight of the evidence and established that she had no permanent impairment due to her 

accepted employment injury.

On December 10, 2019 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on 

April 10, 2020. 

By decision dated June 18, 2020, OWCP’s hearing representative vacated the December 2, 

2019 decision. She found that there was no conflict regarding the extent of permanent impairment 

between Dr. Rudd and Dr. Gritzka at the time of OWCP’s referral of appellant to Dr. Eichinger, 

noting that Dr. Rudd had not specifically addressed the extent of any injury-related impairment. 

The hearing representative found that a conflict now existed between Dr. Gritzka and

Dr. Eichinger regarding whether appellant sustained left hip trochanteric bursitis causally related 

to the accepted November 28, 2016 employment injury. 

On August 26, 2020 OWCP referred appellant to Dr. Alan B. Brown, a Board-certified 

orthopedic surgeon, for an impartial medical examination. It provided a statement of accepted 

facts that set forth the accepted conditions, including left hip trochanteric bursitis. OWCP 

requested thatDr. Brown address whether appellant had sustained left hip trochanteric bursitis due 

to the November 28, 2016 employment injury and, if so, to determine the extent of any permanent 

impairment. 
4

In a report dated October 15, 2020, Dr. Brown discussed appellant’s history of injury and 

provided his review of the medical reports of record. On examination he measured ROM of the 

hips and spine and discussed her complaints of burning down the right leg and over the bilateral 

greater trochanter. Dr. Brown noted that x-rays of the left hip showed “long-standing femoral 

acetabular impingement with mild-to-moderate bilateral osteoarthritis, left greater than right.” He 

diagnosed a resolved right thigh contusion as the only condition causally related to the 

November 28, 2016 employment injury. Dr. Brown found that appellant had not sustained left hip 

trochanteric bursitis causally related to the accepted employment injury. He related, “There is no 

mechanism of injury which could reasonably explain how a contusion of the right thigh could 

cause a left hip trochanteric bursitis or, for that matter, the subsequent development of a right hip 

trochanteric bursitis long after the subject accident.” Dr. Brown opined that appellant had no 

residuals of her employment injury and that her complaints of bilateral hip arthritis, low back pain, 

and bilateral trochanteric bursitis were unrelated to her employment injury. He further asserted 

that she had no permanent impairment of the lower extremities as any reduced ROM of the hips 

was unrelated to her employment injury. Dr. Brown found that appellant had reached MMI. 

By decision dated April 30, 2021, OWCP denied appellant’s claim for a schedule award. 

It found that Dr. Brown’s opinion as the IME constituted the special weight of the evidence and 

established that she had no ratable impairment due to her trochanteric bursitis as he had determined 

that the condition was unrelated to her accepted employment injury.

On May 10, 2021 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on 

August 16, 2021. 

By decision dated November 1, 2021, OWCP’s hearing representative affirmed the 

April 30, 2021 decision. 

LEGAL PRECEDENT

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. FECA, 

however, does not specify the manner in which the percentage loss of a memb er 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 2009.6 The Board has approved the use by 

4

Supra note 2.

5

20 C.F.R. § 10.404.

6 For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guidesis used. A.M.A., Guides, (6th ed. 

2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, 

Chapter 2.808.5a (March 2017); see also id. at Chapter 3.700, Exhibit 1 (January 2010).
5

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.7

OWCP bears the burden of proof to justify rescission of acceptance based on new evidence, 

legal argument, and/or rationale.8 Probative and substantial positive evidence or sufficient legal 

argument must establish that the original determination was erroneous. OWCP must also provide 

a clear explanation of the rationale for rescission.9

ANALYSIS

The Board finds that the case is not in posture for decision.

OWCP accepted that appellant sustained a right hip contusion, back strain, and left hip 

trochanteric bursitis due to a November 28, 2016 employment injury. Appellant requested a 

schedule award. After development, OWCP found that a conflict in medical opinion existed 

between Dr. Gritzka, her physician, and Dr. Eichinger, an OWCP referral physician, regarding 

whether she had sustained the accepted condition of left hip trochanteric bursitis. It referred 

appellant to Dr. Brown for an impartial medical examination. OWCP requested that Dr. Brown 

determine whether her left hip trochanteric bursitis was related to her accepted employment injury 

and, if so, to evaluate the extent of any permanent impairment of the left lower extremity.

On October 15, 2020 Dr. Brown opined that appellant had sustained only a right thigh 

contusion that had now resolved as a result of her November 28, 2016 employment injury. He 

asserted that the mechanism of injury did not support a diagnosis of left hip trochanteric bursitis. 

Dr. Brown found that appellant’s current complaints of bilateral hip arthritis, low back pain, and 

bilateral trochanteric bursitis were not employment related. He concluded that she had no 

permanent impairment of the lower extremities as any loss of ROM was not related to her accepted 

employment injury.

Based on Dr. Brown’s opinion, OWCP denied appellant’s schedule award claim, finding 

that his report constituted the special weight of the evidence as IME and established that she had 

not sustained the accepted condition of left hip trochanteric bursitis. The Board finds, however, 

that OWCP failed to follow its established procedures for rescinding the acceptance of a condition. 

OWCP’s procedures provide that if, after proper development, it finds that the original decision 

was issued in error, the claims examiner must issue a proposed and final decision rescinding the 

original finding.10 Its procedures further provide that a rescission decision should contain a brief 

background of the claim, discuss the evidence on which the original decision was based, and 

explain why OWCP finds that the decision should be rescinded. The evidence used to rescind the 

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

8

See D.P., Docket No. 18-1213 (issued July 30, 2020); L.G.,Docket No. 17-0124 (issued May 1, 2018).

9

See W.H., Docket No. 17-1390 (issued April23, 2018).

10 Supra note 6 atChapter 2.1400.19(b) (February 2013); see also D.P., supra note 8.
6

claim should be thoroughly discussed so that it is clear to the reader how the case was incorrectly 

adjudicated and why the original decision is now being invalidated. 11

OWCP did not follow the specific procedures for a rescission decision.

12

 It failed to notify 

appellant that the accepted condition of left hip trochanteric bursitis was being rescinded or 

acknowledge that it held the burden of proof for rescinding an accepted condition. The Board thus 

finds that OWCP failed to follow its procedures to determine whether it should rescind acceptance 

of her claim prior to denying her schedule award claim based on its finding that she had not 

sustained the accepted condition of left trochanteric bursitis. Consequently, the Board will remand 

the case for appropriate further development, to be followed by a de novo decision regarding 

whether appellant sustained a permanent impairment of the left lower extremity.

CONCLUSION

The Board finds that the case is not in posture for decision.

11 Id. at Chapter 2.1400.19(d); see also D.S., Docket No. 17-0250 (issued August 29, 2017).

12 See D.S., id; S.R.,Docket No. 12-1401 (issued December 11, 2012).
7

ORDER

IT IS HEREBY ORDERED THAT the November 1, 2021 decision of the Office of 

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

consistent with this decision of the Board.

Issued: June 21, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board