United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
WEAPONS STATION, Seal Beach, CA,
Employer
__________________________________________

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Appearances:
Thomas George Key, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 06-1903
Issued: August 10, 2007

Oral Argument July 18, 2007

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 14, 2006 appellant, through his attorney, filed a timely appeal from the
June 16, 2006 nonmerit decision of the Office of Workers’ Compensation Programs which
denied his application for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to review this nonmerit denial. The Board has no jurisdiction to review
the Office’s December 21, 2004 decision which is the most recent merit decision on appellant’s
wage-earning capacity, as he filed his appeal to the Board more than one year after the date of
that decision.

1

Appellant’s attorney presented the Board with a June 21, 2007 authorization of representation from appellant,
showing that the attorney was authorized to appear on his behalf at the July 18, 2007 oral argument. Counsel also
presented the Board with a June 27, 2007 medical report showing that appellant was medically unable to travel to
Washington, DC.

ISSUE
The issue is whether the Office properly denied appellant’s March 30, 2006 application
for reconsideration.
FACTUAL HISTORY
On May 20, 1997 appellant, then a 45-year-old pipefitter, sustained an injury in the
performance of duty while installing an overhead gas line. The Office accepted his claim for
lumbar sprain. On or about July 30, 1999 appellant sustained another injury in the performance
of duty while closing a 10-inch valve, showing a boiler man how to pack a 10-inch lead joint and
pushing dirt into a hole. The Office also accepted this claim for lumbar strain. Following the
report of an impartial medical specialist selected to resolve a conflict in medical opinion, the
Office expanded the accepted conditions to include multilevel lumbar degenerative disc disease,
degenerative spondylosis and spinal stenosis with right leg radiculopathy.
On July 30, 2002 the Office issued two final decisions. The first denied compensation
for certain periods of wage loss. The second determined that appellant’s actual wages in the
position of work input control clerk from July 19 through September 21, 2000, fairly and
reasonably represented his wage-earning capacity such that he was no longer entitled to
compensation for wage loss.
In a decision dated September 17, 2003, the Office granted appellant’s July 11, 2003
application for reconsideration and reopened his case for a review on the merits. The Office
found that the evidence submitted was insufficient to warrant modification of either July 30,
2002 decision.
In a decision dated December 21, 2004, the Office granted appellant’s September 16,
2004 application for reconsideration and again reopened his case for a review on the merits. The
Office found that the evidence submitted was insufficient to warrant modification of the
September 17, 2003 decision. In an attached statement of appeal rights, the Office notified
appellant that, if he had any additional evidence or legal argument that he believed would
establish his claim, he could request in writing that the Office reconsider its decision. The Office
advised that any such request must be made within one calendar year of the date of the decision
and must be accompanied by relevant evidence not previously submitted. The Office attached an
appeal request form which instructed appellant how to make an application for reconsideration
and where to send it.
Appellant corresponded with his U.S. Senator and Congressman. He sent them a number
of documents with his comments. In appellant’s correspondence, he referred to a “December 21
appeal.” The Office received a copy of this material on December 22, 2005. On January 4, 2006
the Office wrote to appellant to advise that it could find no request for reconsideration, no
request for a response. The Office stated that, if he wanted to request reconsideration of the most
recent merit decision on December 21, 2004, he should complete and return the appeal request
form. The Office noted that reconsideration was an avenue of relief if filed within one year of
December 21, 2004. On March 1, 2006 the Office advised appellant’s U.S. Senator that it had

2

yet to receive a completed appeal request form or any other correspondence from appellant
requesting reconsideration.
In a letter postmarked March 30, 2006, appellant requested reconsideration. He
submitted an appeal request form stating: “I have included two letters, one from [the supervisory
claims examiner] to Senator Boxer and one from me to [the supervisory claims examiner]. Sorry
for the mix up. If there is anything else you need please let me know. Thank you.” Appellant
submitted a copy of the Office’s March 1, 2006 letter to his U.S. Senator and a copy of his
March 14, 2006 letter to the Office:
“Thank you for the information that you sent me. I was under the impression that
Senator Boxer’s people were acting as a liaison between me and [w]orkers’
[co]mp[ensation]. I am getting the paper to ask for reconsideration. Do I send
this in order to have my appeal evaluated again or should I send it with a complete
copy of my appeal? Would also like copies of all the decisions from 2000 to the
ones you last sent starting in July 2002. Would also ask if there is a time limit on
how long your employer can keep you working in a field (your job) when a doctor
says that you should [not] do this kind of work anymore. I have heard that they
have one year to retrain you and put you into a different field. Can you tell me
what the time limit is[?]”
On April 18, 2006 the Office acknowledged receipt of appellant’s request for
reconsideration but informed him that it was untimely because it was received more than one
year after the last merit decision on December 21, 2004. The Office stated that it would
determine whether this request presented clear evidence that the December 21, 2004 decision
was in error.
In a decision dated June 16, 2006, the Office denied appellant’s March 30, 2006
application for reconsideration. The Office found that the application was untimely, as appellant
did not file it within one year of the last merit decision. The Office denied a reopening of his
case for a merit review on the grounds that his untimely application failed to show clear evidence
that the December 21, 2004 decision was in error.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision. The employee shall exercise this right through a request to the
district Office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”2 All applications for reconsideration should be accompanied

2

20 C.F.R. § 10.605 (1999); see 5 U.S.C. § 8128(a).

3

by evidence or argument.3 An application not supported by evidence or argument is prima facie
insufficient to warrant a merit review of the case.4
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision.5 An application
for reconsideration must be sent within one year of the date of the Office decision for which
review is sought. If submitted by mail, the application will be deemed timely if postmarked by
the U.S. Postal Service within the time period allowed.6 The Office will consider an untimely
application only if the application demonstrates clear evidence of error on the part of the Office
in its most recent merit decision. The application must establish, on its face, that such decision
was erroneous.7 The term “clear evidence of error” is intended to represent a difficult standard.8
If clear evidence of error has not been presented, the Office should deny the application by letter
decision, which includes a brief evaluation of the evidence submitted and a finding made that
clear evidence of error has not been shown.9
ANALYSIS
The last decision on the merits of appellant’s case was the Office’s December 21, 2004
decision denying modification. Appellant had one year from the date of that decision to request
reconsideration from the Office. The attached statement of appeal rights properly notified him of
this time limitation and, together with the attached appeal request form, instructed appellant how
to prepare an application for reconsideration and where to send it. Appellant did not follow these
instructions. These were the same instructions he successfully followed when he made his
July 11, 2003 and September 16, 2004 applications for reconsideration. The Office granted
those applications and reopened his case for a review on the merits, but in the calendar year
following the Office’s December 21, 2004 merit decision, appellant did not complete the appeal
request form, did not send it to the Office at the address given on that form, did not write
“Reconsideration Request” on the outside of the envelope and did not submit relevant evidence
not previously submitted. He corresponded instead with his U.S. Senator and Congressman. It
was not until March 30, 2006 that appellant sent the Office an application for reconsideration.
As he made this application more than 15 months after the Office’s December 21, 2004 merit
decision, the Office properly found that the application was untimely.
The Office may still grant an untimely application for reconsideration, but the claimant
must meet a high legal standard. The application must show on its face that the Office’s decision
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (May 1996).

4

Id. at Chapter. 2.1602.6 (January 2004).

5

20 C.F.R. § 10.606(a) (1999).

6

Id. § 10.607(a).

7

Id. § 10.607 (b).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (January 2004).

9

Id. at Chapter 2.1602.3.d(1).

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was erroneous. There can be no question. Appellant’s March 30, 2006 application does not
meet this standard. Two letters accompanied the application, one from appellant to the Office,
one from the Office to appellant’s U.S. Senator. Neither showed clear evidence of error in the
Office’s December 21, 2004 merit decision. Neither, in fact, made the attempt. The Board will,
therefore, affirm the Office decision denying appellant’s untimely application for
reconsideration. Appellant is not entitled to a reopening of his case.
CONCLUSION
The Board finds that the Office properly denied appellant’s March 30, 2006 application
for reconsideration. The application was untimely and failed to establish on its face that the
Office’s most recent merit decision was erroneous.
ORDER
IT IS HEREBY ORDERED THAT the June 16, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 10, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 14-1199
Issued: September 17, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 29, 2014 appellant filed a timely appeal of a November 18, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has permanent impairment entitling her to a schedule
award.
FACTUAL HISTORY
On October 29, 2007 appellant, then a 41-year-old nursing assistant, filed a traumatic
injury claim alleging that she sustained a lower back condition while assisting a patient into a
1

5 U.S.C. § 8101 et seq.

chair. Dr. Mark A. Goldstein, an osteopath, diagnosed lumbar strain and somatic dysfunction of
the sacroiliac joint on December 4 and 5, 2007 and January 16, 2008. He noted that appellant’s
back pain was not radiating, but that she experienced occasional right leg weakness.
Appellant filed a notice of recurrence of disability on March 11, 2008 alleging on
March 7, 2008 her pain increased after transferring a patient and that lifting a heavy item
increased her pain. OWCP accepted her claims for lumbar sprain/strain.
In notes dated February 8 and 22, 2008, Dr. Goldstein diagnosed piriformis muscle
spasm, somatic dysfunction of the sacroiliac joint and lumbar strain. He noted on
February 22, 2008 that appellant’s lumbar radiculopathy had resolved. Dr. Goldstein found that
she ambulated with stiffness with minimal tenderness of the right sacroiliac joint and mild spasm
of the piriformis muscles. In February 2008, appellant underwent a lumbar magnetic resonance
imaging (MRI) scan which demonstrated a small L4-5 disc protrusion with an annular tear of
uncertain age and no nerve compression. In a note dated April 4, 2008, Dr. Goldstein stated that
she had reached maximum medical improvement. He found that appellant piriformis muscle
spasm had resolved as had her lumbar radiculopathy. Dr. Goldstein also diagnosed lumbar strain
and somatic dysfunction of the sacroiliac joint. He indicated that appellant could not lift over 25
pounds.
Appellant requested a schedule award on August 5, 2008.
In a letter dated
February 21, 2013, OWCP noted that she had requested a schedule award and that she had not
submitted medical evidence of a permanent impairment due to her accepted lumbar sprain. It
requested additional medical evidence supporting a permanent impairment and allowed appellant
60 days to submit this evidence. Appellant did not respond within the allotted time.
By decision dated November 18, 2013, OWCP denied appellant’s claim for a schedule
award finding that she had not submitted medical evidence of a permanent impairment of a
scheduled member under FECA.
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 for
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of

2

Id. at §§ 8101-8193, 8107.

3

20 C.F.R. § 10.404.

2

the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A, Guides).4
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the regulations.5 Because neither FECA nor the regulations provide for the
payment of a schedule award for the permanent loss of use of the back or spine,6 no claimant is
entitled to such an award.7 The Board notes that section 8101(19) specifically excludes the back
from the definition of organ.8 A claimant may, however, receive a schedule award for any
permanent impairment to the upper or lower extremities even though the cause of the impairment
originated in the spine.9
ANALYSIS
OWCP accepted appellant’s claim for lumbar sprain. Appellant then filed a claim for a
schedule award. OWCP denied this claim on the grounds that she had submitted no evidence of
permanent impairment to a scheduled member.
The medical evidence consists of a series of reports from Dr. Goldstein addressing
appellant’s lumbar sprain and other back conditions. Dr. Goldstein indicated that appellant had
radiculopathy which had resolved. He did not report any condition in either her upper or lower
extremities. As the only condition diagnosed and accepted involved appellant’s lumbar spine
with no suggestion of impairment to her upper or lower extremities, she has not supported that
her employment injuries resulted in permanent impairment of a scheduled member. There is no
impairment rating for the spine under FECA and no medical evidence in conformance with
FECA and the A.M.A., Guides to establish permanent impairment. The Board finds that
appellant has not met her burden of proof in establishing entitlement to a schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment to a scheduled member.

4

For new decisions issued after May 1, 2009, OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
5

W.D., Docket No. 10-274 (issued September 3, 2010); William Edwin Muir, 27 ECAB 579 (1976).

6

FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

7

Timothy J. McGuire, 34 ECAB 189 (1982).

8

5 U.S.C. § 8101(19); T.J., Docket No. 14-556 (issued July 7, 2014).

9

Id.

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CONCLUSION
The Board finds that appellant has not submitted medical evidence that she sustained a
permanent impairment of a scheduled member under FECA. Thus, appellant is not entitled to a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the November 18, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 17, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.A., Appellant
and
U.S. POSTAL SERVICE, NETWORK
DISTRIBUTION CENTER, Jersey City, NJ,
Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1182
Issued: September 12, 2017

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 May 8, 2017 appellant, through counsel, filed a timely appeal from a March 21, 2017
merit decision and an April 5, 2017 nonmerit 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.

ISSUES
The issues are: (1) whether appellant has more than seven percent permanent impairment
of his right testicle, for which he received a schedule award; and (2) whether OWCP properly
denied appellant’s request for reconsideration of the merits of his claim pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On August 16, 2014 appellant, then a 23-year-old mail handler assistant, filed a traumatic
injury claim (Form CA-1) for a right groin strain that allegedly occurred earlier that same day
while pulling an all-purpose container at work. On August 16, 2014 he was diagnosed with
testicular torsion and he underwent a right simple orchiectomy and left orchiopexy. On
January 22, 2015 OWCP accepted appellant’s traumatic injury claim for right testicular torsion.
It also retroactively authorized his August 16, 2014 surgery.
Appellant submitted medical reports relating to his August 16, 2014 surgery and on
April 29, 2015 he filed a claim for compensation (Form CA-7) claiming a schedule award due to
his accepted employment injury.
In a March 10, 2016 decision, OWCP denied appellant’s schedule award claim because
he had not submitted sufficient medical evidence to establish permanent impairment under the
standards of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009) (A.M.A., Guides).
Appellant requested a telephonic hearing with a representative of OWCP’s Branch of
Hearings and Review. Prior to the hearing, OWCP’s hearing representative set aside OWCP’s
March 10, 2016 decision and remanded the case to OWCP for further development, to be
followed by issuance of an appropriate decision. He indicated that, despite the acceptance of
appellant’s claim, further development was needed regarding whether the right testicular torsion
and the need for the August 16, 2014 orchiectomy were related to the August 16, 2014
employment incident. The hearing representative noted that the case should be referred to an
appropriate medical specialist to consider whether appellant’s testicle condition and surgery were
work related and, if so, to provide an impairment rating under the sixth edition of the A.M.A.,
Guides.3
In November 2016 OWCP referred appellant to Dr. Mark Ehrenpreis, a Board-certified
urologist, for a second opinion examination and opinion on appellant’s work-related conditions
and permanent impairment under the standards of the sixth edition of the A.M.A., Guides.

3

The hearing representative indicated that, if the referral physician finds that the testicle condition and surgery
were not work related, OWCP should issue a proposed notice of rescission for the accepted condition of right
testicular torsion. He further noted that, if the physician finds a work-related connection and produces an
impairment rating calculation, the case should be referred to an OWCP medical adviser for review of the impairment
rating calculation.

2

In a November 30, 2016 report, Dr. Ehrenpreis indicated that his physical examination
showed an absent right testicle and a palpably normal left testicle. There was no hernia and the
abdomen was soft with no palpable hepatosplenimegaly or masses. Dr. Ehrenpreis found that
appellant’s right testicular torsion and the need for the August 16, 2014 orchiectomy were related
to the August 16, 2014 employment incident. He noted that appellant was back to baseline status
without any disability from work and advised that he did not require treatment. Dr. Ehrenpreis
opined that, due to the absence of the right testicle, appellant had 15 percent whole person
impairment (class 3) based on Table 7-8 (Criteria for Rating Impairment due to Testicular,
Epididymal, and Spermatic Cord Disease) on page 147 of the sixth edition of the A.M.A.,
Guides.
In January 2017 OWCP referred the case to Dr. David I. Krohn, a Board-certified
internist serving as an OWCP medical adviser, and requested that he review the evidence of
record and provide an opinion regarding appellant’s permanent impairment under the sixth
edition of the A.M.A., Guides.
In an undated report received on February 7, 2017, Dr. Krohn determined that appellant
had seven percent whole person permanent impairment with regard to his accepted right testicle
injury. He indicated that, under Table 7-8, appellant’s absent right testicle fell under a class 2
impairment for “[p]ersistent anatomic alteration or physical signs referable to testes….” which
correlated with the default value of nine percent whole person impairment. Dr. Krohn noted that,
given the absence of symptoms relative to the testes, the grade modifier for history under
Table 7-8 fell was class 1, and that this finding required movement one space to the left of the
class 2 default value, i.e., to seven percent whole person impairment. He advised that
Dr. Ehrenpreis assigned a class 3 or 15 percent whole person impairment “due to the absence of
the right testicle,” but noted that he felt that a class 3 impairment required bilateral anatomic loss
of the testes. However, appellant had only one absent testicle and, therefore, class 2 impairment
was indicated. Dr. Krohn advised that appellant reached maximum medical improvement on
November 30, 2016.
In a March 21, 2017 decision, OWCP granted appellant a schedule award for seven
percent permanent impairment of his right testicle. The award ran for 3.64 weeks (7 percent of
52 weeks) and was based on the opinion of Dr. Krohn who reviewed the findings of
Dr. Ehrenpreis.
On March 30, 2017 counsel, on behalf of appellant, requested reconsideration of
OWCP’s March 21, 2017 decision. He argued that Dr. Ehrenpreis properly applied the A.M.A.,
Guides to find that appellant had 15 percent permanent impairment of his whole person, but that
Dr. Krohn improperly lowered the rating to 7 percent permanent impairment of his whole person.
He asserted the correct decision would be to give appellant a schedule award for 100 percent
permanent impairment of his right testicle, which would provide for payment of 52 weeks of
compensation.
With respect to the pay rate of the schedule award, counsel generally noted that appellant
was making $566.87 per week as a mail handler assistant, but he asserted that OWCP should set
a pay rate of $1,000.00 per week since he would have received that amount when he became a

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mail handler.4 He argued his belief that such a young person as appellant should not be punished
after suffering a catastrophic accident.
In an April 5, 2017 decision, OWCP denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that he failed to submit any new and
relevant evidence or legal argument.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of the FECA5 and its implementing regulation6 set forth
the number of weeks of compensation payable to employees sustaining permanent impairment
from loss, or loss of use, of scheduled members or functions of the body. However, FECA does
not specify the manner in which the percentage of loss shall be determined. For consistent
results and to ensure equal justice under the law 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. The effective date of the sixth edition of the
A.M.A., Guides is May 1, 2009.7
Section 10.404(b) of OWCP’s regulations provides that, for the complete loss of one
testicle, a claimant is entitled to 52 weeks of compensation.8
OWCP’s procedures note that, in addition to the loss of use, the statute compensates for
loss of an organ.9 The procedures provide that, if there is total loss of a single paired organ (such
as a kidney, breast, testicle, or ovary), the schedule award is generally based on the loss of the
organ. In this situation, it is immaterial whether the remaining organ compensates functionally
for the loss.10

4

Counsel provided no citation to support his claim for a pay rate of $1,000.00 per week. The Board finds the
assertion fully without merit.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
8

20 C.F.R. § 10.404(b). See also S.G., Docket No. 15-1531 (issued August 10, 2016). In S.G., OWCP initially
granted the claimant a schedule award for 60 percent permanent impairment of his right testicle due to an accepted
work-related condition, but it did not grant him additional compensation after his right testicle was surgically
removed due to the same condition. The Board found that, due to the claimant’s complete and total surgical loss of
his right testicle, he was entitled to schedule award compensation for 100 percent loss of his right testicle.
9

See supra note 7, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4d(2)(c) (January 2010).

10

Id.

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ANALYSIS -- ISSUE 1
The Board finds that appellant has 100 percent permanent impairment of his right testicle.
He is entitled to 48.36 weeks of additional schedule award compensation.
OWCP accepted appellant’s claim for right testicular torsion. On August 16, 2014
appellant underwent a right simple orchiectomy and left orchiopexy, a procedure which included
a complete and total removal of the right testicle.11 By decision dated March 21, 2017, OWCP
granted him a schedule award for seven percent permanent impairment of his right testicle based
on the opinion of Dr. Krohn, an OWCP medical adviser. The award ran for 3.64 weeks (7
percent of 52 weeks).
Dr. Krohn had reviewed the November 30, 2016 report of Dr. Ehrenpreis, an OWCP
referral physician. Applying the findings from Dr. Ehrenpreis’ November 30, 2016 report to the
standards of Table 7-8, page 147 of the A.M.A., Guides, he determined that appellant had seven
percent permanent impairment of the whole person with regard to his accepted right testicle
injury.12
The Board notes that appellant’s right testicle was surgically removed due to a workrelated condition and it cannot be argued that he retains any use of that organ. As noted above,
OWCP’s regulations provide that, for the complete loss of one testicle, a claimant is entitled to
100 percent loss of 52 weeks of compensation.13 In addition, OWCP’s procedures provide that,
if there is total loss of a single paired organ (such as a testicle), the schedule award is generally
based on the loss of the organ and, in this situation, it is immaterial whether the remaining organ
compensates functionally for the loss.14 Therefore, it was inappropriate to apply a provision of
the A.M.A., Guides, Table 7-8 in the present case,15 which evaluates partial loss of function of
the testicles.16
For these reasons, appellant’s complete loss of his right testicle due to a work-related
condition entitles him to receive 52 weeks of compensation. Accordingly, the Board finds that
appellant is entitled to 48.36 weeks of additional schedule award compensation (52 weeks
11

The procedure was later approved by OWCP as necessitated by the accepted condition.

12

Dr. Ehrenpreis had calculated 15 percent whole person impairment under Table 7-8. OWCP medical adviser’s
lower impairment rating was attributable to his finding that appellant’s testicular condition fell under class 2 on
Table 7-8, rather than class 3 as determined by Dr. Ehrenpreis. See A.M.A., Guides 147, Table 7-8.
13

See supra note 8.

14

See supra notes 9 and 10.

15

A.M.A., Guides 147, Table 7-8. When there is partial loss of testicular, epididymal, or spermatic cord function
and it is appropriate to apply Table 7-8, the whole person impairment derived from this table is converted to a rating
for permanent impairment of the testicle under a formula found in OWCP’s procedures. See supra note 7, Part 3 -Medical, Schedule Awards, Chapter 3.700.4d(2)(a), (b) (January 2010). See also A.H., Docket No. 16-1537 (issued
February 7, 2017).
16

See generally S.G., supra note 8.

5

maximum compensation minus 3.64 weeks previously awarded). The Board will set aside
OWCP’s March 21, 2017 decision and remand the case for an additional schedule award of 93
percent permanent impairment of the right testicle.17
CONCLUSION
The Board finds that appellant has 100 percent permanent impairment of his right testicle.
Appellant is entitled to 48.36 weeks of additional schedule award compensation.
ORDER
IT IS HEREBY ORDERED THAT the March 21, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: September 12, 2017
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

Given the Board’s finding regarding the merit issue of the present case, it is not necessary to consider the
nonmerit issue of the case.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.F., Appellant
and
U.S. POSTAL SERVICE, WAREHOUSE
ANNEX, San Antonio, TX, Employer
__________________________________________

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

Docket No. 15-0895
Issued: August 27, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 17, 2015 appellant, through counsel, filed a timely appeal from a February 13,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
employment-related injury on October 3, 2012.
On appeal counsel asserts that the February 13, 2015 decision is contrary to fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On October 5, 2012 appellant, then a 48-year-old mail handler, filed a traumatic injury
claim alleging that at 6:10 a.m. on October 3, 2012 he injured both legs, his neck, and his lower
back while at work. The employing establishment noted that appellant had not submitted his
claim form until October 23, 2012. In an attached statement, appellant reported that on
October 3, 2012 at approximately 6:10 a.m. as he bent and turned to place a stack of mail trays
onto a pallet, he felt a stabbing pain in his left knee radiating down to his foot, and a sharp tight
stabbing pain in his lower back. He related that he slowly walked to the office of his supervisor,
Mary Mack, and explained to her that he was in pain and needed to leave immediately.
Ms. Mack asked that he bring a physician’s note for his absence.
In an October 5, 2012 report, Dr. James Key, an orthopedic surgeon, reported the history
as described by appellant. Physical examination findings included tenderness to palpation of the
lumbar spine, left knee, and left shin, muscle spasms of the back, and diminished lumbar spine
and left knee range of motion. Straight leg raising test was positive bilaterally. Dr. Key
diagnosed left knee sprain and strain, possible internal derangement of the left knee, and lumbar
sprain. He recommended magnetic resonance imaging (MRI) scan studies of the lumbar spine,
left knee, and shin, as well as an electrodiagnostic study of the lower extremities.
The Office of Inspector General (OIG) of the employing establishment conducted an
investigation regarding the claim. The investigative report, dated November 15, 2012, indicated
that appellant was interviewed by OIG agents on November 13, 2012 and questioned about the
claimed October 3, 2012 injury. The report noted that the claim had been faxed to the employing
establishment by Alamo Work Ready. The report stated that appellant explained that Alamo
Work Ready faxed the Form CA-1 and attached statement to his supervisor because he did not
want to deal with her. He dictated his statement to Alamo Work Ready, they typed it for him,
and he signed it. The investigative report continued that appellant explained he sustained a
previous injury on July 7, 2012 when he smashed his left leg into a pallet, for which he filed a
Form CA-1 in September 2012, and that appellant received medical care and physical therapy at
Alamo Work Ready under that claim. Appellant told the investigators that when he arrived at
work on October 3, 2012, he was already experiencing pain in his left leg/knee area from his
July 2012 injury. He stated that, after an employee meeting in the break room, he told Ms. Mack
that he was in a lot of pain and had to leave, but did not tell her the specifics of the pain, such as
its location. Appellant denied telling Ms. Mack that his stomach hurt and that he had diarrhea as
she contends. He stated that he then walked past her office onto the workroom floor and started
doing trays and emptying equipment for approximately five minutes at the most, that the pain
worsened, and he felt a pop or burning sensation. Appellant related that he then went to
Ms. Mack’s office, completed a Form 3971 leave slip, and was told by her that she had to record
the leave as “personal.”
Ms. Mack completed a sworn and signed statement dated October 24, 2012 in which she
related that on October 23, 2012, when she arrived at work at 6:00 a.m., she found a CA-1 and
typewritten statement signed by appellant that appeared to have been faxed the previous day
from Alamo Work Ready. She continued that appellant did not report an accident to her on
October 3, 2012. Ms. Mack stated that appellant attended the morning meeting in the break
room on October 3, 2002, and that, as soon as it was over, he told her he had to go home because

2

he was sick. She had him wait while she started her machine. Appellant then told her that he
ached all over, had a stomach ache, and diarrhea. Ms. Mack gave him a 3971 form; which he
filled out for personal sick leave, gave it to her, and she requested documentation to support this
absence. She advised that appellant did not perform any work before he went home that day and
did not say he hurt himself at work before he left.
Documents attached to the statements including a fax transmittal sheet indicating that six
pages were sent to the employing establishment by Alamo Work Ready on October 22, 2012,
and an absence request, completed by appellant and signed by Ms. Mack, indicating that he was
requesting sick leave at 6:00 a.m. on October 3, 2012. An employing establishment time and
attendance form indicated that on October 3, 2012 appellant signed in at 6:06 a.m. and signed out
at 6:39 a.m.
In correspondence dated November 27, 2012, the employing establishment controverted
the claim. Sharon Faust, senior health resource management specialist, maintained that
appellant’s statements regarding the claimed October 3, 2012 injury were not true. She
referenced Ms. Mack’s statement which she attached, and provided two coworker statements. In
a November 14, 2014 statement, Alex Ramirez advised that on October 3, 2012 he asked
Ms. Mack if she had seen appellant and was told that he went home sick. In a second statement
dated November 14, 2012, Carlene M. Clements stated that after the morning meeting on
October 3, 2012, she did not see appellant on the workroom floor and did not see him do any
work at all, relating that appellant went home sick after the morning meeting.
On December 7, 2012 OWCP informed appellant of the evidence needed to support his
claim. The letter quoted Ms. Mack’s statement and asked appellant to substantiate the factual
elements of his claim. The employing establishment was also asked to provide information
regarding the claim.
On a duty status report dated November 21, 2012, Dr. Key advised that appellant could
not work.
In a December 18, 2012 response, appellant maintained that he did work after the
morning meeting on October 3, 2012. He stated that he told Ms. Mack that his leg was sore from
his previous injury and he did not tell her he had a sick stomach. Appellant again related that he
felt a stabbing pain from his left knee down while placing letter trays on a pallet, walked slowly
to Ms. Mack’s office, and told her he needed to leave immediately. He stated that neither
Ms. Ramirez nor Ms. Clements could see him because of the distance of their work areas, and
therefore there was no witness to the claimed injury.
By decision dated January 24, 2013, OWCP denied the claim because appellant failed to
submit sufficient evidence to establish that he actually experienced an employment incident at
the time, place, and in the manner alleged because there were such inconsistencies as to cast
doubt on the validity of the claim.
On August 1, 2013 appellant requested reconsideration. He stated that he was injured in
the performance of duty on July 7, 2012 and the injury was witnessed by his previous supervisor,
Richard Flores. Appellant continued that on October 3, 2012 he had pain from the July 2, 2012

3

injury, and that before he left work that day, he attempted to work but could not twist, bend, or
lift. He implied that he had not sustained a new injury on October 3, 2012. Appellant attached a
statement dated July 7, 2012 in which he indicated that he was informing his then supervisor
Mr. Flores that he had caught his left leg between a stack of pallets and the riding jack.
Appellant related that he was not seeking medical treatment but was merely reporting the injury
to his supervisor. Mr. Flores also signed the statement.
A November 19, 2012 electrodiagnostic study was consistent with severe distal
sensorimotor peripheral neuropathy of the left lower extremity. A January 22, 2013 magnetic
resonance imaging (MRI) scan of the left knee demonstrated an abnormal patella with moderate
to severe chondromalacia patellae, mild three-compartment osteoarthritis, and a lateral meniscal
cyst.
Dr. Key submitted treatment notes dated January 29 to September 16, 2013 in which he
repeated the history of injury, appellant’s physical examination findings, and his diagnoses. In a
letter of disability dated June 28, 2013, he advised that appellant was considered disabled
beginning October 3, 2012 due to an employment injury that day when he felt stabbing pain in
his left knee and lower back while in the performance of his regular work duties. Dr. Key also
submitted duty status reports dated February 25 to September 16, 2013 in which he advised that
appellant could not work.
In September 4, 2013 correspondence, Ms. Faust noted that appellant’s July 7, 2012
claim, adjudicated under file number xxxxxx916, was accepted for a left leg contusion and was a
closed claim.2 She maintained that appellant’s reconsideration request suggested more
inconsistencies about the October 3, 2012 claimed injury, noting that he was now claiming that
the injury occurred on July 7, 2012 and that Dr. Key based his findings on an inaccurate work
history.
In a merit decision dated October 16, 2013, OWCP denied modification of the prior
decision because the evidence submitted did not support that the injury occurred as he described.
Appellant requested reconsideration on November 12, 2013. In treatment notes dated
November 4, 2013 to February 10, 2014, Dr. Key reiterated his findings and conclusions. He
also advised on a November 14, 2013 duty status report that appellant could not work.
On December 24, 2013 Ms. Faust reiterated that, due to the inconsistencies in the case,
appellant had not established fact of injury and causal relationship.
In a merit decision dated February 21, 2014, OWCP again denied modification, finding
fact of injury had not been established.
Appellant again requested reconsideration on September 3, 2014. On August 15, 2014 he
stated that the supervisor and the coworkers who stated that they did not see him on October 3,
2012 would not have seen the injury occur because they were not in his work area. Appellant

2

The instant claim was adjudicated under file number xxxxxx214.

4

indicated that he reviewed a videotape that showed him going to his work area on the date in
questions. He stated that he turned right and was thus headed in the direction of his work area.
In a March 3, 2014 report, Dr. Key reiterated his findings and conclusions.
On September 25, 2014 Ms. Faust indicated that both Ms. Mack and Mario Nunez, senior
manager of distribution operations, advised that the workroom floor was to the left of the break
room, and the supervisor’s office was to the right. She indicated that Ms. Mack did not waiver
from her previous statement. Ms. Faust attached e-mail correspondence dated September 25,
2014 from Mr. Nunez indicating that when exiting the break room, if you turned right you would
be heading to the supervisor’s office, and if you turned left, you would be heading to the
workroom floor.
In a merit decision dated February 13, 2015, OWCP again denied modification, finding
fact of injury not established. It indicated that the evidence submitted on reconsideration did not
resolve the discrepancies outlined in the employing establishment challenge letter.
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
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. Regardless of whether the asserted claim involves traumatic
injury or occupational disease, an employee must satisfy this burden of proof.3
OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.4 To determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP must determine whether “fact of injury” is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place, and in
the manner alleged, by a preponderance of the reliable, probative, and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that
the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.5 It is the employee’s burden to establish that his or
her injury occurred at the time, place, and in the manner alleged.6
3

Gary J. Watling, 52 ECAB 278 (2001).

4

20 C.F.R. § 10.5(ee) (1999, 2011); Ellen L. Noble, 55 ECAB 530 (2004).

5

Supra note 3.

6

H.G., 59 ECAB 552 (2008).

5

OWCP cannot accept fact of injury if there are such inconsistencies in the evidence as to
seriously question whether the specific event or incident occurred at the time, place, and in the
manner alleged, or whether the alleged injury was in the performance of duty,7 and OWCP
cannot find fact of injury if the evidence fails to establish that the employee sustained an “injury”
within the meaning of FECA. An injury does not have to be confirmed by eyewitnesses in order
to establish the fact that an employee sustained an injury in the performance of duty, as alleged,
but the employee’s statements must be consistent with surrounding facts and circumstances and
his subsequent course of action.8
ANALYSIS
The Board finds that appellant has not established fact of injury because of
inconsistencies in the evidence that cast serious doubt as to whether the specific event or incident
occurred at the time, place, and in the manner alleged. Appellant did not establish that on
October 3, 2012 he injured his lower extremities, neck, and back while moving trays of mail.
In a statement dated October 24, 2014, Ms. Mack, appellant’s supervisor, related that
when she arrived at work at 6:00 a.m. on October 23, 2012 she found a CA-1 and typewritten
statement signed by appellant that appeared to have been faxed the previous day. She stated that
appellant did not report an accident to her on October 3, 2012. Ms. Mack noted that he attended
a morning meeting in the break room and that, as soon as it was over, he told her he had to go
home because he was sick. Appellant told her that he ached all over, had a stomach ache, and
diarrhea. Ms. Mack gave him a 3971 form which he filled it out for personal sick leave, gave it
to her, and she requested documentation to support the absence. She advised that appellant did
not perform any work before he went home on October 3, 2012 and did not say he hurt himself at
work before he left. Ms. Mack attested to the facts of this statement in a sworn affidavit she
signed on October 26, 2012.
In addition, two coworkers provided statements dated November 14, 2014. Mr. Ramirez
advised that on October 3, 2012 he asked Ms. Mack if she had seen appellant and was told that
he went home sick. Ms. Clements stated that after the morning meeting on October 3, 2012, she
did not see appellant on the workroom floor and did not see him do any work at all, relating that
appellant went home sick after the morning meeting. Appellant did not submit any corroborating
witness statements. This casts additional doubt on his assertion that he sustained an
employment-related injury on October 3, 2012.
Appellant submitted a number of reports from Dr. Key, beginning on October 5, 2012.
Dr. Key reported the history OWCP injury provided by appellant. As these reports only recite
the facts as told to the treating physician and do not offer any further independent evidence that
the claimed work incident caused the alleged injury, they are insufficient to establish that the
claimed incident or injury occurred.9
7

Elaine Pendleton, 40 ECAB 1143 (1989).

8

See Joseph H. Surgener, 42 ECAB 541 (1991).

9

See D.T., Docket No. 15-143 (issued February 18, 2015).

6

Lastly, the Board notes that appellant also implied that the pain sustained on October 3,
2012 was caused by a July 7, 2012 employment injury.
The inconsistencies in the evidence described above cast serious doubt as to the validity
of appellant’s claim. Thus, the Board finds that appellant did not meet his burden of proof to
establish fact of injury. As appellant did not establish an incident as alleged, the Board need not
discuss the probative value of the medical evidence submitted.10
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 did not meet his burden of proof to establish an
employment-related injury on October 3, 2012.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 13, 2015 is affirmed.
Issued: August 27, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

10

Paul Foster, 56 ECAB 208 (2004).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 14-379
Issued: December 19, 2014

Case Submitted on the Record

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

JURISDICTION
On December 6, 2013 appellant, through counsel, filed a timely appeal from the
August 16, 2013 schedule award 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 more than seven percent impairment to his right upper
extremity, for which he received a schedule award.
On appeal appellant’s counsel contends that OWCP’s schedule award determination is
contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 17, 2011 appellant, then a 58-year-old internal revenue agent, sustained
injury to his right shoulder, while picking up a box.2 OWCP accepted his claim for sprain of the
right shoulder and upper arm, recurrent tear of the right rotator cuff, and disorder of the right
bursae and tendon.
On June 11, 2011 Dr. Thomas J. Chambers, a Board-certified orthopedic surgeon,
performed a right shoulder arthroscopy with a revision rotator cuff repair and subacromial
decompression.
In a March 16, 2012 report, Dr. Chambers assessed appellant as status post right shoulder
cuff repair with partial undersurface tearing with probable small perforation. On examination, he
noted good strength in the shoulder with a half-grade weakness in abduction and flexion, 140
degrees of flexion and 15 degrees of extension. Dr. Chambers observed 85 degrees of external
rotation but only 9 degrees of internal rotation with 150 degrees of abduction and 30 degrees of
adduction. He noted that appellant was still tender over the cuff with some mild
acromioclavicular joint tenderness. In an April 19, 2012 addendum, Dr. Chambers deemed
appellant to be at maximum medical improvement. He stated that appellant had 10 percent
impairment to his right upper extremity impairment for his Mumford procedure. Dr. Chambers
also noted that appellant merited an additional 12 percent impairment for full range of motion
deficits and 6 percent for strength deficits. He noted that this combined to total 25 percent right
upper extremity impairment.
On May 25, 2012 appellant, through counsel, filed a claim for a schedule award.
In a memorandum dated May 29, 2012, OWCP asked its medical adviser to review the
record and determine the permanent functional loss of use of the right upper extremity.
Dr. James W. Dyer, the medical adviser, noted that appellant had a revision of cuff repair on
June 1, 2011 and that a November 2, 2011 magnetic resonance imaging (MRI) scan revealed
acromioclavicular arthrosis with impingement. He stated that the record required clarification
because he could not find a surgical report. OWCP obtained additional medical records. On
August 10, 2012 Dr. Dyer reviewed the surgical reports. He found that no Mumford procedure
was performed at the June 1, 2011 surgery yet Dr. Chambers had assigned 10 percent
impairment for such procedure. Dr. Dyer also noted that no measurements were provided
describing the loss of motion in the right shoulder and that the report of March 30, 2012 was not
reliable for purposes of a schedule award. He recommended a second opinion from a Boardcertified orthopedic surgeon.
On August 24, 2012 OWCP referred appellant for a second opinion evaluation. In a
September 10, 2012 report, Dr. Robert M. Moore, a Board-certified orthopedic surgeon,
diagnosed appellant with rotator cuff tendinopathy and recurrent tear of the right shoulder. He
noted that objective findings include limitation in range of motion of the right shoulder and
weakness of abduction, forward flexion, and rotation on strength testing. Dr. Moore noted that
2

The record reflects that appellant previously underwent surgery on November 3, 2010 for a right shoulder
rotator cuff repair.

2

the only objective finding on x-ray was mild sclerosis in the great tuberosity region consistent
with previous anchor placement. He noted that the MRI scan of the right shoulder on
October 17, 2011 showed objective evidence of partial thickness tear of the rotator cuff and
subacromial bursitis. Dr. Moore found that appellant reached maximum medical improvement in
June 2012. He applied the Shoulder Regional Grid of Table 15-5 of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.
Guides), for a rotator cuff injury, full thickness tear with residual loss, with a class 1 default
impairment value of five percent.3 Dr. Moore found a functional history grade modifier of 2 for
pain/symptoms with normal activity, a physical examination grade modifier of 2 for mild-tomoderate decrease in range of motion and weakness of rotator cuff function on resistance testing,
and a clinical grade modifier of 2 for an MRI scan confirming the diagnosis of rotator cuff tear.
He found that the net adjustment was +3, which moved the rating from a default value level C to
level E, which corresponded to an upper extremity impairment of seven percent.
On October 23, 2012 OWCP referred Dr. Moore’s report to the medical adviser. On
October 24, 2012 Dr. H.P. Hogshead, the medical adviser, stated that the second opinion
evaluation and impairment rating by Dr. Moore was thorough and objective and correctly
determined that appellant had seven percent impairment of the right upper extremity.
By decision dated January 14, 2013, OWCP granted appellant a schedule award for seven
percent permanent impairment of the right arm. The period of the award ran from March 30 to
August 29, 2012.
By letter dated January 22, 2013, appellant, through counsel, requested a telephonic
hearing before an OWCP hearing representative. At the hearing held on May 8, 2013, counsel
noted that he had submitted a medical report that was not mentioned in the prior decision. The
hearing representative advised that the report was not in the record, and counsel was provided 30
additional days to submit the report.
Following the hearing, appellant submitted a July 2, 2012 medical report by
Dr. William C. Daniels, a Board-certified orthopedic surgeon, who diagnosed appellant with
sprain of the right shoulder and upper arm, rotator cuff and disorder of bursae and tendons in the
right shoulder region. Dr. Daniels applied Table 15-5 of the A.M.A., Guides,4 but used the
impairment class for acromioclavicular joint injury or disease, class 1, which he opined most
closely represented the etiology of appellant’s complex shoulder problems. He noted that
Dr. Chambers performed a Mumford procedure, also known as a distal clavicle resection, which
would place appellant with a default impairment of 10 percent. Dr. Daniels indicated that, with
the functional history adjustment category, appellant would fit grade 3. With regard to the
physical examination adjustment, he noted that appellant would fit the grade 2 category based on
range of motion loss. With regard to the clinical studies adjustment, based on Dr. Daniels’
report, appellant would be grade 2. As the net adjustment was +4, this slid appellant’s rating to
the right in class 1, and would equal a 12 percent impairment of the right upper extremity.

3

A.M.A., Guides 403, Table 15-5.

4

Id.

3

In a decision dated July 26, 2013, the hearing representative set aside the January 14,
2013 decision, and remanded the case for an OWCP medical adviser to review Dr. Daniel’s
July 2, 2012 report.
On July 29, 2013 Dr. Hogshead noted that the report of Dr. Daniels used the Mumford
procedure (or distal clavicle excision) as the central diagnosis in rating the impairment of the
right upper extremity, which was clearly erroneous. He noted the prior report of Dr. Dyer on
August 10, 2012 noted that the June 2011 surgery did not include a Mumford procedure.
Dr. Hogshead stated that Dr. Moore had properly applied the A.M.A., Guides, and concluded
that appellant had seven percent impairment of the right upper extremity. In an August 9, 2013
memorandum, OWCP asked Dr. Hogshead to further explain whether Dr. Daniels’ report was
erroneous and to apply the A.M.A., Guides. Dr. Hogshead replied that a rating for a Mumford
procedure was provided and that this was untrue. He further opined that a rating for range of
motion that could be a stand-alone rating but not combined with a diagnosis-based impairment
method. Dr. Hogshead also noted that loss of strength was included but that loss of strength was
seldom used in the sixth edition of the A.M.A., Guides.
By decision dated August 16, 2013, OWCP determined that appellant had no more than
seven percent impairment of the right arm.5
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law 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. OWCP evaluates the degree of permanent impairment according to the standards
set forth in the specified edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment.8 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.9 For impairment ratings

5

OWCP failed to send a copy of its August 16, 2013 decision to appellant’s attorney. Its regulations and Board
precedent require OWCP to send a copy of its decision to the claimant’s representative. See 20 C.F.R. § 10.127.
The Board has held that a decision under FECA is not properly issued unless both appellant and the authorized
representative have been sent copies of the decision. See Travis L. Chambers, 55 ECAB 138 (2003). However,
OWCP’s failure to properly serve appellant’s counsel with the August 16, 2013 decision was harmless error as
appellant’s counsel filed a timely appeal of the August 16, 2013 decision to the Board.
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any physician evaluating
permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule
Awards and Permanent Disability Claims, Chapter 2.808.6.a (January 2010).
9

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

4

calculated on or after May 1, 2009, OWCP should advise any physician evaluating per
impairment to use the sixth edition.10
The sixth edition requires identifying the impairment Class of Diagnosis (CDX), which is
then adjusted by grade modifiers based on Functional History (GMFH), Physical Examination
(GMPE), and Clinical Studies (GMCS).11 The net adjustment formula is (GMFH-CDX) +
(GMPE-CDX) + (GMCS-CDX).12 The sixth edition of the A.M.A., Guides also provides that
range of motion may be selected as an alternative approach in rating impairment under certain
circumstances. A rating that is calculated using range of motion may not be combined with a
diagnosis-based impairment and stands alone as a rating.13
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.14 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. 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.15
ANALYSIS
OWCP accepted appellant’s claim for sprain of the right shoulder and upper arm,
recurrent tear of the right rotator cuff and disorder of the right bursae and tendon. On
January 14, 2013 it issued a decision awarding a schedule award for seven percent impairment of
the right upper extremity. Appellant contends that he is entitled to a greater award.
Dr. Chambers performed a right shoulder arthroscopy with minimal debridement of
superior labrum, subacromial decompression with release of coracoacromial ligament, and
arthroscopic cuff repair on November 3, 2010. On June 1, 2011 he performed a right shoulder
arthroscopy with revision repair and subacromial decompression. In a March 16, 2012 report,
Dr. Chambers listed range of motion measurements and noted tenderness over the cuff with mild
acromioclavicular joint tenderness. In an April 19, 2012 addendum, he stated that appellant had
10 percent impairment to his upper right extremity for his “Mumford,” 12 percent impairment
for range of motion deficits and 6 percent impairment for strength deficits. Dr. Chambers
combined these ratings to find a total 25 percent right upper extremity impairment. The Board
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.a (January 2010).
11

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

12

Id. at 521.

13

L.B., Docket No. 12-910 (issued October 5, 2012).

14

5 U.S.C. § 8123(a).

15

20 C.F.R. § 10.321.

5

finds, however, that he did not adequately explain his conclusions. Dr. Chambers did not state
that he applied the sixth edition of the A.M.A., Guides, or refer to any applicable charts or tables
to explain how he arrived at his figures. It is well established that it is the responsibility of the
evaluating physician to explain in writing why a particular method was used to assign an
impairment rating.16 Further, Dr. Chambers combined impairment ratings for loss of range of
motion with diagnosis-based impairment, which is not allowed under the sixth edition. It is well
established that a rating that does not address how the extent of impairment was determined
under the applicable edition of the A.M.A., Guides is of reduced probative value.17 Accordingly,
the opinion of Dr. Chambers is of diminished probative value.
OWCP referred appellant to Dr. Moore for a second opinion. Dr. Moore utilized Table
15-5 of the A.M.A., Guides for the impairment class represented by the diagnosis rotator cuff
injury, full-thickness tear. He found that appellant had a class 1 impairment, characterized by
residual loss, functional with normal motion, which would indicate a five percent default value.
Dr. Moore determined that, based on grade modifiers of +2 for functional history, +2 for
physical examination, and +2 for clinical studies, the net adjustment was +3, which moved the
rating from a default value C to E which corresponded to an upper extremity impairment of
seven percent.18 Dr. Hogshead determined in an October 24, 2012 report that Dr. Moore’s
impairment rating was thorough and objective and that he correctly applied the A.M.A., Guides
to find a seven percent impairment of the right upper extremity. OWCP issued a schedule award
for a seven percent impairment of the right arm on January 14, 2013.
In a July 2, 2012 report, Dr. Daniels utilized the same table of the A.M.A., Guides, as
Dr. Moore, Table 15-5, but stated that appellant’s impairment class was represented by the
diagnosis of acromioclavicular joint injury or disease. He then found a class 1 impairment based
on distal clavicle resection. Dr. Daniels stated that Dr. Chambers performed a Mumford
procedure, also known as a distal clavicle resection, which would give appellant a default
impairment of 10. He noted grade modifiers of 3 for functional history adjustment, 2 for
physical examination adjustment, and 2 for clinical studies. Dr. Daniels then noted that this
amounted to a net adjustment of +4, which would move appellant’s impairment rating to E,
which corresponds to a 12 percent impairment of the right upper extremity.19 Dr. Hogshead
reviewed Dr. Daniels’ rating but concluded that the physician erred by basing the diagnosis on a
Mumford procedure. He also noted that range of motion was included but it could not be
combined with the diagnosis-based impairment method. Dr. Hogshead also noted that loss of
strength was included but that loss of use is seldom used under the sixth edition of the A.M.A.,
Guides.
The Board finds that there is an unresolved conflict in the medical evidence. Dr. Moore
and the medical advisers determined appellant’s impairment rating by applying Table 15-5 of the
16

See Peter C. Belkind, 56 ECAB 580, 584-85 (2005); see also Robert B. Rozelle, 44 ECAB 616, 618 (1993).

17

See Derrick C. Miller, 54 ECAB 266 (2002); James Kennedy, Jr., 40 ECAB 620 (1989); see also M.M., Docket
No. 13-1136 (issued June 10, 2014).
18

A.M.A., Guides 403, Table 15-5.

19

Id.

6

sixth edition of the A.M.A., Guides. They determined that appellant’s impairment class was
represented by the diagnosis of rotator cuff injury, full-thickness tear. Dr. Daniels, who
conducted an examination on behalf of appellant, utilized the same table of the A.M.A., Guides,
but determined that appellant’s impairment class was based on the diagnosis of an
acromioclavicular joint injury or disease, with the class 1 rating characterized by status post
distal clavicle resection. The medical opinion is in conflict as to the proper impairment class.
Dr. Hogshead contended that the use of the Mumford procedure was erroneous, as appellant did
not undergo this procedure. Dr. Daniels, however, stated that Dr. Chambers performed a
Mumford procedure. Dr. Chambers did not clearly state in his operative reports of November 3,
2010 or June 1, 2011 that he performed a Mumford procedure. In his April 19, 2012 addendum,
he indicated that appellant had 10 percent impairment for his “Mumford.” There is a conflict
with regard to whether appellant underwent a Mumford procedure and the proper impairment
class under Table 15-5 to be utilized in rating impairment.
The case will be remanded to OWCP for referral of appellant and a statement of accepted
facts to an impartial medical specialist for a determination regarding the extent of his right upper
extremity impairment in accordance with the relevant standards of the A.M.A., Guides.20 After
such further development as OWCP deems necessary, a de novo decision should be issued
regarding the extent of appellant’s right upper extremity impairment.
CONCLUSION
The Board finds that this case is not in posture for decision due to an unresolved conflict
in the medical opinion evidence regarding the percentage of impairment of the right lower
extremity.

20

See Docket No. 14-27 (issued July 3, 2014).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 16, 2013 is set aside and the case remanded for further
proceedings consistent with this opinion.
Issued: December 19, 2014
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.U., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
La Puente, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-1822
Issued: June 18, 2018

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 September 14, 2016 appellant, through counsel, filed a timely appeal from a July 18,
2016 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 OWCP abused its discretion in denying appellant’s request for
cervical surgery.
FACTUAL HISTORY
On March 18, 2013 appellant, then a 57-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed neck and left shoulder conditions as a result of
repetitive lifting and tossing of parcels. On June 21, 2013 OWCP accepted his claim for left rotator
cuff tear and cervical strain.3
Following unsuccessful courses of physical therapy, appellant’s treating physician,
Dr. Hosea Brown III, an internist, referred appellant to Dr. Serge Obukhoff, a Board-certified
neurosurgeon. In a report dated June 28, 2013, Dr. Obukhoff examined appellant and reviewed
his history of injury. He noted that appellant initially experienced neck pain in August 2012, which
appellant attributed to repetitively twisting and turning his neck. Dr. Obukhoff reviewed a
magnetic resonance imaging (MRI) scan of appellant’s cervical spine, which showed severe
cervical canal stenosis due to a herniated disc at C4-5 and C6-7 and an effacement of the ventral
spinal cord by herniating disc material. He requested that appellant’s accepted diagnosis be revised
to cervical disc herniations with myelopathy, and he explained appellant’s job had for many years
required lifting and carrying heavy objects on a regular basis. Dr. Obukhoff explained that, with
this type of physical activity, patients often sustained injury to the ligamentous complex of axial
spine, particularly cervical spine, and as a result of these injuries, developed accelerated
degeneration of cervical discs and subsequently cord compression and foraminal stenosis. He
noted that appellant was gradually developing symptoms, which correlated with his examination
findings and clinical presentation.
In a July 9, 2013 progress report, Dr. Brown noted that Dr. Obukhoff felt that appropriate
treatment for appellant would be a C4-5 and C6 discectomy with decompression of spinal cord
followed by fusion. In an August 5, 2013 progress note, he noted that appellant was in the process
of contemplating the recommended surgical intervention.
By letter dated August 5, 2013, Dr. Brown requested that OWCP expand appellant’s list of
accepted conditions to include permanent aggravation of degenerative joint disease of the cervical
spine, cervical intervertebral disc syndrome with myelopathy, cervical radiculopathy, left rotator
cuff syndrome, and left-sided acromioclavicular arthropathy. He noted that the MRI scan of
appellant’s cervical spine, in addition to x-rays, were consistent with these diagnoses. Dr. Brown
opined that appellant’s medical conditions arose as a direct result of the performance of duties as
a city letter carrier throughout his extensive 34-year employment history. He related that, with
regard to appellant’s neck, he indicated that appellant performed repetitive twisting and turning of
his cervical spine when transferring parcels throughout the day from the front to the back of the
3

The present claim was assigned OWCP File No. xxxxxx924. Appellant also has a prior claim before OWCP. In
File No. xxxxxx890, OWCP accepted his January 14, 1999 traumatic injury claim for right elbow strain, right biceps
tendinitis, and right lateral epicondylitis. OWCP File Nos. xxxxxx924 and xxxxxx890 have been administratively
combined, with File No. xxxxxx890 serving as the master file.

2

van into the appropriate receptacles. Appellant recounted that, during this process, he was
repetitively twisting and turning his neck from six to seven hours daily. He noticed that he
experienced significant pain, discomfort, and stiffness in his neck upon completion of his
employment tasks. With regard to appellant’s left shoulder, he indicated that he performed
transfers of parcels from the front of his vehicle to the back, which caused him to develop
progressively increasing pain and discomfort in his left shoulder as well as his neck.
Unfortunately, this employment-related activity caused him to undergo left rotator cuff tear
syndrome as well as accelerate, aggravate and precipitate the significant degenerative disc disease
of the cervical spine. Dr. Brown opined that the sheer repetitive flexing and extending of the
cervical spine required by appellant’s employment duties clearly increased the biomechanical load
to his cervical spine as well as his left shoulder thereby causing progressive inflammation,
desiccation, degeneration, and irritation in these areas causing both a significant degenerative disc
disease of the cervical spine as well as a left rotator cuff syndrome.
On October 15, 2013 Dr. Obukhoff requested authorization for cervical surgery, including
spine fusion, insertion of a spine fixation device, application of a prosthetic device, and
decompression.
In an October 30, 2013 letter, OWCP informed Dr. Obukhoff that further medical
development was needed before his request for authorization could be approved or denied.
By letter dated November 8, 2013, OWCP referred appellant, along with the case record
and a statement of accepted facts (SOAF) to a second opinion physician, in order to determine
whether his diagnosed conditions were connected to the accepted injury, the current residuals,
periods of disability, current work restrictions, and whether the requested cervical surgery should
be authorized.
By report dated January 16, 2014, second opinion physician, Dr. Michael Einbund, a
Board-certified orthopedic surgeon, maintained that appellant’s claim should not be expanded to
include additional conditions due to discrepancies in his diagnostic studies. He explained that
appellant’s MRI scan of the cervical spine described degenerative changes, as well as targetoid
lesion, as well as subluxation. There, however, was no description of any nerve root impingement
which would account for the multiple levels of radiculopathy described on the electromyogram
and nerve conduction velocity (EMG/NCV) studies. Further, there is no evidence that the cervical
strain has caused any material changes in any of appellant’s underlying conditions. Dr. Einbund
further noted that there were no residuals from the accepted cervical strain, but there were residuals
from the left shoulder condition. With regard to appellant’s requested surgery to his cervical spine,
Dr. Einbund observed:
“Based on [appellant’s] MRI scan, he does not appear to be a candidate for the
proposed anterior cervical fusion. He does have a positive EMG, but his MRI scan
reveals small disc bulges without obvious nerve root impingement…. The detailed
abnormalities and conflicting [evidence] based on the MRI scans do not rise to the
level of such aggressive treatment. Notably, there is evidence of an ovoid targetoid
lesion which is also nonindustrial.… Any treatment for the cervical spine necessary
at this time, would not be the result of the January 16, 2013 incident of repetitive
lifting and tossing….”

3

By decision dated February 5, 2014, OWCP denied appellant’s request to expand his list
of accepted injuries to include permanent aggravation of degenerative joint disease of the cervical
spine, cervical intervertebral disc syndrome with myelopathy, and cervical radiculopathy. It also
denied the requested cervical surgery. OWCP found that the weight of medical evidence rested
with Dr. Einbund’s November 8, 2013 report.
By letter dated February 25, 2014, Dr. Brown strongly disagreed with Dr. Einbund’s
report. He explained that Dr. Einbund erroneously claimed that appellant’s cervical spine strain
had resolved, and that his findings on physical examination were in error. Dr. Brown noted that
all physical examinations of appellant by himself and Dr. Obukhoff had revealed “tremendously
decreased range of motion of the cervical spine as well as severe spasm of the paraspinal cervical
musculature.” He noted that Dr. Einbund had mischaracterized an MRI scan report as showing
“no disc in neck,” while Dr. Obukhoff had analyzed the same report on June 28, 2014 as
demonstrating conditions at C4-5 and C6-7. Dr. Brown suggested that appellant undergo another
MRI scan for additional assessment.
In a diagnostic report dated February 20, 2014, Dr. Richard Chai, Board-certified in
diagnostic radiology and neuroradiology, examined the new MRI scan of appellant’s cervical
spine. He stated: impressions of straightening of cervical lordosis; minimal anterolisthesis of C4
on C5; a mild broad-based disc bulge at C3-4 effacing the ventral cerebrospinal fluid space with
mild central canal narrowing; minimal anterolisthesis of C4 on C5 and squaring of the
uncovertebral joins; mild broad-based disc bulge; mild central canal and bilateral foraminal
narrowing; a mild broad-based disc bulge at C6-7 with mild central canal narrowing and mild
bilateral foraminal narrowing; and a normal cervical spinal cord signal.
By letter dated April 16, 2014, appellant noted that OWCP had not responded to
Dr. Brown’s February 25, 2014 letter and requested that OWCP do so, as well as provide an
impartial medical evaluation.
On May 16, 2014 OWCP responded, noting that if appellant disagreed with its decision,
he should exercise his appeal rights.
On June 16, 2014 appellant requested reconsideration of OWCP’s February 5, 2014
decision.
By letter dated June 9, 2014, Dr. Brown noted that OWCP had not yet reviewed his
response to Dr. Einbund’s second opinion report. He maintained that Dr. Einbund’s report did not
provide a well-reasoned medical rationale for his claim that any treatment for the cervical spine
necessary at this time would not be the result of the January 16, 2013 incident of repetitive lifting
and tossing. Dr. Brown claimed that he had previously given a complete explanation of the
medical rationale involved as to why further treatment was necessary for the employment-related
cervical condition. He further noted that the results of the February 20, 2014 MRI scan were
consistent with appellant’s several cervical spine conditions and entirely contradictory to
Dr. Einbund’s findings.4

4

On July 28, 2014 appellant underwent surgery to his left shoulder, authorized by OWCP.

4

By letter dated October 20, 2014, OWCP referred appellant’s claim to a referee physician
for resolution of a conflict in the medical evidence between Drs. Einbund and Brown with regard
to the nature and extent of appellant’s injuries and requested surgical treatment. On November 25,
2014 it informed appellant that it had scheduled an appointment with Dr. Jaime Contreras, a Boardcertified orthopedic surgeon, for a referee examination.
In a report dated January 20, 2015, Dr. Contreras examined appellant, reviewed his medical
history, and diagnosed appellant with multilevel intervertebral cervical disc syndrome with
cervical radiculopathy and postoperative conditions of the left shoulder. He reviewed the MRI
scan and EMG reports of record. On examination of appellant’s cervical spine, Dr. Contreras
noted that appellant had increased cervical lordosis, muscle guarding on palpation of the upper
trapezius muscle, tenderness of the interspinous ligaments and transverse processes, tenderness of
the cervical roots, and decreased motion of the cervical spine with pain. On neurological
examination, he noted: appellant had normal bicipital, tricipital, and brachioradialis reflexes;
normal sensation to light touch in the upper extremities; and no localized muscle atrophy of the
upper extremities with arms at rest.5 Dr. Contreras noted, “Clinically, there are no indications for
surgery to the neck or for additional surgery to the left shoulder to cure or relieve examinee from
the effects of the work injuries.”
By decision dated February 20, 2015, OWCP vacated its decision of February 5, 2014 and
accepted additional conditions of multilevel intervertebral cervical disc syndrome and cervical
radiculopathy. It noted that its February 5, 2014 decision was not altered as to the issue of denial
of authorization for neck surgery.
In a report dated April 10, 2015, Dr. James T. Tran, a Board-certified neurosurgeon, noted
that he had reviewed Dr. Contreras’ report of January 20, 2015, and found that there was no
evidence that Dr. Contreras had read an MRI scan of the cervical spine himself. He speculated
that Dr. Contreras had merely read an impression of an MRI scan of the cervical spine, rather than
examining the results himself. Dr. Tran further noted that there was no evidence that Dr. Contreras
had formal training in spinal surgery. He opined that therapy and surgical intervention for cervical
spinal cord compression were medically necessary, because appellant experienced spinal cord
compression causing weakness of the extremities.
On April 27, 2015 appellant requested reconsideration of OWCP’s February 20, 2015
decision denying authorization for cervical surgery.
By letter dated June 29, 2015, Dr. Brown again requested that OWCP approve cervical
spine surgery as recommended by himself and Dr. Tran. He noted that Dr. Contreras offered no
medical rationale for his opinion that cervical spine surgery was not indicated, instead simply
stating that it was not indicated without further elaboration. Dr. Brown observed that
Dr. Contreras had not had the opportunity to review Dr. Tran’s report and that as such, his opinion
concerning cervical spine surgery had less value. He recommended that if surgery could not be

5
Dr. Contreras noted that, “Clinically, there are no indications for surgery to the neck or for additional surgery to
the left shoulder to cure or relieve examinee from the effects of the work injuries.”

5

authorized urgently, that appellant should be sent for a follow-up referee examination in order for
the referee examiner to review Dr. Tran’s report.
By decision dated July 23, 2015, OWCP reviewed appellant’s claim and found that the
evidence of record was insufficient to modify its February 20, 2015 decision. It noted that
Dr. Tran’s questioning of Dr. Contreras’ qualifications and findings were insufficient to overcome
the weight of his opinion as an impartial medical referee examiner. Specifically, OWCP noted
that there was no requirement that Dr. Contreras had to view the MRI scan himself, rather than
relying upon the impression of the radiologist, and that he was an orthopedic surgeon and as such
was an appropriate specialist for appellant’s condition.
On September 9, 2015 appellant requested reconsideration of OWCP’s July 23, 2015
decision. With his request, he attached a letter from Dr. Brown dated August 24, 2015. Dr. Brown
stated that he had reviewed OWCP’s decision and found that OWCP’s rationale was “faulty,
inadequate, and clearly not based upon the medical evidence in this case.” He noted that appellant
had been “thoroughly and extensively evaluated by [Dr. Tran], who is a [B]oard-certified
neurosurgeon, who opines that the patient clearly requires cervical spine surgery in the form of a
posterior laminoforaminotomy and hemilaminotomy at C4-5 and C6-7 for treatment of his
accepted work-related cervical conditions.” Dr. Brown insisted that Dr. Contreras’ lack of training
in spinal surgery would render his opinion of less value and questioned OWCP’s reasoning in
giving it greater value than Dr. Tran’s opinion.
By letter dated September 4, 2015, Dr. Tran noted that Dr. Contreras had “failed to perform
a motor examination of the right upper extremity and the lower extremities. He neglected to
perform a reflex examination of the upper and lower extremities to check for hyperreflexia, which
is important in spinal cord compromise or compression.” Dr. Tran explained that, while the claims
examiner had relied in good faith on Dr. Contreras’ report, the report was incomplete without a
neurological examination, and as such should be set aside. He maintained that surgery should be
approved; or in the alternative, that appellant should be referred to a neurosurgeon instead of an
orthopedic surgeon for a further referee examination.
By decision dated December 8, 2015, OWCP reviewed appellant’s claim and found that
the evidence of record was insufficient to modify its July 23, 2015 decision. It found that
Dr. Tran’s and Dr. Brown’s opinion that Dr. Contreras did not have the requisite training or
experience to offer an opinion on the matter of whether surgery should be authorized was
insufficient to modify its prior decision. OWCP further noted that Dr. Contreras had sufficiently
explained his reasons for finding that appellant did not require surgery, and that OWCP had not
received any concrete evidence to indicate that Dr. Contreras’ opinion was incorrect or
inconclusive.
By letter dated February 5, 2016, Dr. Tran noted that OWCP indicated in its December 8,
2015 decision that it had not received any concrete evidence to support that Dr. Contreras’ opinion
was incorrect or inconclusive. He reiterated that Dr. Contreras’ failure to conduct a neurological
examination was a breach of duty and that, without such an examination, Dr. Contreras’ opinion
was insufficiently rationalized.

6

By letter dated March 28, 2016, Dr. Brown noted that appellant continued to exhibit severe
residuals pertinent to his accepted cervical spine conditions, and that the delay in surgical
intervention had led to a situation where appellant was experiencing tremendous harm. He noted
that the evaluation of Dr. Contreras was inadequate in evaluating appellant’s cervical spine
condition, and requested that appellant be sent to a neurosurgeon for an independent medical
evaluation.
On April 19, 2016 appellant requested reconsideration of OWCP’s December 8, 2015
decision.
By decision dated July 18, 2016, OWCP reviewed appellant’s claim and found that the
evidence of record was insufficient to modify its December 8, 2015 decision. It noted that
Dr. Contreras had in fact performed a neurological test, as documented in his January 20, 2015
report, and, as such, the arguments of Drs. Tran and Brown were unfounded.6
LEGAL PRECEDENT
Section 8103(a) of FECA provides for the furnishing of services, appliances, and supplies
prescribed or recommended by a qualified physician who OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or
aid in lessening the amount of monthly compensation.7 In interpreting section 8103(a), the Board
has recognized that OWCP has broad discretion in approving services provided under FECA to
ensure that an employee recovers from his or her injury to the fullest extent possible in the shortest
amount of time.8
OWCP has administrative discretion in choosing the means to achieve the goal of recovery
from a work-related injury and the only limitation on OWCP’s authority is that of reasonableness.9
Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic, and probable
deductions from established facts. It is not enough to merely show that the evidence could be
construed so as to produce a contrary factual conclusion.10

6

On April 3 and December 12, 2017 OWCP issued merit decisions which denied modification of prior decisions
denying appellant’s request for authorization of cervical surgery. Those decisions, however, are null and void as the
Board and OWCP may not simultaneously have jurisdiction over the same case. OWCP may not issue a decision
regarding the same issue on appeal before the Board, in this instance, request for authorization of cervical surgery.
See Russell E. Lerman, 43 ECAB 770, 772 (1992); Douglas E. Billings, 41 ECAB 880 (1990).
7

5 U.S.C. § 8103(a).

8

See Dale E. Jones, 48 ECAB 648-49 (1997).

9

See Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by OWCP is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment or administrative actions which are
contrary to both logic and probable deductions from established facts).
10

See Minnie B. Lewis, 53 ECAB 606 (2002).

7

Once OWCP undertakes development of the record it must do a complete job in procuring
medical evidence that will resolve the relevant issues in the case.11
ANALYSIS
The Board finds this case not in posture for decision.
Dr. Contreras, in his January 20, 2015 report, diagnosed multilevel intervertebral cervical
disc syndrome with cervical radiculopathy, and postoperative conditions of the left shoulder.
Accordingly, in its February 20, 2015 decision, OWCP expanded appellant’s claim to include
multilevel intervertebral cervical disc syndrome with cervical radiculopathy as an additional
accepted condition. Although the condition for which surgery was requested was subsequently
found to be work related, OWCP denied modification of its prior decision denying authorization
for neck surgery without sending Dr. Contreras an updated SOAF and requesting a supplemental
opinion with regard to whether cervical surgery was now warranted.
The SOAF is the means by which factual findings are separated from medical findings and
opinion. This separation of functions is aimed at seeing that the claims examiner does not
inadvertently make medical decisions.12 Without a reasoned medical opinion based on a proper
factual and medical background, resolving the conflict in light of the additional accepted
conditions, the claims examiner in this case inadvertently made a medical decision when he denied
appellant’s request for authorization for surgery.
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement
to compensation, OWCP shares responsibility in the development of the evidence to see that justice
is done. As OWCP undertook development of the evidence by referring appellant to Dr. Contreras,
it had the duty to secure an appropriate report based on a proper factual and medical background,
resolving the conflict in medical opinion.13
On remand, OWCP should provide Dr. Contreras with an updated SOAF and request a
supplemental opinion regarding whether OWCP should authorize the cervical surgery in light of
the subsequent acceptance of intervertebral cervical disc syndrome. After such further
development as deemed necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds this case not in posture for decision.

11

See Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard (Lionel F. Richard), 53 ECAB 430 (2002);
William J. Cantrell, 34 ECAB 1233 (1993); Dorothy L. Sidwell, 36 ECAB 699 (1985).
12

M.H. Docket No. 11-1117 (issued December 2, 2011); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Statements of Accepted Facts, Chapter 2.809.2(c) (September 2009).
13

Supra note 11.

8

ORDER
IT IS HEREBY ORDERED THAT the July 18, 2016 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for additional action consistent with
the Board’s decision.14
Issued: June 18, 2018
Washington, DC

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

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

14
Colleen Duffy Kiko, Judge, participated in this decision, but was no longer a member of the Board effective
December 11, 2017.

9