United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, FLORISSANT MAIN
POST OFFICE, Florissant, MO, Employer
__________________________________________

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

Docket No. 21-1270
Issued: March 21, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 18, 2021 appellant filed a timely appeal from a July 15, 2021 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 disability from work
for the period May 3 through August 30, 2020, causally related to his accepted December 12, 2019
employment injury.
FACTUAL HISTORY
On December 16, 2019 appellant, then a 62-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 12, 2019 he injured his right shoulder and lower
1

5 U.S.C. § 8101 et seq.

back when he picked up a parcel while in the performance of duty. He stopped work on
December 17, 2019 and returned on December 24, 2019.
By decision dated September 8, 2020, OWCP accepted the condition of right rotator cuff
capsule sprain, initial encounter.
In support of his disability claim, appellant submitted a June 6, 2020 report by
Dr. Jonathan L. Ben-Zev, an orthopedic surgeon, who diagnosed right shoulder pain, unspecified
chronicity, and ordered diagnostic testing.
In a June 8, 2020 right shoulder magnetic resonance imaging (MRI) scan report,
Dr. Stephen B. Huebner, a Board-certified diagnostic radiologist, provided an impression of highgrade supraspinatus tendon tear, including at least two areas of full-thickness tear and mild muscle
atrophy, moderate infraspinatus tendinosis and possible small partial thickness tear and moderate
subscapularis tendinosis, moderate acromioclavicular (AC) osteoarthritis, and minimal
glenohumeral arthritis and small tear of the superior glenoid labrum.
An August 31, 2020 operative report by Dr. Scott G. Kaar, an attending Board-certified
orthopedic surgeon, provided preoperative and postoperative diagnoses of right shoulder rota tor
cuff tear involving the supraspinatus tendons, and AC joint arthritis. Dr. Kaar performed right
shoulder arthroscopic rotator cuff repair, subacromial decompression, and distal clavicle excision.
In progress notes dated September 15 and October 13, 2020, he provided an impression that
appellant was six weeks status post right shoulder arthroscopic rotator cuff repair, subacromial
decompression, and distal clavicle excision. Dr. Kaar noted appellant’s physical restrictions.
Appellant filed a claim for compensation (Form CA-7) for disability from work for the
period May 3, 2020 and continuing.
OWCP, in a November 30, 2020 development letter, informed appellant of the deficiencies
in his claim and requested that he submit medical evidence to support his reported surgery and
disability during the period claimed causally related to the accepted December 12, 2019
employment injury. It afforded him 30 days to respond.
In response, appellant submitted an undated statement in which he described his
December 12, 2019 employment injury and resultant medical treatment. He also submitted
medical evidence.
In progress notes dated June 11, 2020, Dr. Jeffrey C. Faron, a Board-certified internist,
noted appellant’s left shoulder pain. He indicated that there were no contraindications for
appellant’s planned right shoulder surgery.
An additional progress note dated August 11, 2020 and letters dated September 15,
October 16, and December 11, 2020 by Dr. Kaar noted an impression of full-thickness
supraspinatus tear with, mild retraction, mild supraspinatus atrophy and partial thickness tearing
involving the supraspinatus, subscapularis tendinosis, ﬂuid along the biceps, and moderate AC
joint arthrosis. Additionally, he noted that appellant was doing well status post appellant’s
August 31, 2020 arthroscopic right shoulder surgery. In the October 16, 2020 letter, Dr. Kaar

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advised that appellant was unable to work beginning March 26, 2020 and continuing following his
August 31, 2020 surgery.
OWCP subsequently received additional medical evidence. In letters dated October 13 and
November 24, 2020 and January 5, 2021, Dr. Kaar reiterated that appellant was status post
arthroscopic right shoulder surgery and was “doing well.” In the January 5, 2021 letter, he advised
that appellant would remain off work until his next visit. Dr. Kaar, in a March 5, 2021 letter,
opined that appellant’s full-thickness rotator cuff tear and AC joint arthrosis and resultant
August 31, 2020 surgery were directly related to appellant’s December 2019 employment injury.
In a March 11, 2021 letter, Dr. Karr restated his opinion that appellant’s right rotator cuff
and bicep tear and resultant August 31, 2020 surgical repair was due to his December 12, 2019
employment injury. He advised that appellant could return to full-duty work without restrictions
as of March 9, 2021.
OWCP, by decision dated July 15, 2021, denied appellant’s claim for disability from work
for the period May 3 through August 30, 2020 because the medical evidence of record was
insufficient to establish disability.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.3 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.4 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.5
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.6 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a

2

Supra note 1.

3

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
4

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
5

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

6

Id. at § 10.5(f); see e.g., G.T., 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB 397 (1999).

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medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.7
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.8 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment incident identified
by the employee.9
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish disability from
work for the period May 3 through August 30, 2020, causally related to his accepted December 12,
2019 employment injury.
In support of his disability claim, appellant submitted progress notes and letters from
Dr. Kaar. Dr. Kaar’s August 11, 2020 progress note provided an impression of full-thickness
supraspinatus tear with, mild retraction, mild supraspinatus atrophy and partial thickness tearing
involving the supraspinatus, subscapularis tendinosis’ ﬂuid along the biceps, and moderate AC
joint arthrosis. He also provided an impression that appellant was doing well status post
arthroscopic right shoulder surgery. However, Dr. Kaar offered no opinion regarding appellant’s
disability status during the period May 3 through August 30, 2020. The Board has held that
medical evidence that does not provide an opinion as to whether a period of disability is due to an
accepted employment condition is insufficient to meet a claimant’s burden of proof. 11 In an
October 16, 2020 letter, Dr. Kaar noted appellant’s inability to work commencing March 26, 2020
and continuing following his authorized August 31, 2020 surgery. While he noted appellant’s
inability to work on the claimed dates, he did not provide any medical reasoning to support his
opinion on disability nor did he attribute appellant’s disability to the accepted December 12, 2019

7

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

8

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

9

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
10

See S.G., Docket No. 18-1076 (issued April 11, 2019); William A. Archer, 55 ECAB 674 (2004); Fereidoon
Kharabi, supra note 4.
11

See B.M., Docket No. 20-0826 (issued May 10, 2021); Y.D., Docket No. 20-0097 (issued August 25, 2020); M.A.,
Docket No. 19-1119 (issued November 25, 2019); S.I., Docket No. 18-1582 (issued June 20, 2019).

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employment injury. 12 Dr. Kaar’s remaining letters dated September 15, 2020 through March 5,
2021 do not address appellant’s inability to work on the claimed dates. 13 For these reasons, the
Board finds that his letters and progress note are insufficient to establish appellant’s disability
claim.
Appellant also submitted progress notes by Dr. Faron dated June 11, 2020. The Board
finds that Dr. Faron’s progress notes are of no probative value as they did not address appellant’s
disability status and are therefore insufficient to establish the disability claim. 14
Likewise, Dr. Ben-Zev’s June 6, 2020 report diagnosed right shoulder pain, unspecified
chronicity, but does not offer an opinion regarding appellant’s disability status during the claimed
period.15 For this reason, the Board finds that this evidence from Dr. Ben-Zev is insufficient to
establish appellant’s disability claim.
The record also contains diagnostic reports. However, the Board has long held, however,
that diagnostic studies, standing alone, lack probative value as they do not address whether the
employment injury caused any of the diagnosed conditions or associated disability. 16 For this
reason, the Board finds that the diagnostic reports of record are insufficient to establish appellant’s
disability claim.
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work during the claimed period as a result of the accepted
employment injury. 17 Because appellant has not submitted rationalized medical opinion evidence
sufficient to establish employment-related total disability during the claimed period due to his
accepted condition, the Board finds that he has not met his burden of proof to establish his claim.
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 and 20 C.F.R.
§§ 10.605 through 10.607.

12

M.A., Docket No. 20-0033 (issued May 11, 2020); F.S., Docket No. 18-0098 (issued August 13, 2018); P.W.,
Docket No. 17-0154 (issued June 9, 2017).
13
M.A., id.; C.S., Docket No. 19-1279 (issued December 30, 2019); L.B., Docket No. 18-0533 (issued August 27,
2018); D.K., Docket No. 17-1549 (issued July 6, 2018); see also William A. Archer, supra note 10 (the Board will not
require OWCP to pay compensation for disability in the absence of medical evidence directly addressing the specific
dates of claimed disability).
14
S.S., Docket No. 21-0763 (issued November 12, 2021); M.V., Docket No. 20-0872 (issued January 27, 2020);
P.R., Docket No. 20-0596 (issued October 6, 2020); M.L., Docket No. 18-1058 (issued November 21, 2019); D.J.,
Docket No. 18-0200 (issued August 12, 2019).
15

Supra note 13.

16

See T.W., Docket No. 20-1669 (issued May 6, 2021); J.S., Docket No. 17-1039 (issued October 6, 2017).

17

Supra note 5.

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish disability from
work for the period May 3 through August 30, 2020, causally related to his accepted December 12,
2019 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the July 15, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 21, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Canton, OH, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1447
Issued: December 7, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 30, 2016 appellant, through counsel, filed a timely appeal of a May 17, 2016
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days has elapsed from the last merit decision, dated July 1, 2014, 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 to review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
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.

FACTUAL HISTORY
On April 14, 2014 appellant, then a 47-year-old city letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on April 8, 2014 she injured her left knee while descending
steps when delivering mail in the performance of duty.
The employing establishment provided appellant with an authorization for examination
(Form CA-16) on April 8, 2014.
Appellant provided a statement indicating that she began experiencing knee pain on
April 7, 2014. She purchased a knee brace and worked on April 8, 2014 with some pain. While
delivering mail on April 8, 2014, appellant walked down steps holding onto the handrail and
when she stepped on the last step with her left foot she felt and heard a “pop” in the back of her
knee. She felt excruciating pain immediately and reported her condition to the employing
establishment. Appellant’s supervisor transported her to the emergency room.
Dr. Simas V. Laniauskas, an emergency room physician, examined appellant on
April 8, 2014. He noted her history of stepping off of a stair and hearing a pop in her left knee
with instant pain. Dr. Laniauskas diagnosed knee sprain and found that appellant’s x-ray was
unremarkable.
Dr. Steven Coss, a Board-certified orthopedic surgeon, examined appellant on April 11,
2014 and found that her x-rays demonstrated mild-to-moderate preexisting arthritis under her
knee cap and not the medial aspect of her knee. He diagnosed chondromalacia patella,
osteoarthrosis in the lower leg, knee, and a grade 1 medial collateral ligament sprain with a
possible torn medial meniscus. Dr. Coss reported that appellant’s injury occurred on April 8,
2014 during work-related travel. He released appellant to return to modified duty. Dr. Coss
examined appellant on May 7, 2014. He noted that appellant had not returned to work.
In a letter dated May 19, 2014, OWCP noted that when appellant’s claim was initially
received, it appeared to be a minor injury and payment of a limited amount of medical expenses
was administratively approved. It reopened appellant’s claim for consideration because she had
not returned to full-time work. OWCP requested that appellant provide additional factual and
medical evidence in support of her claim.
Dr. Coss examined appellant on June 4, 2014. He repeated his diagnoses of sprain
medial collateral ligament of the left knee, chondromalacia patella, and osteoarthrosis of the
lower leg knee. Dr. Coss recommended a magnetic resonance imaging (MRI) scan.
In a narrative report dated June 6, 2014, Dr. Coss described appellant’s employment
incident as descending stairs, feeling her left knee pop, and then experiencing a sharp pain in her
left knee. He opined that this was a work-related injury sustained on April 11, 2014. Dr. Coss
again diagnosed sprained medial collateral ligament of the left knee, chondromalacia of the
patella, osteoarthritis of the left knee, and a possible medial meniscal tear of the left knee. He
recommended a left knee MRI scan to confirm these diagnoses. Dr. Coss opined that appellant’s
left knee conditions were a direct result of the April 8, 2014 injury. He again noted that
appellant experienced a pop in the left knee at the time of injury which was consistent with a
meniscal-type injury.

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By decision dated July 1, 2014, OWCP denied appellant’s traumatic injury claim, finding
that she had not submitted sufficient evidence to establish that the employment event occurred as
alleged. It noted that appellant had not provided any witnesses statements, nor had she
responded to its request for information regarding any prior symptoms. OWCP further noted
that appellant had submitted reports from Dr. Coss dated April 11, May 7, and June 4
and 6, 2014.
Appellant, through counsel, submitted a document entitled “Motion for Rescission” of
the July 1, 2014 decision, received by OWCP on February 22, 2016. Counsel cited to the
regulations governing requests for reconsideration. He alleged that OWCP failed to consider
Dr. Coss’ June 6, 2014 report which contained a history of injury. Counsel noted that OWCP
specifically mentioned reports from Dr. Coss dated April 11, May 7, and June 4 and 5, 2014, but
not the June 6, 2014 report. He asserted that OWCP’s claims examiner overlooked a crucial
piece of evidence as the June 6, 2014 report from Dr. Coss provided a complete history of injury.
By decision dated May 17, 2016, OWCP denied appellant’s request for reconsideration,
as it was received on February 22, 2016, more than one year after the July 1, 2014 merit
decision. It further found that appellant had not demonstrated clear evidence of error in support
of her request for reconsideration.
LEGAL PRECEDENT
Section 8128(a) of FECA3 does not entitled a claimant to a review of an OWCP decision
as a matter of right.4 This section vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation.5 OWCP, through regulations has imposed
limitations on the exercise of its discretionary authority. One such limitation is that it will not
review a decision denying or terminating a benefit unless the application for review is timely. In
order to be timely, a request for reconsideration must be received by OWCP within one year of
the date of OWCP’s merit decision for which review is sought. Timeliness is determined by the
document receipt date of the reconsideration request which is the “received date” in the
Integrated Federal Employee’s Compensation System (iFECS).6 The Board has found that the
imposition of this one-year time limitation does not constitute an abuse of the discretionary
authority granted OWCP under 5 U.S.C. § 8128(a).7
In those cases where requests for reconsideration are not timely filed, the Board has held
that OWCP must nevertheless undertake a limited review of the case to determine whether there
is clear evidence of error pursuant to the untimely request.8 OWCP’s procedures state that it will
3

5 U.S.C. § 8128(a).

4

Thankamma Mathews, 44 ECAB 765, 768 (1993).

5

Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

6

20 C.F.R. § 10.607; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b)
(October 2011). G.F., Docket No. 15-1053 (September 11, 2015).
7

Supra note 4 at 769; Jesus D. Sanchez, supra note 5 at 967.

8

Supra note 4 at 770.

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reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set forth
in its regulations, if the claimant’s request for reconsideration demonstrates “clear evidence of
error.”9
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.10 The evidence must be positive, precise and explicit and
must be manifest on its face that OWCP committed an error.11 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.12 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.13 This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP.14 To
demonstrate clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.15 The
Board must make an independent determination of whether a claimant has demonstrated clear
evidence of error on the part of OWCP such that OWCP abused its discretion in denying merit
review in the face of such evidence.16
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
Counsel requested reconsideration of the July 1, 2014 merit decision, through an undated
document entitled “Motion for Rescission” of the July 1, 2014 decision which was received by
OWCP on February 22, 2016. As this request for reconsideration was received by OWCP more
than one year after the latest merit decision, OWCP properly determined that it was untimely
filed and properly applied the clear evidence of error standard.
In support of the February 22, 2016 request for reconsideration, counsel argued that
OWCP failed to consider Dr. Coss’ June 6, 2014 report as establishing the factual basis for
appellant’s claim. The Board finds that this argument does not demonstrate clear evidence of
error on the part of OWCP. Counsel incorrectly asserted that OWCP did not specifically
9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (October 2011).

10

Supra note 4.

11

Leona N. Travis, 43 ECAB 227, 241 (1991).

12

Jesus D. Sanchez, supra note 5 at 968.

13

Supra note 11.

14

Nelson T. Thompson, 43 ECAB 919, 922 (1992).

15

Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989).

16

Nancy Marcano, 50 ECAB 110 (1998).

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mention the June 6, 2014 report in its July 1, 2014 decision. In fact, OWCP listed this report
among the medical evidence reviewed. Furthermore, while Dr. Coss’ report was supportive of
appellant’s version of the events of April 8, 2014, was not responsive to OWCP’s queries
regarding appellant’s previous left knee symptoms or any prior diagnosed conditions. Clear
evidence of error is intended to be a difficult standard. As noted above, evidence which does not
raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.17 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.18 The Board finds that the argument submitted
by counsel does not demonstrate clear evidence of error on the part of OWCP.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration, as it
was untimely filed and failed to demonstrate clear evidence of error by OWCP.
ORDER
IT IS HEREBY ORDERED THAT the May 17, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 7, 2016
Washington, DC

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

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

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

17

Jesus D. Sanchez, supra note 5 at 968.

18

Supra note 11.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, DALLAS NATIONAL
DISTRIBUTION CENTER, Dallas, TX,
Employer
__________________________________________

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

Docket No. 11-403
Issued: September 20, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 7, 2010 appellant filed a timely appeal from a November 3, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) regarding her schedule
award claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has more 16 percent impairment of the left lower
extremity, for which she received a schedule award.
FACTUAL HISTORY
On July 1, 2009 appellant, then a 54-year-old mail handler, injured her left foot when an
over-the-road (OTR) container rolled over her left foot. OWCP accepted the claim for contusion
1

5 U.S.C. §§ 8101-8193.

of foot and ankle, left and left foot sprain. It subsequently accepted left ganglion cyst and closed
dislocation of tarsometatarsal joint, left. OWCP paid appropriate benefits. Appellant was
previously rated with 14 percent permanent impairment to left lower extremity (left thigh, calf
and knee) under case number xxxxxx137.
On April 1, 2010 appellant filed a claim for a schedule award. In a March 10, 2010
report, Dr. Jose Trevino, a Board-certified family practitioner, noted examining appellant on
March 9, 2010 and set forth appellant’s history and course of treatment. He diagnosed contusion
of left foot and sprain/strain left ankle. Dr. Trevino opined that appellant reached maximum
medical improvement and was able to tolerate her regular duties despite complaints of sharp pain
prolonged ambulation and standing. On a lower extremity impairment evaluation worksheet, he
opined that appellant had seven percent left leg impairment for a contusion with Grade 3 sprain
of left foot/ankle. Dr. Trevino stated that impairment ratings for diagnosed-based impairments
and range of motion models were equivalent.
In an April 13, 2010 letter, OWCP advised appellant that Dr. Trevino’s impairment rating
was unacceptable as it did not identify the edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides) that was used. OWCP
advised that all impairment ratings must be in accordance with the sixth edition of the A.M.A.,
Guides. On May 25, 2010 OWCP received a copy of Dr. Trevino’s March 10, 2010 report
indicating that the sixth edition of the A.M.A., Guides was used in the calculation of appellant’s
impairment.
On July 7, 2010 an OWCP medical adviser reviewed the statement of accepted facts and
the medical evidence of record, including Dr. Trevino’s March 10, 2010 reports. He noted
Dr. Trevino did not provide the actual measurements in support of an impairment based on loss
of range of motion and that the A.M.A., Guides, as explained in section 16.7, only allowed a
range of motion impairment if no other approach was available. The medical adviser further
noted that, while there was clear-cut evidence for a diagnosis-based determination, it was unclear
what diagnosis Dr. Trevino used, especially in light of the fact he stated the diagnosis and range
of motion impairment ratings were equivalent. He concluded that the information from
Dr. Trevino’s report was not adequate to allow an impairment determination and recommended a
second opinion evaluation by a Board-certified physiatrist.
OWCP referred appellant, along with an updated statement of accepted facts, a list of
questions and the medical record, to Dr. Sofia M. Weigel, a Board-certified physiatrist, for a
second opinion evaluation. In an August 5, 2010 report, Dr. Weigel noted the history of injury,
her review of the medical records and statement of accepted facts, and appellant’s current
complaints. She presented examination findings noting an essentially normal neurological and
motor examination. Bilateral foot examination was essentially normal with decreased active
range of motion with the dorsiflexion to neutral. Dr. Weigel opined that maximum medical
improvement was reached on March 9, 2010. Under the sixth edition of the A.M.A., Guides, she
opined that appellant had two percent permanent impairment of left lower extremity. Under
Table 16.2, page 501, Dr. Weigel stated that a class 1 ankle strain with mild motion deficits had
default value of two percent. She indicated that appellant had a grade modifier for Functional
History (GMFH) of 1; a grade modifier for Physical Examination (GMPE) of 1; and a grade
modifier for Clinical Studies (GMCS) of 1. Dr. Weigel applied the net adjustment formula of

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(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX) and found (1-1) + (1-1) + (1-1) equaled a net
adjustment of zero. Thus, she opined that appellant had two percent left lower extremity
impairment.
On September 29, 2010 an OWCP medical adviser reviewed the record and the statement
of accepted facts along with Dr. Weigel’s August 5, 2010 report for the purposes of determining
impairment for the left leg. He opined that maximum medical improvement was achieved on
March 9, 2010. Under the sixth edition of the A.M.A., Guides, a class 1 ankle strain with mild
motion deficits under Table 16-2, page 501 had default value 2 percent. The medical adviser
concurred with Dr. Weigel’s determinations that appellant had grade modifiers of 1 for
functional history, physical examination, and clinical studies and that there was no net
adjustment. Accordingly, he opined that appellant’s class 1, grade C ankle strain with mild
motion deficit resulted in two percent impairment. The medical adviser noted that, since
appellant previously received 14 percent permanent impairment based on calf and thigh atrophy,
the current determination of 2 percent should be combined with the previous value of 14 percent,
which results in 16 percent total left lower extremity impairment. He then subtracted the
previously value of 14 percent from the total left lower extremity impairment of 16 percent, to
find 2 percent additional impairment.
By decision dated November 3, 2010, OWCP awarded appellant two percent additional
left upper extremity impairment. The award ran for the period March 9 to April 19, 2010, for
5.76 weeks of compensation.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.4 For
consistent results and to ensure equal justice under the law to all claimants, good administrative
practice necessitates the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

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

5

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

6

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

3

The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on GMFH, GMPE and GMCS.7 The
net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).8
It is well established that preexisting impairments to the scheduled member are to be
included when determining entitlement to a schedule award.9 OWCP procedures state that any
previous impairment to the member under consideration is included in calculating the percentage
of loss except when the prior impairment is due to a previous work-related injury, in which case
the percentage already paid is subtracted from the total percentage of impairment.10
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 OWCP’s medical adviser
providing rationale for the percentage of impairment specified.11
ANALYSIS
Appellant previously received a schedule award for 14 percent impairment of the left
lower extremity under a separate claim. She claimed a schedule award under the current case.
While Dr. Trevino opined that appellant had seven percent permanent impairment under the sixth
edition of the A.M.A., Guides for both range of motion and diagnosed-based impairment,
OWCP’s medical adviser found there was insufficient information in Dr. Trevino’s report to
support such a rating. The Board agrees. The medical adviser properly noted Dr. Trevino did
not provide the actual measurements in support of an impairment based on loss of range of
motion. Additionally, the A.M.A., Guides, as explained in section 16.7, page 543 only allows a
range of motion impairment if no other approach was available. In this case, the medical adviser
stated that there was clear-cut evidence for a diagnosis-based determination. However, it was
unclear what diagnosis Dr. Trevino used in light of the fact he stated the diagnosis and range of
motion impairment ratings were equivalent. As Dr. Trevino did not clearly explain how his
impairment rating was calculated in accordance with the A.M.A., Guides, his opinion on
permanent impairment is of limited probative value.
In an August 5, 2010 report, Dr. Weigel, a second opinion physician, reviewed the
medical record, the statement of accepted facts and presented her examination findings. She
opined that maximum medical improvement was reached on March 9, 2010. Under the sixth
edition of the A.M.A., Guides, Dr. Weigel opined that appellant had two percent impairment for
class 1, grade C left ankle strain with mild motion deficits under Table 16-2, page 501. She
7

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

8

Id. at 521.

9

Michael C. Milner, 53 ECAB 446, 450 (2002); Raymond E. Gwynn, 35 ECAB 247 (1983).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.7.a(2)(a) (January 2010).
11

See id. at Chapter 2.808.6(d) (January 2010).

4

looked at the adjustment grids for functional history, physical examination and clinical studies
under Table 16-6, Table 16-7 and Table 16-8 respectively and found appellant’s mild problem
equated to a grade modifier of 1 for each adjustment identified. Dr. Weigel properly applied the
net adjustment formula and found no net adjustment.12 Thus, she properly concluded that after
net adjustment appellant had two percent impairment for class 1, grade C left ankle strain with
mild motion deficits under Table 16-2, page 501.
In his September 29, 2010 report, OWCP’s medical adviser concurred with the
impairment finding. He also properly noted that appellant had previously been rated for 14
percent impairment of the left leg under a separate claim for calf and thigh atrophy. The medical
adviser combined13 the previous rating of 14 percent with the 2 percent additional impairment
calculated by Dr. Weigel to arrive at 16 percent total left leg impairment. He concluded that
appellant had two percent additional impairment of the left leg.
On appeal appellant argues that the impairment determination should not have been
combined with the impairment resulting from her 2007 knee injury, which was corrected with
endoscopic surgery, and separate from her foot injury. As noted above, since her preexisting
impairment was due to a work-related injury, OWCP procedures provide that it is to be included
in calculating the percentage of loss and then the percentage already paid subtracted from the
total percentage of impairment.14 Appellant further argues that her foot injury has caused
continued swelling across the top of her foot. To the extent she is arguing that her medical
condition has not been taken into proper account during the impairment determination, the record
establishes that her impairment was appropriately evaluated under the standards of the sixth
edition of the A.M.A, Guides. There is no medical evidence of record in conformance with the
A.M.A, Guides supporting greater impairment.
Appellant may request an 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 16 percent permanent impairment of the
left leg, of which 14 percent was previously paid under a prior claim and 2 percent resulted from
the current claim.

12
13
14

(GMFH-CDX 1-1-) + (GMPE-CDX 1-1 ) + (GMCS-CDX 1-1) = 0.
A.M.A., Guides 604, Combined Values Chart.
See supra note 10.

5

ORDER
IT IS HEREBY ORDERED THAT the November 3, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 20, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Indianapolis, IN, Employer
)
___________________________________________ )
L.M., Appellant

Appearances:
James E. Rogers, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2287
Issued: August 20, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 19, 2008 appellant filed a timely appeal from a May 14, 2008 decision of the
Office of Workers’ Compensation Programs which denied her request for reconsideration.
Because more than one year has elapsed between the most recent merit decision of the Office
dated May 1, 2007 and the filing of this appeal on August 19, 2008, the Board lacks jurisdiction
to review the merits of this claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
On March 6, 1980 appellant, then a 44-year-old computer programmer, injured her right
side and ankle when she pulled a box of paper to the edge of a cart. She attempted to return to
work but stopped completely on March 17, 1980. The Office accepted appellant’s claim for
internal derangement of the right knee, right knee synovitis, aggravation of right knee arthritis,
partial tear of the ligament of the left ankle, lumbosacral strain, aggravation of lumbar

degenerative disc disease at L5-S1 and lumbar radiculopathy. Appellant was placed on the
periodic compensation rolls.
Appellant came under the treatment of Dr. Rida N. Azer, a Board-certified orthopedist,
from March 19, 1980 to July 16, 1985, for internal derangement of the right knee, partial tear of
the ligament of the left ankle and lumbosacral strain. A magnetic resonance imaging (MRI) scan
of the lumbar spine dated April 22, 2002, revealed bilateral facet disease at L3-4, L4-5 and
L5-S1. On July 9, 2002 appellant underwent a lumbar discography at L3-S1 which revealed no
compelling clinical data to suggest a discogenic basis for appellant’s long-standing back pain.
Thereafter, in the course of developing the claim, the Office referred appellant to several
second opinion physicians and also to impartial medical examiners. The physicians opined that
appellant’s accepted internal derangement of the right knee, right knee synovitis, aggravation of
right knee arthritis, partial tear of the ligament of the left ankle, lumbosacral strain, aggravation
of lumbar degenerative disc disease at L5-S1 and lumbar radiculopathy had resolved and she had
no existing residuals.
On December 14, 2005 the Office issued a notice of proposed termination of
compensation benefits on the grounds that the impartial medical examiner established that
appellant had no residuals of the accepted work-related employment conditions and could
perform her date-of-injury job.
Appellant submitted a January 3, 2006 report from Dr. Hector M. Pedraza, a Boardcertified orthopedist, who treated appellant for right knee pain. Dr. Pedraza noted a standing
x-ray revealed degenerative changes worse on the right side.
By decision dated January 26, 2006, the Office terminated appellant’s compensation for
wage loss effective February 19, 2006 on the grounds that the weight of the medical evidence
established that appellant had no continuing disability resulting from her accepted employment
conditions. The decision did not affect medical benefits.
On January 25, 2007 appellant requested reconsideration and asserted that she remained
totally disabled from work. She submitted an October 20, 2006 report from Dr. Mark Koruda, a
Board-certified orthopedist, who saw her for preoperative workup in anticipation for repair of a
rectovaginal fistula. An x-ray of the lumbar spine dated October 20, 2006 revealed degenerative
facet osteoarthrosis at L5-S1 and fusion of the bilateral sacroiliac joints. Appellant submitted a
December 14, 2006 report from Dr. Theodore M. Pitts, a Board-certified orthopedist, who
diagnosed severe tricompartment osteoarthritis of the right knee with limited motion and
significant pain, severe osteoarthritis of the right hip and chronic low back pain. Dr. Pitts opined
that appellant reached maximum medical improvement with respect to her work-related right
knee injury and recommended a total knee replacement. He opined that appellant had permanent
impairment of the right leg. In a February 27, 2007 report, Dr. Pitts noted appellant’s complaints
of right knee pain, chronic low back pain and right hip pain. He diagnosed right knee posttraumatic severe osteoarthritis, chronic low back pain and severe right hip arthritis.
By decision dated May 1, 2007, the Office denied modification of the January 2, 2006
decision terminating appellant’s wage-loss compensation.

2

Appellant submitted July 10 and August 16, 2007 reports from Dr. Pitts who treated her
for persistent leg, right knee, right hip and left ankle pain. Dr. Pitts noted findings on
examination of pain with rotation of the right hip, tenderness over the lumbosacral junction with
bone-on-bone crepitus over the right knee. He diagnosed severe osteoarthritis of the right knee,
right hip and chronic low back pain. In his July 10, 2007 report, Dr. Pitts opined that appellant
was probably permanently disabled and would never return to gainful employment. An
electromyogram (EMG) dated October 23, 2007 revealed no abnormalities.
On April 28, 2008 appellant requested reconsideration of the May 1, 2007 decision and
asserted that she sustained injuries which developed from the original work incident and were
not accepted by the Office. She requested that her benefits be reinstated and the Office take into
consideration the injuries which had not been accepted but were documented in medical reports
since 1980. Appellant submitted medical reports from Dr. Azer from 1980 to 1985, previously
of record.
By decision dated May 14, 2008, the Office denied appellant’s reconsideration request on
the grounds that her letter neither raised substantive legal questions nor included new and
relevant evidence and was therefore insufficient to warrant review of the prior decision.1
LEGAL PRECEDENT
Under section 8128(a) of the Act,2 the Office has the discretion to reopen a case for
review on the merits. It must exercise this discretion in accordance with the guidelines set forth
in section 10.606(b)(2) of the implementing federal regulations,3 which provides that a claimant
may obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by the
[Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”
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
the Office without review of the merits of the claim.4
1

On January 9, 2008 the Office issued appellant a schedule award for 37 percent permanent impairment of the
right leg. Appellant did not appeal this decision.
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b).

4

Id. at § 10.608(b).

3

ANALYSIS
Appellant’s April 28, 2008 request for reconsideration neither alleged nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, she did
not advance a relevant legal argument not previously considered by the Office.
Appellant’s request for reconsideration asserted that she sustained injuries as a result of
the work incident which were not accepted by the Office including a left knee injury. She
requested that her benefits be reinstated and that the Office consider conditions that had not been
accepted by the Office but developed from the original injury and were documented in medical
reports since 1980. However, appellant’s letter did not show how the Office erroneously applied
or interpreted a point of law nor did it advance a point of law or fact not previously considered
by the Office. She did not set forth a particular point of law or fact that the Office had not
considered or establish that the Office had erroneously interpreted a point of law. Consequently,
appellant is not entitled to a review of the merits of her claim based on the first and second
above-noted requirements under section 10.606(b)(2).
With respect to the third requirement, constituting relevant and pertinent new evidence
not previously considered by the Office, appellant submitted reports from Dr. Azer dated
March 19, 1980 to September 23, 1985; however these records are duplicates of prior reports
already contained in the record and were previously considered by the Office.5
Appellant also submitted July 10 and August 16, 2007 reports from Dr. Pitts who treated
appellant for persistent leg pain with pain over her right knee, right hip and left ankle. Dr. Pitts
diagnosed severe osteoarthritis of the right knee, right hip and chronic low back pain. He opined
in his July 10, 2007 report that appellant was probably permanently disabled and would not
return to gainful employment. These reports, while new, are not relevant because they do not
specifically address the underlying issue of whether appellant had any ongoing disability after
February 19, 2006 causally related to her accepted work injury. Therefore, the Office properly
determined that this evidence did not constitute a basis for reopening the case for a merit review.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2), and properly denied her January 25, 2007 request for reconsideration.
On appeal, appellant through her attorney asserts that her benefits should be reinstated as
the Office did not meet its burden of proof to terminate benefits. Counsel also asserts that
additional medical conditions, not accepted by the Office, developed from the original injury.
However, the Board does not have jurisdiction over the Office’s decision that terminated
appellant’s wage-loss benefits.6 Furthermore, the matter of whether appellant has additional

5

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case; see Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393,
398 (1984); Bruce E. Martin, 35 ECAB 1090, 1093-94 (1984).
6

See 20 C.F.R. § 501.3(d).

4

conditions causally related to the March 6, 1980 work injury is not presently before the Board as
the Office has not addressed this in a final decision over which the Board has jurisdiction.7
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the May 14, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 20, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

Id. See id. at § 501.2(c).

5


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

)
)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0242
Issued: October 14, 2016

Case Submitted on the Record

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

JURISDICTION
On November 24, 2015 appellant, through counsel, filed a timely appeal from an
October 2, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish right shoulder and
cervical spine injuries causally related to an accepted March 1, 2014 employment incident.
FACTUAL HISTORY
On March 5, 2014 appellant, then a 58-year-old electrician, filed a traumatic injury claim
(Form CA-1) alleging that on March 1, 2014 he sustained injuries to the right shoulder and the
top of his head when the roller mechanism of an overhead door fell from its track and struck him.
He provided photographs of the two roller pins and a metal hinge, and a March 7, 2014 repair
invoice noting that two 3-inch rollers and a hinge had to be replaced. The employing
establishment issued an authorization for examination and/or treatment (Form CA-16) on
March 5, 2014 describing appellant’s injury as “top of head, right shoulder pain.” Appellant was
off work from March 6 to 10 and April 15 and 16, 2014. He provided a coworker’s statement
corroborating that on March 1, 2014 appellant was “holding his head down rubbing his right
shoulder, bleeding from his head and he had blood in his right hand.” Appellant stated that parts
of the overhead door had fallen on him. The coworker brought him towels to staunch the
bleeding and then took him to the employing establishment’s emergency room.
Dr. Molham Aldeiri, an employing establishment physician who treated appellant on an
emergency basis immediately following the March 1, 2014 incident, noted that a computerized
tomography (CT) scan of appellant’s head was negative for brain injury. He diagnosed a small
hematoma of the scalp and released appellant to work.
Dr. Lubor Jarolimek, an attending orthopedic surgeon, noted on March 5, 2014 that
appellant had sustained an “abrasion and laceration to his head and injured his right shoulder” on
March 1, 2014 when the door mechanism fell on him. On examination he found “muscle spasm
right trapezius and posterior shoulder,” muscle spasm in the right-sided cervical paraspinals, and
a healing scalp laceration. Dr. Jarolimek diagnosed a parietal laceration/hematoma, cervical
spine sprain, and right shoulder sprain. He attributed these injuries to the March 1, 2014
incident. Dr. Jarolimek released appellant to restricted duty. He prescribed a transcutaneous
electrical nerve stimulator unit. Appellant presented on March 6, 2014 with continued head,
neck, and right shoulder pain, nausea, and vomiting. Dr. Jarolimek observed continued right
shoulder and cervical spasm, right shoulder swelling, and a healing parietal laceration. He
prescribed physical therapy.3
In reports from April 2 to 15, 2014, Dr. Jarolimek related that appellant continued to
complain of severe right shoulder pain, migraines, and blurry vision. Physical therapy had not
relieved his symptoms. Appellant’s right shoulder motion was still significantly restricted on the
April 15, 2014 examination. Dr. Jarolimek prescribed additional physical therapy.
In an April 30, 2014 letter, Dr. Jarolimek opined that appellant was injured at work on
March 1, 2014 “when an overhead door fell on his head, hitting him on the shoulder. [Appellant]
had abrasion and laceration to his head, injuring his right shoulder as well.”
3

Appellant participated in physical therapy from March to July 2014.

2

On May 1, 2014 the employing establishment’s compensation manager controverted the
claim, contending that appellant provided divergent accounts of the March 1, 2014 injury,
confusing his physicians and rendering their reports of no probative value.
Dr. Steven B. Inbody, an attending Board-certified neurologist, evaluated appellant on
May 12, 2014. He noted appellant’s history of bilateral median nerve releases and a left rotator
cuff repair. Dr. Inbody related that on March 1, 2014 appellant was struck by door parts that fell
from 20 feet above him, striking his head and knocking him “to the ground with altered mental
status.” He diagnosed postconcussion syndrome, with a “probable cervical spine injury causing
cervicocranial headaches, dizziness, and blurred vision.”4
Appellant stopped work on May 13, 2014 and did not return.
On May 15, 2014 OWCP accepted that appellant sustained a scalp contusion, right
shoulder and upper arm sprain, and neck sprain causally related to the March 1, 2014 incident.
In a May 27, 2014 investigative memorandum, the employing establishment
acknowledged that on March 1, 2014 appellant tried to close a misaligned overhead door. A
metal roller, which weighed nine ounces, fell from a height of 19 feet onto his head.
By notice dated June 17, 2014, OWCP advised appellant that it proposed to rescind
acceptance of his claim, as the employing establishment contended that only one, small, nineounce object struck him in the head, without contacting or injuring any other part of his body. It
afforded appellant 30 days to submit additional evidence in support of his claim.
Appellant responded by June 22, 2014 letter, explaining that two metal roller pins and a
door hinge fell on him, with one of the three items striking his head, and another his right
shoulder. As these metal items fell from a height of 20 feet, the impact was sufficient to knock
him to the ground. A coworker took appellant to the emergency room within minutes of the
incident. Appellant contended that his supervisor sought to embarrass him for filing a
compensation claim.
Dr. Clark D. McKeever, an attending Board-certified orthopedic surgeon, submitted a
June 24, 2014 report relating that on March 1, 2014 appellant was closing a large overhead door
when it malfunctioned and “parts of metal fell onto his head and right shoulder and knocked him
to the ground.” Appellant was taken immediately to a hospital emergency room, where he was
diagnosed with a scalp hematoma and contusion/strain injuries to the neck and right shoulder.
On examination, Dr. McKeever found restricted motion of the cervical spine and right shoulder.
He diagnosed cervical radiculopathy, cervical disc protrusion or herniation at C5-6 and C7-T1,
and a right rotator cuff tear. Dr. McKeever recommended arthroscopic rotator cuff repair.

4

A May 29, 2014 magnetic resonance imaging (MRI) scan of appellant’s brain was normal. A May 30, 2014
MRI scan of appellants’ cervical spine showed a central to right-sided disc protrusion at C7-T1 and a C5-6 central
disc protrusion with mild bilateral foraminal stenosis. A May 31, 2014 of the right shoulder showed partial surface
tears of the supraspinatus and infraspinatus tendons, and a spinoglenoid notch cyst.

3

Dr. Jarolimek provided a July 1, 2014 report, relating that on March 1, 2014 when
appellant activated the electronic switch to close a large overhead door, the track mechanism
malfunctioned “and parts of the door shot out, and impacted him on the head and right shoulder,
causing a laceration to his scalp and pain in his right shoulder. The malfunctioned parts that shot
out towards [appellant] were rollers and brackets.” Appellant received immediate treatment in
an emergency room, where he was diagnosed with a scalp laceration and hematoma.
By decision dated July 23, 2014, OWCP rescinded acceptance of the claim, finding that
there were significant factual inconsistencies regarding the March 1, 2014 incident. It found that
“[a]ll of the medical reports [were] inconsistent in their mechanism of injury.”
Appellant disagreed and requested a telephonic hearing, held on March 10, 2015. At the
hearing, he explained that on March 1, 2014 while repairing an overhead door, the electric motor
malfunctioned, ejecting two roller pins, and a bracket from a height of 20 feet. These
components struck appellant in the head and right shoulder. In a written statement, appellant
explained that he was assigned to repair the electric driver motor of an overhead door. When he
activated a switch as part of the repair process, the door malfunctioned, causing the rods, pins,
and brackets to turn into projectiles because the door motor was still running. The force of these
objects, falling from a height of 20 feet, caused a laceration on his head and an impact injury to
his right shoulder. A coworker found appellant immediately after the incident and took him to
the emergency room. Appellant alleged that the supervisors harassed him for filing the claim
and sought to discredit him. He submitted photographs of the two roller pins and a bracket that
he alleged had fallen from the door.
An employing establishment supervisor contended in an April 9, 2015 letter that it could
not be determined with certainty which components struck appellant, although he had submitted
photographs of them. The supervisor acknowledged that he ordered two replacement rods and a
bracket to repair the door following appellant’s injury, corresponding to the broken door parts in
the photograph appellant provided.
In a May 14, 2015 letter, an injury compensation supervisor alleged that it could not be
determined how appellant was injured. He contended that one falling component could not have
struck appellant multiple times.
Appellant also provided additional medical evidence.5 In a June 24, 2014 addendum,
Dr. McKeever opined that, based on the cervical MRI scan report, the March 1, 2014 incident
also resulted in the diagnosed cervical disc herniations. Dr. Inbody submitted a July 30, 2014
letter, asserting that appellant was totally disabled and required surgery to repair a torn right
rotator cuff and multilevel cervical disc herniations.
In an August 7, 2014 report, Dr. Jarolimek reiterated that metal parts which fell from a
malfunctioning overhead door struck appellant’s head. He noted reviewing photographs of the
door parts provided by appellant. Dr. Jarolimek opined that appellant’s “work[-]related injury to
his head, neck, and right shoulder [was] a direct result of” the malfunctioning automatic door,
which ejected metal parts that struck appellant’s head, right shoulder, and cervical spine. He
5

Appellant also submitted physical therapy notes dated from July through October 2014.

4

added that because the metal parts struck appellant’s head, it was “reasonable to include
[appellant’s] neck[-]related symptoms as part of his work-related injury.” Dr. Jarolimek held
appellant off work.
By decision dated and finalized June 5, 2015, an OWCP hearing representative affirmed
as modified the July 23, 2014 decision, finding that appellant sustained a traumatic head injury
on March 1, 2014, but did not sustain cervical spine and right shoulder injuries. The hearing
representative accepted as factual that appellant sustained this injury when struck by a metal
object falling from an overhead door.
Appellant disagreed and, in an August 5. 2015 letter, received on August 28, 2015,
requested reconsideration. He reiterated that on March 1, 2014 metal components of a
malfunctioning overhead door fell from a height of 20 feet, striking his head and right shoulder.
Appellant submitted copies of evidence previously of record.
In a June 10, 2015 statement, the coworker who found appellant on March 1, 2014 and
took him to the emergency room affirmed that there were rollers and brackets on the floor at the
time of the incident. Appellant stated that these parts struck his head and right shoulder.
In June 26, 2015 reports, Dr. Inbody opined that appellant’s right shoulder injury was
well documented by Dr. Jarolimek shortly after March 1, 2014. As physical therapy was not
effective, appellant underwent right rotator cuff surgery. Dr. Inbody asserted that “the
mechanism of injury involved one or more rollers falling from a door which lacerated
[appellant’s] right occipital parietal region with a second roller if not the same impacting the
right supraspinatus region on the right shoulder. This caused a lump or hematoma,” both of
which were addressed by Dr. Jarolimek. Dr. Inbody explained that the downward axial force of
the falling door components resulted in cervical disc herniations. He noted that appellant had
recently undergone right rotator cuff surgery.
Dr. Jarolimek provided a July 15, 2015 report affirming that when he examined appellant
on March 5, 2014 four days after the March 1, 2014 injury, appellant had “injuries to his right
shoulder.” He diagnosed a “parietal laceration/hematoma, cervical spine sprain and right
shoulder sprain/muscle spasm.” Dr. Jarolimek reiterated that these injuries were caused by the
door parts striking appellant on March 1, 2014.
On July 30, 2015 OWCP accepted that on March 1, 2014 appellant sustained an open
scalp wound without complications, and a “nontraumatic hematoma soft tissue.”
In an October 2, 2015 decision, OWCP denied modification of the June 5, 2015 decision,
finding that the medical evidence of record was insufficient to establish a causal relationship
between the accepted March 1, 2014 incident and the claimed right shoulder and cervical spine
conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing 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
5

limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any specific condition and/or disability for which compensation is claimed are causally
related to the employment injury.6
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.7 The medical evidence required to establish a causal
relationship between a claimed condition and employment factors is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the claimed condition and
the specific employment factors identified by the claimant.8
ANALYSIS
OWCP accepted that appellant sustained an open scalp wound without complications,
and a nontraumatic hematoma on March 1, 2014, when he was struck by metal parts from a
malfunctioning overhead door. A May 27, 2014 employing establishment investigative
memorandum corroborated that on March 1, 2014 a nine ounce metal roller fell onto appellant’s
head from a height of 19 feet. A coworker provided detailed witness statements, corroborating
appellant’s account of the March 1, 2014 incident.
Appellant contended that the established March 1, 2014 incident also caused cervical
spine and right shoulder injuries. In support of his claim, he submitted reports from
Dr. Jarolimek, an attending orthopedic surgeon. Dr. Jarolimek opined in reports from March 5 to
April 30, 2014 that the March 1, 2014 incident caused right shoulder and cervical spine spasms.
On July 1, 2014 he explained that “metal rollers and brackets” impacted appellant’s head and
right shoulder.” Dr. Jarolimek reiterated on August 7, 2014 that appellant’s cervical spine and
right shoulder injuries were directly caused by the March 1, 2014 incident, in which metal parts
from a malfunctioning overhead door were ejected from its drive mechanism, fell 20 feet, and
struck him. He opined that the metal parts striking appellant’s head were a competent cause of
his cervical disc herniations. However, Dr. Jarolimek did not explain the medical reasoning
supporting his conclusion that the impact of a nine ounce metal roller falling from a height of 19
feet was competent to cause a cervical spine or right shoulder injury. He did not describe the
physical forces or stresses that could have caused the diagnosed conditions. In the absence of
such rationale, Dr. Jarolimek’s opinion is insufficient to meet appellant’s burden of proof.9
Dr. Inbody, an attending Board-certified neurologist, noted on May 12, 2013 that on
March 1, 2014 appellant was struck by metal parts which fell from a door mechanism 20 feet
6

J.F., Docket No. 09-1061 (issued November 17, 2009).

7

Jaja K. Asaramo, 55 ECAB 200 (2004).

8

See E.J., Docket No. 09-1481 (issued February 19, 2010).

9

See Jimmie H. Duckett, 52 ECAB 332 (2001); Frank D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).

6

above him. He opined that this incident caused postconcussion syndrome with dizziness and
blurred vision, and a possible cervical spine injury. In June 26, 2015 reports, Dr. Inbody opined
that “rollers falling from a door” caused a head laceration, and impacted the right supraspinatus
region, causing a hematoma.” However, he did not explain precisely how metal rollers falling on
appellant’s head would cause postconcussion syndrome. The lack of rationale reduces the
probative quality of his report.10 Additionally, Dr. Inbody’s opinion, that the falling rollers
caused a “possible” cervical spine injury, is of little probative value because of its speculative
nature.11
Dr. McKeever, an attending Board-certified orthopedic surgeon, noted on June 24, 2014
that appellant was closing an overhead door on March 1, 2014 when “parts of metal fell onto his
head and right shoulder and knocked him to the ground.” He diagnosed a scalp hematoma,
cervical strain, and right shoulder contusion caused by the incident. Dr. McKeever also opined
that the March 1, 2014 incident was sufficiently forceful to have caused the diagnosed cervical
disc herniations. However, he did not explain the pathophysiologic mechanics whereby the
forces and stresses of the metal door rollers striking appellant would cause the diagnosed
shoulder contusion, cervical strain, and cervical disc herniations. The lack of medical reasoning
supporting Dr. McKeever’s conclusions reduces the persuasiveness of his opinion.12
The Board finds that the opinions of Dr. Inbody, Dr. Jarolimek, and Dr. McKeever are
not sufficiently rationalized to meet appellant’s burden of proof in establishing his claim.
Therefore, OWCP’s October 2, 2015 decision is proper under the law and facts of this case.
On appeal counsel asserts that OWCP’s October 2, 2015 decision is “contrary to law and
fact.” As set forth above, OWCP properly found that the medical evidence is insufficiently
rationalized to meet appellant’s burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish right shoulder
and cervical spine injuries causally related to an accepted March 1, 2014 scalp laceration.

10

Id.

11

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

12

Supra note 9.

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 2, 2015 is affirmed.
Issued: October 14, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Q.S., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
FINANCE & ACCOUNTING SERVICE,
Cleveland, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0701
Issued: November 10, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On February 10, 2020 appellant, through counsel, filed a timely appeal from a November 6,
2019 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. 3
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.

3
The Board notes that appellant submitted additional evidence to OWCP following the November 6, 2019 decision.
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.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation, effective January 30, 2018; and (2) whether appellant has met her burden of
proof to establish continuing disability on or after January 30, 2018.
FACTUAL HISTORY
On October 12, 2011 appellant, then a 31-year-old contact representative, filed a traumatic
injury claim (Form CA-1) alleging that on October 5, 2011 she sustained injuries to her left upper
extremity, left lower extremity, and low back when she slipped and fell on a wet floor while in the
performance of duty. She stopped work on October 5, 2011. OWCP assigned the claim File No.
xxxxxx756 and accepted it for left ankle sprain, left hip sprain, left shoulder sprain, left knee
sprain, and lumbar strain. On May 10, 2012 it expanded its acceptance of the claim to include left
acromioclavicular and upper arm sprain, left lateral collateral ligament sprain, le ft-sided neck
sprain, left medial meniscus tear, cervical disc herniation at C6-7 without myelopathy, and lumbar
disc herniation at L4-5 without myelopathy. OWCP paid appellant wage-loss compensation on
the supplemental rolls commencing December 5, 2011.
On July 6, 2012 appellant underwent authorized left knee arthroscopy with excision of
medial plica, performed by Dr. John Howard Wilber, a Board-certified orthopedic surgeon. She
remained off work.
On January 16, 2013 OWCP expanded its acceptance of the claim to include adhesive
capsulitis of the left shoulder, biceps tendinitis of the left shoulder, and left sh oulder impingement.
On February 26, 2013 appellant underwent authorized left shoulder arthroscopy to address
adhesive capsulitis, biceps tendinitis, and impingement, performed by Dr. Reuben Gobezie, a
Board-certified orthopedic surgeon.
In April 23, 2013 reports, Dr. Todd S. Hochman, a Board-certified internist, provided a
history of injury and treatment. On examination, he noted a positive right straight leg raising test,
point tenderness to midline palpation in the cervical spine, and painful range of motion of the left
shoulder. Dr. Hochman returned appellant to modified-duty work for four hours per day, with
kneeling, bending, stooping, twisting, pulling, pushing, and reaching above shoulder level limited
to one hour a day; standing and walking limited to three hours a day; and lifting and carrying
limited to 25 pounds.
On May 6, 2013 appellant returned to modified-duty work for four hours per day as a
contact representative, pursuant to the restrictions provided by Dr. Hochman. OWCP paid wageloss compensation on the supplemental rolls for the remaining four hours a day. Appellant
continued to work four hours per day with intermittent absences from October 2013 through
July 2014.
On August 4, 2014 appellant filed a traumatic injury claim (Form CA-1) alleging that she
sustained left knee, foot, and ankle injuries on July 31, 2014 when the heel of her shoe caught in
her pant leg and she tripped over the bottom portion of a cubicle while in the performance of duty.
OWCP assigned the claim File No. xxxxxx802. On September 2, 2014 it accepted the claim for a
right ankle sprain, left knee contusion, and right-sided lumbar sprain. On September 12, 2014
2

OWCP administratively combined OWCP File No. xxxxxx802 and the current claim under OWCP
File No. xxxxxx756, with the latter serving as the master file.
OWCP subsequently expanded its acceptance of the claim under File No. xxxxxx802 to
include left knee arthrofibrosis and left knee synovitis with synovial cyst.
OWCP paid appellant wage-loss compensation on the supplemental rolls commencing
September 15, 2014.
She resigned from the employing establishment, effective
September 18, 2014. OWCP placed appellant on the periodic rolls.
Dr. Hochman provided reports dated from January 14, 2015 through May 23, 2017 noting
continued left shoulder pain, cervical spine pain, lumbar pain, left knee pain, and left foot and
ankle pain.4
On September 25, 2015 appellant underwent authorized left knee arthroscopy with partial
synovectomy and excision of synovial mass, performed by Dr. Louis Keppler, a Board-certified
orthopedic surgeon.
On February 28, 2017 under File No. xxxxxx802, OWCP referred appellant, the medical
record, a December 2, 2015 statement of accepted facts (SOAF), and a series of questions for a
second opinion by Dr. William L. Bohl, a Board-certified orthopedic surgeon, regarding her work
capacity and the status of the accepted conditions. In his April 12, 2017 report, Dr. Bohl reviewed
the medical record and SOAF. He noted that the 2014 employment injury reinjured appellant’s
left knee and exacerbated the lumbar injury. On examination, Dr. Bohl observed limited range of
cervical spine motion, weakness of the left biceps and triceps, a left-sided list in the lumbar spine,
tenderness to palpation of the lumbar and sacroiliac paraspinals, medial patellar facet of the left
knee, and left shoulder, limited range of left shoulder motion, active dorsiflexion of the left ankle
limited to zero degrees, and active dorsiflexion in the right ankle limited to five degrees. He noted
that the operative reports of both left knee surgeries did not document meniscal tears. As such,
Dr. Bohl concluded that appellant never had a left medial meniscal tear. He diagnosed
degenerative cervical disc disease at C5-6 or C6-7 with intermittent left-sided radiculopathy, a
protruded degenerative lumbar disc, possible sacroiliitis, and a mild chronic left ankle sprain.
Dr. Bohl opined that the accepted adhesive capsulitis, cervical and lumbar disc herniations, and
chronic left ankle sprain remained present and symptomatic. He commented that, while appellant
had mild tenderness of the left ankle from a chronic sprain, the SOAF listed only a July 31, 2014
right ankle sprain. Dr. Bohl noted that her limitation from the accepted conditions would not
prevent her from performing the duties of a contact representative, with 2- to 3-minute breaks after
30 minutes of sitting or standing.
In a May 23, 2017 report, Dr. Hochman reviewed Dr. Bohl’s opinion and disagreed that
appellant could return to work without difficulty. He explained that she had difficulty with
prolonged sitting and standing and required narcotic analgesic medications. Dr. Hochman
reiterated prior diagnoses in reports through September 12, 2017.

4

From October 2015 through September 2018, appellant was also followed for pain management by Dr. Sami
Moufawad, Board-certified in physiatry and pain medicine.

3

On September 28, 2017 OWCP referred appellant, the medical record, and SOAF to
Dr. Dennis Glazer, a Board-certified orthopedic surgeon, to resolve a conflict of medical opinion
evidence between Dr. Bohl, an OWCP referral physician, and Dr. Hochman, appellant’s treating
physician, to determine whether appellant had continuing disability causally related to her federal
employment, the degree of disability associated with the work-related conditions, and any physical
limitations/restrictions imposed by work-related residuals.
In reports dated September 29 and October 23, 2017, Dr. Michael Canales, a podiatrist,
opined that the accepted left ankle injury caused left ankle instability with an osteochondral defect.
He recommended a modified Brostrom procedure and curettage of the osteochondral defect.
In an October 24, 2017 report, Dr. Hochman noted midline cervical spine discomfort with
paraspinal muscle tightness, tenderness over the medial and lateral malleoli of the left ankle, pain
with stressing of the left ankle, tenderness over the anteromedial aspect of the left knee, and a
mildly positive Spurling’s maneuver.
In an October 31, 2017 report, Dr. Glazer reviewed the medical record and statement of
accepted facts (SOAF). The SOAF, dated October 9, 2014, characterized the accepted July 31,
2014 injuries as a right ankle sprain, left knee contusion, and right lumbar sprain. On examination,
Dr. Glazer noted restricted lumbar motion, tenderness to palpation over the medial joint line of the
left knee, mild left patellar crepitus, normal range of inversion and eversion of the left ankle, no
lateral instability of the left ankle, limited range of cervical spine motion, subjective numbness of
the fingertips of the left hand, diffuse tenderness over the left shoulder, and positive provocative
tests of the left shoulder. He opined that the C5-6 and lumbar disc herniation, left hip sprain, and
left knee contusion had resolved without residuals. Dr. Glazer diagnosed residual adhesive
capsulitis of the left shoulder with limited motion. He returned appellant to full, unrestricted duty
in her date-of-injury position as a contact representative. Dr. Glazer opined that appellant did not
require left ankle surgery as she had only minimal tenderness “consistent with residuals from the
injury.” He recommended physical therapy to improve range of motion in the left shoulder.
In a December 7, 2017 supplemental report, Dr. Glazer reviewed Dr. Hochman’s
October 24, 2017 report and indicated that it did not alter his previous opinion.
In a December 14, 2017 report, Dr. Hochman noted that appellant had midline cervical
spine discomfort, a positive Spurling’s test, tenderness throughout the left shoulder, discomfort
about the anteromedial aspect of the left knee, and tenderness over the anterolateral and medial
aspect of the left ankle.
On December 19, 2017 OWCP proposed to terminate appellant’s wage-loss compensation
because her accepted October 5, 2011 and July 31, 2014 injuries had resolved with no disabling
residuals. It afforded her 30 days to submit additional evidence or argument.
In response, appellant submitted a January 18, 2018 statement contending that Dr. Canales’
opinion was sufficient to warrant expansion of the acceptance of her claim to include lateral left
ankle instability and osteochondral lesion of the left ankle. She submitted additional medical
evidence.
In reports dated September 11, 2017 and January 15, 2018, Dr. Canales opined that the
accepted 2011 employment injury caused an osteochondral defect of the left medial ankle joint,
4

with progressive scarring and thickening of the anterior talofibular ligament visible on imaging
studies. He opined that as appellant had failed conservative measures, she required a lateral ankle
stabilization (modified Brostrom procedure) with curettage of the osteochondral defect.
In a December 29, 2017 report, Dr. Hochman noted his review of Dr. Glazer’s opinion. He
summarized previous findings and reiterated that appellant was unable to return to her date-ofinjury position while awaiting authorization for left ankle surgery.
By decision dated January 30, 2018, OWCP terminated appellant’s wage-loss
compensation effective that date, finding that the special weight of the medical evidence rested
with Dr. Glazer. It noted that appellant’s claim remained open for medical benefits.
On February 6, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
Appellant submitted additional evidence. In April 5 and July 10, 2018 reports,
Dr. Hochman noted continued left shoulder and left knee symptoms.
In a May 7, 2018 report, Dr. Keppler opined that the accepted left ankle inversion injury
caused an osteochondral injury of the medial joint and persistent lateral ligamentous instability
requiring surgical reconstruction and repair.
A hearing was held on July 5, 2018. By decision dated August 30, 2018, an OWCP hearing
representative affirmed the January 30, 2018 termination, finding that Dr. Glazer’s opinion
continued to represent the special weight of the medical evidence.
On August 6, 2019 appellant, through counsel, requested reconsideration and submitted
additional evidence.
In September 24, 2018 and March 4, 2019 reports, Dr. Canales opined that appellant
required surgery for left ankle instability caused by the 2011 employment injury. He diagnosed
lateral ankle instability, left anterior talofibular ligament sprain and osteochondral defect.
Dr. Canales opined that appellant’s current symptoms were correlated with her left ankle
employment injury as well as chronic rupture of the anterior talofibular ligament. He reiterated
that appellant required surgery.
In June 6 and September 5, 2019 reports, Dr. Hochman reiterated that appellant’s ongoing
left ankle, cervical spine, lumbar spine, and left shoulder problems remained directly related to the
accepted 2011 and 2014 employment injuries. He concurred with Dr. Canales and Dr. Keppler
that appellant required surgical stabilization of the left ankle.
An August 22, 2019 MRI scan of the left ankle demonstrated no osteochondral
abnormality, mild posterior tibialis tenosynovitis, and bowing of the thin anterior talofibular
ligament related to a prior sprain and history of instability.
In reports from August 27 through September 19, 2019, Dr. Keppler opined that the left
ankle instability was caused by both the 2011 and 2014 injuries, but that the osteochondral defect
needed to be assessed during planned stabilization surgery . He disagreed with Dr. Glazer’s

5

opinion that appellant could return to full duty as she required left ankle stabilization and curettage
of the osteochondral defect.
By decision dated November 6, 2019, OWCP denied modification of its August 30, 2018
decision, finding that the evidence of record was insufficient to establish continuing disability due
to the accepted employment injuries. It accorded the special weight of the medical evidence to
Dr. Glazer.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.5 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment. 6 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.7
The term disability is defined as the incapacity, because of an employment injury, to earn
the wages the employee was receiving at the time of the injury. 8
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.9 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. 10
OWCP’s procedures provide as follows:
“The [claims examiner] is responsible for ensuring that the SOAF is correct,
complete, unequivocal, and specific. When the [medical adviser], second opinion
specialist or referee physician renders a medical opinion based on a SOAF which
is incomplete or inaccurate or does not use the SOAF as the framework in forming

5

R.V., Docket No. 20-0005 (issued December 8, 2020); D.G., Docket No. 19-1259 (issued January 29, 2020); S.F.,
59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
6

P.J., Docket No. 20-0550 (issued April 26, 2021); V.P., Docket No. 19-0645 (issued February 22, 2021); see R.P.,
Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40
ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
7

V.P., id.; M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8

20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018); Cheryl L. Decavitch, 50 ECAB
397 (1999).
9

5 U.S.C. § 8123(a); C.C., Docket No. 19-1948 (issued January 8, 2021); F.R., Docket No. 20-0789 (issued
December 1, 2020); M.S., 58 ECAB 328 (2007).
10

20 C.F.R. § 10.321; C.C., id.

6

his or her opinion, the probative value of the opinion is seriously diminished or
negated altogether. 11
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective January 30, 2018.
OWCP found a conflict in the medical opinion evidence between appellant’s treating
physician, Dr. Hochman, and OWCP’s second opinion physician, Dr. Bohl, as to whether
appellant’s disability had ceased. The Board finds, however, that Dr. Bohl did not base his
April 12, 2017 opinion on the SOAF provided for his review. Dr. Bohl concluded that appellant
had not sustained a left meniscal tear, a condition accepted by OWCP and listed in the SOAF.
OWCP’s procedures dictate that, when an OWCP medical adviser, second opinion specialist, or
referee physician does not use the SOAF as the framework in forming his or her opinion, the
probative value of the opinion is seriously diminished or negated altogether. 12 As Dr. Bohl did
not base his report on the SOAF, the Board finds that the probative value of his opinion is
diminished and not of equal weight sufficient to create a conflict in medical opinion with
Dr. Hochman.13
OWCP had referred appellant to Dr. Glazer for an impartial medical evaluation; however,
as no true conflict existed in the medical evidence at the time of the referral to Dr. Glazer, the
Board finds that his reports may not be afforded the special weight of an IME and should instead
be considered for its own intrinsic value. 14 The referral to Dr. Glazer is therefore considered to be
that of a second opinion evaluation.15 His opinion, therefore, is insufficient to resolve the conflict
of medical opinion between Dr. Hochman and Dr. Bohl.16
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective January 30, 2018, as there remains an unresolved conflict in medical
evidence.17 Specifically, a conflict of medical opinion exists between Dr. Hochman and

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990); see also D.F., Docket No. 20-1286 (issued June 17, 2021).
12

D.F., id.

13

Id.

14

See F.R., Docket No. 17-1711 (issued September 6, 2018).

15

L.G., Docket No. 20-0611 (issued February 16, 2021). See also M.G., Docket No. 19-1627 (issued April 17,
2020); S.M., Docket No. 19-0397 (issued August 7, 2019) (the Board found that at the time of the referral for an
impartial medical examination there was no conflict in medical opinion evidence; therefore, the referral was for a
second opinion examination); see also Cleopatra McDougal-Saddler, 47 ECAB 480 (1996) (the Board found that, as
there was no conflict in medical opinion evidence, the report of the physician designated as the IME was not afforded
the special weight of the evidence, but instead considered for its own intrinsic value as he was a sec ond opinion
specialist).
16

Id.

17

R.M., Docket No. 20-0452 (issued March 4, 2021); see C.R., Docket No. 19-1132 (issued October 1, 2020).

7

Dr. Glazer with regard to the residuals of disability of appellant’s accepted conditions.18 As there
remains an unresolved conflict in the medical evidence regarding the residuals and disability with
respect to the accepted conditions, OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation for the accepted conditions. 19
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective January 30, 2018.
ORDER
IT IS HEREBY ORDERED THAT the November 6, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 10, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

18

G.F., Docket No. 20-0497 (issued May 20, 2021).

19

In light of the Board’s finding with regard to Issue 1, Issue 2 is moot.

8