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

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

Docket No. 09-10
Issued: April 15, 2009

Case Submitted on the Record

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

JURISDICTION
On September 30, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ decision dated June 26, 2008, in which an Office hearing
representative affirmed the termination of his compensation benefits. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over this matter.
ISSUES
The issues are: (1) whether appellant sustained a lumbar condition causally related to the
accepted August 23, 2006 injury; and (2) whether the Office met its burden of proof to terminate
appellant’s compensation benefits for his right ankle condition effective August 21, 2007.
FACTUAL HISTORY
On August 24, 2006 appellant, then a 50-year-old letter carrier, filed a traumatic injury
claim alleging that while delivering mail on August 23, 2006 his foot buckled after stepping off
porch steps. His foot then landed in a hole causing him to fall to the ground thereby injuring his

right ankle and foot. Appellant stopped work on August 28, 2006. The Office accepted his
claim for right ankle sprain. Compensation payments commenced on November 25, 2006.
Appellant submitted treatment notes from Dr. Andrew Siekanowicz, a Board-certified
orthopedic surgeon, dated September 5 through December 21, 2006. In treatment notes dated
September 5 and November 28, 2006, Dr. Siekanowicz noted appellant’s complaint of right
ankle pain and swelling after the August 23, 2006 work injury. He also noted appellant’s
previous low back injury and his history of low back pain and lumbar radiculitis with acute
lumbar strain and spasm secondary to gait alteration and adjustments due to crutch ambulation.
Dr. Siekanowicz concluded the right ankle symptoms were consistent with and directly
attributable to the August 23, 2006 work injury. He stated that appellant’s low back pain was 80
percent directly attributable to the August 23, 2006 work injury and 20 percent residual from his
prior low back injury. Dr. Siekanowicz also stated that appellant was disabled. On
September 14, 2006 he indicated that appellant remained disabled. On October 26, 2006
Dr. Siekanowicz concluded that appellant’s right ankle range of motion had improved with mild
chronic swelling with no deformity.
In an August 28, 2006 treatment note, Dr. Mehru Master, a Board-certified internist,
noted that appellant sprained his ankle after falling five days prior. She diagnosed severe low
back stiffness and right ankle sprain. Dr. Master advised that appellant not work for two weeks.
In a December 15, 2006 letter, he asked the Office to accept his lumbar condition. On
December 21, 2006 Dr. Siekanowicz indicated that the right ankle pain was localizing to the
plantar fascia, metatarsal heads and anteromedial tubercle of the calcaneus due to the right ankle
injury, which had altered appellant’s gait and caused difficulty with plantar fasciitis and
metatarsalgia along with continual radicular pain from the lumbar spine.
On January 3, 2007 the Office referred appellant and a statement of accepted facts to
Dr. Sankara Rao Kothakara, a Board-certified orthopedic surgeon, for a second opinion
evaluation. In a January 25, 2007 report, Dr. Kothakara summarized appellant’s medical history
and the history of the August 23, 2006 work injury. He reviewed prior x-rays of appellant’s right
ankle and compared them with repeated x-rays taken at the examination. Dr. Kothakara
diagnosed an avulsion fracture at the tip of the medial malleolus of the right ankle, which had
healed. He indicated that the right ankle sprain had resolved and there was questionable
aggravation of lumbar disc pathology. Dr. Kothakara noted essentially no tenderness on lumbar
spine examination with straight leg raising to 90 degrees bilaterally. He concluded that
appellant’s right ankle had sufficiently improved for him to return to work. The lumbar spine
problem remained unresolved. Dr. Kothakara recommended a magnetic resonance imaging
(MRI) scan of appellant’s lumbar spine. On February 1, 2007 he reviewed a January 29, 2007
MRI scan of appellant’s lumbar spine and compared it with a lumbar spine MRI scan performed
prior to the August 23, 2006 incident. Dr. Kothakara noted a small disc herniation at L4-5 that
did not significantly change after appellant’s August 23, 2006 work incident. He concluded that
appellant’s ankle had improved with full range of motion. Dr. Kothakara also concluded that
appellant could return to his preinjury job as his back injury was not aggravated by the
August 23, 2006 work incident.

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In a decision dated February 23, 2007, the Office advised appellant that his claim was
accepted for fracture of the medial malleolus of the right ankle.
On February 26, 2007 the Office issued appellant a notice of proposed termination of
compensation, indicating that the weight of the medical evidence demonstrated that appellant’s
work-related condition had resolved and he no longer had any disability or residuals from the
accepted ankle condition.
In a March 28, 2007 letter, appellant’s attorney disagreed with the proposed termination.
He questioned the evaluation by Dr. Kothakara and asserted that the opinions of Drs. Kothakara
and Siekanowicz conflicted.
Appellant submitted treatment notes from Dr. Siekanowicz dated January 30 through
July 20, 2007. On March 2, 2007 Dr. Siekanowicz noted that the right foot and ankle had
minimal pain, but stated that appellant still ambulated with a limp due to discomfort of
metatarsal heads and anteromedial tubercle of the calcaneus. He concluded that it was beyond
reasonable medical certainty that appellant’s back pain was directly attributable and consistent
with the August 23, 2006 incident. Appellant’s ankle and foot injury were significantly
exacerbated and increased the symptoms such that his back required at least evaluation for
epidural injections. On March 23, 2007 Dr. Siekanowicz noted appellant’s right foot and ankle
had decreased pain with a continued limp, which exacerbated his low back pain. On April 17,
2007 he indicated that appellant’s low back had been aggravated by the right ankle injury, which
caused significant gait alteration and altered the biomechanics about the lumbar spine. Right
ankle examination demonstrated decreased pain and tenderness with mild chronic swelling with
mild tenderness at extremes of motion. Dr. Siekanowicz continued submitting reports noting
appellant’s status and continuing disability.
In a letter dated May 7, 2007, the Office notified appellant that there was a conflict in the
medical evidence between Dr. Kothakara, who opined that appellant’s right ankle condition had
resolved and that the ankle condition did not aggravate his preexisting back condition, and
Dr. Siekanowicz, who opined that appellant’s right ankle condition and back pain was directly
attributable to the August 23, 2006 incident. On May 29, 2007 the Office referred appellant and
a statement of accepted facts to Dr. Patrick Noel, a Board-certified orthopedic surgeon, to
resolve the conflict in the medical evidence.
In a June 11, 2007 report, Dr. Noel provided a history of appellant’s August 23, 2006
work incident and medical treatment. He noted that at the time of appellant’s work incident he
had been undergoing treatment for preexisting conditions including herniated lumbar disc.
Dr. Noel indicated that on August 24, 2006 appellant was diagnosed with right ankle sprain and
was put on crutches. He reviewed the medical evidence including reports from Dr. Siekanowicz
and from Dr. Kothakara’s second opinion evaluation. Dr. Noel stated that a March 1, 2006
lumbar spine MRI scan showed a central disc herniation at L4-5 and that a disc prolapse at that
level was diagnosed prior to the August 23, 2006 work injury. He noted appellant’s complaint of
right foot pain on weight bearing but no specific right ankle complaints. Appellant also
complained of left hand, arm and hip numbness and tingling as well as back pain. Examination
revealed appellant’s right ankle had full range of motion, no tenderness and no swelling.
Dr. Noel concluded that appellant’s right ankle injury sustained on August 23, 2006 had

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completely resolved with no permanent disability or residuals.
He also reviewed
Dr. Siekanowicz’s reports noting degenerative disc disease of appellant’s lumbar spine and
diagnosing right lumbar radiculitis. Dr. Noel concluded that appellant’s low back pain was
related to a herniated lumbar disc that preexisted the August 23, 2006 work injury but was not
significantly altered by the work incident. He further concluded that appellant already had
substantial back problems prior to the August 23, 2006 incident. Dr. Noel advised that the
medical findings indicated appellant’s current disability was not related to the August 23, 2006
ankle injury and no further treatment for the right ankle was needed. He also noted that
appellant’s ankle allowed him to return to work but his unrelated herniated lumbar disc could
cause limitations.
In an August 21, 2007 decision, the Office terminated appellant’s compensation benefits
effective that day.
On September 12, 2007 appellant requested an oral hearing, which was held on
February 26, 2008. He submitted treatment notes from Dr. Siekanowicz dated August 31, 2007
through February 26, 2008. Dr. Siekanowicz noted that appellant’s right ankle was stable but
that there was decreased functionable ability in reference to strength, endurance and
proprioception. He also noted that appellant injured his right foot and back when he fell on
August 23, 2006. Dr. Siekanowicz indicated that appellant’s preexisting back condition was
exacerbated due to the fall and subsequent use of crutches. On November 27, 2007 he released
appellant to light duty as of December 3, 2007. In a February 19, 2008 report, Dr. Master opined
that appellant injured his right ankle and back due to a fall on August 28, 2006.
In a June 26, 2008 decision, an Office hearing representative affirmed the Office’s
termination decision finding that the weight of the evidence was properly given to Dr. Noel and
that appellant did not provide sufficient evidence to refute the weight of the evidence. The
hearing representative also found that the evidence did not establish that the employment injury
caused any injury to appellant’s back.
LEGAL PRECEDENT -- ISSUE 1
If a member weakened by an employment injury contributes to a later or other injury, the
subsequent injury will be compensable as a consequential injury, if the further medical
complication flows from the compensable injury, so long as it is clear that the real operative
factor is the progression of the compensable injury, with an exertion that in itself would not be
unreasonable in the circumstances.1
Where appellant claims that a condition not accepted or approved by the Office was due
to his employment injury, he bears the burden of proof to establish that the condition is causally
related to the employment injury.2 Causal relationship is a medical issue and the medical
evidence generally required to establish causal relationship is rationalized medical opinion

1

S.M., 58 ECAB ___ (Docket No. 06-536, issued November 24, 2006).

2

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

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evidence.3 To establish a causal relationship between the condition, as well as any attendant
disability, claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence, based on a complete factual and medical background, supporting such
a causal relationship. Rationalized medical opinion evidence is medical evidence which includes
a physician’s rationalized opinion on the issue of whether there is a causal relationship between
the claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4 Neither the fact that the disease became apparent during a period of
employment, nor the belief of appellant that the disease was caused or aggravated by
employment conditions is sufficient to establish causal relationship.5
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. The implementing regulation states 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 Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.6
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for right ankle sprain and fracture of the medial
malleolus. However, it did not accept his claim for a lumbar condition. Appellant asked that the
Office accepted his back condition and he submitted reports from his physician,
Dr. Siekanowicz, who indicated that the work injury aggravated appellant’s back condition. The
Office properly determined that a conflict existed in the medical evidence as to whether appellant
had a lumbar condition causally related to the August 23, 2006 incident. On one side,
Dr. Siekanowicz, for appellant, opined that appellant’s back condition directly attributed to the
August 23, 2006 work injury. On the other side, the second opinion physician, Dr. Kothakara,
opined that appellant’s back condition was preexisting and was not causally related or
aggravated by the August 23, 2006 incident.
The Office properly referred appellant to Dr. Noel for an impartial medical examination
to resolve the conflict in medical opinion between Drs. Siekanowicz and Kothakara. In order to
determine whether appellant’s lumbar condition was causally related to the August 23, 2006
incident, Dr. Noel reviewed the entire record, performed his own examination of appellant and
3

M.D., 59 ECAB ___ (Docket No. 07-908, issued November 19, 2007).

4

Jennifer Atkerson, 55 ECAB 317 (2004).

5

Ernest St. Pierre, 51 ECAB 623 (2000).

6

R.H., 59 ECAB ___ (Docket No. 07-2124, issued March 7, 2008); see also 5 U.S.C. § 8123(a); 20 C.F.R.
§ 10.321.

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provided detailed findings in a June 11, 2007 report. He noted that appellant had preexisting
herniated lumbar disc with lumbar radiculopathy. Dr. Noel reviewed medical evidence in the
record and noted that this evidence documented that appellant had a central disc herniation at
L4-5 and a disc prolapse at that level was diagnosed and ongoing prior to the August 23, 2006
work injury. He also noted that the condition was not aggravated by the August 23, 2006
incident as evidenced by appellant’s low back complaints that had not been significantly altered
by the injury sustained on August 23, 2006. Dr. Noel advised that there were no medical
findings to indicate that the current disability or condition was related to the August 23, 2006
ankle injury.
The Board finds that the Office properly relied on Dr. Noel’s report in determining that
appellant did not have a lumbar condition causally related to the accepted ankle injury. Dr. Noel
provided a well-reasoned opinion based on a complete and accurate history of appellant’s
medical and factual background. Moreover, he reviewed the medical evidence of record and
performed his own examination of appellant. Therefore, the Office properly accorded special
weight to the impartial medical specialist’s findings.7
Appellant did not submit sufficient medical evidence to overcome the weight of
Dr. Noel’s opinion or to create a new conflict. He submitted treatment notes from
Dr. Siekanowicz reiterating that appellant’s preexisting back condition was exacerbated by the
August 23, 2006 incident. Dr. Siekanowicz did not provide any new rationale to support his
opinion on causal relationship. The Board notes that reports from a physician who was on one
side of a medical conflict that an impartial specialist resolved, are generally insufficient to
overcome the weight accorded to the report of the impartial medical examiner, or to create a new
conflict.8 Other treatment notes submitted by appellant did not explain how his lumbar condition
was aggravated or caused by the accepted right ankle injury. For example, in his February 19,
2008 report, Dr. Master opined that appellant injured his right ankle and back due to a fall but he
did not provide any medical reasoning explaining why the fall at work would have caused a new
back injury or aggravated appellant’s preexisting condition. Therefore, this evidence is
insufficient to establish that the August 23, 2006 work injury also caused or aggravated a back
condition.
Consequently, appellant did not meet his burden of proof in establishing that his lumbar
condition was causally related to the accepted ankle injury.
LEGAL PRECEDENT -- ISSUE 2
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.9 After it has determined that an employee has disability
causally related to his federal employment, the Office may not terminate compensation without
7

See Y.A., 59 ECAB ___ (Docket No. 08-254, issued September 9, 2008) (when a case is referred to an impartial
medical specialist for the purpose of resolving a conflict in medical opinion, the opinion of such specialist, if
sufficiently well rationalized and based on a proper background, must be given special weight).
8

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); see also Dorothy Sidwell, 41 ECAB
857 (1990).
9
Id.; Fermin G. Olascoaga, 13 ECAB 102, 104 (1961).

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establishing that the disability has ceased or that it is no longer related to the employment.10 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.11 The right to medical benefits for
an accepted condition is not limited to the period of entitlement to compensation for disability.
To terminate authorization for medical treatment, the Office must establish that the claimant no
longer has residuals of an employment-related condition, which requires further medical
treatment.12
ANALYSIS -- ISSUE 2
The Office accepted that appellant’s August 23, 2006 work incident caused a right ankle
sprain and fracture of the medial malleolus. It paid appellant appropriate compensation before
terminating his compensation benefits effective August 21, 2007. The Board finds that the
Office has met its burden to establish that all residuals of appellant’s accepted employment
condition had resolved effective August 21, 2007.
The Office properly determined that a conflict existed in the medical evidence as to
whether appellant had any disability or residuals due to his accepted right ankle condition.
Appellant’s treating physician, Dr. Siekanowicz, submitted reports indicating that appellant had
continuing right ankle residuals due to the August 23, 2006 injury. He noted mild chronic
swelling and persistent tenderness of appellant’s right ankle. Dr. Siekanowicz also noted that
appellant ambulated with a limp. He advised that appellant was disabled. On the other hand, the
second opinion physician, Dr. Kothakara, opined that the accepted right ankle condition had
resolved such that appellant could return to work without further treatment.
The Office properly referred appellant to Dr. Noel for an impartial medical examination
to resolve the conflict in medical opinion between Drs. Siekanowicz and Kothakara as to
whether appellant had any disability or residuals due to the accepted ankle condition. In a
June 11, 2007 report, Dr. Noel provided rationale for his opinion that appellant ceased to have
any residuals from his August 23, 2006 employment injury. His review of the medical record as
well as his own examination revealed that appellant had no specific right ankle complaints and
that the right ankle had full range of motion, no tenderness and no swelling. Sensation and
circulation were also found to be normal on examination. Based on these findings, Dr. Noel
concluded that appellant’s right ankle condition had completely resolved with no disability or
residuals allowing appellant to return to preinjury work. His opinion was based on proper factual
and medical history as he had a statement of accepted facts and his report accurately summarized
the relevant medical evidence. Furthermore, Dr. Noel analyzed the case record and his own
findings on examination to support his conclusion regarding appellant’s ankle condition.13 He
10

Vivien L. Minor, 37 ECAB 541 (1986).

11

T.P., 58 ECAB ___ (Docket No. 07-60, issued May 10, 2007); Larry Warner, 43 ECAB 1027 (1992).

12

E.J., 59 ECAB ___ (Docket No. 08-1350, issued September 8, 2008).

13

See Naomi Lilly, 10 ECAB 560 (1959) (the opportunity for and thoroughness of examination, the accuracy and
completeness of the doctor’s knowledge of the facts and medical history, the care of analysis manifested and the
medical rationale expressed in support of the doctor’s opinion are factors which enter into the weight of an
evaluation).

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also addressed, in detail, whether appellant’s disability and residuals of his right ankle condition
had ceased. The Board finds that Dr. Noel’s opinion is sufficiently well rationalized and based
upon a proper factual background such that it is entitled to special weight14 and establishes that
residuals of appellant’s accepted right ankle and foot injury have resolved without residual.
Appellant did not submit sufficient medical evidence to overcome the weight of
Dr. Noel’s opinion. Reports from Dr. Siekanowicz, who was on one side of the conflict that
Dr. Noel resolved,15 provide no new rationale in support of continuing causal relationship for
appellant’s right foot condition and are insufficient to create a new conflict or overcome
Dr. Noel’s report. Likewise, Dr. Master did not offer any medical rationale to support that
appellant had an ongoing work-related right ankle condition.16
Consequently, the weight of the medical evidence rests with Dr. Noel and establishes that
appellant had no continued disability or residuals due to his accepted right ankle condition, and
therefore, the Office met its burden of proof to terminate appellant’s compensation benefits.
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that his
lumbar condition was causally related to the accepted ankle injury. The Board further finds that
the Office met its burden of proof to terminate appellant’s compensation benefits for his right
ankle condition effective August 21, 2007.

14

See supra note 7.

15

See supra note 8.

16

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated June 26, 2008 is affirmed.
Issued: April 15, 2009
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU, Dallas, TX, Employer
__________________________________________

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

Docket No. 13-36
Issued: April 9, 2013

Case Submitted on the Record

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

JURISDICTION
On September 29, 2012 appellant filed a timely appeal from an April 18, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied her claim for
an attendant’s allowance. 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.
ISSUES
The issues are: (1) whether appellant established that her claim should be accepted for
permanent heartburn due to the accepted July 13, 2010 employment injury; and (2) whether
OWCP properly denied appellant an attendant allowance pursuant to 5 U.S.C. § 8111 and 5
U.S.C. § 8103.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 2, 2010 appellant, then a 58-year-old census enumerator, filed a traumatic
injury claim alleging that on July 13, 2010 she bruised both her knees when she tripped and fell
in the performance of duty. She stopped work on July 14, 2010. OWCP accepted appellant’s
claim for neck, back and knee sprain, bilateral internal knee derangement, left knee medial
meniscus tear and left knee Baker’s cyst. Appellant was placed on the periodic rolls.2
In a December 10, 2011 statement, appellant expressed her frustrations with the workers’
compensation process. She stated that it had taken over a year to schedule knee surgery and that
the postponement caused other health conditions, such as permanent heart burn, from her daily
medications. Appellant also requested an attendant’s allowance due to her health and the fact
that she lived by herself. She resubmitted pay slips, pay rate information and statements
regarding her inability to return to work due to her health conditions.
In work capacity evaluation forms dated from September to November 2011, Dr. Jairo D.
Libreros-Cupido, a neurologist, related appellant’s complaint of neck, low back and bilateral
knee pain. Appellant was unable to sit or stand and he authorized her to return to work from one
to two hours a day with restrictions of no twisting or bending, one hour of sitting, walking and
standing and 15 minutes of operating a motor vehicle.
On December 28, 2011 appellant underwent left knee surgery.
In a letter dated December 10, 2011 to OWCP, appellant requested an attendance
allowance due to the fact she lives alone and her current heath conditions.
By letter dated January 11, 2012, OWCP advised appellant of the need to submit
additional evidence to establish that attendant’s services were necessary. It requested a detailed
explanation regarding why she needed an attendant and describing those services with which she
needed assistance. OWCP also requested a physician’s opinion on which medical conditions
required an attendant, what services the attendant would perform and for how long an attendant
was needed.
In a letter dated January 12, 2012, OWCP advised appellant that additional evidence was
needed to establish whether she sustained permanent heartburn as a result of the accepted
July 13, 2010 employment incident.
In a March 8, 2009 report, Dr. Ishwari Prasad, a Board-certified internist who specializes
in gastroenterology, listed appellant’s complaint of indigestion, constipation and pain in her left
flank area. He noted that an April 9, 2008 esophagoscopy gastroscopy duodenoscopy revealed
mild antral gastritis but no ulcer. Dr. Prasad reported that a computerized tomography scan of

2

In a July 21, 2011 work capacity evaluation, Dr. H. Wesley Dykes, a family practitioner, authorized appellant to
return to work with restrictions of no bending, squatting, stooping or kneeling. Appellant returned to work on
August 15, 2011 but stopped again alleging that she was unable to perform her work duties due to deep and
unbearable pain in her hip and knees. She did not return to work.

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the abdomen and pelvic area revealed a gallbladder stone but no other significant findings. He
recommended Metamucil with water daily and other prescribed medication.
In a January 6, 2012 work capacity evaluation form, Dr. Grant Garlick, a Board-certified
orthopedic surgeon, authorized appellant to return to work with restrictions of no walking,
standing, twisting, bending, stooping, pulling or lifting and operating of a motor vehicle at work
or to and from work.
In a January 12, 2012 report, Dr. Libreros-Cupido related appellant’s complaints of neck
pain radiating to the shoulder and down to the hand, constant aching in the mid-back radiating to
the left hip and down to the foot and constant sharp left shoulder pain. He noted her
medications. Upon examination, Dr. Libreros-Cupido observed tenderness and muscle spasms in
the cervical and lumbar paraspinal muscles, sacroiliac and upper trapezius and thoracic
paraspinal muscles. Straight leg raise testing was positive at approximately 60 degrees on the
left. Dr. Libreros-Cupido diagnosed lumbar radiculopathy secondary to disc bulge, cervical
radiculopathy and bilateral knee sprain. Based on appellant’s history and physical findings, there
was a sufficient cause-effect mechanism of injury connected between her subjective
complaints/physical examination and the July 13, 2010 accident. Dr. Libreros-Cupido restricted
appellant from lifting or carrying more than 10 pounds and from performing any repetitive or
heavy exertion with the upper extremities.3
In a February 4, 2012 letter to OWCP, appellant enclosed a disclosure invoice from
Jamie L. Robicheaux to demonstrate that she was duly licensed to care for appellant’s physical
needs. She stated that, following surgery, she was in very bad shape due to her cervical spine
and had difficulty walking and needed someone to help her walk to physician’s visits. Regarding
her heart burn, appellant noted that she submitted a medical report from Dr. Prasad but he did not
mention any “heart burn condition.”
In March 8 and April 6, 2012 reports, Dr. Libreros-Cupido noted appellant’s claim for
neck, low back and bilateral knee pain. He stated that she was unable to sit or stand for
prolonged periods of time and authorized her to return to work with restrictions.
Appellant submitted a massage therapist license for Ms. Robicheaux. She also submitted
a bill from Ms. Robicheaux for postoperative care and transportation. Appellant submitted
various physical therapy evaluation reports.
By decision dated April 18, 2012, OWCP denied appellant’s request for an attendant’s
allowance and her request to have permanent heartburn as an accepted condition. It found that
the medical evidence did not establish that attendant’s services were required. OWCP also found
that the medical evidence did not establish that appellant sustained permanent heartburn as a
result of the accepted injury or her medications.

3

Appellant submitted additional reports dated February 9, March 8 and April 6, 2012 by Dr. Libreros-Cupido that
were basically identical to his January 12, 2012 report.

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LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence, including that any condition not accepted or approved by OWCP was causally related
to the employment injury.5 To establish a causal relationship between the condition claimed, as
well as any attendant disability and the employment event or incident, an employee must submit
rationalized medical evidence based on a complete medical and factual background supporting
such a causal relationship.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.8
ANALYSIS -- ISSUE 1
OWCP accepted that on July 13, 2010 appellant sustained neck, back and knee sprain,
bilateral internal knee derangement and left knee medial meniscus tear and Baker’s cyst.
Appellant stopped work and was placed on the periodic rolls. She now contends that she suffers
from permanent heartburn as a result of the daily medication she is prescribed for her accepted
conditions. The Board finds that appellant has not established that she has permanent heartburn
causally related to her accepted injury.
The only medical evidence describing appellant’s digestive symptoms is Dr. Prasad’s
March 8, 2009 report. He related her complaints of indigestion and constipation and noted that
diagnostic studies revealed mild antral gastritis and gallbladder stone, but no other significant
findings. Although Dr. Prasad provided a diagnosis for appellant’s digestive condition, he does
not offer any opinion on the cause of her current conditions. The Board has held that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.9 Dr. Prasad’s report fails to establish
that appellant’s current condition was causally related to the accepted July 13, 2010 employment
injury.

4

5 U.S.C. §§ 8101-8193.

5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

6

Jennifer Atkerson, 55 ECAB 317 (2004).

7

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

9

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).

4

The remaining medical evidence refers only to treatment for appellant’s neck, back and
bilateral knee conditions. None of the physicians describe any digestive symptoms or complaints
of heartburn or relate how her digestive condition was causally related to the July 13, 2010 work
injury. Thus, the Board finds that appellant failed to submit sufficient medical evidence to
establish that she sustained permanent heartburn as a result of the accepted July 13, 2010 work
injury.
On appeal, appellant relates that after her July 13, 2010 injury she was forced her to take
pills due to her daily pain and that she continues to take medication due to her conditions. She
noted that she takes 780 pills monthly, which have 450 stomach side effects. Despite appellant’s
allegations, however, an award of compensation may not be based on surmise, conjecture,
speculation or upon her own belief that there was a causal relationship between her claimed
condition and her employment.10 Causal relationship is a medical issue that can only be shown
by reasoned medical opinion evidence that is supported by medical rationale.11 Appellant has
not provided such evidence in this case.
Appellant also alleged that an enclosed medical report from Dr. Libreros-Cupido clearly
stated that she suffered from heartburn due to medication. The Board’s jurisdiction, however, is
limited to evidence that was before OWCP at the time it issued its final decision. Since this
evidence was submitted after OWCP’s April 18, 2012 merit decision, the Board may not
consider this evidence for the first time on appeal.12 Appellant may submit that evidence to
OWCP along with a request for reconsideration.
The Board finds that appellant did not meet her burden of proof to establish that she
suffered from any diagnosed heartburn as a result of the accepted July 13, 2010 employment
injury. Thus, OWCP properly denied her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA provides for the furnishing of services, appliances and supplies
prescribed or recommended by a qualified physician which 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 in the amount of monthly compensation.13 In interpreting section 8103(a), the
Board has recognized that OWCP has broad discretion in approving services under FECA to
ensure that an employee recovers from his or her injury to the fullest extent possible in the

10

Patricia J. Glenn, 53 ECAB 159 (2001).

11

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

12

See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB 126 (2005).

13

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

5

shortest amount of time.14 OWCP has administrative discretion in choosing the means to
achieve this goal and the only limitation on its authority is that of reasonableness.15
Section 8111(a) of FECA provides for an attendant’s allowance of an additional sum of
not more than $1,500.00 a month for an employee who has been awarded compensation so long
as OWCP finds that the service of an attendant is necessary constantly because the employee is
totally blind or has lost the use of both hands or both feet or is paralyzed and unable to walk or
because of other disability resulting from injury making him or her so helpless as to require
constant attendance.16 In the exercise of the discretion afforded by 5 U.S.C. § 8111(a), the
Director has determined that, except where payments were being made prior to January 4, 1999,
direct payments to the claimant to cover such services will no longer be made. Rather, the cost
of providing attendant services will be paid under section 8103 of FECA and medical bills for
these services will be considered under 20 C.F.R. § 10.801.17
A claimant bears the burden of proof to establish by competent medical evidence that he
or she requires attendant care within the meaning of FECA.18 The claimant is not required to
need around-the-clock care. He or she has only to have a continually recurring need for
assistance in personal matters. The attendant’s allowance, however, is not intended to pay an
attendant for performance of domestic and housekeeping chores such as cooking, cleaning, doing
the laundry or providing transportation services. It is intended to pay an attendant for assisting a
claimant in his or her personal needs such as dressing, bathing or using the toilet.19 An
14

Dale E. Jones, 48 ECAB 648, 649 (1997).

15

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).
16

5 U.S.C. § 8111(a).

17

This decision is based on the following factors:
“(a) The additional payments authorized under section 8111(a) should not be necessary since
OWCP will authorize payment for personal care services under 5 U.S.C. § 8103, whether or not
such care includes medical services, so long as the personal care services have been determined to
be medically necessary and are provided by a home health aide, licensed practical nurse or
similarly trained individual;
“(b) A home health aide, licensed practical nurse or similarly trained individual is better able to
provide quality personal care services, including assistance in feeding, bathing and using the toilet.
In the past, provision of supplemental compensation directly to injured employees may have
encouraged family members to take on these responsibilities even though they may not have been
trained to provide such services. By paying for the services under section 8103, OWCP can better
determine whether the services provided are necessary and/or adequate to meet the needs of the
injured employee. In addition, a system requiring the personal care provider to submit a bill to
OWCP, where the amount billed will be subject to OWCPs fee schedule, will result in greater
fiscal accountability. 20 C.F.R. § 10.314; see also Federal (FECA) Procedure Manual, Part 2 -Claims, Periodic Review of Disability Cases, Chapter 2.812.7 (March 2010).”

18

Bonnie M. Schreiber, 46 ECAB 989 (1995).

19

Nowling D. Ward, 50 ECAB 496 (1999).

6

attendant’s allowance is not granted simply upon the request of a disabled employee or upon
request of his or her physicians. The need for an attendant care must be established by
rationalized medical opinion evidence.20
ANALYSIS -- ISSUE 2
The record reveals that appellant underwent left knee surgery on December 28, 2011.
She alleges that she requires attendant care under FECA due to her health conditions and the fact
that she lives by herself. Appellant has the burden of proof to submit probative medical evidence
establishing that attendant care is necessary for her personal needs.
Appellant submitted various work capacity evaluation forms and reports from
Drs. Libreros-Cupido and Garlick, who described her complaints of neck, low back and bilateral
knee pain. Both physicians authorized her to return to modified duty with restrictions of no
twisting, bending, stooping, kneeling, climbing and lifting, no prolonged sitting, walking and
standing and very limited operation of motor vehicles. Neither physician, however, discussed
appellant’s need for attendant services or what services she needed assistance with. Although
appellant is restricted from doing several activities, Drs. Libreros-Cupido and Garlick fail to
explain whether she needed recurring help in personal needs such as dressing or bathing.21
These reports are insufficient to establish that her services were medically necessary in this case.
Based on the probative medical evidence, the Board finds that it was reasonable for OWCP to
deny authorization of attendant’s allowance.
Appellant also submitted documents that demonstrated Ms. Robicheaux was a licensed
massage therapist and various bills indicating that she assisted appellant for postoperative care
and transportation. While these documents show that appellant received attendant care, they fail
to establish that she was incapable of dressing or bathing herself as a result of the July 13, 2010
employment injury. As previously noted, an attendant’s allowance is not granted simply upon
the request of a disabled employee or upon request of his or her physicians. The need for an
attendant care must be established by rationalized medical opinion evidence.22
On appeal, appellant alleges that she followed the process and completed the forms
necessary to demonstrate that Ms. Robicheaux met the requirements to perform attendant
services and that Ms. Robicheaux followed all the instructions provided by appellant’s physician
about the care she required after surgery. The qualifications of appellant’s attendant, however,
are not at issue here. OWCP’s decision was based on the medical evidence of record, which
failed to establish by competent medical evidence that appellant required attendant care within
the meaning of FECA.23 The Board has reviewed the medical evidence of record that was before
OWCP at the time it issued its April 18, 2012 decision and finds that OWCP properly
determined that she was not entitled to an attendant’s allowance.
20

Id.

21

Id.

22

Id.

23

Supra note 18.

7

CONCLUSION
The Board finds that appellant failed to establish that her claim should be expanded to
include permanent heartburn due to the accepted July 13, 2010 employment injury. The Board
also finds that OWCP properly found that she was not entitled to an attendant’s allowance under
FECA.
ORDER
IT IS HEREBY ORDERED THAT the April 18, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 9, 2013
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JAMES A. HALEY MEDICAL CENTER,
Tampa, FL, Employer
__________________________________________

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

Docket No. 15-1729
Issued: October 3, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On August 17, 2015 appellant filed a timely appeal from a May 15, 2015 merit decision
and a July 14, 2015 nonmerit 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.2

1
2

5 U.S.C. § 8101 et seq.

Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure.
20 C.F.R. § 501.5(b). By order dated February 19, 2016, the Board exercised its discretion and denied the request,
finding that the arguments on appeal could adequately be addressed based on the case record. Order Denying
Request for Oral Argument, Docket No. 15-1729 (issued February 19, 2016). The Board’s Rules of Procedure
provide that any appeal in which a request for oral argument is not granted by the Board will proceed to a decision
based on the case record and any pleadings submitted. 20 C.F.R. § 501.5(b).

ISSUES
The issues are: (1) whether the Branch of Hearings and Review properly denied
appellant’s request for an oral hearing as untimely; (2) whether appellant has met his burden of
proof to establish permanent impairment of a scheduled member.
FACTUAL HISTORY
On June 30, 2006 appellant, then a 48-year-old medical supply technician, filed a
traumatic injury claim (Form CA-1) alleging that he developed pain in his lower back when
opening an autoclave door in the performance of duty. OWCP accepted his claim for
lumbosacral joint sprain on September 18, 2006.
Appellant underwent a lumbar magnetic resonance imaging (MRI) scan on December 22,
2006 which demonstrated moderate stenosis at L5-S1, with moderate disc bulge, and mild disc
bulge at L3-4 and L4-5. The scan exhibited lumbar spinal stenosis, lumbar disc degeneration,
and lumbosacral spondylosis without myelopathy.
On May 1, 2008 OWCP accepted appellant’s claim for the additional conditions of
herniated disc at L4-5 with left nerve root impingement. Appellant underwent authorized
anterior lumbar discectomy at L3-4 and L4-5 with multilevel L3 to S1 spinal fusion on
June 23, 2008.
On April 16, 2008 appellant underwent a second lumbar MRI scan which demonstrated
congenital canal stenosis exacerbated by disc bulges from L2-3 to L4-5, and left disc protrusion
at L4-5 with impingement on the left L5 nerve root. He resigned from the employing
establishment on January 26, 2009 and was placed on wage-loss compensation.
By decision dated January 11, 2010, OWCP terminated appellant’s wage-loss
compensation for wage loss effective January 11, 2010. Appellant requested reconsideration on
February 9, 2010. By decision dated February 17, 2010, OWCP declined to reopen his claim for
consideration of the merits. Appellant requested an oral hearing from OWCP’s Branch of
Hearings and Review on March 29, 2010.
On April 14, 2010 appellant underwent a computerized tomography (CT) scan of the
lumbar spine. This scan demonstrated mild loss of disc space and height at L2-3, disc bulge, and
mild stenosis at that level. At L3-4 appellant’s CT indicated disc bulge, mild stenosis, and
thickening of the ligamentum flavum. Appellant also demonstrated disc bulge at L4-5 with
thickening of the ligamentum flavum and mild stenosis. At L5-S1 he had disc bulge with no
canal or foraminal stenosis.
By decision dated May 11, 2010, OWCP’s Branch of Hearings and Review denied
appellant’s request for an oral hearing as he had previously requested reconsideration on the
same issue and as the issue could equally well be addressed through the reconsideration process.
Appellant underwent a lumbar MRI scan on May 13, 2010 which demonstrated a broad
disc bulge at L3-4 with facet and ligamentum flavum hypertrophy resulting in mild canal and

2

bilateral foraminal stenosis. He underwent an additional MRI scan on June 23, 2011 which
showed straightening of the normal lumbar lordosis, and broad-based disc bulge at L2-3.
On November 29, 2011 appellant underwent a nerve conduction velocity (NCV) study of
the lower extremities. This testing revealed radiculopathy in the L5 distribution.
Appellant underwent additional NCV study testing on April 3, 2013 which demonstrated
a mild-to-moderate degree of motor demyelination neuropathy of the left deep peroneal motor
nerve, left posttibial nerve, right deep peroneal nerve, and right posttibial nerve. His NCV study
dated January 7, 2014 was suggestive of L5 radiculopathy on the right as well as possible
posterior tarsal tunnel syndrome. Appellant underwent a lumbar MRI scan on June 5, 2014
which demonstrated a broad-based central disc herniation at L2-3.
On March 21, 2015 appellant filed a claim for schedule award compensation (Form
CA-7). In support of this request, he submitted a report dated January 6, 2015 from
Dr. Richard M. Blecha, an orthopedic surgeon, addressing appellant’s permanent impairment.
Dr. Blecha described appellant’s history of injury in 2006 as well as his back surgery in 2008.
He noted appellant’s symptoms of constant low back pain radiating to the posterolateral aspect of
both legs down to the feet.
On physical examination Dr. Blecha found that appellant exhibited difficulty sitting,
rising, and moving on and off the examination table. He reported that appellant had tenderness
in the midline and paraspinous areas as well as the sciatic notch. Dr. Blecha found loss of range
of motion in the lumbar spine. He indicated that appellant’s deep tendon reflexes were moderate
and symmetrical with slight loss of muscle strength in the quadriceps on the left. Appellant had
positive straight leg raising at 50 degrees bilaterally as well as slight hypoesthesia in the L3
nerve root distribution on the left. Dr. Blecha examined appellant’s diagnostic studies and found
herniated disc at L2-3 as well as L5 radiculopathy on the right based on NCV study. He
diagnosed herniated disc at L2-3, lumbar degenerative disc disease, and lumbar radiculitis.
Dr. Blecha determined that appellant reached maximum medical improvement and
applied the American Medical Association, Guides to the Evaluation of Permanent Impairment3
and the appropriate newsletter. He found a mild sensory deficit with a default grade of 1 and
mild motor deficit with a default value of 3. Dr. Blecha reported a functional history grade
modifier of 1, clinical studies grade modifier of 2 based on appellant’s MRI scan findings of
moderate pathology, and found that physical examination grade modifier was excluded as this
defined the impairment values. He determined that appellant had sensory impairment of one
percent and motor grade impairment of four percent for a total impairment rating of five percent
for the left lower extremity.
OWCP provided this report to a medical adviser and on March 16, 2015 the medical
adviser requested additional electrodiagnostic studies and a second opinion examination to
determine appellant’s permanent impairment for schedule award purposes.

3

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

3

On March 19, 2015 OWCP referred appellant for a second opinion evaluation with
Dr. William Dinenberg, a Board-certified orthopedic surgeon. It also referred appellant for
updated diagnostic studies.
In a report dated April 8, 2015, Dr. Dinenberg described appellant’s history of injury and
medical treatment. On examination he found that appellant had a slow antalgic gait on the left
with loss of lumbar flexion and extension. Dr. Dinenberg found positive straight leg raising on
the left with normal muscle strength in the lower extremities. He noted that appellant reported
decreased sensation circumferentially involving the entirety of the left calf and left foot as
compared to the right stocking distribution. Dr. Dinenberg reported that appellant’s right lower
extremity exhibited normal sensation to light touch. He diagnosed herniated nucleus pulposus at
L4-5 and postlaminectomy or failed back syndrome of the lumbar spine.
Dr. Dinenburg determined that appellant had reached maximum medical improvement by
January 6, 2015, but requested additional electromyogram (EMG) and NCV studies of the
bilateral lower extremities.
On May 11, 2015 OWCP’s medical adviser reviewed Dr. Dinenberg’s April 8, 2015
report and found that he had provided an excellent objective review of appellant’s case. He
agreed with Dr. Dinenberg’s impairment rating but noted that the new diagnostic studies were
not in the record. The medical adviser asked that they be referred to him for further review once
they were completed.
The new EMG/NCV studies were forwarded to Dr. Dinenberg on April 9, 2015. In his
supplemental report dated May 4, 2015, Dr. Dinenburg reviewed April 9, 2015 test results and
found no evidence of electrical instability in appellant’s lower extremities. He stated that
appellant’s NCV study was normal with no evidence of nerve entrapment or peripheral
neuropathy. Dr. Dinenberg further found that appellant’s EMG study of the lower extremities
was normal with no electrodiagnostic evidence of lumbar radiculopathy.
Applying the A.M.A., Guides to appellant’s physical findings and test results
Dr. Dinenberg determined that appellant had no ratable impairment. He noted that appellant had
normal EMG/NCV studies and normal motor strength. Dr. Dinenberg reported that appellant’s
decreased sensation was in a nonphysiologic pattern involving the entirety of the left calf and left
foot. He concluded that there was no specific spinal nerve impairment and no ratable
impairment for the spinal nerve on appellant.
In a supplemental report dated May 11, 2015 and received by OWCP on May 15, 2015,
the medical adviser reviewed the new diagnostic studies and agreed that appellant had no
permanent impairment due to the accepted conditions.
He noted that appellant’s
electrodiagnostic studies were normal and found appellant had no ratable impairment under the
A.M.A., Guides.
By decision dated May 15, 2015, OWCP denied appellant’s claim for a schedule award.
It found that the weight of the medical evidence rested with Dr. Dinenberg and OWCP’s medical

4

adviser who agreed that there was no evidence of impairment of appellant’s left lower extremity
due to his accepted lumbar injury.4
Appellant requested an oral hearing from OWCP’s Branch of Hearing and Review on
June 17, 2015. The envelope in the record establishes that appellant’s request was postmarked
on this date.
By decision dated July 14, 2015, OWCP’s Branch of Hearings and Review denied
appellant’s request for an oral hearing on the basis that his request was not made within 30 days
of the May 15, 2015 decision. The Branch of Hearings and Review further found that the issue
in the case could equally well be addressed through the reconsideration process and by
submitting evidence of permanent impairment resulting from his accepted conditions.
LEGAL PRECEDENT -- ISSUE 1
A claimant, injured on or after July 4, 1966, who has received a final adverse decision by
OWCP, may obtain a hearing by writing to the address specified in the decision.5 The hearing
request must be sent within 30 days (as determined by postmark or other carrier’s date marking)
of the date of the decision for which a hearing is sought. The claimant must not have previously
submitted a reconsideration request (whether or not it was granted) on the same decision. If the
request is not made within 30 days, a claimant is not entitled to a hearing as a matter of right.
However, the Branch of Hearings and Review may exercise its discretion to either grant or deny
a hearing.6
ANALYSIS -- ISSUE 1
In the instant case, OWCP properly determined that appellant’s June 17, 2015 request for
an oral hearing was untimely filed, as it was made more than 30 days after the issuance of the
OWCP’s May 15, 2015 decision. It, therefore, properly denied appellant’s hearing as a matter of
right.
OWCP then proceeded to exercise its discretion, in accordance with Board precedent, to
determine whether to grant a hearing in this case. It determined that a hearing was unnecessary
as the issue could be resolved through the submission of evidence in the reconsideration process.
Therefore, OWCP properly denied appellant’s request for a hearing as untimely and properly
exercised its discretion to deny appellant’s request for a hearing.

4

Following OWCP’s May 15, 2015 decision, appellant submitted additional evidence to OWCP. As OWCP did
not review this evidence in reaching a final decision, the Board may not consider it for the first time on appeal.
20 C.F.R. § 10.501.2(c).
5

Id. at § 10.616(a).

6

5 U.S.C. §§ 8124(b)(1) and 8128(a); Hubert Jones, Jr., 57 ECAB 467, 472-73 (2006); Herbert C. Holley, 33
ECAB 140 (1981).

5

LEGAL PRECEDENT -- ISSUE 2
The schedule award provision of FECA,7 and its implementing federal regulations,8 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.9 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides is to be used.10
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, under FECA a schedule award is not payable for injury to the spine.11 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.12
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides has offered an alternative
approach to rating spinal nerve impairments.13 OWCP has adopted this approach for rating
impairment of the upper or lower extremities caused by a spinal injury, as provided in section
3.700 of its procedures, which memorializes proposed tables outlined in July/August 2009 The
Guides Newsletter.14
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.803.5a (February 2013) and Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
10

Id.

11

Thomas J. Engelhart, 50 ECAB 319 (1999).

12

Rozella L. Skinner, 37 ECAB 398 (1986).

13

FECA Transmittal No. 10-04 (issued January 9, 2010); supra note 9 at Part 3 -- Medical, Schedule Awards,
Chapter 3.700, Exhibit 1 (January 2010).
14

See supra note 9 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(f)
(February 2013).

6

percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.15
ANALYSIS -- ISSUE 2
The Board finds the case not in posture for a decision on the issue of whether appellant
met his burden of proof to establish permanent impairment to a scheduled member due to his
accepted lumbar conditions. OWCP accepted appellant’s claim for lumbar sprain, L4-5 disc
herniation with impingement, and lumbar surgery.
In support of his claim for a schedule award, appellant submitted a report from
Dr. Blecha addressing his permanent impairment. Dr. Blecha examined appellant’s 2014
diagnostic studies and found herniated disc at L2-3 as well as L5 radiculopathy on the right
based on NCV study. He diagnosed herniated disc at L2-3, lumbar degenerative disc disease,
and lumbar radiculitis. Dr. Blecha determined that appellant had both motor and sensory
impairments of the left lower extremity due to his accepted employment injuries through
application of the A.M.A. Guides.
OWCP referred appellant for additional diagnostic testing and a second opinion
evaluation with Dr. Dinenberg. Dr. Dinenberg reviewed appellant’s 2015 electrodiagnostic tests
which were read as normal and found that his decreased sensation was in a nonphysiologic
pattern involving the entirety of the left calf and left foot. He concluded that there was no
specific spinal nerve impairment and no ratable impairment for the spinal nerve in appellant’s
left lower extremity.
OWCP’s medical adviser was provided a copy of Dr. Dinenberg’s supplemental report
and the new EMG/NCV studies and in his May 11, 2015 report he agreed with no permanent
impairment. OWCP issued the schedule award decision denying any permanent impairment the
next day. OWCP’s procedures require that if an OWCP medical adviser provides a detailed and
rationalized opinion but does not concur with the claimant’s physician or second opinion rating,
and the claimant has had an opportunity to submit the necessary evidence, the evidence should
be weighed to determine whether a conflict exists.16 The Board finds that, contrary to this
procedure, appellant had no opportunity to respond to the new diagnostic studies or to allow his
treating physician an opportunity to review the studies and provide an updated impairment
rating. OWCP has an obligation to see that justice is done.17 As OWCP began the development
of the medical evidence by referral to Dr. Dinenberg and further electrodiagnostic studies, it
should complete the process in keeping with its procedures and its obligation to ensure that
justice is done.

15

Supra note 11.

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability, Chapter
2.808.6(f)(2)(e) (June 2013).
17

John J. Carlone, 41 ECAB 354, 358-60 (1989).

7

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a hearing. The
Board further finds the case not in posture for a decision with regard to appellant’s schedule
award claim, as it requires additional development of the medical opinion evidence regarding
appellant’s permanent impairment.
ORDER
IT IS HEREBY ORDERED THAT the July 14, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed. It is further ordered that the May 15, 2015
decision is set aside and remanded for further development consistent with this decision of the
Board.
Issued: October 3, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


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

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

Docket No. 14-405
Issued: May 15, 2014

Case Submitted on the Record

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

JURISDICTION
On December 12, 2013 appellant filed a timely appeal from a June 14, 2013 Office of
Workers’ Compensation Programs’ (OWCP) decision which denied her reconsideration request
on the grounds that it was untimely filed and failed to present clear evidence of error. Because
more than 180 days elapsed from the most recent OWCP merit decision, dated September 7,
2011, to the filing of this appeal on December 12, 2013, the Board lacks jurisdiction to review
the merits of her claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was not timely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
On September 20, 2000 appellant, then a 53-year-old clerk, filed a Form CA-2,
occupational disease claim alleging left wrist tendinitis and lumbar disc syndrome since
September 1998 as a result of performing her clerk duties. OWCP accepted her claim for

de Quervain’s disease of the left wrist and lumbar sprain/strain. Appellant did not stop work but
returned to light duty.
From June 26, 1995 to March 19, 2003, appellant came under the treatment of Dr. H.S.
Pabla, a Board-certified orthopedic surgeon, for low back and shoulder pain. In a June 26, 1995
report, Dr. Pabla noted findings on examination of the lumbar spine and right shoulder and
diagnosed lower back pain and bilateral shoulder impingement syndrome. On March 19, 2003
he noted mild lumbar paravertebral muscle spasm with tenderness at L4-5 and L5-S1, intact
motor and sensory examination, tenderness over the carpometacarpal joint on the left wrist and
positive Phalen’s test. Dr. Pabla diagnosed carpal tunnel syndrome, carpometacarpal arthritis
and lower back syndrome. He opined that appellant’s symptoms were causally related to her
work.
On September 14, 2007 appellant was treated by Dr. Sashidhar S. Movva, a Boardcertified neurologist, for worsening left leg, back and hand pain. She reported temporary relief
from epidural injections and physical therapy. Dr. Movva recommended treatment modalities
and advised that appellant may not be able to return to work due to persistent debilitating
symptoms. He diagnosed lumbar radiculopathy and carpal tunnel syndrome and recommended
physical therapy and epidural injections. On September 5, 2007 Dr. Dongzin Hur, Boardcertified in pain medicine, noted appellant’s symptoms and lumbar diagnoses. He stated that she
was unable to work and recommended epidural injections. Dr. Hur subsequently requested
OWCP to authorize the treatment.
On April 14, 2008 OWCP advised appellant that the evidence was not sufficient to
authorize fluoroguide or foramen epidural injections. It asked that she provide a reasoned
opinion from her physician regarding how her work caused the need for the requested procedure.
On April 25, 2008 Dr. Reza Ghorbani, a Board-certified orthopedist, administered a
lumbar epidural injection. On May 21, 2008 appellant was treated by Dr. Sagar Nootheti, a
Board-certified orthopedic surgeon, for low back pain radiating into the buttocks. Dr. Nootheti
recommended epidural steroid injections due to disabling persistent symptoms since 1998.
In a decision dated May 13, 2009, OWCP denied authorization for lumbar epidural
foramen injections on the grounds that the medical evidence was insufficient to establish the
requested procedures were related to her accepted work injury.
Appellant requested reconsideration and submitted an October 5, 2007 report from
Dr. Rajeev Batra, a Board-certified internist, who treated appellant for back pain radiating into
her left leg and in her hands. Dr. Batra noted that appellant continued to have symptoms of back
and hand pain and recommended that she retire. He diagnosed lumbar radiculopathy and carpal
tunnel syndrome and recommended epidural injections and physical therapy. In an October 1,
2009 report, Dr. Nootheti noted that appellant worked as a clerk and her work duties involved
lifting, pushing and pulling postal equipment with boxes. Appellant experienced low back pain
radiating into the left leg and left wrist pain. Dr. Nootheti diagnosed spinal canal stenosis at
L3-4 and L4-5, discogenic disc disease and left-sided radiculopathy causally related to her
September 1, 1998 work accident. He advised that appellant’s condition had not improved with
epidurals, physical therapy and anti-inflammatories. In an October 23, 2009 report, Dr. Nootheti

2

noted appellant’s continued complaints of lower lumbar spine pain radiating into the buttocks
and diagnosed canal stenosis at L3-4 and L4-5, discogenic disc disease and left-sided
radiculopathy. He opined that because appellant’s lower lumbar spine pain radiated into the left
lower extremity appellant required treatment including physical therapy, epidurals and facet
blocks.
In a decision dated March 16, 2010, OWCP denied modification of the May 13, 2009
decision.
On June 6, 2010 appellant requested reconsideration. She asserted that she provided
sufficient evidence to establish that her herniated discs were work related and requested that her
medical expenses be covered. Appellant submitted a copy of her Form CA-2 and reports from
Dr. Pabla previously of record. A November 11, 2003 lumbar spine MRI scan revealed
worsening of discogenic disease at L4-5, small central subligamentous herniated nucleus
pulposus and central spinal stenosis at L4-5.
In a decision dated September 17, 2010, OWCP denied modification of the decision
dated March 16, 2010.
On August 19, 2011 appellant requested reconsideration. She asserted that the diagnosed
spinal stenosis and disc bulges were causally related to performing repetitive duties as a clerk
and that causal relationship was established through the reports from her physician and the MRI
scan studies. Appellant submitted a February 7, 2011 report from Dr. Nootheti who treated
appellant for persistent lower lumbar spine pain radiating into the left leg. Dr. Nootheti noted
that the MRI scan reports confirmed spinal stenosis at L3-4 and L5-S1 with discogenic disc
disease. He opined that appellant’s current symptoms were causally related to the accident of
September 1, 1998 and recommended her case be reopened for medical treatment for these
conditions.
In a decision dated September 7, 2011, OWCP denied modification of the decision dated
September 17, 2010.
In a letter and appeal request form dated September 3, 2012, received on September 13,
2012, appellant requested reconsideration. She asserted that the previously submitted evidence
was not properly considered. Appellant contended that her lumbar sprain/strain and
de Quervain’s disease of the left wrist worsened. She referenced the reports of Drs. Nootheti,
Pabla and Batra, who opined that her current symptoms of lower lumbar pain radiating into her
leg were causally related to her employment injury of September 1, 1998. Appellant requested
that her case be reopened as her accepted work-related injury has worsened. In statements dated
January 25 and May 28, 2013, she requested a status of her reconsideration request. Appellant
indicated that she has significant problems and was unable to function. She submitted a
March 19, 2003 report from Dr. Pabla, a September 14, 2007 report from Dr. Movva, an
October 5, 2007 report from Dr. Batra and an October 1, 2009 report from Dr. Nootheti, all
previously of record.
By decision dated June 14, 2013, OWCP denied appellant’s request for reconsideration as
it was untimely and did not establish clear evidence of error.

3

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”1
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the
implementing regulations provide that an application for reconsideration must be received within
one year of the date of OWCP’s decision for which review is sought.2 However, OWCP will
reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the
claimant’s application for review shows clear evidence of error on the part of OWCP in its most
recent merit decision. To establish clear evidence of error, a claimant must submit evidence
relevant to the issue that was decided by OWCP. The evidence must be positive, precise and
explicit and must be manifest on its face that OWCP committed an error.3
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.4
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to establish clear evidence of error.5 It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.6 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of OWCP.7 The Board makes an independent determination
as to whether a claimant has submitted clear evidence of error on the part of OWCP.8

1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.607(a).

3

Id. at 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

4

Annie L. Billingsley, 50 ECAB 210 (1998).

5

Jimmy L. Day, 48 ECAB 652 (1997).

6

Id.

7

Id.

8

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765,770 (1993).

4

ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. OWCP’s procedures provide that the one-year time limitation period for
requesting reconsideration begins on the date of the original OWCP decision.9 A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.
As appellant’s September 3, 2012 request for reconsideration, received on September 13, 2012,
was not received within one year after the most recent merit decision of September 7, 2011 it
was untimely.10 Consequently, she must demonstrate clear evidence of error by OWCP in
denying her claim for compensation.
The Board also finds that appellant has not established clear evidence of error on the part
of OWCP. Appellant’s September 3, 2012 letter asserted that the previously submitted evidence
was not properly considered. She asserted that her ongoing accepted conditions of lumbar
sprain/strain and de Quervain’s disease of the left wrist have worsened. Appellant referenced
reports from Drs. Nootheti, Pabla and Batra who opined that her current symptoms of lower
lumbar pain radiating into her leg were causally related to her employment accident of
September 1, 1998. She requested that her case be reopened as her accepted work-related injury
has worsened. In statements dated January 25 and May 28, 2013, appellant indicated that she
had significant problems and was unable to function. While she addressed her disagreement
with OWCP’s denial of epidural injections for her back condition, her general allegations do not
raise a substantial question as to the correctness of OWCP’s decision. OWCP properly found
that appellant’s statements of September 3, 2012 and January 25 and May 28, 2013 did not
establish clear evidence of error.
The Board notes that the underlying issue is medical in nature and that on reconsideration
appellant submitted additional medical evidence. Appellant submitted a March 19, 2003 report
from Dr. Pabla, a September 14, 2007 report from Dr. Movva, an October 5, 2007 report from
Dr. Batra and an October 1, 2009 report from Dr. Nootheti, all previously of record. OWCP had
previously considered this evidence and appellant, in submitting these documents, did not
explain how this evidence was positive, precise and explicit in manifesting on its face that
OWCP committed an error in denying her claim for compensation. It is not apparent how
resubmission of this evidence is sufficient to raise a substantial question as to the correctness of
OWCP’s decision. Thus, these reports are insufficient to discharge appellant’s burden of proof.
The Board notes that clear evidence of error is intended to represent a difficult standard.
The submission of a detailed well-rationalized medical report which, if submitted before the
9

20 C.F.R. § 10.607(a).

10

In computing the time for requesting reconsideration, the date of the event from which the designated period of
time begins to run shall not be included when computing the time period. However, the last day of the period so
computed shall be included unless it is a Saturday, a Sunday or a legal holiday. One year from September 7, 2011 is
September 7, 2012. The time for requesting reconsideration of OWCP’s September 7, 2011 decision began to run
on September 8, 2011, and thus would have expired on September 7, 2012. As appellant’s request for
reconsideration was not received until September 13, 2012, it was not timely. See Debra McDavid, 57 ECAB
149 (2005); John B. Montoya, 43 ECAB 1148 (1992).

5

denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error.11
Thus, appellant has not established clear evidence of error by OWCP in its June 14, 2013
decision.
CONCLUSION
The Board finds that appellant’s request for reconsideration dated September 3, 2012 was
untimely filed and did not demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the June 14, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 15, 2014
Washington, DC

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

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

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

11

D.G., 59 ECAB 455 (2008).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
U.S. POSTAL SERVICE, ENERGY CENTER
STATION, Lafayette, LA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-197
Issued: June 12, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On October 28, 2011 appellant filed a timely appeal from a May 3, 2011 final
overpayment decision of the Office of Workers’ Compensation Programs (OWCP). The claim
was docketed as No. 12-197.
The Board has duly considered the matter and notes that in the case of William A.
Couch,1 the Board held that, when adjudicating a claim, OWCP is obligated to consider all
relevant evidence properly submitted by a claimant and received by OWCP before the final
decision is issued. By letter dated March 23, 2011, OWCP issued a preliminary determination
that appellant received an overpayment in compensation in the amount of $24,739.26 for the
period January 21, 2004 to April 2, 2007 because she was paid compensation at a rate of 40
hours per week instead of a 30 hours per week rate, to which she was entitled. OWCP found
appellant not at fault in the creation of the overpayment. Appellant was provided an
overpayment action request form and an overpayment questionnaire. On April 20, 2011 she
submitted the overpayment action request, overpayment questionnaire and additional financial
information. This was received by OWCP on April 26, 2011. By decision dated May 3, 2011,
OWCP finalized the preliminary overpayment decision, finding that appellant received an
overpayment in compensation in the amount of $24,439.26 and, while she was not at fault, she
1

41 ECAB 548 (1990); see Willard McKennon, 51 ECAB 145 (1999).

was not entitled to waiver of the overpayment because she did not respond to the preliminary
decision. Appellant was informed that she should begin monthly payments of $700.00.2
In its final overpayment decision dated May 3, 2011, OWCP indicated that appellant had
not responded to the preliminary finding of March 23, 2011. Appellant submitted additional
evidence, received by OWCP on April 26, 2011. On the overpayment action request, she
asserted that she was working more than 40 hours a week before the employment injury.
Appellant also submitted an overpayment questionnaire and additional financial information
relevant to the issue of whether any overpayment should be waived. This evidence and argument
were not considered by OWCP when rendering the May 3, 2011 decision. Thus, the case must
be remanded for OWCP to review the evidence submitted on April 26, 2011, to be followed by
an appropriate decision regarding whether an overpayment of compensation was created.
IT IS HEREBY ORDERED THAT May 3, 2011 decision of the Office of Workers’
Compensation Programs be vacated and the case remanded to OWCP for proceedings consistent
with this order of the Board.
Issued: June 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2

At the time the May 3, 2011 decision was rendered, appellant was not receiving wage-loss compensation.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Porthill, ID, Employer
__________________________________________

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

Docket No. 21-1336
Issued: March 11, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 4, 2021 appellant filed a timely appeal from March 16 and August 30, 2021
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On July 30, 2019 appellant, then a 54-year-old customs and border patrol officer, filed an
occupational disease claim (Form CA-2) alleging that he sustained Valley Fever
(coccidioidomycosis) causally related to factors of his federal employment while deployed to the
1

5 U.S.C. § 8101 et seq.

southern border. He noted that he first became aware of his claimed condition and its relation to
his federal employment on July 12, 2019. On July 12, 2019 Dr. Jonathan Klaucke, a Boardcertified orthopedic surgeon, performed left ankle surgery, later authorized by OWCP, which
included incision, drainage, and washing out of the left subtalar and tibiotalar joints. Appellant
stopped work on the date of the surgery and returned to work in late-July 2019 in a light-duty
position. Dr. Klaucke provided follow-up care until late-December 2019. After development of
the evidence, OWCP accepted appellant’s claim for Valley Fever and septic arthritis of the left
ankle.
On May 3, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule
award due to his accepted work-related conditions.
In a May 11, 2020 development letter, OWCP requested that appellant submit an
impairment rating report, which applied the standards of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).2 It afforded
him 30 days to submit the requested evidence.
OWCP subsequently received a May 18, 2020 letter in which appellant requested that
OWCP send him for a second opinion examination and evaluation to assess his permanent
impairment.
On December 14, 2020 OWCP referred appellant, along with a statement of accepted facts
(SOAF), for a second opinion examination and evaluation with Dr. Steven Nadler, a Boardcertified orthopedic surgeon. It requested that Dr. Nadler provide an opinion on the permanent
impairment of appellant’s left lower extremity under the standards of the sixth edition of the
A.M.A., Guides.
In a January 28, 2021 report, Dr. Nadler discussed appellant’s factual and medical history
and reported the findings of his physical examination. He noted that appellant had a well-healed
scar on his left ankle and indicated that the septic arthritis would affect the left ankle joint and
leave patients with residual symptoms. Dr. Nadler opined that appellant reached maximum
medical improvement (MMI) on April 29, 2020 and indicated that he had ordered weight-bearing
x-rays of the ankles to determine if there was any loss of cartilage space. In a February 4, 2021
addendum report, he concluded that, based on his examination and review of x-ray testing,
appellant had no impairment of the left lower extremity due to his accepted left ankle conditions
under the sixth edition of the A.M.A., Guides. Dr. Nadler indicated that February 1, 2021 x-ray
testing of the right ankle revealed that the joint space was preserved and noted, “[b]ased on this
ﬁnding that the joint space is preserved and equal to that of the left, the patient is not entitled to an
impairment rating at this time as a result of his injury at work.”
On February 8, 2021 OWCP referred appellant’s case to Dr. David Krohn, a Boardcertified internist serving as an OWCP district medical adviser (DMA). It requested that Dr. Krohn

2

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

2

review the evidence of record, including Dr. Nadler’s reports, and provide an opinion on left lower
extremity permanent impairment under the standards of the sixth edition of the A.M.A., Guides.
In a March 11, 2021 report, Dr. Krohn indicated his agreement with Dr. Nadler that
appellant did not have permanent impairment under the sixth edition of the A.M.A., Guides. He
explained that, under Table 16-2 on page 506, permanent impairment for arthritis could only be
assigned when there was x-ray evidence of mild osteophytes with impingement, full-thickness
cartilage defect, cystic changes on one side of the joint, focal areas of avascular necrosis, or
ununited osteochondral fracture. Dr. Krohn added that, alternately, subtalar joint impairment
could be assigned for a cartilage interval of less than two millimeters or, with respect to the
tibiotalar joint, for a cartilage interval of less than three millimeters. He noted that weight-bearing
x-rays of the ankles ordered by Dr. Nadler on February 1, 2021 demonstrated that the articular
surfaces were smooth with normal cartilage intervals of the tibiotalar and subtalar joints.
Dr. Krohn opined that, therefore, appellant had preserved joint spaces without radiographic
evidence of arthritis. There was no narrowing of the cartilage interval on the left compared with
the right. Dr. Krohn indicated that, given that the radiologist’s interpretation of the left ankle
x-rays demonstrated normal appearing ankle joints symmetrically, “impairment for arthritis of the
subtalar and tibiotalar joints each is Class 0, correlating with zero percent impairment of the left
lower extremity” under Table 16-2 of the sixth edition of the A.M.A., Guides.
By decision dated March 16, 2021, OWCP denied appellant’s schedule award claim,
finding that the weight of the medical opinion evidence regarding left lower extremity permanent
impairment rested with the opinions of Dr. Nadler, OWCP’s referral physician, and Dr. Krohn, the
DMA.
On March 23, 2021 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings Review. During the hearing held on July 7, 2021, he testified that
he still experienced pain in his left ankle.
By decision dated August 30, 2021, OWCP’s hearing representative affirmed the
March 16, 2021 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA 3 and its implementing federal regulations 4 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 b e determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants and the Board has

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

3

concurred in such adoption.5 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used
to calculate schedule awards. 6
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the ankle, the relevant portion of the leg for the present case, reference
is made to Table 16-2 (Foot and Ankle Regional Grid) beginning on page 501. 7 After the class of
diagnosis (CDX) is determined from Table 16-1 (including identification of a default grade value),
the net adjustment formula is applied utilizing modifiers for functional history, physical
examination, and clinical studies.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
In a January 28, 2021 report, OWCP’s referral physician, Dr. Nadler, discussed appellant’s
factual and medical history and reported the findings of his physical examination. He noted that
appellant had a well-healed scar on his left ankle and opined that he reached MMI on
April 29, 2020. Dr. Nadler ordered weight-bearing x-rays of the ankles to determine if there was
any loss of cartilage space. In a February 4, 2021 addendum report, he concluded that, based on
his examination and review of x-ray testing, appellant had no permanent impairment of the left
lower extremity due to his accepted left ankle conditions under the six th edition of the A.M.A.,
Guides. Dr. Nadler indicated that February 1, 2021 x-ray testing of the right ankle revealed that
the joint space was preserved and noted, “[b]ased on this ﬁnding that the joint space is preserved
and equal to that of the left, the patient is not entitled to an impairment rating at this time as a result
of his injury at work.”
In his March 11, 2021 report, DMA Dr. Krohn indicated his agreement with Dr. Nadler
that appellant did not have permanent impairment under the sixth edition of the A.M.A., Guides.
He explained that, under Table 16-2 on page 506, permanent impairment for arthritis could only
be assigned when there was x-ray evidence of mild osteophytes with impingement, full-thickness
cartilage defect, cystic changes on one side of the joint, focal areas of avascular necrosis, or
ununited osteochondral fracture. Dr. Krohn added that, alternately, subtalar joint impairment
could be assigned for a cartilage interval of less than two millimeters or, with respect to the
tibiotalar joint, for a cartilage interval of less than three millimeters. He indicated that, given that
the radiologist’s interpretation of the left ankle x-rays demonstrated normal appearing ankle joints

5

Id.; see V.J., Docket No. 1789 (issued April 8, 2020); Jacqueline S. Harris, 54 ECAB 139 (2002).

6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and
Exhibit 1 (January 2010).
7

See A.M.A., Guides 501-08 (6 th ed. 2009).

8

Id. at 515-22.

4

symmetrically, “impairment for arthritis of the subtalar and tibiotalar joints each is Class 0,
correlating with 0 [percent] impairment of the left lower extremity” under Table 16-2.
Dr. Nadler, OWCP’s referral physician, and Dr. Krohn, the DMA properly applied the
A.M.A., Guides in finding that appellant had no permanent impairment of a scheduled member or
function of the body.9 As their reports were detailed, well rationalized, and based on a proper
factual background and application of the sixth edition of the A.M.A., Guides, their opinions
represent the weight of the medical evidence. 10
As there is no other current medical evidence in conformance with the sixth edition of the
A.M.A., Guides establishing permanent impairment of a scheduled member or function of the
body, the Board finds that appellant has met not his burden of proof.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

9

See B.B., Docket No. 20-1187 (issued November 18, 2021); M.D., Docket No. 20-0007 (issued May 13, 2020);
M.S., Docket No. 19-1011 (issued October 29, 2019); W.H., Docket No. 19-0102 (issued June 21, 2019); J.M., Docket
No. 18-1387 (issued February 1, 2019).
10

See B.B., id., D.S., Docket No. 18-1816 (issued June 20, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the March 16 and August 30, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 11, 2022
Washington, DC

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

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

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

6